August 2007 Archives


Law.com - Federal Judge Orders Wal-Mart to Offer Health Insurance to Workers' Stepchildren

The stepchildren of working parents in New York state are dependent children for the purposes of qualifying for coverage under federally regulated group health insurance plans, a federal judge has ruled.

...

William Lamica, now 13, is the son of William L. Vradenburg, husband of Wal-Mart employee Aime Vradenburg. The boy does not live with the Vradenburgs and Aime Vradenburg has not adopted him. Nor does she claim him as a dependent on federal taxes. William L. Vradenburg receives health insurance coverage through his wife's Wal-Mart policy.

In O'Neil v. Wal-Mart, 8:05-cv-1572, Northern District of New York Judge Lawrence E. Kahn said the Wal-Mart plan provisions run counter to New York Insurance Law §2608-a, which expressly prohibits the denial of coverage to a parent's child based on the fact the child was born out of wedlock, is not claimed as a dependent on federal tax returns or does not reside with the parent.

...

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Revised New York State Procedural Safeguards Notice: Rights for

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The Revised New York State Procedural Safeguards Notice: Rights for
Parents of Children with Disabilities, Ages 3-21 (pdf)
is now available and
must be used effective September 1, 2007. Also available in Word Format.

This procedural safeguards notice is similar to the notice that the U.S. Department of Education provided as a model notice, but has been modified for clarity and includes additional information specific to New York State. This notice includes the revisions required by the reauthorization of the Individuals with Disabilities Education Act (IDEA) in implementing federal regulations (Part 300 of Title 34 of the Code of Federal Regulations). All school districts and other agencies responsible for the education of students with disabilities must begin to use this notice effective September 1, 2007.

The procedural safeguards notice must be provided to parents of a student with a disability, at a minimum one time per year and also upon:

-initial referral or parental request for evaluation;
-request by a parent;
-the first filing of a due process complaint notice to request mediation or an impartial due process hearing;
-a decision to impose a suspension or removal that constitutes a disciplinary change in placement; and
-receipt of a parent’s first State complaint in a school year.

For Further Information

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Chapter 185 of Laws of 2007

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LAWS OF NEW YORK, 2007

CHAPTER 185

AN ACT to amend the civil practice law and rules, in relation to the timing and service of motions and cross-motions

Became a law July 3, 2007, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:


Section 1. Subdivision (b) of rule 2214 of the civil practice law and
rules, as amended by chapter 177 of the laws of 1984, is amended to read
as follows:
(b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits
and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least [twelve] sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day
before such time.
§ 2. Rule 2215 of the civil practice law and rules, as amended by chapter 132 of the laws of 1980, is amended to read as follows:
Rule 2215. Relief demanded by other than moving party. At least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivision (b) of rule 2214, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers; provided, however, that:
(a) if such notice and any supporting papers are served by mailing, as provided in paragraph two of subdivision (b) of rule 2103, they shall be served three days earlier than as prescribed in this rule; and
(b) if served by overnight delivery, as provided in paragraph six of subdivision (b) of rule 2103, they shall be served one day earlier than as prescribed in this rule.
Relief in the alternative or of several different types may be demanded; relief need not be responsive to that demanded by the moving party.
§ 3. This act shall take effect immediately; provided, however, that this act shall apply to a notice of motion served on or after the date on which this act shall have become a law.

The Legislature of the STATE OF NEW YORK ss:
Pursuant to the authority vested in us by section 70-b of the Public Officers Law, we hereby jointly certify that this slip copy of this session law was printed under our direction and, in accordance with such section, is entitled to be read into evidence.

JOSEPH L. BRUNO SHELDON SILVER
Temporary President of the Senate Speaker of the Assembly

EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law to be omitted.


Contributed By Research Associates

If you would like a chart of the motion service rules, email
jmf@researchassociates.net with the subject line "chart"


Law.com - N.Y. Appellate Panel Finds Dead Man's Law Applies in Disciplinary Matter

In a 4-1 decision, the appellate panel ruled that the Dead Man's Statute did apply to a disciplinary proceeding, noting that the very language of the statute said it applied to "the hearing upon the merits of a special proceeding."

The majority of Justices David B. Saxe, Luis A. Gonzalez and James M. Catterson said the situation In the Matter of Zalk, M-6672, clearly fit the elements of the statute and thus prevented Zalk from arguing that Gellman made an oral pledge to him. The court said it was therefore compelled to find that Zalk improperly converted client escrow funds.

***

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Offender Locater

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FOLLOWUP: Law.com - Lawyers Learn From HomeBanc's Demise

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Law.com - Lawyers Learn From HomeBanc's Demise

Closing attorneys vow to accept only wire transfers after dealing with lender's bounced checks
Andy Peters
Fulton County Daily Report (full text)
August 23, 2007

Even though a bankruptcy judge in Delaware this week saved them from financial ruin, real estate closing attorneys said they learned a powerful lesson from the collapse of HomeBanc Corp. -- never accept anything but a wire transfer at closing.

At least a dozen Atlanta-area law firms received bounced checks from HomeBanc last month, before the company filed for Chapter 11 bankruptcy protection Aug. 9. By HomeBanc's count, it bounced 134 checks worth at least $18 million, but the Georgia Real Estate Closing Attorneys Association estimates the figure was $28 million.

Assuming HomeBanc's checks were backed by sufficient funds, lawyers had disbursed the money at closings -- not only to the home's seller and the previous mortgage holder, but also to agents for their commissions and to surveyors, court clerks and others whose payments occur at closing.

When the checks bounced, lawyers had to scramble to find ways to cover their positions. Some took out home equity loans, others filed claims on their Errors & Omissions insurance policies.

On Tuesday, the bankruptcy judge handling HomeBanc transferred ownership of the loans to the closing attorneys. This move lets the lawyers recover their money by selling the loans to banks or other mortgage lenders.

The bounced checks occurred as a result of HomeBanc getting squeezed by broad turmoil in the U.S. housing market and the global credit market. As the market tanked, HomeBanc's primary source of funds, JPMorgan Chase, on Aug. 6 cut off money for the mortgages HomeBanc sold, according to HomeBanc's court filings.

Regardless of the problems in the market, attorneys said the rubber check problem could have been prevented simply by requiring HomeBanc to fund its loans with wire transfers.

As a result, "some law firms are requiring 100 percent wired funds from everybody -- lenders, buyers, even other attorneys," said closing attorney Jennifer L. Dickenson of Dickenson Gilroy. "There is a really high sensitivity right now to how we get the money into our accounts."

Why HomeBanc was allowed to fund mortgages with company checks, when the large majority of other mortgage lenders paid only by wire transfer, speaks to the clout HomeBanc carried in metro Atlanta -- if not its level of intimidation.

"They were big enough they could frankly bully everybody," said Jeffrey P. Ganek, managing partner of Ganek, Wright & Dobkin's Midtown office. "You had to follow their rules."

HomeBanc, or any mortgage lender, benefits by funding loans with checks as opposed to wire transfers, Ganek said. While wire transfers represent an immediate shift in money, checks take days to clear a bank, allowing HomeBanc to earn more interest on the money as it sat in escrow, Ganek said.

"Even if it's only a day or two extra it's sitting in an interest-bearing account, if you're doing enough loans, it's a lot of money," he said.

***

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NY Law puts burden of proof on schools in special education disputes

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The Daily Star - Online Edition

ALBANY, N.Y. (AP) -- A new law will make it easier for parents of disabled children to challenge school districts' decisions regarding their child's education, Gov. Eliot Spitzer's office announced Thursday.

The law signed this week makes the school district responsible for proving it is satisfying legal obligations to provide an appropriate individualized education program for a student with a disability, according to Spitzer's office.

For more than 30 years in New York, school districts that were challenged had to prove in an administrative hearing that a student's program was appropriate, said Spitzer spokesman Jeffrey Gordon. However, a 2005 U.S. Supreme Court ruling put the burden on the party requesting an administrative ruling, usually parents, for all states that didn't have a specific law or regulation on the issue -including New York.

"This bill rightly places the burden of proof on school districts that have the expertise needed to assess options and the responsibilities for implementing individual educational plans," said Spitzer...The law, which goes into effect in two months, will also strike a balance between a parent's desire for private placements and a school district's obligation to pay for out-of-district services, said Gordon. In the case of a parent seeking a private program for their child, they would have to prove it was more appropriate than the school district's individualized program.

****
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Law.com - Closing Attorneys See Red Over HomeBanc Mortgage's Bad Checks

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Law.com - Closing Attorneys See Red Over HomeBanc Mortgage's Bad Checks


Real estate attorneys caught between covering bounced checks or risking bar violations after company files for bankruptcy

Andy Peters
Fulton County Daily Report
August 16, 2007


John K. Haley, a real estate closing attorney in Buford, Ga., left work July 31 thinking the HomeBanc mortgages he'd closed earlier that day had cleared.

That turned out not to be true. Haley was one of dozens of Atlanta-area real estate closing attorneys who received bounced checks last month from HomeBanc Mortgage Corp. Lawyers estimate HomeBanc may have issued $20 million or more in bounced checks July 30 and July 31. HomeBanc filed for Chapter 11 bankruptcy protection Aug. 9.

Because HomeBanc's primary lender, JPMorgan Chase, stopped financing the company around the end of July, HomeBanc could no longer provide funds on the mortgages it had sold. That caused a big problem for some lawyers: HomeBanc had already issued checks to these lawyers, who then disbursed the money to sellers, real estate agents, surveyors and others.

That left numerous lawyers high and dry.

"These lawyers are really scrambling right now," said C. Scott Logan, president of the Georgia Real Estate Closing Attorneys Association.

While the state's "good funds" law requires lawyers to wait until checks have cleared the bank before closing a mortgage, in practice most real estate closing attorneys close mortgages when they have the check in hand, without waiting for the money to clear, Logan said.

In addition to being stuck with thousands, if not millions of dollars in bounced checks, these lawyers also worry they may have violated State Bar of Georgia rules. That's because they could have disbursed money from an escrow account when the money really wasn't there, creating a negative balance. It's a violation of Bar rules for a lawyer to have a negative balance in an escrow account.

***

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TokBox

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NYTIMES Video: David Pogue Tests Pen Scanners

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Legal Technology - Authenticating E-Mail Discovery as Evidence

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Legal Technology - Authenticating E-Mail Discovery as Evidence

Authenticating E-Mail Discovery as Evidence
By Beatrice O'Donnell And Thomas A. Lincoln
The Legal Intelligencer
August 13, 2007

With the recent passage of the amendments to the Federal Rules of Civil Procedure, the legal press has been filled with articles containing e-discovery advice. At some point, "e-discovery" will need to be converted into "e-evidence" for the purposes of summary judgment or trial. When you're faced with having spent your clients' time and money to both produce e-discovery and mine your opponents' e-discovery to find the "smoking gun," it's critical to ensure you can get those e-mails into evidence -- or keep them out.

...


Read the entire article here.

Official Court System Forms-NY

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New York Court Help -

CourtHelp provides official court system forms to help you get started. For a copy of the form you need, click on the name of the form in the list on the page.

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Texty

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Texty: scms

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Chapter 458 Laws of New York 2007--"YOU ARE IN DANGER OF LOSING YOUR HOME"

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CHAPTER TEXT:

LAWS OF NEW YORK, 2007

CHAPTER 458

AN ACT to amend the real property actions and proceedings law and the
civil practice law and rules, in relation to providing additional
notice to mortgagors that a foreclosure action has been commenced

Became a law August 1, 2007, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:

Section 1. The real property actions and proceedings law is amended by
adding a new section 1320 to read as follows:
§ 1320. Special summons requirement in private residence cases. In an
action to foreclose a mortgage on a residential property containing not
more than three units, in addition to the usual requirements applicable
to a summons in the court, the summons shall contain a notice in bold-
face in the following form:
NOTICE
YOU ARE IN DANGER OF LOSING YOUR HOME
If you do not respond to this summons and complaint by serving a copy
of the answer on the attorney for the mortgage company who filed this
foreclosure proceeding against you and filing the answer with the court,
a default judgment may be entered and you can lose your home.
Speak to an attorney or go to the court where your case is pending for
further information on how to answer the summons and protect your prop-
erty.
Sending a payment to your mortgage company will not stop this foreclo-
sure action.
YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT.
§ 2. Subparagraph (iii) of paragraph 3 of subdivision (g) of section
3215 of the civil practice law and rules, as added by chapter 77 of the
laws of 1986, is amended to read as follows:
(iii) This requirement shall not apply to cases in the small claims
part of any court, or to any summary proceeding to recover possession of
real property, or to actions affecting title to real property, except
residential mortgage foreclosure actions.
§ 3. This act shall take effect immediately.


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Law.com - Lack of Retainer Leads Court to Order Firm to Return Fees Beyond Contingency-Anthony Lin--NY Law Journal--8/08/07

"A client retaining an attorney on a contingent basis, in the absence of clear and express language to the contrary, contemplates that the percentage fixed is to constitute payment for whatever services may be necessary to obtain collection of any judgment which may be recovered, whether the services be in connection with an appeal taken from the judgment or in connection with efforts to collect the judgment, or both," the judge wrote in Siagha v. Katz & Associates, 603927/05.

She noted that there had only been one retainer agreement filed with the Office of Court Administration in the case, a standard form filed by Schwartz Gutstein. The judge also noted that none of the lawyers who actually represented Siagha had ever taken the step of obtaining a retainer agreement specific to the case. They also never wrote him a letter or e-mail describing or discussing their legal fees.

...

CaseHawk

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About this Archive

This page is an archive of entries from August 2007 listed from newest to oldest.

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September 2007 is the next archive.

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