February 2011 Archives

URGENT -- Take Action on medical malpractice proposals before NYS Legislature

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Office of the President

I am writing to urge that you take immediate action.  Contact your State legislators and other State policymakers on fast-moving -- and very disturbing -- legislation in Albany.

This is my brief report to you on activity in Albany and on proposals to change the civil justice system under the inappropriate heading of "Medicaid Redesign."

In January, the Governor created the Medicaid Redesign Team ("MRT") to make proposals that would reduce the cost of the State's Medicaid program.  The MRT members represent the most prominent and influential interest groups in the healthcare industry, including hospitals, nursing homes, and healthcare workers.  Significantly, the MRT included no representatives of the legal profession or anyone else whose primary concern is representing victims of doctors' malpractice.

In mid-February, the MRT released information regarding a large number of proposals being considered to cut billions of dollars from the State's budget.  The MRT's goal was to review the list and submit a final, shorter list of proposals to the Governor in March.  One of those proposals - Proposal Number 131 (also referred to as the "Medical Malpractice Proposal") - would cap awards for non-economic damages to victims of medical malpractice and create a Neurologically Impaired Infant Fund.  (A copy of the proposal may be viewed by clicking on the link above.)

When I learned of this proposal, I immediately met with the State's Deputy Secretary for Health.  I expressed concern over the substance of the Medical Malpractice Proposal.  The civil justice system is fundamentally different from the state's Medicaid system.  Accordingly, I strongly objected to the fact that "medical malpractice" was a topic of discussion within the MRT's process, because the MRT included norepresentatives of the legal profession or the court system, and few if any advocates representing consumer rights and patient safety.

Further, I convened an emergency session of the State Bar's Executive Committee, which voted unanimously to oppose the proposal.  With the assistance of our Committee on the Tort System, the Executive Committee submitted to the MRT a Memorandum in Opposition to the Med Mal Proposal.

We continued to argue against the proposal.  However, rather than engage in serious debate, the MRT accelerated its process by submitting its recommendations to the Governor on February 23, several days in advance of its March 1 deadline.  Alarmingly, Proposal Number 131 was submitted by the MRT to the Governor, who announced that he will include it in budget legislation to be considered by the State Legislature.

Proposals to modify New York's civil justice system should not be hijacked by hospitals and other healthcare interests promoting an agenda driven by their own self-dealing, rather than the public interest.  I believe that such a process, which excludes legitimate "stakeholders" from the negotiating table, results in bad public policy and represents damaging, special-interest activity that lowers citizens' respect for and trust in the government.  Proposals to radically re-shape our justice system should not be pushed through in the healthcare budget but independently debated by way of freestanding legislation.

Please ACT NOW to oppose the Medical Malpractice Proposal, which will be part of legislation to enact the State's budget by April 1.

Go to the State Bar's Legislative Action Center and send a message on this important topic to your State legislators, the Governor, and other State policymakers.

Best regards,

Stephen P. Younger
President, New York State Bar Association
Patterson Belknap Webb & Tyler LLP

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NYSBA Elder Law Section: The Proposals of the Medicaid Redesign Team

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This is being provided to the General Practice list serve as a courtesy.

The Elder Law Section is committed to informing our members, on a timely basis, about issues that affect our practice.   Below is a brief description, prepared by David Goldfarb, of the some of the changes proposed by the Medicaid  Redesign Team.

The Proposals of the Medicaid Redesign Team

Governor Andrew M. Cuomo's submitted a proposed appropriation bill  on February 1, 2011.  It included language that for the next fiscal year (April 1, 2011 through March 31, 2012) the Commissioner of Health could implement the recommendations of the newly created Medicaid Redesign Team (MRT), including modifying or discontinuing Medicaid program benefits.  The proposed savings from the overall proposal was set at $2,850,000,000.

On February 24th, 2011, the MRT passed a number of recommendations, all of which the Governor has endorsed.  The ones that primarily impact on our clients' eligibility for Medicaid and the provision of Medicaid services are outlined below.

The recommendations of the MRT raise many questions.  Some of the recommendations are still vague and ambiguous or misconstrue the present law.  The MRT did not consider all of the implications of some of the proposed changes, which could drastically limit or nullify some of the proposed cost savings.  Changing eligibility may also violate federal Maintenance of Effort (MOE) requirements in both the federal Stimulus Act and the Health Care Reform Bill.  Some of the changes would require federal waivers.

This is still early in the process.  The Governor has 30 days (until March 2nd) to amend his budget, the appropriation bills, or his proposed legislation as of right. After that he may submit amendments only with the approval of the legislature.  And of course, legislative approval of the budget is required in order for it to be effective.

The Elder Law Section believes it is important for you to know what is in the pipeline even though it is early in the process and much could still happen.  We are committed to keeping our members posted as best we can  to changes as they take place.

The official list of MRT adopted proposals can be downloaded as a pdf here.

Some of the highlights that affect our clients and us are as follows:

The Proposed Elimination of Spousal/Parental Refusal:

This proposal would eliminate spousal and parental refusal for community based Medicaid.  It would require that the income and resources of legally responsible relatives residing in the same household as the Medicaid applicant be counted in determining the applicant's eligibility for Medicaid.  Under current New York law, a legally responsible relative living with a Medicaid applicant may refuse to make his/her income and resources available to the applicant. Under such circumstances, Medicaid eligibility for the applicant is determined based on only the applicant's income and resources. Local departments of social services may pursue a recovery of Medicaid paid from the non-contributing spouse/parent. This proposal would count the income and resources of a legally responsible relative who is living with an applicant for purposes of determining the applicant's eligibility for Medicaid.

The Proposed Implementation of a 60 month Look Back for Non-Institutional Long Term Care

The Proposed Expansion of Estate Recovery and Expansion of the Definition of Estate

The Section's Budget Task Force and lobbyists are busy working to try to change the proposals or minimize their impact and will continue to monitor the situation and keep the members of the Elder Law Section informed.

Sharon Kovacs Gruer, chair of the Elder Law Section

Sharon Kovacs Gruer, Esq., CELA, LL.M. Sharon Kovacs Gruer, P.C. 1010 Northern Boulevard Suite 302 Great Neck, New York  11021 (516)487-5400 Web:  nytrustlaw.com Email:  skglaw@optonline.net

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It's nice to have documents, images, and other items from one's home computer easily accessible, and icloud makes this possible, as it is essentially a virtual desktop with 3GB of available storage. After visitors sign up for a free account, they can store their documents and also collaborate with others via icloud. Visitors are also welcome to sign up for more storage, but there is a fee associated with this memory availability. This version of icloud is compatible with all operating systems. 

From The Scout Report, Copyright Internet Scout Project 1994-2011. http://scout.wisc.edu/

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NYLJ: Panel Finds Canadian Gay Marriage Valid in Probate Case

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Surrogate's Court, New York County
Criminal Practice 
Same-Sex Spouse May Inherit Deceased Partner's Estate 
H. Kenneth Ranftle v. Craig Leiby, Respondent, 4214 

The Appellate Division, First Department, held yesterday in Matter of the Estate of H. Kenneth Ranftle, 4214, that recognizing the marriage in Canada of H. Kenneth Ranftle and J. Craig Leiby, who was designated as Mr. Ranftle's "surviving spouse and sole distributee," did not violate public policy. "[T]he Legislature's failure to authorize same-sex couples to enter into marriage in New York or require recognition of validly performed out-of-state same-sex marriages, cannot serve as an expression of public policy for the State," the unanimous panel wrote in an unsigned ruling.

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Pocket Guide for Federal Judges Discusses Sealed Cases

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A recently published pocket guide for federal judges focuses on the occasional need to seal court records and proceedings.

Published by the
Federal Judicial Center, the 22-page pocket guide draws on the voluminous case law to discuss the process courts use to keep some of the proceedings and records confidential.

The guide states: "Essential to the rule of law is the public performance of the judicial function. On occasion, however, there are good reasons for courts to keep parts of some proceedings confidential . . . Usually that means that any transcript made of the proceeding will be regarded as a sealed record."

The guide (pdf) offers a procedural checklist of considerations when a record is sealed or when a proceeding is closed to the public.

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Developer Preview of Mac OS X Lion

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Apple today (2-24-2011) released a developer preview of Mac OS X Lion, which takes some of the best ideas from iPad and brings them back to the Mac for the eighth major release of the world's most advanced operating system. 

Lion features Mission Control, an innovative new view of everything running on your Mac; Launchpad, a new home for all your Mac apps; full-screen apps that use the entire Mac display; and new Multi-Touch gestures. Lion also includes the Mac App Store, the best place to discover, install, and automatically update Mac apps. The Lion preview is available to Mac Developer Program members through the Mac App Store today, and the final version of Lion will ship to customers this summer.
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U.S. Court of Appeals, Second Circuit
Creditors and Debtors Rights 

Hess v. Cohen & Slamowitz, 10-424

"...This case calls upon us to decide a question of first impression in this Circuit: whether a debt collector violates the
FDCPA's venue provisions by suing a consumer in a city court in the State of New York when that court lacks power to hear the action because the consumer does not reside in that city or a town contiguous thereto. We hold that such a suit is not brought in the "judicial district or similar legal entity" in which the consumer resides, even when the consumer resides elsewhere within the county containing the city court, and therefore determine that Hess's complaint states a claim upon which relief can be granted. Accordingly, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion..."

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Nassau County, Trial/IAS, Part 1 Employment  

"...defendant's communications concerning the data loss are constitutionally protected, and plaintiff has not shown the extraordinary circumstances required for a preliminary injunction. Plaintiff's motion for leave to renew its motion for a preliminary injunction, restraining defendant from communicating with plaintiff's customers or law enforcement agencies concerning the data loss, is denied..."

This action may come under the heading of "...making matters worse by litigating in the internet age...".  

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Albany Law plans to cut its class size, budget

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NYTIMES: The iPhone for Advanced Beginners

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I can personally attest, as a new Verizon iPhone user, that the tip on "double-tapping" to reach recently used apps--to turn them off--can save your battery.
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Image representing Evernote as depicted in Cru...

Image via CrunchBase

Evernote helps millions of people worldwide remember everything that happens in their lives. Evernote can be used to organize scans of all your notes, documents, business cards and receipts. In addition to scans, you can use Evernote to save interesting web pages, create to-dos and shopping lists, attach images and PDFs, and so much more. Watch as it all instantly synchronizes from your PC or Mac to your smartphone, tablet and the Web, allowing you to find your important information at anytime from anywhere. .  

Sign-up today!
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Office of the President

I am writing to ask that you take IMMEDIATE ACTION today to help us advocate for one of the Association's 2011 federal legislative priorities - funding for civil legal services through the Legal Services Corporation (LSC).

The LSC was created to ensure that indigent Americans have access to a lawyer and the justice system for civil legal issues regardless of their ability to pay.  The LSC provides funding to independent local legal services programs through a competitive grant process.  This week the House of Representatives is considering a bill -HR 1- that would reduce LSC's current fiscal year funding by a devastating $70 million.  Such a cut would threaten New York's legal service providers, which are already stretched so thin that they have to turn away many of those seeking their services.

I am in Washington, D.C. today, February 16, to carry this important message to members of New York's congressional delegation.  Please help me reinforce this message by contacting your member of Congress through our Legislative Action Center below.

Please go to the Association's Legislative Action Center to OPPOSE devastating cuts to the funding for the Legal Services Corporation:  www.nysba.org/LegislativeActionCenter

Best regards,

Stephen P. Younger
President, New York State Bar Association
Patterson Belknap Webb & Tyler LLP

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Public Playground Safety Handbook

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a playground (a slide)

Image via Wikipedia

This handbook presents safety information for public play- ground equipment in the form of guidelines. Publication of this handbook is expected to promote greater safety aware- ness among those who purchase, install, and maintain public playground equipment. Because many factors may affect playground safety, the U.S. Consumer Product Safety Commission (CPSC) staff believes that guidelines, rather than a mandatory rule, are appropriate. These guidelines are not being issued as the sole method to minimize injuries associated with playground equipment. However, the Commission believes that the recommendations in this handbook along with the technical information in the ASTM standards for public playgrounds will contribute to greater playground safety.

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New York State Public Health Legal Manual

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Despite the rather sensationalized news reports about a "Doomsday manual", this new  resource/reference will be of use to local health officials as well as municipal attorneys throughout the state.  Click here for pdf version.

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The Budget | The White House

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Budget of the United States Government, Fiscal Year 2012 contains the Budget Message of the President, information on the President's priorities, budget overviews organized by agency, and summary tables.

To download "Budget of the United States Government, Fiscal Year 2012" as a single PDF click here (216 pages, 4.1 MB)

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NYLJ: Rule Would Address Campaign Donations and Case Assignments

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Rule Would Address Campaign Donations and Case Assignments 
Joel Stashenko New York Law Journal
February 14, 2011 

ALBANY - Attorneys who have contributed $2,500 or more and firms that have donated $3,500 or more to judicial candidates would be barred for two years from appearing before those judges under a new rule Chief Judge Jonathan Lippman will outline this week. The chief judge said in an interview that he would unveil the new requirement during his 2011 State of the Judiciary address at the Court of Appeals in Albany on Tuesday. Judge Lippman, who said he had the authority to impose the rule on his own, noted that court administrators have been considering the new rules since the U.S. Supreme Court's decision in Caperton v. A.T. Massey Coal Co., 129 U.S. 2252 (2009). In that ruling, a 5-4 Court held that a West Virginia Supreme Court judge should have recused himself because he had received large campaign contributions from executives of a coal company in a case before him.

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Gizmod0: HP's WebOS Bounty: Touchpad Tablet, Pre 3 and Veer Smartphones

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HP's WebOS Bounty: Touchpad Tablet, Pre 3 and Veer Smartphones Kyle VanHemert -- HP's webOS devices are finally here: The Touchpad tablet--an sleek affair with iPad-competitive specs--as well as the bigger, badder Pre 3, and a teeny, Pixi-esque slider called the Veer.

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FINDLAW:  Courtside:

Dept. of Transportation Report on the Toyota Unintended Acceleration Investigation 
By Kevin Fayle on February 9, 2011 12:45 PM | 

The National Highway Traffic Safety Administration has released its report on its investigation into the reports of unintended acceleration in Toyota vehicles. The investigation found no evidence of any electronic defect that would have caused the unintentional acceleration. Instead, the investigators determined that the issue was caused by mechanical problems already addressed by previous product recalls.

Dept. of Transportation Report on the Toyota Unintended Acceleration Investigation
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The U.S. Government Printing Office is now on Facebook!

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Government Documents Collection Room

Image by bulibraries via Flickr

It's a great way to keep up with the latest news and information about GPO's many programs and services.

Now celebrating its 150th anniversary as a Federal agency, GPO provides publishing and dissemination services for official and authentic Government publications to Congress, Federal agencies, Federal depository libraries, and the American public.

To find GPO on Facebook, go to:


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Special Report at LegalTech NY!

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Take this case in New York, in which Citigroup's mortgage unit, Citimortgage, filed this proof of claim. Both the promissory note and the mortgage produced were agreements between the borrower, Replique D'Amelio, and the lender, Home Loan Center. Citimortgage also included an assignment of mortgage, dated June 24, 2010, to prove that ownership of the mortgage had been transferred to Citimortgage. The homeowner's attorney objected, however, questioning the validity of the mortgage assignment and noting that bankruptcy proceedings had started June 2, 2010--before the supposed transfer of ownership was executed. "The assignment of mortgage is an attempt to perfect a lien after the commencement of the case and therefore is voidable by this Court," attorney Linda Tirelli argued in a motion objecting to Citimortgage's proof of claim. Rather than produce an original assignment to prove its claim, the company chose to settle.

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NYLJ: City Told to Pay School Directly for Disabled Child's Tuition Under IDEA

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U.S. District Court, Southern District

City Told to Pay School Directly for Disabled Child's Tuition

This case presents the following question of first impression:

1. When a child with disabilities has been denied a free and appropriate public education; and

2. the child's parents have enrolled the child in an appropriate private school; and

3. the equities favor an award of the costs of private school tuition; but

4. the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so;

does this Court's authority under Section 1415(i)(2)(C)(iii) of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. 1415 (i)(2)(C)(iii), "to grant such relief as the court determines is appropriate," include the power to order a school district to make a retroactive tuition payment directly to the private school? The New York City Department of Education and its Chancellor, defendants herein, contend that IDEA grants courts no such authority, arguing that the private school tuition remedy is available only to parents with the financial means to pay--in the first instance--private school tuition out-of-pocket. This Court concludes that imposing such a limitation on this remedy is inconsistent with the statutory language and with Supreme Court jurisprudence interpreting IDEA, and would be entirely antithetical to Congress's clearly expressed legislative intent and purpose in enacting IDEA.

Phone Forums - Employee Plans

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IRS Tax Form 5330 - 2010 - Return of Excise Taxes Related to Employee Benefit Plans. Rev 0409 -
Certain employers are required to file form 5330 with the Internal Revenue Service when they contribute to employee benefit plans. Form 5330 determines if employers owe taxes based on providing excess fringe benefits, nondeductible contributions to qualified plans or when there is a failure to pay a liquidity shortfall.

Free phone forums featuring IRS employees discussing retirement plan topics. 

Betty A. McClernan, Area Manager EP Examinations Programs and Review, will be joined by David Boyd, Manager EP Mandatory Review, Carla Smith, Manager EP Compliance Unit, and Sherry Whitaker, Manager Submission Processing Programs, to discuss the proper completion and processing of the Form 5330, along with ways to avoid common mistakes which will make the processing by the IRS go more smoothly. 

If you have a specific issue that you would like the speakers to address, please let them know via e-mail at ep.phoneforum@irs.gov on or before March 18, 2011. 

 Register at: https://www.attevent.com/rsvpreg.asp?PPass=451134  You will be assigned a Personal Identification Number (PIN) that must be used to join the conference. If you have never registered with AT&T phone forum, you will need to click on "create a profile" first. Dial in on: March 24, 2011 Toll Free: (866) 216-6835 Dial in 15 to 20 minutes before the scheduled time. Enter your access code, then the pound (#) sign. Enter your PIN, then the pound (#) sign. Your line will be placed on hold until the conference begins.

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United States Code on FDsys

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The United States Code is the codification by subject matter of the general and permanent laws of the United States. FDsys contains virtual main editions of the U.S. Code from 1994 to current. Browse the U.S. Code by year and subject matter Title, perform a search and refine and narrow results for quick access to the information you need, conduct an advanced search, or search by U.S. Code citation to locate the information you need.

Search and browse not only the U.S Code, but other collections available as part of the full suite of Government publications available on FDsys.

FDsys provides free online access to official Federal Government publications. Through FDsys, you are able to:

• Search for documents and publications 
FDsys provides advanced search capabilities and the ability to refine and narrow your search for quick access to the information you need. 
• Browse for documents and publications 
FDsys offers browsing by collection, Congressional committee, and date. 
• Access metadata about documents and publications 
FDsys presents information about Government publications in standard XML formats. 
• Download documents and publications in multiple renditions or file formats 
With FDsys, download a single file or download content and metadata packaged together in a compressed file.

To learn more about FDsys, visit: http://www.gpo.gov/fdsysinfo/aboutfdsys.htm.

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Verizon iPhone Pre-orders Sold Out

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It only took 17 hours; but Verizon iPhone Pre-orders, from existing Verizon customers, are sold out.  If you've waited 3 plus years for iPhone to come to Verizon, a few more days shouldn't matter--February10 will see orders starting up again.  Hopefully, my two will arrive via free FedEx before then.

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A special education teacher assists one of her...

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NAALJ is in the process of establishing the Section under the direction of its chair, Jim Rosenfeld, of Seattle University School of Law, and the newly-appointed NAALJ liaison, Judge Jim Murray of the Maryland Office of Administrative Hearings. The only requirements for membership in the Section are membership in NAALJ ($50.00 per year) and being a special education impartial hearing officer (IHO) under the Individuals with Disabilities Education Act (IDEA). (All IHOs are, of course, eligible to join NAALJ.) The broader objective of the Section is to provide a forum for the sharing of ideas and experiences and for contributing members' unique viewpoint to the improvement of special education dispute resolution process. To join the Section and to discuss how you can participate in this effort, contact the Section Chair, Jim Rosenfeld at rosenfeld@seattleu.edu or Jim Murray, the NAALJ Special Education Section Liaison at j.murray@OAH.state.md.us.

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Social Security International Operations

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Seal of the United States Social Security Admi...

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If you or a client are thinking of retiring overseas, then you need to check out the:

Social Security International Operations 

The purpose of this site is to assist Social Security customers who are outside the U.S. or planning to leave the U.S. OIO is responsible for administering the Social Security program outside the U.S. and for the implementation of the benefit provisions of international agreements.  Since SSA has no offices outside the U.S., OIO is assisted by the Department of State's embassies and consulates throughout the world.  In the Philippines, the Department of Veterans Affairs Regional Office (VARO) in Manila assists.

You can find the  on-line services and forms for foreign applicants and beneficiaries you will need to receive your benefits on that sandy beach you're dreaming of.

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Reprinted with permission:

2010 was a strange and unsettled year for persons wishing to plan their estates and/or make current transfers of their assets. Many, but by no means all, of the uncertainties were resolved on December 17, 2010, when President Obama signed the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (the "2010 Act"). The 2010 Act particularly resolved concerns that the gift, estate and Generation Skipping Transfer ("GST") tax rules would be applied on a retroactive and unfavorable basis to decedents dying in 2010 (during which these taxes had been repealed).

The most important gift, estate and GST tax provisions of the 2010 Act will be effective for only two years, and the resolution of many issues is more apparent than real. Such is the price for another compromise by a legislature that, for institutional reasons, has been unable to enact rational transfer tax legislation for at least a decade.

To add to the complications facing planners and clients, there remain a number of estate tax planning problems for New York residents (and residents of other states which continue to have estate taxes), which were not addressed by the 2010 Act.

Download full text of memo on Estate Planning under the New Tax Act, thanks to:

Vincent L. Teahan

Teahan & Constantino
Counsellors at Law
41 Front St., Suite A 
P.O. Box 1181
Millbrook NY 12545
tel 845 677 2101
fax 845 677 1054

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Port your existing number to Google Voice

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Google Voice helps you manage your communications by giving you more control over your phones and voicemail, but until this week, you had to get a new Google phone number in order use all of Google Voice's features. With Number Porting, existing Google Voice users can now use their mobile numbers as their Google Voice numbers. This means you can now use all of Google Voice's features, like ringing multiple phones at once, without having to change your number. 

To get started with Number Porting, log in to your Google Voice account, visit the settings page and click on "Change / Port" next to your Google Voice number. Be sure to read Google's blog post for more info about Number Porting.

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Supreme Court, Kings
Family Law 

The Court, inter alia, determines that the new mandatory pendente lite maintenance guidelines and pendente lite counsel fee statutes enacted by the legislature should be deviated from where the calculations will result in the payee spouse having more monies available than the payor spouse as a result of the calculation. The Court also determines that the shift in financial resources that results from the guideline calculation rebuts the presumption of the payor spouse being the "monied" spouse.

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This page is an archive of entries from February 2011 listed from newest to oldest.

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