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Statutes, Rules, & Regs Archives

January 13, 2007

January 4, 2007 Amendments to Code of Professional Responsibility (22 NYCRR part 1200)

Here are the 1-04-07, redlined amendments to the CPR--after comments-- including, inter alia, rules on labeling web sites and web blogs and email as "Attorney Advertising".

January 24, 2007

Home Equity Theft Prevention Act (Eff. 2-01-07)


First American Title Insurance Company of New York (with "thanks" to Mike Berry)
CURRENT DEVELOPMENTS
SPECIAL EDITION

The "Home Equity Theft Prevention Act" (the "Act"), Chapter 308 of the Laws of 2006, signed into law on July 26, 2006 by then Governor Pataki, is effective on February 1, 2007. The Act amends Section 595 of the Banking Law ("Regulation of mortgage brokers, mortgage bankers and exempt organizations"), adds new Section 265-A ("Home Equity Theft Prevention") to the Real Property Law ("RPL"), and adds new Section 1303 ("Foreclosures; required notices") to the Real Property Actions and Proceedings Law ("RPAPL").

Read extended entry for analysis:

Continue reading "Home Equity Theft Prevention Act (Eff. 2-01-07)" »

January 26, 2007

Amendments to Rules Governing Lawyer Advertising

Rules

Click on "Rules" above for full text of amended rules, effective February 1, 2007.

January 27, 2007

Attorney Advertising (Code Snippet)

Attorney Advertising.

Try rolling your mouse over the above phrase "Attorney Advertising". The mouseover action will open the relevant revised advertising rule.

To get the code to place this phrase on your home page email lennyesq@hancock.net

January 29, 2007

NY Lawyer Bloggers Discuss Amended Advertising Rules

Law librarian Jim Milles of Check This Out! podcasts an update on blogging and the New York lawyer advertising rules with New York legal bloggers Bill Altreuter of Outside Counsel, Nicole Black of Sui Generis and Matt Lerner of New York Civil Law Blog.

Here is a direct link to Jim's podcast Episode 58.

February 3, 2007

Public Citizen Lawsuit Seeks Injunction Against Unconstitutional Rules

Public Citizen | Press Room - New Lawyer Advertising Rules in New York Violate Free Speech, Impede Internet Communications and Nonprofit Legal Services


WASHINGTON, D.C. – New rules governing lawyer advertising set to go into effect in New York violate free speech and would impose anti-consumer restrictions on lawyers’ advertising and Internet communications, according to a lawsuit filed today by Public Citizen and a New York law firm.

The lawsuit seeks to prevent enforcement of New York's attorney advertising rules that are scheduled to take effect on Feb. 1. The new guidelines are part of a revision of the rules contained in New York's Code of Professional Responsibility for lawyers, which is designed to protect consumers by prohibiting false and misleading lawyer advertisements. The rules were released on Jan. 4 by the presiding justices of the four divisions of New York's appellate courts.

...

To view the lawsuit, click here.

To read more about this issue, visit the Consumer Law & Policy Blog, co-sponsored by Public Citizen’s Consumer Justice Project.

February 7, 2007

New York Judicial Watchdog Resigns Over ABA Panel's Change to Ethics Rules


Law.com - Judicial Watchdog Resigns Over ABA Panel's Change to Ethics Rules

Accusing an American Bar Association panel of secretly watering down judicial ethics rules, the administrator of the New York Commission on Judicial Conduct has resigned in protest from an ABA advisory council.

In a resignation letter released Monday, Robert H. Tembeckjian objected strenuously to what he said is a plan to diminish the thrust of an ethics precept that says judges should "avoid impropriety and the appearance of impropriety." Tembeckjian said the ABA would make a "monumental mistake" if, as proposed, it relegates the "impropriety and appearance of impropriety" provision to an unenforceable guideline.

Currently, under the Model Code of Judicial Conduct, which many states use as a template for their own rules, judges who violate the provision are subject to disciplinary action. But a revision inserted into a updated code and slated for consideration by the ABA next week would change that so the "impropriety and appearance of impropriety" admonition would no longer constitute a rule. Rather, it would simply be a guideline.

...

Read full text of article by John Caher via NY Law Journal.

February 8, 2007

Federal Regulations: Single-sex programs

Via the National School Boards Association's free e-newsletter "LegalClips". Sign up for a free subscription to "Legal Clips" here.


The Department of Education's Office for Civil Rights (OCR) has issued a "Dear Colleague" letter, below, reminding recipients of OCR's new Title IX regulations on nonvocational single-sex classes, extracurricular activities, and schools at the elementary and secondary education levels.

Title IX prohibits gender-based discrimination in federally funded education programs.

The Legal Clips summary of the regulations, with links to the regulations and related information on single-sex programs and legal questions, is available at the second link.

In addition to highlighting some features of the new regulations, the letter also provides a dedicated e-mail address, T9singlesexTA@ed.gov, for submitting questions and requests for technical assistance in connection with these new requirements. This e-mail address will be in operation until December 31, 2007.

[OCR "Dear Colleague" letter]

[NSBA School Law pages on single-sex regulations]

February 9, 2007

Forms for Home Equity Theft Prevention Act (Eff. 2-01-07)

See new forms from Judicial Title:

Equity Purchaser's Affidavit

Seller's Affidavit

Subsequent Purchaser's Affidavit

February 12, 2007

Phase-Out Credit for Toyota and Lexus Hybrids Continues With Reporting of Fourth Quarter Sales

Phase-Out Credit for Toyota and Lexus Hybrids Continues With Reporting of Fourth Quarter Sales

IR-2007-28, Feb. 8, 2007

WASHINGTON — After reviewing the fourth quarter sales of Toyota Motor Sales USA Inc., the Internal Revenue Service announced that purchasers Toyota and Lexus vehicles may continue to claim the Alternative Motor Vehicle Credit. Given the number of vehicles sold, the phase out period for Toyota vehicles began on October 1, 2006.
Toyota sold 67,857 qualifying vehicles to retail dealers in the quarter ending Dec. 31, 2006. This brings the cumulative sales of qualified Toyota hybrid vehicles sold from the period of Jan. 1, 2006, through Dec. 31, 2006, to 212,073.
Taxpayers may claim the full amount of the credit up to the end of the first calendar quarter after the quarter in which the manufacturer records its sale of the 60,000th qualified vehicle. For the second and third calendar quarters after the quarter in which the 60,000th vehicle is sold, taxpayers may claim 50 percent of the credit. For the fourth and fifth calendar quarters, taxpayers may claim 25 percent of the credit. No credit is allowed after the fifth quarter. The sale of Toyota ’s 60,000th qualified vehicle occurred in the quarter ending September 30, 2006.

The applicable credit amounts are found here:


See Related Item: Hybrid Cars and Alternative Motor Vehicles

February 13, 2007

Home Offices and the New Rules

Sui Generis--a New York law blog: New York Lawyer Advertising Rules--What About Home Offices?

Nicole Black raises an interesting question about 1200.6 (h); i.e., what happens to lawyers who practice from home and are concerned about his/her home address being made available to the public?

February 14, 2007

Adult Name Change Changes

Due to changes in statutes, a petition for a name change for an adult should have different language, L. 2006, ch. 481, as an example:

I am not responsible for any child support obligations.
(OR) My child support obligations are have been satisfied and are up to date. (OR) The amount of child support arrearages currently outstanding is $__. The court that issued the child support order is ___. The support collection unit is ___.


I am not responsible for any spousal maintenance.
(OR) My spousal maintenance obligations have been satisfied and are up to date. The amount of spousal arrearage currently outstanding is $__. The court that issued the support order is ___


Also, the Order for Name Change should be revised as well, based on L. 2006, ch. 258: change "twenty" to "sixty" days for date of publication, and change "forty" to "ninety" for date when affidavit of publication is to be filed.

With "Thanks" to:

Gary Muldoon
Muldoon & Getz
144 Exchange Boulevard
Rochester, NY 14614-2108

See extended entry for link to free LoisLaw

Continue reading "Adult Name Change Changes" »

“Pursuit of Excellence in Administrative Justice: Overview of the Rules of Conduct for Administrative Law Judges and Hearing Officers of the City of New York”

This presentation will be held in the Great Hall of the New York City Bar on the evening of February 22, 2007. The event runs from 6 p.m. to 8 p.m., is free and will provide CLE ethics credits for attendees.

The presentation will be the public introduction of the newly adopted Rules of Conduct and is open to the legal community, but is specifically aimed at providing information to the City’s administrative law judges and hearing officers now covered by the Rules effective February 13, 2007.

The program is co-sponsored by the Office of the Administrative Justice Coordinator, the Administrative Judicial Institute at OATH, and the New York City Bar's Committees on Administrative Law, Government and Ethics, and Litigation. The presentation will provide a basic overview of the Rules and their purpose, highlight key provisions and important obligations, and allow time for questions and answers.

To register, please contact Frank Ng at 212-442-4941 or by email: fng@oath.nyc.gov

For Full Text of Rules of Conduct, see extended entry:

Continue reading " “Pursuit of Excellence in Administrative Justice: Overview of the Rules of Conduct for Administrative Law Judges and Hearing Officers of the City of New York”" »

Laws, Rules and Regulations of the New York State Cemetery Board

Everything you always wanted to know about cemeteries and crematories and their operations in New York State.

Selected Laws, Rules and Regulations of the New York State Cemetery Board are available for downloading in pdf at:

http://www.dos.state.ny.us/cmty/pdfs/cemeterylaw.pdf

February 20, 2007

How to Save Taxes with an S Corporation

How S Corporations Save Taxes, Bellevue & Redmond, WA Accountant Services: Stephen L. Nelson, CPA

Stephen L. Nelson is the author of the bestselling books "Quicken 2006 for Dummies" and "QuickBooks 2005".

His page on S-Corps is succinct.

Via Imke Ratschko, Esq.'s New York Small Business Law.

IRS: Dirty Dozen Tax Scams

Fraudulent Telephone Tax Refunds, Abusive Roth IRAs Top Off 2007 'Dirty Dozen' Tax Scams

Fraudulent Telephone Tax Refunds, Abusive Roth IRAs Top Off 2007 "Dirty Dozen" Tax Scams IR-2007-37, Feb. 20, 2007

WASHINGTON-- The Internal Revenue Service today identified 12 of the most blatant scams affecting American taxpayers and warned people not to fall for schemes peddled by scamsters.

This year the 'Dirty Dozen' highlights five new scams that IRS auditors and criminal investigators have uncovered. Topping off the list are fraudulent refunds being claimed in connection with the special Telephone Excise Tax Refund available to most taxpayers this filing season. The IRS is actively investigating instances of this scam involving tax preparers who are preparing inflated refund requests.

Also new to the Dirty Dozen this year are abuses pertaining to Roth IRAs, the American Indian Employment Credit, domestic shell corporations and structured entities.

"Taxpayers shouldn't let their guard down," IRS Commissioner Mark W. Everson said. "Don't get taken by scam artists making outrageous promises. If you use a tax professional, pick someone who is reputable. Taxpayers should remember they are ultimately responsible for what is on their tax return even if some unscrupulous preparers have steered them in the wrong direction."

Involvement in tax schemes leads to problems for scam artists and taxpayers. Tax return preparers and promoters risk significant penalties, interest and possible criminal prosecution.

The IRS urges taxpayers to avoid these common schemes:

February 21, 2007

"New" Uniform Rules for the Conduct of Depositions

Rules


In case you missed it, these rules were effective October 1, 2006.

February 23, 2007

VESID Resources for Impartial Hearing Officers

NYSED Certified IHO


VESID
(the Vocational and Educational
Services for Individuals with Disabilities)
and the University at Buffalo Law School
have partnered to provide you with the
training and resources you need as an
Impartial Hearing Officer

New Postings & Alerts

Laws & Regulations

State Review Officer (SRO) Homepage

Commissioner of Education Decisions

Court Decisions

Impartial Hearing Reporting System (IHRS)

VESID Special Education Publications

February 26, 2007

New York State Uniform Fire Prevention and Building Code Council

NYS Dept. of State--Division of Code Enforcement & Administration

A G E N D A

Date: Thursday, March 22, 2007 Time: 10:00 a.m.

Location: Empire State Plaza Convention Center, Meeting Rooms #6, Albany, New York

Contact: Ray Andrews, Assistant Director for Code Development, Phone: (518) 474-4073

1. Welcome

2. Minutes - December 6, 2006

3. Public Comment Period

4. Code Change Adoption: Uniform Code:

1) Repeal of Subchapter A of Chapter XXXIII (Parts 1220, 1221, 1223, 1224, 1225 and 1226) of Title 19 NYCRR
2) Addition of new Subchapter A of Chapter XXXIII (to include new Parts 1219, 1220, 1221, 1222, 1223, 1224, 1225, 1226 and 1227) to Title 19 NYCRR

5. Code Change Adoption: Energy Code:

Amendment of Section 1240.1 of Title 19 NYCRR

6. Proposal: Swimming Pool Alarms

7. Proposal: Carbon Monoxide Detectors

8. More Restrictive Local Standards: MRLS Update Report

9. Discussion: New Code Review Cycle

10. Other Business

CONDUCT OF MEETING

The Code Council will convene at 10:00 a.m., Empire State Plaza Convention Center, Albany, New York. Prior to the meeting, a briefing will be conducted to provide instructions to the Council. All Code Council meetings and briefings are open to the public.

Persons who wish to address the Council are requested to submit their written comments and a request to address the Council in writing as soon as possible in order to be included on the agenda. Please send the information to Ray Andrews, Assistant Director for Code Development at the Department of State, Codes Division, 41 State Street, Albany, New York 12231 or e-mail: codes@dos.state.ny.us

SERVICES AVAILABLE

If you have a hearing problem, an assistive listening system is available for your use. This listening system would amplify the speaker’s voice. If you are deaf, an interpreter may be provided. You must notify Joanne Kaminski at (518) 474-4073 of your need at least five days prior to the meeting.

February 27, 2007

Independent Contractors vs. Employees

Independent Contractors vs. Employees

Before you can determine how to treat payments you make for services, you must first know the business relationship that exists between you and the person performing the services. The person performing the services may be -


An independent contractor

A common-law employee

A statutory employee

A statutory nonemployee

...

Full text of article and links to additional IRS resources.

...

See: NY Dept. of Labor

...

Hat Tip to New York Small Business Law blog. This blog is a resource well worth adding to your "favorites" or "bookmarks". Subscribe for timely small business info.

OpenCongress

OpenCongress

OpenCongress brings together official government information with news and blog coverage to give you the real story behind what's happening in Congress.

OpenCongress is a free, open-source, non-profit, and non-partisan web resource with a mission to help make Congress more transparent and to encourage civic engagement. OpenCongress is a joint project of the Sunlight Foundation and the Participatory Politics Foundation.

Official information from Thomas, the website of the Library of Congress, made available by GovTrack.us: all the bills, Members of Congress, votes, committee reports, issue areas, and more.

News articles about Congress from Google News.

Blog posts about Congress from Technorati and Google Blog Search.

Campaign contribution information from OpenSecrets.org, the website of the non-profit, non-partisan Center for Responsive Politics.

OpenCongress makes it easy for anyone to track a bill, Member of Congress, or issue area, and to follow the latest developments by subscribing to an RSS feed for each.

...

Hat Tip to bespacific

March 19, 2007

IRS Identifies 40 Frivolous Positions for Taxpayers to Avoid

IRS Identifies 40 Frivolous Positions for Taxpayers to Avoid

 IR-2007-61, Mar. 15, 2007

WASHINGTON The Internal Revenue Service today issued guidance identifying dozens of frivolous positions that taxpayers should avoid when filing their tax returns. The guidance lists 40 positions which have no basis for validity in existing law or which have been deemed frivolous by the United States Tax Court or other federal court.

If these or other frivolous positions are contained in a tax return, taxpayers could face a $5,000 penalty 10 times the previous maximum.

...

Read Full Text here.

March 23, 2007

LLRXCourt Rules, Forms & Dockets

LLRX -- LLRXCourt Rules, Forms & Dockets

This site includes links to over 1,400 sources for state and federal court rules, forms and dockets.

...

Our old friends at LLRX are still around and keeping up with our research needs, as is expected from Law Librarians. This unique, free searchable database is maintained and continually updated by Margaret Berkland.

...

Hat Tip to Sabrina I. Pacifici, founder, editor, and publisher, whose free newsletter, bespacific is well worth a look.

March 31, 2007

ABI Bankruptcy Exchange

ABI Bankruptcy Exchange

The ABI Bankruptcy Blog Exchange collects several blogs about bankruptcy into one convenient site.

...

This is an excellent resource for those of us who don't do bankruptcy, as well as those who still do.

April 2, 2007

Telephone Tax Refund for Cell Phones

Many Cell Phone Customers May Be Overlooking Telephone Tax Refund; Before You File, See if You Qualify, IRS Advises

IR-2007-70, March 27, 2007

WASHINGTON — Many cell-phone users appear to be overlooking the telephone tax refund in the mistaken belief that this one-time refund only applies to land-line customers.

According to the Internal Revenue Service, most cell-phone users qualify for the federal telephone excise tax refund. In most cases, the refund is also available to land-line, fax and Internet phone customers as well. The method of phone signal transmission does not affect the refund. The telephone-tax refund can add $30 to $60 — or even more — onto a taxpayer’s refund.

“Many taxpayers are overlooking this special refund and the chance to get a bigger refund,” said IRS Commissioner Mark W. Everson. “We encourage taxpayers to spend a few extra minutes reviewing their tax return to make sure they are making an accurate request. A little extra time can mean a bigger refund check.”

Continue reading "Telephone Tax Refund for Cell Phones" »

April 12, 2007

Poster Advisor

elaws - Poster Advisor

The Poster Advisor is designed to help employers comply with the poster requirements of several laws administered by the Department of Labor (DOL).

These laws require employers to display official DOL posters where employees can readily observe them. DOL provides the posters at no cost to employers.

New York posters.

...

Hat Tip to New York Small Business Law, a very informative and useful blog. Free subscriptions are available.

June 3, 2007

Child Support Standards Act-new tables

NYS DCSE | New York Child Support

Child Support Standards

The Child Support Standards Act tables, released April 1, 2007, are now available. The tables are used to determine the annual child support obligation amount pursuant to the provisions of Chapter 567 of the Laws of 1989.

June 29, 2007

Carbon Monoxide Alarms-Pool Alarms


Notice of Emergency Adoption

Carbon Monoxide Alarms -Notice of Adoption.
(Emergency Rule Effective Date: June 22, 2007 Expiration Date: September 19, 2007)

19 NYCRR Part 1228 - Additional Uniform Code Provisions


Pool Alarms - Notice of Adoption.
(Emergency Rule Effective Date: June 22, 2007 Expiration Date: September 19, 2007)

19 NYCRR Part 1228 - Additional Uniform Code Provisions

July 11, 2007

Revised Federal Minimum Wage Poster

Under the Federal Fair Labor Standards Act (“FLSA”) the minimum wage increases to $5.85 per hour effective July 24, 2007, to $6.55 per hour effective July 24, 2008, and to $7.25 per hour effective July 24, 2009. Until July 24, 2009, employers in New York must continue to comply with the higher minimum wage of $7.15 per hour established under the New York State Minimum Wage Act. On July 24, 2009, the New York minimum wage will automatically increase to $7.25 per hour to be consistent with the FLSA.

Employers are required to post a Federal minimum wage notice in a conspicuous place in their establishments so that employees can readily read it. The U.S. Department of Labor (“USDOL”) has revised the Federal minimum wage poster to reflect the new minimum wage increases. The revised poster, which must replace your current minimum wage poster beginning on July 24, 2007, can be downloaded and printed from the USDOL’s web site at http://www.dol.gov/esa/regs/compliance/posters/flsa.htm

July 13, 2007

NYC Administrative Code

The New York City Administrative Code can be found on the New York State Legislature's Web site. (new)

Follow the link provided below.

Click on Laws of New York, the last link on the page.

Scroll to the bottom of the resulting page and click on ADC New York City Administrative Code under Miscellaneous.

Visit the New York State Legislature Web site

July 16, 2007

Many Small Tax-Exempt Organizations Have New Information Reporting Requirement


The IRS is mailing educational letters this month to more than 650,000 small tax-exempt organizations that may be required to submit a new annual notice, Form 990-N, Electronic Notice (e-Postcard) for Tax-Exempt Organizations Not Required to File Form 990 or 990-EZ. Exempt organizations with receipts of less than $25,000 will need to file the e-Postcard in 2008. Get more information in news release IR-2007-129.

July 26, 2007

U.S. Department of Education, Office of Special Education Programs’ (OSEP’s) IDEA website.

IDEA - Building The Legacy of IDEA 2004


This site was created to provide a "one-stop shop" for resources related to IDEA and its implementing regulations, released on August 3, 2006. It is a "living" website and will change and grow as resources and information become available. When fully implemented, the site will provide searchable versions of IDEA and the regulations, access to cross-referenced content from other laws (e.g., the No Child Left Behind Act (NCLB), the Family Education Rights and Privacy Act (FERPA), etc.), video clips on selected topics, topic briefs on selected regulations, links to OSEP's Technical Assistance and Dissemination (TA&D) Network and a Q&A Corner where you can submit questions, and a variety of other information sources.

August 10, 2007

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

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.


August 17, 2007

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

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.

****
Read Entire Article

August 27, 2007

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


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.

***

Read Entire Article

August 28, 2007

Chapter 185 of Laws of 2007

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"

August 29, 2007

Revised New York State Procedural Safeguards Notice: Rights for

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

September 4, 2007

Strange Name-Great Blog!!

Supraspinatus;

Supraspinatus
(SOO-pra-spy-NATE-us)

The Official Unofficial Blog of the New York State Bar Association Health Law Section has a unique name; but is chock full of health law-related posts and links--neat graphics, too.

Paul Gillan, who runs the NYSBA Health Law Section listserv, announces the kickoff of Supraspinatus, the "Official Unofficial Blog of the NYSBA Health Law Section". The purpose of the blog is to provide a forum for the timely sharing and discussion of news and developments relative to New York health law practitioners. The blog will serve as a complement to the listserve and the Health Law Journal, which combined will provide a full panoply of reference and analysis resources to health law section members.


Click Here for Supraspinatus.

September 11, 2007

E-Postcard Required From Small Tax-Exempts


Know any small tax-exempt organizations whose gross receipts are normally $25,000 or less? With the enactment of the Pension Protection Act of 2006, these small tax-exempt organizations will now be required to file electronically Form 990-N, also known as the e-Postcard, with the IRS annually. Organizations that do not file the e-Postcard will lose their tax-exempt status as of the filing due date of the third year.

Find out more on IRS.gov to help your small tax-exempt clients.

September 20, 2007

Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 360

Parentally Placed SWD

Chapter 378 of the Laws of 2007 was signed into law on July 18, 2007. This Chapter of Laws includes amendments to section 3602-c of Education Law relating to the education of students with disabilities who are parentally placed in nonpublic elementary and secondary schools. Section 3602-c of Education Law was amended to comply with section 612(a)(10) of IDEA, as reauthorized in 2004, and federal regulations in 34 Code of Federal Regulations (CFR) sections 300.130 to 300.147 to require the public school district where the nonpublic school is located to provide students with disabilities enrolled in nonpublic elementary and secondary schools by their parents with special education services. Changes to State law were made to the extent necessary to comply with federal requirements while still preserving the provisions of preexisting law that entitled all students enrolled in nonpublic elementary and secondary schools by their parents who were residents of the State to have access to those special education services they would have received if they attended public school. Attachment 4 provides a copy of the statutory language in section 3602-c, as amended by Chapter 358 of the Laws of 2007, effective June 30, 2007.

October 1, 2007

New Online Employer Identification Number Application

Taxpayers can now request an Employer Identification Number (EIN) online through IRS.gov and get it within minutes. The EIN is immediately recognized by IRS systems, so your clients can begin using it right away for most business purposes.

Find out more in news release IR-2007-161.

October 29, 2007

New York Enacts Significant New Employment Laws

Via Proskauer Rose LLP "Client Alert"

In one of the most active legislative periods in recent
times, New York State has enacted a host of new and
amended laws addressing a variety of workplace
issues.

Click here to download the Client Alert. which summarizes the changes.

November 7, 2007

Law.com - N.Y. Bar Panel Urges Adoption of New Conduct Rules

Joel Stashenko
New York Law Journal (read Entire Article)
November 7, 2007

Attorneys in New York state are a step closer to becoming the last Bar in the United States to have rules of ethical behavior based in form and substance on the American Bar Association's Model Rules of Professional Conduct.

The New York State Bar Association's House of Delegates last Saturday unanimously approved revisions that are designed to transform New York's current Code of Professional Responsibility into new state Model Rules of Professional Conduct.

It took the State Bar's Committee on Standards of Attorney Conduct nearly five years to produce the almost 500 pages of proposed rules, which will now be sent to the appellate division's presiding justices for review and possible final adoption.

***

November 10, 2007

U.S. Immigration Service Requires Use Of New Employment Verification Form (I-9) For All Employers

On November 7, 2007, the United States Citizenship & Immigration Services ("USCIS") issued a revised I-9 form. A copy of the new I-9 form (in English and Spanish) may be obtained by clicking on the links above.

Note: The Spanish version of Form I-9 may be filled out by employers and employees in Puerto Rico ONLY. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print this for their reference, but may only complete the form in English to meet employment eligibility verification requirements.

There is also a revised Employer Handbook (24.4 mbs) for I-9 compliance.

November 19, 2007

U.S. Immigration Service Requires Use Of New Employment Verification Form (I-9) For All Employers

On November 7, 2007, the United States Citizenship & Immigration Services ("USCIS") issued a revised I-9 form. Click for a copy of the new I-9 form (in English and Spanish.

Note: The Spanish version of Form I-9 may be filled out by employers and employees in Puerto Rico ONLY. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print this for their reference, but may only complete the form in English to meet employment eligibility verification requirements.

There is also a revised Employer Handbook (24.4 mbs) for I-9 compliance.

December 14, 2007

Basic Legal Citation (LII 2007)

Basic Legal Citation (LII 2007)

This work first appeared in 1993. It was most recently revised in May 2007 to reflect changes appearing in the third edition of the ALWD Citation Manual, published in 2006. It is also keyed to the most recent edition of The Bluebook, published in 2005.

***

From our old friends at the LII, specifically former Dean of the Law School at Cornell, Peter W. Martin. Dean Martin was instrumental in guiding the original NYLaw Net committee as it groped its way toward NYSBA's first web site. His concept of "...adding value..." to publicly available legal materials and making both available on line is as valid today as it was back in the early 90's.

January 6, 2008

Charities Bureau Forms and Brochures

Charities Bureau Forms and Brochures (teforms)


To download forms and instructions, use this link.


Forms and Instructions for Transactions by Not-for-Profit and Religious Corporations

Procedures for Forming and Changing Not-For-Profit Corporations in New York State

New - Procedures for Dissolving Not-for-Profit Corporations pursuant to Amendments to Article 10 of the Not-for-Profit Corporation Law Effective April 9, 2006.
New - Procedures and Forms for a Voluntary Dissolution of a Not-for-Profit Corporation With Assets Pursuant to Article 10 of the Not-for-Profit Corporation Law

A Guide to Sales and Other Dispositions of Assets Pursuant to the Not-for-Profit Corporation Law 510-511 and Religious Corporation Law Section 12

A Guide to Mergers and Consolidations of Not-For-Profit Corporations under Article 9 of the New York Not-For-Profit Corporation Law

January 8, 2008

New Title Policy Forms Required IN New York

Here's an informative and interesting article on the new title policy forms required for New York real estate transactions.

January 14, 2008

Traveling Safely with Batteries & Battery-Powered Devices

Safe Travel

Effective January 1, 2008, the following rules apply to the spare lithium batteries you carry with you in case the battery in a device runs low:

Spare batteries are the batteries you carry separately from the devices they power. When batteries are installed in a device, they are not considered spare batteries.

You may not pack a spare lithium battery in your checked baggage

You may bring spare lithium batteries with you in carry-on baggage – see spare battery tips and how-to sections to find out how to pack spare batteries safely!

Even though we recommend carrying your devices with you in carry-on baggage as well, if you must bring one in checked baggage, you may check it with the batteries installed.

The following quantity limits apply to both your spare and installed batteries. The limits are expressed in grams of “equivalent lithium content.” 8 grams of equivalent lithium content is approximately 100 watt-hours. 25 grams is approximately 300 watt-hours:

Under the new rules, you can bring batteries with up to 8-gram equivalent lithium content. All lithium ion batteries in cell phones are below 8 gram equivalent lithium content. Nearly all laptop computers also are below this quantity threshold.

You can also bring up to two spare batteries with an aggregate equivalent lithium content of up to 25 grams, in addition to any batteries that fall below the 8-gram threshold. Examples of two types of lithium ion batteries with equivalent lithium content over 8 grams but below 25 are shown below.

For a lithium metal battery, whether installed in a device or carried as a spare, the limit on lithium content is 2 grams of lithium metal per battery.

Almost all consumer-type lithium metal batteries are below 2 grams of lithium metal. But if you are unsure, contact the manufacturer!

****

Read the entire article for more tips on how to travel with batteries under the new regs.

****

Hat tip to TIDBITS

January 17, 2008

Family Guide » NYS Department of Correctional Services"

Family Guide » NYS Department of Correctional Services

This handbook was produced in collaboration with the New York State Department of Correctional Services’ Divisions of Guidance and Counseling, Ministerial, Family, and Volunteer Services, and the Osborne Association’s Family Resource Center.

The Handbook is also available in PDF format.

January 22, 2008

IRS, Telemundo Host Program for Spanish-Speaking Taxpayers

Tell your Spanish-speaking clients about the special one-hour tax program on Telemundo Sunday, Jan. 27. Get details in news release IR-2008-9.

January 31, 2008

New Border Rules--From the Canadian Side

CBC News In Depth: Airport security

A change in American policy has created huge headaches for Canadians who feel the urge to travel south of the border from time to time. Since Jan. 23, 2007, Canadians flying to the U.S. have had to possess a valid passport.

The new rule — part of the U.S. Western Hemisphere Travel Initiative — led to long lineups at passport offices across the country and a huge backlog as Passport Canada was inundated with a surge in the number of applications.

The initiative requires citizens of the U.S., Canada, Mexico and Bermuda travelling by air to the U.S. from other countries in the western hemisphere to present a valid passport, a Merchant Mariner's Document or a card issued under the NEXUS Air frequent traveller program.

The second stage of the initiative takes effect Jan. 31, 2008, when those who travel to the U.S. by land or water will be required to show valid identification when they cross the border. Verbal declarations will no longer be accepted.

***

Read entire article from CBC.


February 5, 2008

NYCRR

Welcome to the Division of Administrative Rules

The complete unofficial NYCRR is now available online. This initial release of the online NYCRR does not yet include a table of contents. To find desired text, visitors simply enter a search term or NYCRR citation. A table of contents will be available in the near future.

The NYCRR primarily contains state agency rules and regulations adopted under the State Administrative Procedure Act (SAPA). The 22 Titles include one for each state department, one for miscellaneous agencies and one for the Judiciary. The Office of Court Administration and the Judiciary are exempt from SAPA requirements.

***

Hat Tip to Paul Gillan of S U P R A S P I N A T U S, the unofficial blog of the NYSBA Health Law Section, which deserves your attention on a regular basis.

March 4, 2008

Poker Tournament Winnings Must be Reported to the IRS"

IR-2007-173, Oct. 19, 2007

WASHINGTON — Starting next year, casinos and other sponsors of poker tournaments will be required to report most winnings to winners and the Internal Revenue Service, according to the IRS.

The new requirement, which goes into effect on March 4, 2008, was contained in guidance released Sept. 4 by the Treasury Department and the IRS. The guidance is designed to clear up confusion about the tax reporting rules that apply to poker tournaments. In recent years, some casinos and players have been confused over whether poker tournament sponsors who hold the money for participants in a poker tournament are required to report the winnings to the IRS and withhold tax on the winnings.

For tournaments completed during 2007 and before March 4, 2008, casinos and other sponsors of poker tournaments will not be required to report the winnings to the IRS or withhold tax on the winnings. But beginning March 4, 2008, the IRS will require all tournament sponsors to report tournament winnings of more than $5,000, usually on an IRS Form W-2G.

***

Read Entire Article

March 31, 2008

Economic Stimulus Payments Information Center

Economic Stimulus Payments Information Center

Updated March 10, 2008

Starting in May, the Treasury will begin sending economic stimulus payments to more than 130 million households. To receive a payment, taxpayers must have a valid Social Security number, $3,000 of income and file a 2007 federal tax return. IRS will take care of the rest. Eligible people will receive up to $600 ($1,200 for married couples), and parents will receive an additional $300 for each eligible child younger than 17. Millions of retirees, disabled veterans and low-wage workers who usually are exempt from filing a tax return must do so this year in order to receive a stimulus payment.

But there are more details to know about. Find out more here and visit this page regularly for the latest updates.

April 2, 2008

Free Online Version of the 2007 Codes of New York State



The 2007 Codes of New York State can now be viewed online. Covered in all 9 code books are provisions governing Building, Fire Prevention and Energy construction in New York State. The new free online version allows access to the Codes of New York State by code section, which also allows for cutting and pasting of relevant code text into other documents.

April 21, 2008

Stimulus Payments Update-Payment Schedule


Starting May 2, your clients may be issued their payments. See the schedule.

Check the Economic Stimulus Payments Information Center on IRS.gov for updates.

Also in Spanish.

April 28, 2008

Stimulus Payments Update


Even though April 15 has passed, disabled veterans and others who normally do not file a tax return can still submit a 2007 form to receive a payment. See news release IR-2008-65. Others who have already filed a return may get their payments directly deposited into their accounts starting April 28. News release IR-2008-66 has details.

Check the Economic Stimulus Payments Information Center on IRS.gov for updates. Also in Spanish.

May 5, 2008

Stimulus Payments Update 5-5-08


Stimulus payments directly deposited into IRAs and other tax-favored accounts may be withdrawn tax-free and penalty-free. See news release IR-2008-68.

Check the Economic Stimulus Payments Information Center on IRS.gov for updates. Also in Spanish.

May 12, 2008

Stimulus Payments Update 5-12-08


Get the answers to the most frequently-asked-questions about the stimulus payments.

Check the Economic Stimulus Payments Information Center on IRS.gov for updates. Also in Spanish.

May 14, 2008

Perils of Part-timers' Public Pensions Persist

Albany Times Union (Rick Karlin): Class-action lawsuit in state pension cases?

An Albany lawyer is preparing a class-action lawsuit to try to stop Attorney General Andrew Cuomo and Comptroller Thomas DiNapoli from stripping pension credits from lawyers who state officials say don't deserve them. The lawsuit will likely be filed later this week in state Supreme Court in Albany County and will seek restraining orders against Cuomo and DiNapoli, said lawyer James Roemer, who specializes in public sector employment issues. While he wouldn't immediately divulge details of his legal strategy or name the initial plaintiffs, Roemer said he's representing four individuals from Long Island who have lost pension credits during the past few weeks.

***

UPDATE: Roemer has a web site for the class action suit Save New York State Retirement Benefits.

***


Albany Times Union (Fred LeBrun Column): Cuomo pension probe tinged with a certain lack of fair play

On the best of days, elevating the reputation of lawyers in general is too heavy a lift for one mere columnist. And these are certainly not the best of days for the image of the legal profession, thanks in great measure to state Attorney General Andrew Cuomo and his zealous rooting out of lawyers who may have gotten public retirement benefits for which they were not eligible. That Cuomo is himself a lawyer, and the First Lawyer of the state to boot, must be disconcerting at the least to the lawyer community. Particularly because the brush with which he's tarring a wide range of attorneys who don't deserve it is usually the stuff of spiteful lawyer-bashing. Hasn't Andrew heard all those professional courtesy jokes?

May 19, 2008

Swergold, et.al. v. Andrew F. Cuomo, et.al.

Operation Pushback has begun.

This class action suit was filed May 15, 2008. It will include all current members of the New York State and Local Employees’ Retirement System (ERS) and all current retirees from the ERS in all Tiers 1, 2, 3 and 4, who have rendered part-time annually salaried service, whether elected or by appointment, to any participating employer in the ERS.

Swergold, et.al. v. Andrew F. Cuomo, et.al., Index No. 3897-08 NYS Supreme Court- Albany County

Pleadings and Briefs

Documents filed on Thursday, May 15, 2008:

Summons and Complaint


Exhibits to Summons and Complaint

June 8, 2008

Global Legal Information Network (GLIN)

Global Legal Information Network

The Global Legal Information Network (GLIN) is a public database of official texts of laws, regulations, judicial decisions, and other complementary legal sources contributed by governmental agencies and international organizations. These GLIN members contribute the full texts of their published documents to the database in their original languages. Each document is accompanied by a summary in English and, in many cases in additional languages, plus subject terms selected from the multilingual index to GLIN. All summaries are available to the public, and public access to full texts is also available for most jurisdictions.

Click on "More Search Options".

June 11, 2008

NYS Department of Health Webcasts

The New York State Dept. of Health has a number of very important boards, committees, and councils which meet on a regular basis to discuss and determine the number of doctors, hospitals, and medical equipment available to the citizens of the Empire State and what all this will cost. Many of those meetings are now available via live webcasts.

Among those whose meetings will be webcast are the State Hospital Review and Planning Council, arguably the state's most important decision-making body on health care issues.

Meetings from January 2008 onward are being archived for ready reference.

June 17, 2008

Part 36 Appointment System Web Page

Fiduciary Home Page

As a public service, the NYS Unified Court System is making available the public information included in its Part 36 databases on the internet.

This availability also fulfills the obligation of the Chief Administrator to publish the names of all persons and entities appointed by each appointing judge, and the compensation approved for each appointee pursuant to Section 36.5 of the Rules of the Chief Judge.

Searchable by eligible lists, notices of appointment, and approved compensation.

June 23, 2008

Stimulus Payments Summer Update

IRS launches a summer push to reach retirees and disabled veterans who have yet to file for their payments. For more information and a state-by-state summary of the number of potential recipients, go to news release IR-2008-80.

Check the Economic Stimulus Payments Information Center on IRS.gov for updates, also available in Spanish.

IRS Increases Mileage Rates

Due to rising gas prices, the mileage rate will increase by eight cents to 58.5 cents a mile for all business miles driven from July 1 through Dec. 31, 2008. The new rate for computing deductible medical or moving expenses will also increase by eight cents to 27 cents a mile. The rate for providing services for charitable organizations is set by statute, not the IRS, and remains at 14 cents a mile. See news release IR-2008-82 and Announcement 2008-63.

July 7, 2008

New CJA Fillable Voucher & Worksheets Forms Effective 7/15/08

ANNOUNCEMENT:

United States Circuit Court Judge Peter W. Hall, Chair of the Second Circuit CJA and Pro Bono Committee, announces that the Circuit Court of Appeals and all the District Courts within the Circuit have agreed on a new initiative designed to expedite the processing of CJA vouchers in both the Circuit and District Courts. As of July 15, 2008, all vouchers submitted for processing to the Circuit or District Courts within the Circuit, must be typewritten on the official '.pdf' fillable voucher and worksheet forms provided for that purpose on the Courts website. No other forms will be accepted after July 15, 2008. Additionally, CJA Form 26 in the District Courts and CJA Form 27 for Appellate Vouchers in the Court of Appeals will be substituted for the Attorney's Affidavit in Support of a Voucher Claiming Excess Compensation, the use of which will be discontinued.

For more information, visit http://www.nynd.uscourts.gov/cja.cfm.

***
Thanks to NDNY Federal Court Bar Assocation info@ndnyfcba.org

July 14, 2008

Stimulus Payments Update--July 14, 2008


According to a Treasury press release, payments will continue to be sent to taxpayers in small batches through the end of the year, but the mass distributions have ended. Clients who do not file by October 15 and still qualify for a payment can get it by filing a 2008 tax return next year.

Check the Economic Stimulus Payments Information Center on IRS.gov for updates, also available in Spanish.

Federal Bureau of Investigation - Terrorist Screening Center -Terrorist Watchlist Redress Procedures

Traveler Screening Redress

The Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) provides a way for travelers to express concern when they believe they have been incorrectly delayed, denied boarding, identified for additional screening, or have otherwise experienced difficulties when traveling or seeking entry into the country. DHS TRIP allows travelers to submit a redress inquiry in a single request via a secure website. DHS TRIP works with the Department's component agencies, such as U.S. Customs and Border Protection and the Transportation Security Administration, and other Government agencies including the Department of State and the TSC, as appropriate, to make an accurate determination about any traveler who has sought redress.

Please go to the DHS TRIP website to review frequently asked questions or file a request for redress related to your travel screening.

July 18, 2008

Swergold v. Cuomo/Hill v. Cuomo

Save New York State Retirement

New documents have now been added to the Swergold v. Cuomo portion of the Pleadings and Briefs section. In addition, they are now providing the motion and other information for the new action Hill v. Cuomo.

Immigration Processing Times

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Centers: https://egov.uscis.gov/cris/jsps/ptimes.jsp
Department of Labor: http://www.foreignlaborcert.doleta.gov/times.cfm
Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
_____________________
Hat tip to the American Immigration Lawyers Association and Miller, Mayer LLP, who publish a newsletter dealing with various topics of immigration law.

July 22, 2008

Stimulus Payments Update-July 21, 2008


It’s not too late for qualifying retirees and veterans to get their payments. See news release IR-2008-91. Look for updates on the IRS.gov stimulus payments page, also available in Spanish.

July 24, 2008

Law.com - N.Y. Court Establishes First Statewide Guidelines for Mediators, Neutral Evaluators

Joel Stashenko
New York Law Journal
July 24, 2008

New York has established for the first time statewide guidelines for the qualifications and training of mediators and neutral evaluators who are called into cases by judges seeking to encourage out-of-court settlements.

Chief Administrative Judge Ann Pfau issued the new rules earlier this month with the approval of the Administrative Board of the Courts, which is comprised of Chief Judge Judith S. Kaye and the presiding justices of the four Appellate Division departments.

The guidelines require that mediators who want to make the rosters from which judges make assignments must have at least 24 hours of training in basic mediation skills and at least 16 hours of additional training in specific mediation techniques in the types of cases referred to them.

The rules also limit those wanting to be assigned as neutral evaluators to those who have practiced law or served as judges for at least five years with "substantial experience" in the kinds of cases referred to them.

***

Read entire article here.

August 2, 2008

Rule 240 (or Something Like it) Chart

In the "good old days"; i.e., pre-deregulation, if your flight was cancelled or you missed your connection due to some act or omission of your carrier, you merely walked up to the counter and asked for a "Rule 240" ticket on another airline at your carrier's expense. Barring that, your carrier would put you up in a hotel overnight for free.

Deregulation of airline travel allowed most carriers to quickly do away with Rule 240; but a vestige of the rule remains in some carriers' contracts of carriage.

The folks at airfarewatchdog.com have done the research for you and come up with a nifty chart of the current provisions, if any, which require the airlines to get you to your destination after they fail the first time.

***

Hat tip to aviation.com.

August 4, 2008

Law of the Pacific Islands: A Guide to Web Based Resources

This is for all of us middle-aged folks who dream of practicing law in a tropical paradise. No ties or power suits allowed. Thanks to our law librarian friends at llrx.com.

This Resource guide deals with internet sites providing Caselaw, Legislation and Government home pages for the Pacific Island region. There are also links to several relevant journals, and to academic sites providing dedicated Pacific Law web pages, or Centres dealing with Pacific Law.

***

Hat tip to beSpacific.

August 9, 2008

Government "manual" distributed to Iowa defense lawyers

Government "manual" distributed to defense lawyers assigned to represent immigrant workers arrested and prosecuted in the May 2008 Postville, Iowa meat packing raids.

The ACLU is upset about ex parte communication between the US Attorneys Office and the Court prior to the proceedings. The controversy notwithstanding, the "manual" provides a set of forms and legal references for those who may be called upon to defend clients in such circumstances.

Download (4.7MB) in pdf here.

August 18, 2008

Stimulus Payments Update-Business Provisions


A new page on IRS.gov provides links to the business provisions of the economic stimulus act.

Look for updates on the IRS.gov stimulus payments page, also available in Spanish.

September 2, 2008

Subprime Lending Reform Bill Overview

NYSBD - Subprime Mortgage Law - Overview

On August 5, 2008 Governor David A. Paterson signed into law a critical subprime lending reform bill to address the ongoing mortgage crisis in New York State. Chapter 472 of the Laws of 2008, which was part of the Governor’s legislative program, targets the subprime lending crisis in two ways by providing assistance to homeowners currently at risk of losing their homes and by establishing further protections in the law to mitigate the possibility of a similar crisis in the future.

To assist the industry and public in understanding the impact of this broad and comprehensive legislation, we are providing an overview of the various components, including their effective dates.

September 4, 2008

Taxation - Dismissal of Article 78 proceeding challenging assessor's methodology was warranted for failure to join necessary parties

Windy Ridge Farm v. Assessor of Town of Shandaken ,(N.Y.) (full text)

A county and school district were subject to the court's jurisdiction, within the meaning of the statute governing the joinder of necessary parties, in an Article 78 proceeding challenging the constitutionality of the assessment methodology used by the town assessor for a certain tax year, even though the statute of limitations on claims against them had expired; the expired statute of limitations was not the equivalent of a jurisdictional defect. Therefore, the discretionary statutory factors considered by a court to determine whether to excuse joinder when a necessary party's consent or appearance was required to obtain jurisdiction did not apply. However, dismissal of the proceeding was warranted for the failure to join necessary parties, even though the county and school district, which the petitioning property owners had failed to name as respondents in the original petition, were subject to the court's jurisdiction, when, after being named as additional respondents in an amended petition, the county and school district established their right to the dismissal of the amended petition against them due to the expiration of the four-month limitations period.

September 22, 2008

Tax Credit to Aid First-Time Homebuyers


First-time homebuyers may be able to take a new tax credit included in the recently enacted Housing and Economic Recovery Act of 2008. It’s available for a limited time only, and it operates much like an interest-free loan, because it must be repaid over a 15-year period. To find out more, see news release IR-2008-106.

Read a summary of the Act here.

September 29, 2008

Stimulus Payments Update-October 15, 2008 Deadline


The Oct. 15 deadline for filing a return and claiming the economic stimulus payment is almost here. Don’t let your clients miss out. See news release IR-2008-109.

FINDLAW:Text of the Defeated Bailout Bill


EMERGENCY ECONOMIC STABILIZATION ACT OF 2008

(House Financial Services Committee) - The version of the financial bailout proposal that was voted down in the House of Representatives today. Full Text.

Related Resources from Findlaw:
More Documents Related to the Financial Crisis

October 1, 2008

Courts, Legal Services Gear Up For Pre-Foreclosure Settlement Meetings

By Joel Stashenko ( entire article)
October 01, 2008

ALBANY - New York's legislative response to the residential mortgage foreclosure crisis has created a breather of sorts in the foreclosure process as courts, attorneys and advocates for imperiled homeowners prepare to exercise their rights and obligations under the new law.

Court administrators and legal services providers for the poor said they are working out how to provide mandatory pre-foreclosure settlement hearings to the thousands of borrowers with subprime mortgages facing default, as provided for under the anti-foreclosure statute.

The law also created a new "workout" period starting Sept. 1 in which lenders must give borrowers 90 days' warning of their intention to serve a summons and complaint of foreclosure.

The article goes into significant detail about OCA's attempts to come up with a process to comply with the new law including an administrative order signed on Sept. 24 by Judge Pfau to file a specialized request for judicial intervention with county clerks when initiating a foreclosure summons and complaint.

FINDLAW: EMERGENCY ECONOMIC STABILIZATION ACT OF 2008


(U.S. Senate) - Text of the revised financial institution rescue package up for a vote before the Senate the evening of October 1, 2008.

Related Resources
Read the Version the House Voted Down on Monday

October 2, 2008

NYLJ: Custody, Violation Screening To Be Cut Back

By Joel Stashenko (entire article)
October 02, 2008


ALBANY - Even before it is to go into effect, a new requirement that courts perform background checks in the state's registry of orders of protection and warrants before making child custody and visitation decisions will be scaled back.

When signing legislation (A11657/S8569) into law establishing new screening requirements, including the mandated checking of people in custody and visitation cases against the state Sex Offender Registry, Governor David A. Paterson indicated that legislative sponsors have agreed to pass an amendment limiting warrant screening to those warrants issued by Family Courts.

The governor said questions have been raised about the feasibility, with current computer systems, of Supreme and Family courts making accurate and timely background checks through the state's outstanding warrant and orders of protection database maintained by the Division of Criminal Justice Services.

"Such name-based checks will typically uncover multiple records of persons with similar names, none of whom may be the person seeking custody or visitation," Mr. Paterson wrote in an approval message to the legislation. "Delaying a custody or visitation decision while these records are examined may not be in the best interests of the child."

October 3, 2008

RPLS Committee on Legislation: Legislation Update

The following legislation update is being forwarded to you on behalf of the Real Property Law Section's Committee on Legislation:
Selected laws affecting real property enacted so far in 2008:

A251/S5621 Lender prohibited from exercising due on sale clauses for homes - Chap 152
A1269/S1531 Sex offender prohibited from license as r.e. broker or salesman - Chap 430
A7007A/S3825 Appointment of Art 7-A administrator is basis to declare mortgage due or certify dwelling abandoned - Chap 529
A7519/S4874 Requires seller to establish escrow for broker's commission - Chap 436 [RPLS memo in support]
A7700/S4963A Residential assessment ratio - Chap 78
A10766/S7645 Extends tax rate reduction on REITS - Chap 416
A10817/S8143 Governor's Program Bill on mortgage foreclosure - Chap 472 [RPLS memo in support if amended]
A10952/S5634 Requires notification of tenants of testing for indoor air contamination - Chap 521
A11544/S8517 Requires notice re certified copy of deed - Chap 485
A11574/S7915C Clarifies adverse possession - Chap 268 [RPLS memo in opposition to final bill]

Bills not enacted:

A1743 NYSLTA bill to license title agents - did not pass [RPLS memo in support]
A3994 Applications to purchase coops - did not pass
A8948 Disclosure of LLC members - passed Assembly only [RPLS memo in opposition]
A9295 County Clerk discretion re mortgages (anti-MERS) - did not pass [RPLS memo in opposition]
A9491 Nassau County Clerk discretion re mortgages (anti-MERS) - did not pass [RPLS memo in opposition]
A11424 Revise PCDA - did not pass [RPLS memo in support]

To find copies of bills, go to:

1. RPLS portion of NYSBA website: www.nysba.org, then "Sections," then "Real Property Law Section," then "Status of Pending Legislation" (search by bill number, click on number) (For RPLS memoranda go to "2007-2008 Legislative Memoranda") or go to
2. Senate website: www.senate.state.ny.us, then "Bills and Laws" or go to
3. Assembly website: www.assembly.state.ny.us, then "Bill Search and Legislative information."

October 4, 2008

FINDLAW: EMERGENCY ECONOMIC STABILIZATION ACT OF 2008


(U.S. Congress) - Text of the Emergency Economic Stabilization Act of 2008 passed by Congress and signed by President Bush October 3, 2008. The financial bailout package includes numerous tax breaks added to the bill by the Senate, including an AMT patch, individual and business tax extenders, energy incentives, and disaster tax relief. It also contains an extension for home mortgage debt forgiveness relief, and a tax crackdown on compensation and severance pay for certain financial executives, and parity for mental health coverage in group health plans. .

Related Resources
Thomson Reuters Press Release and Description of the Act.
Read the Version the House Voted Down on Monday

October 7, 2008

Torts Insurance & Compensation Law Section Webcast Invitation - 10/7/08

Torts Insurance & Compensation Law Section
Executive Committee Webcast Invitation
October 7, 2008 11 a.m. - 12 p.m.


You are invited to view the Torts Insurance & Compensation Law Section in action. On October 7th, the Section's Executive Committee will hold its quarterly meeting at the New York Bar Center. The first hour of this meeting will be broadcast over the internet and available for viewing at www.nysba.org/TICLWebcast. To view the webcast, simply access the link above on the day of the meeting and follow the directions on the screen.

Among the items on the agenda will be the Section's consideration and proposal of legislation to amend Insurance Law 3420(d). Also known as the disclaimer statute, the Executive Committee will examine whether it should require a policyholder or claimant show prejudice when an insurer's disclaimer is late, but otherwise valid. The Executive Committee will also address adoption of a strategic plan, and upcoming Section events.

This will be the first webcast by any NYSBA Section of one of its events. Our goal is to allow our members to view how the Section works, and afford to become more involved. As Chair of the Torts Insurance & Compensation Law Section, I invite you to become more active and to spend an hour watching this meeting.

Dan Gerber, Chair
Torts Insurance & Compensation Law Section

October 9, 2008

NYSBA LPM alert - FDIC temporary increase

Dear NYSBA members:

The Law Practice Management Committee is pleased to share this information outlining the temporary increase of FDIC deposit insurance for all banks. Please see www.nysba.org/FDIC for details.

Attorneys should be aware that the FDIC insurance limit increase is not a permanent measure and expires by its terms on December 31, 2009. In addition, the limit applies "per owner." As a result, a depositor who provides the proper paperwork can document the fact that funds held in an escrow or trust account belong to a specific party. An inquiry should be made as to whether that party has any other funds on deposit with the same financial institution that would exceed the available FDIC coverage.


Gary Munneke, Chair
Law Practice Management Committee

October 10, 2008

RPLS Notice: Governor’s Subprime Mortgage Foreclosure Bill

From the NYSBA Real Property Law Section:

The article describing the Governor's subprime mortgage foreclosure bill, entitled "State Legislation Addresses Mortgage Foreclosure Crisis and Subprime Lending Abuses," appeared in the August 2008 issue of the Empire Justice Center's "Legal Services Journal." It is listed on our website as a service to members of the Real Property Law Section.

Please note that, with respect to the pleading requirements arising under Section 17 of the Act regarding pleading the status of the plaintiff as the owner or holder of a subprime loan, the legislation appears unclear and the authors take no position on whether that provision applies to loans closed prior to September 1, 2008. Some have argued that since no loans were classified as "subprime" for foreclosure purposes prior to September 1, the additional pleading requirement could not apply to loans closed before that date. Others argue that even if a loan closed prior to September 1, it could still be considered to be a subprime loan if it met the new criteria for being classified as subprime, and in that case the additional pleading requirement would now apply. The Real Property Law Section takes no position on this issue.


To view this message and the Governor’s subprime mortgage foreclosure bill go to www.nysba.org/GovernorsSubprimeMortgageBill

October 16, 2008

The New Federal Rule of Evidence 502


Here is an excellent example of the utility of podcasts for legal discussion. This is from our friends at LegalTalkNetwork:

***

Every lawyer knows the costs of discovery can escalate. Last month on September 19, 2008, President Bush signed Senate Bill 2450 into law, which establishes Federal Rule of Evidence 502 and is effective immediately. This law creates a new rule of evidence limiting certain attorney-client privilege and work product waivers. Law.com bloggers and co-hosts, J. Craig Williams and Bob Ambrogi, welcome Attorney Robert D. Owen, a partner in Fulbright & Jaworski L.L.P., to take a look at New Federal Rule of Evidence 502 and see how this new rule will affect litigation and litigation costs as well as clients.

Click to Listen:

MP3

Windows Media

RSS

iTunes

October 31, 2008

Credit Card Debt Law

Credit Card Debt Law

The Federal Reserve Board proposed rules which, if implemented, will drastically change the practices of credit card companies toward consumers. There should be a long and drawn out battle over the next year, and this website will attempt to follow that battle.

November 7, 2008

NYSBA Action Alert: Help Protect the IOLA Fund and Civil Legal Services Funding

Office of the President

Dear New York State Bar Association member:

I am writing to ask that you assist the New York State Bar Association’s (Association) efforts concerning a critical unintended consequence of the Federal Deposit Insurance Corporation’s (FDIC) new Temporary Liquidity Guarantee Program (TLGP). Simply put, the new program would not cover New York’s Interest on Lawyer Accounts (IOLA) in order to provide unlimited insurance coverage for those accounts. Since 1983, the accumulating interest on money in those accounts has been earmarked for New York’s IOLA Fund. The IOLA Fund has been, and continues to be, an important source of funds for programs that provide civil legal services to New Yorkers who are unable to afford them.

It is important to persuade the FDIC to construe IOLA as non-interest bearing transaction accounts under TLGP. Alternatively, we urge you to support us in persuading the FDIC to grant an exception in the TLGP rules explicitly stating that funds in IOLA accounts have unlimited deposit insurance coverage regardless of dollar amounts. Additional information below explains the impact of this new rule on New York’s IOLA Fund.

Also, the links below will lead you to the Association’s Legislative Action Center, where you will be able to enter your zip code and send a message on this matter to your member of the House of Representatives and both US Senators from New York. A separate link below will enable you to send a message directly to the FDIC.

The FDIC’s new rules were published in the Federal Register on October 29, 2008. The period for public comment on the TLGP ends on November 13, 2008. Please act now!

To send a message to your Senators or Representatives, click here.

To send a message to the FDIC, click here.

Continue reading "NYSBA Action Alert: Help Protect the IOLA Fund and Civil Legal Services Funding" »

November 24, 2008

NEW YORK STATE BAR ASSOCIATION PRAISES FDIC FOR EXTENDING DEPOSIT INSURANCE TO IOLA ACCOUNTS

NYSBA News Release
November 24, 2008

Grassroots Efforts of Association Members Prove Essential in Winning Important Extension


New York State Bar Association President Bernice K. Leber (Arent Fox LLP) released the following statement praising the Federal Deposit Insurance Corporation's (FDIC) decision to extend unlimited insurance coverage to Interest on Lawyer Accounts (IOLA) under the FDIC's new Temporary Liquidity Guarantee Program (TLGP):

"The FDIC's decision to grant IOLA funds unlimited deposit insurance coverage is a resounding victory that protects precious funding that is so desperately needed in order to deliver vital civil legal services to the poor, not only in New York but also in the 36 other states that rely on interest generated from lawyer accounts. The FDIC’s considerate action ensures the safety of client funds deposited in IOLA, regardless of the amount. With home foreclosures and evictions on the rise, and with a growing number of low-income people - from single mothers to the elderly - struggling to survive, we must continue to do everything we can to protect this critical source of legal funding. This announcement brings a ray of good news during these difficult economic times.

I applaud the members of our New York State Bar Association for their outstanding grassroots efforts in making the FDIC and our congressional leaders aware of this important issue. More than half the letters received by the FDIC came from members of the State Bar Association. We place the fight for access to justice for the poor among our top legislative priorities. Throughout New York and the nation, bar associations of all sizes, as well as individual lawyers and law firms, joined state and national political leaders in forming a bipartisan coalition that answered our call. I thank everyone for getting involved and for truly making a difference."


The FDIC's October 23 Interim Rule establishing TLGP provides full deposit insurance coverage on noninterest-bearing transaction accounts.

Continue reading "NEW YORK STATE BAR ASSOCIATION PRAISES FDIC FOR EXTENDING DEPOSIT INSURANCE TO IOLA ACCOUNTS" »

November 26, 2008

New HUD-1 Form

RESPA - Real Estate Settlement Procedures Act Home Page - HUD

From HUD:

For the first time in more than 30 years, the U.S. Department of Housing and Urban Development has issued long-anticipated mortgage reforms that will help consumers to shop for the lowest cost mortgage and avoid costly and potentially harmful loan offers. HUD will require, for the first time ever, that lenders and mortgage brokers provide consumers with a standard Good Faith Estimate (GFE) that clearly discloses key loan terms and closing costs. HUD estimates its new regulation will save consumers nearly $700 at the closing table.

RESPA Final Rule
Good Faith Estimate
HUD-1
HUD1-A
Regulatory Impact Analysis

December 4, 2008

NSBA:OSERS finalizes IDEA regulations

From the National School Boards Association:

The Office of Special Education and Rehabilitative Services (OSERS) of the Department of Education (ED) has issued final regulations governing the Assistance to States for Education of Children with Disabilities Program and the Preschool Grants for Children with Disabilities Program. The new regulations clarify current regulations in 34 CFR Part 300 in the areas of parental consent for continued special education and related services; non-attorney representation in due process hearings; state monitoring, technical assistance, and enforcement; and allocation of funds. The regulations also incorporate a statutory requirement relating to positive efforts as to the employment of individuals with disabilities that was inadvertently omitted from the 2006 regulations.

The major changes in these final regulations from the regulations as proposed in May of 2008 include the following: (1) parental revocation of consent for the continued provision of special education and related services must be in writing, and when the parent revokes such consent, the school district still must provide the parent with the usual written notice of its intentions with respect to the child; and (2) the provision regarding the right to be represented in a hearing by non-attorneys has been revised to apply to any party to a hearing, not just parents. The regulations will be effective December 31, 2008. NSBA’s comments on the regulations as proposed, and the proposed regulations themselves, are at the second link below. The final rule responds to the comments submitted by more than 700 parties. All of the Part 300 regulations are available at the third link below.

73 Fed. Reg. 73,006 (Dec. 1, 2008)

ED Final Rule
NSBA School Law pages on comments to proposed regulations
ED IDEA website page on Part 300 regulations

December 11, 2008

NSBA: FERPA privacy regulations finalized

From NSBA "Legal Clips" Free Subscription here.

The Department of Education (ED) has issued final regulations implementing provisions of the final Family Educational Rights and Privacy Act (FERPA). For background on the proposed regulations and NSBA comments to them, see the second link below. The final regulations clarify permissible disclosures to parents of eligible students and conditions that apply to disclosures in health and safety emergencies; clarify permissible disclosures of student identifiers as directory information; allow disclosures to contractors and other outside parties in connection with the outsourcing of institutional services and functions; revise the definitions of attendance, disclosure, education records, personally identifiable information, and other key terms; clarify permissible redisclosures by state and federal officials; and update investigation and enforcement provisions. Some amendments were adopted in response to concerns that confusion over FERPA’s requirements may have obstructed disclosures that could help prevent tragedies like the shootings at Virginia Tech. Others amendments reflect two U.S. Supreme Court decisions interpreting FERPA and implement a provision of the USA PATRIOT Act and the Campus Sex Crimes Prevention Act, which added new exceptions permitting the disclosure of personally identifiable information from education records without consent. The significant changes from the new regulations as initially proposed include (1) the removal of language relating to state auditors; (2) the addition of a requirement that an institution that makes a disclosure under FERPA’s health or safety emergency exception record the circumstances of the emergency; and (3) the addition of a requirement that an institution record a disclosure not made under that exception. The ED notice addresses comments submitted on the proposed regulations at length.

The regulations are effective January 8, 2009.

73 Fed. Reg. 74,806 (Dec. 9, 2008)

Final regulations
NSBA School Law pages on FERPA regulations

December 16, 2008

IRS to help homeowners refinance or sell homes - Yahoo! News

IRS to help homeowners refinance or sell homes - Yahoo! News

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The plan announced by IRS Commissioner Doug Shulman would speed up a process where financially distressed homeowners may request that a federal tax lien be made secondary to liens by the lending institution that is refinancing or restructuring a loan.

Taxpayers will also be able to ask the IRS to discharge, or remove, its claim to a property in certain circumstances where the property is being sold for less than the amount of the mortgage lien.

"We need to ensure that we balance our responsibility to enforce the law with the economic realities facing many American citizens today," Shulman said, stressing that "we don't want the IRS to be a barrier to people saving or selling their homes."


January 3, 2009

Safeguarding the Rights of Servicemembers and Veterans Homepage

Safeguarding the Rights of Servicemembers and Veterans Homepage

The Department of Justice, in partnership with other federal agencies, is committed to supporting you by enforcing the federal laws that protect your civil rights. The Civil Rights Division protects your civilian employment rights by enforcing the Uniformed Services Emplovment and Reemployment Rights Act ("USERRA"), your voting rights by enforcing the Uniformed and Overseas Citizen Absentee Voting Act of 1986 ("UOCAVA"), and your financial security through the Servicemembers Civil Relief Act ("SCRA").

The employees of the Department of Justice are proud to serve our nation's men and women in uniform. This site provides information on how the Department of Justice and other federal agencies can help you, and what you can do to protect your rights under the law.

Hat Tip to Tom Mighell.

January 16, 2009

New FMLA Regs Go Into Effect 1-16-09

JD Supra: Legal Articles - Reminder: Today, January 16, 2009, is the Day New FMLA Regulations Go Into Effect

The U.S. Department of Labor ("DOL") has issued new regulations interpreting the Family and Medical Leave Act ("FMLA"). The new regulations are extensive; the regulations and the accompanying comments by the DOL occupy more than 200 pages of the Federal Register. In addition, the long awaited regulations on the new forms of leave for military families have been finalized and adopted. A copy of the new regulations, which go into effect Friday, January 16, 2009, and the DOL's comments on the regulations, along with the revised poster, new forms and "FAQ" informational material related to both military and nonmilitary related leaves, may be found at the DOL website: www.dol.gov/esa/whd/fmla/finalrule.htm
***
Thanks to Lane Powell PC - Labor & Employment Law on JD Supra (beta).

January 21, 2009

IMPLEMENTING NEW YORK’S CIVIL VOIR DIRE LAW AND RULES

"IMPLEMENTING NEW YORK’S CIVIL VOIR DIRE LAW AND RULES"

JANUARY 2009

ANN PFAU, CHIEF ADMINISTRATIVE JUDGE
NEW YORK STATE UNIFIED COURT SYSTEM

Message from the Chief Administrative Judge

As part of our continuing efforts to improve the jury system, we have prepared this guide to implementing New York law and rules for jury selection in civil trials.

The purpose of this booklet is to provide an overview of the many legal and administrative requirements governing procedures for civil voir dire, including judicial supervision, selection methodologies, questioning of jurors and juror challenges. In addition, this booklet sets forth recommended approaches or “best practices” for ensuring that jury selection is conducted in a fair and efficient manner that balances the needs of courts, jurors and counsel. It is aimed both at achieving consistency in the implementation of applicable rules and honoring regional differences in practice.

For the last fifteen years, New York’s judges and lawyers have led the nation in implementing reforms to enhance the effectiveness and fairness of our jury system.

This booklet seeks to build on this outstanding partnership. I encourage you to visit us at www.nycourts.gov/ to obtain additional copies of this guide and to learn more about New York’s jury improvement efforts.

Hon. Ann Pfau,
Chief Administrative Judge

January 26, 2009

Taxpayers in New York File with Different Center


News release IR-2009-7 announces that taxpayers in Delaware, Illinois, New York and Rhode Island who file paper income tax returns will send them to different processing centers this year.

New York paper filers will now file in Kansas City Service Center in Kansas City, Mo.

January 28, 2009

FINDLAW: Peanut Butter Inspection Finds Salmonella and Failure to Exercise Controls


FDA INSPECTION REPORT FOR PEANUT CORP. OF AMERICA

(FDA S.E. Region, Atlanta, GA, Jan. 27, 2009) - The U.S. Food & Drug Administration's inspection of a peanut butter and peanut paste processing facility in Georgia found harmful Salmonella at different places in the facility. Inspectors concluded that the Peanut Corporation of America failed "to manufacture foods under conditions and controls necessary to minimize the potential for growth of microorganisms and contamination."

Related Resources
Peanut Butter Products Recalled, Linked to Salmonella Outbreak

February 5, 2009

Chapter 644 of 2008 Session Laws--POA Changes

The Governor signed legislation January 27, 2009 which substantially changes the General Obligations law with respect to powers of attorney; it is Chapter 644 of the 2008 Session Laws with an effective date of March 1, 2009

The NYSBA Trust and Estate Section put out a notice this week with a link to the new legislation; the link is

http://www.nysba.org/Content/NavigationMenu23/PowerofAttorneyLegislation/PowerofAttorneyLegislation.pdf

Many procedural and substantive changes have been made, such as a substantial gift making rider (SGMR), the agent(s) signing the power, the power to appoint a monitor, execution requirments and the ability of third parties to question the powers.

I believe efforts are being made to change the effective date; if the date is not changed, the Bar needs to educate itself and the clients and general public on this matter to hopefully avoid serious confusion and problems.

Submitted by:

Charles E. Lapp, III
Lapp & Lapp
100 Cedarhurst Avenue
PO Box 435
Cedarhurst, New York 11516-0435
Telephone 516-295-3344
Facsimile 516-295-3460
lappandlapp@optimum.net

February 8, 2009

FDsys beta-Daily Compilation of Presidential Documents

US Government Printing Office - FDsys - Home

GPO's Federal Digital System (FDsys) provides public access to government information submitted by Congress and Federal agencies and preserved as technology changes.

Federal Digital System (FDsys) is now available as a public beta!

In conjunction with the change of administration on January 20, 2009, the Daily Compilation of Presidential Documents will provide more timely access to Presidential Documents by making materials available in electronic format on a daily basis

February 18, 2009

Recovery.gov

Home | Recovery.gov

Recovery.gov is a website that lets you figure out where the money from the American Recovery and Reinvestment Act is going. There are going to be a few different ways to search for information. The money is being distributed by Federal agencies, and soon you'll be able to see where it's going -- to which states, to which congressional districts, even to which Federal contractors. As soon as they are able to, they'll display that information visually in maps, charts, and graphics.


Read the full text of the Bill:
The President recently signed the American Recovery and Reinvestment Act into law. Read the full bill here.

Practice Management and the New Rules of Professional Conduct


Tuesday, February 24, 2009


Sponsored by the Committee on Law Practice Management and the General Practice Section

Practice Management and the New Rules of Professional Conduct
CLE Teleconference

Find out how the new rules affect your practice

Tuesday, February 24, 2009

12:00 p.m. - 2:00 p.m.
(Eastern Time)


Moderator:
Professor Gary Munneke

Speakers:
Marian Rice, Esq.
Thomas Rice, Esq.

On April 1, 2009, the New York Rules of Professional Conduct will replace the existing Disciplinary Rules. In addition to adoption of ABA Model Rules Format, the new rules bring changes that affect the manner in which you manage your law firm or practice on your own. Learn the overall format of the newly enacted Rules and how the Rules:

Significantly change the manner in which a conflict of interest should be analyzed and resolved;

Alter the existing rules on the relationship between attorney and client and the allocation of authority in the attorney client relationship;

Impact upon the current letters of engagement rules and the circumstances under which attorneys may agree to a division of fees;

Set forth the attorney's responsibilities and duties to prospective clients who have not engaged the attorney;

Affect the current definitions of attorney-client communications;

Delineate the role of an attorney when dealing with a client of diminished capacity;

Permit, under certain circumstances,evaluations to one other than the client;

Define the role of the lawyer as a third party neutral;

Specify an attorney's obligations before a tribunal;

Expand an attorney's obligation in speaking with unrepresented parties;

Include direction on the inadvertent receipt of documents and respect for the rights of third persons; and

Set forth aspirational goals for pro bono service.

register at www.nysba.org/practicemanagementcle

February 24, 2009

Understanding the Revised Power of Attorney Statute

The New York Law Journal -Free With Registration: Elder Law

Elder Law

Understanding the Revised Power of Attorney Statute

By Daniel G. Fish
February 24, 2009


A recent amendment to the General Obligations Law1 has made a total revision to the power of attorney statute. It is hard to exaggerate the scope of the change. Four sections were repealed, 12 sections were amended and 13 new sections were added. Only two sections of the prior law were neither repealed nor amended.

***

Read the full text of the article here.

February 27, 2009

NYSBA Elder Law Section: POA Revision Delayed Until 9-01-09

We are pleased to report that Governor Patterson has signed legislation extending the effective date of the new Power of Attorney statute which delays its effective date from March 1, 2009 until September 1, 2009.

I also want to thank the efforts of NYSBA staff members Ronald Kennedy and Kevin Kerwin in helping get this change approved by the Assembly and Senate and signed into law by the Governor.

We will be updating you more extensively on this new statute by enews and at upcoming programs including our Section's Unprogram in Poughkeepsie on April 23 and 24, the Basic Skills programs at many sites in early May and at our Summer meeting in Washington D.C. July 23-26.


Timothy E. Casserly, Esq.
Chair, Elder Law Section

March 19, 2009

FINDLAW: New FOIA Guidelines Issued by U.S. Attorney General Eric Holder


MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES RE THE FREEDOM OF INFORMATION ACT

(Washington, D.C., Mar. 19, 2009) - A memo was issued by U.S. Attorney General Eric Holder today directing all executive branch departments and agencies to apply a presumption of openness when responding to federal Freedom of Information Act (FOIA) requests. Holder tells the heads of Executive Branch departments and agencies that they "should not withhold information simply because it may do so legally." Holder rescinded former U.S. Attorney General John Ashcroft's October 12, 2001 FOIA memo that said the Department of Justice would withhold records "unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records."

April 7, 2009

NYTIMES:Vermont Legalizes Gay Marriage

Vermont Legalizes Gay Marriage - NYTimes.com

Vermont has become the fourth state to legalize gay marriage -- and the first to do so with a legislature's vote.

The Legislature voted Tuesday to override Gov. Jim Douglas' veto of a bill allowing gays and lesbians to marry. The vote was 23-5 to override in the state Senate and 100-49 to override in the House. Under Vermont law, two-thirds of each chamber had to vote for override

April 13, 2009

Revised IT-2663 Form

Due to recent law changes, the 2009 Form IT-2663, Nonresident Real Property Estimated Income Tax Payment Form, has been revised. The revisions reflect the correct applicable personal income tax rate at which taxpayers must now calculate and pay their estimated personal income tax liability on the sale or transfer of real property located in New York State. That rate has been increased from 6.85% to 8.97%.
 
The form number has a box around it with the revision date of (4/09) to identify it as revised. You should destroy all copies of the 2009 Form IT-2663 that were previously supplied to your office. The 2009 instructions for Form IT-2663 required no revisions and may continue to be used.
 
Effective immediately, taxpayers must use the revised Form IT-2663 to calculate and pay their estimated personal income tax liability on the sale or transfer of real property located in New York State. You should no longer accept the previous version of the 2009 Form IT-2663 when you are presented with a deed to be recorded where there is a payment on the IT-2663-V. Using the previous version of the form would incorrectly calculate the tax.
 
The revised Form IT-2663 is available on the Tax Department’s Web site at:

http://www.tax.state.ny.us/pdf/2009/fillin/inc/it2663_2009_fill_in.pdf

In addition, you may order additional copies of the form by calling (518)-244-1911.

April 14, 2009

Judge Affirms Pension Authority But Faults Lack of prior Notice

The New York Law Journal -Free With Registration: Judge Affirms Pension Authority But Faults Lack of Prior Notice

Judge Affirms Pension Authority But Faults Lack of Prior Notice

By Vesselin Mitev
April 14, 2009


State Comptroller Thomas P. DiNapoli is reviewing his policy of notifying state pension fund members that their benefits may be revoked, after an upstate judge ruled last week that due process "may require" a "pre-deprivation hearing."

In a pair of rulings, D'Agostino v. DiNapoli, 8134-08, and Swergold v. Cuomo, 3897-08, Acting Supreme Court Justice Gerald W. Connolly in Albany ruled that Mr. DiNapoli and Attorney General Andrew M. Cuomo have the authority to review, investigate and, if necessary, revoke pension benefits, but only after the recipients have received proper notice.

***

Read entire article.

April 20, 2009

NY's New Exempt Income Protection Act Explained

Empire Justice Center

New Protection Against the Garnishment of Exempt Funds:  The Exempt Income Protection Act

By Gina Calabrese and Kirsten Keefe

On September 26, 2008, Governor Paterson signed into law the Exempt Income Protection Act (“EIPA”), Chapter 575 of the Laws of New York, 2008.  Effective January 1, 2009, the law sharply limits judgment creditors’ ability to restrain bank accounts containing directly deposited Social Security and other exempt funds.  EIPA also prevents the first $1,716 of any account from being restrained and creates special procedures that, in most cases, will enable an accountholder to have their account released without the aid of an attorney and without going to court.  It is expected that the law will virtually eliminate the problem of restrained bank accounts for low-income New Yorkers.  Consequently, legal service providers should see a steep decline in the number of requests for assistance with frozen bank accounts.  This article discusses the changes that EIPA makes to the law governing restraining notices imposed on individuals’ bank accounts.

***
Read this excellent article in its entirety here

***
Check out the flow chart.

May 6, 2009

Army Recruiting Immigrants

Only citizens or permanent residents used to be eligible to serve
in the US Army. The Los Angeles Times
http://www.latimes.com/news/local/la-me-immigrant-recruits4-2009may04,0,5078748,full.story
reports "But starting today, 10 Los Angeles-area Army recruiting
offices will begin taking applications from some foreigners who
are here on temporary visas or who have been granted asylum. In
all, the pilot program, which was launched in New York in
February, seeks to enlist 1,000 military recruits with special
language and medical skills, most of whom will join the Army.
Those who are accepted will get an expedited path to citizenship
in return for their service."

***
Hat Tip to Immigration Daily.

May 8, 2009

NY State Senate Live Online

***

If the Senate is not in session, you can check out videos on demand, which should be posted shortly.

***

Gannett (Joseph Spector): New York Democratic legislators launch Web site

Senate Democrats launched a new Web site Thursday to help the public offer comments on state legislation, track bills and better interact with their lawmakers. The revamped site - www.nysenate.gov - includes links for some senators' Twitter and Facebook pages, and allows the public to engage in "crowdsourcing," where they can debate or comment on state proposals. For instance, the site includes a page where people can vote or comment on the various ideas to curb state property taxes. Senate Majority Leader Malcolm Smith, D-Queens, said the site will hopefully be a model for other state legislatures. The site also will include live streaming of Senate hearings, and videos and photos from lawmakers, both Democrats and Republicans.

May 11, 2009

Small Tax-Exempt Organizations Must File e-Postcards


The May 15 deadline marks the second year tax-exempt organizations with gross annual receipts of $25,000 or less are required to file Form 990-N, also known as an e-Postcard. See news release IR-2009-49 for more information.

May 16, 2009

IDEA Non Regulatory Guidance - April 2009 memo

IDEA Non Regulatory Guidance - April 2009 memo

The United States Department of Education (USDOE) has issued non-regulatory guidance on the Part B final supplemental regulations, which implement IDEA 2004. The supplemental regulations, which went into effect December 31, 2008, clarified and strengthened Part 300 of the Code of Federal Regulations (34 CFR) in the areas of parental revocation of consent for continued special education and related services; positive efforts to employ and advance qualified individuals with disabilities; non-attorney representation in due process hearings; State monitoring and enforcement; State use of targets and reporting; public attention; and subgrants to local educational agencies (LEAs), base payment adjustments, and reallocation of LEA funds. A copy of the supplemental regulations is available at http://edocket.access.gpo.gov/2008/pdf/E8-28175.pdf.

May 19, 2009

Animal Protection Laws of the United States & Canada, Fourth Edition

Animal Protection Laws of the United States of America & Canada - Fourth Edition is a resource for lawyers, law professors, law students, legislators, other legal professionals, and anyone who wants a comprehensive animal protection laws collection.

Download a complimentary copy of this 3,400 page compendium or purchase it on CD.

Requires free registration with the publisher, the Animal Legal Defense Fund, whose site is an excellent resource for cases of interest.

Sorry no Mac or Linux versions of the complimentary copy.

June 4, 2009

New Hampshire Same-Sex Marriage Bill Becomes Law


ADOPTION OF NEW HAMPSHIRE HOUSE BILL 73 (full text)

(Concord, New Hampshire, June 3, 2009) - New Hampshire Governor John Lynch signed into law legislation to legalize same-sex marriage. The new law extending marriage rights to gay and lesbian couples takes effect on January 1, 2010.

July 6, 2009

IRS Updates S Corporations Page and Forms

S Corporations

S corporations are corporations that elect to pass corporate income, losses, deductions and credit through to their shareholders for federal tax purposes. Shareholders of S corporations report the flow-through of income and losses on their personal tax returns and are assessed tax at their individual income tax rates. This allows S corporations to avoid double taxation on the corporate income. S corporations are responsible for tax on certain built-in gains and passive income.

Page Last Reviewed or Updated: June 30, 2009

July 28, 2009

Taming the Collection Tempest: A Primer on Federal and State Restraints on Consumer Debt Collection

Outline by the Volunteer Legal Services Program of the Bar Association of San Francisco, this free download focuses on the principals of fair debt collection as it applies to consumers, culminating with Title 15 of the U.S. Code, otherwise known as the Fair Debt Collection Practices Act of 1978. (15 U.S. §1692 et seq.) (FDCPA).

In the wake of the FDCPA, all but eight states adopted their own debt collection regimes. The outline looks at all facets of fair debt collection, offering an overview of the debt collection industry, even including a look at how the laws apply to attorneys who collect consumer debts. (FDCPA does apply.)

There is a particularly useful section on dealing with "debt buyers".

***
Hat Tip to PLI for making this outline available for free.

July 30, 2009

Law.com - FTC Delays Enforcement of Identity Theft Rules That Would Affect Lawyers


Law.com - FTC Delays Enforcement of Identity Theft Rules That Would Affect Lawyers

FTC officials announced in a statement that they would not begin enforcement of what they call the "Red Flag Rule" until Nov. 1. In the meantime, the statement said, the agency plans to add more information to its Web site. The agency is also emphasizing that it is unlikely to bring enforcement actions "if entities know their customers or clients individually, or if they perform services in or around their customers' homes, or if they operate in sectors where identity theft is rare and they have not themselves been the target of identity theft.

***

Read entire article.

August 8, 2009

Bundled Mortgages Pose Problems for Housing Program

Bundled Mortgages Pose Problems for Housing Program - ProPublica

by Karen Weise, ProPublica - August 6, 2009 4:18 pm EDT

***

This article provides an explanation in plain language of the problems involved with modifying securitized mortgages, despite federal program efforts.

August 13, 2009

EIPA Amended

NYSBD: Industry Letters - Amendments Regarding Exempt Funds

The Exempt Income Protection Act (“EIPA”), which was effective January 1, 2009, amended Article 52 of the New York Civil Practice Law and Rules (“CPLR”) and limits the ability of judgment creditors and others to restrain Social Security and other exempt funds.  Click here for full text of the law.

Under recent amendments, the provisions of EIPA do not apply when the state of New York, or any of its agencies or municipal corporations is the judgment creditor, or if the debt enforced is for child support, spousal support, maintenance or alimony. In these instances, the restraining notice or levy must contain a legend at the top, above the caption, in 16-point bold type stating:

“The judgment creditor is the state of New York, or any of its agencies or municipal corporations, AND/OR the debt enforced is for child support, spousal support, maintenance or alimony.”

See Empire Justice Center update on the municipal amendment and compliance issues and, a very useful EIPA Flow Chart.

August 19, 2009

Internet Materials in Opinions: Citations and Hyperlinking

U.S. Courts | TTB | July 2009 | Internet Materials in Opinions: Citations and Hyperlinking


The Judicial Conference has issued a series of “suggested practices” to assist courts in the use of Internet materials in opinions. The recommendations follow a pilot project conducted by circuit librarians who captured and preserved webpages cited in opinions over a six-month period.

Full Article Here.

September 2, 2009

NY : "Age 29" law = Young Adult Option

Coverage Expansion Through Age 29 - “Young Adult Option"

Chapter 240 of the Laws of 2009, sometimes called the “Age 29” law, permits eligible young adults through the age of 29 to continue or obtain coverage through a parent’s group policy. Insurers will notify employees of this benefit. Employees or their eligible dependents may then elect the benefit and pay the premium, which cannot be more than 100% of the single premium rate. This benefit, referred to here as the “young adult option,” is separate and distinct from the “make-available” requirement. It is called the young adult option benefit because it permits eligible young adults to continue their coverage through a parent’s health insurance coverage once they reach the maximum age of dependency under the policy. Young adults may also elect this coverage when they newly meet the eligibility criteria, such as if they lose eligibility for group health insurance coverage.

For Frequently Asked Questions on this option, please select this link

***
Hat Tip to Christopher N. Luhn of the GP Section listserv

chris.luhn@luhnlaw.com.

September 9, 2009

Managing Your Attorney Escrow Accounts Under the New Rules of Professional Conduct

NYSBA CLE

Telephone CLE Seminar
October 7, 2009 | 12:00 to 2:00 p.m.
2.0 MCLE credits in Ethics

Co-sponsored by the Committee on Law Practice Management and the General Practice Section

Register Online at: www.nysba.org/2009managingattorneyescrows

Lawyers are frequently responsible for managing client funds, but when they fail to segregate and account for these funds, they can face disciplinary sanction. This program teaches you the rules for handling client trust accounts, including your responsibilities under the new New York Rules of Professional Conduct. It just is not worth it to defend yourself in a Grievance Committee investigation. Even unintentional irregularities may result in disciplinary action, so it makes sense to learn how to how to protect your firm before a problem arises. What you do not know can hurt you!  

Speakers:
Prof. Gary A. Munneke (moderator) - Prof. Munneke is a professor of law at Pace University School of Law, in White Plains, New York, where he teaches courses in Professional Responsibility, Law Practice Management and Torts. He is an active leader of the American Bar Association, having been elected to the ABA Board of Governors in 2006. He is the Chair of NYSBA's Law Practice Management Committee. He has authored numerous books and articles about current issues on the legal profession, the practice of law and legal career issues.     

Peter V. Coffey, Esq. - Mr. Coffey is a member of Englert, Coffey, McHugh & Fantauzzi, LLP. He is the immediate past chair of NYSBA's Real Property section and past president of the Schenectady County Bar Association. He is the editor of NYSBA's Attorney Escrow Book and represents attorneys in grievance actions. 

Robert J. Saltzman, Esq. - Robert J. Saltzman currently serves as Deputy Chief Counsel to the New York State Grievance Committee for the Second and Eleventh Judicial Districts, having jurisdiction over lawyers practicing in Brooklyn, Queens and Staten Island.  

Managing Your Attorney Escrow Accounts Under the New Rules
of Professional Conduct

Register Online at: www.nysba.org/2009managingattorneyescrows
“Newly admitted attorneys may not obtain CLE credits through this live program”

General Practice Section Members: $50.00
NYSBA Members: $85.00
Non-members: $125.00

For more information call toll free 1.800.582.2452
View the complete CLE seminar schedule online at www.nysba.org/cle

September 15, 2009

Bankruptcy Conference Videos Online

Videos of the annual spring 2009 bankruptcy conference, sponsored by The American College of Bankruptcy First Circuit Fellows and BC Law, are now available online. The conference was entitled, “Chapter 11 in the Current Meltdown: Does it work?” and videos of the morning and afternoon sessions are available for viewing.

The conference featured 5 experts on bankruptcy law: Professor Douglas Baird from the University of Chicago, Stephen Cooper of Zolfo Cooper, David G. Heiman of Jones Day, Harold Novikoff of Wachtell, Lipton, Rosen & Katz, and Honorable William C. Hillman, US Bankruptcy Judge for the District of Massachusetts.

Click on the links below to watch the videos (you must have Realplayer Media Player downloaded to view file).

Morning Panels

Afternoon Panel

September 18, 2009

Find Chief Judge Bulletins on SSA Website

Empire Justice Center: Web News - September 2009

The Social Security Administration (SSA) website includes a variety of great information for disability advocates. A recent discovery are the Chief ALJ Bulletins, known as the Chief Judge bulletins. These bulletins provide information to SSA personnel involved in the hearings process. They may include such things as workload changes, system enhancements, or serve as notification of imminent or recently-approved revisions in the HALLEX (Hearings, Appeals and Litigation Law Manual). They may also provide reminder items on a variety of topics. Recent topics have included guidance on fleeing felon cases and use of vocational expert interrogatories.

https://secure.ssa.gov/apps10/

September 22, 2009

First-Time Homebuyer Credit Provides Tax Benefit to 1.4 Million Families to Date, More Claims Expected

With the deadline quickly approaching, the Internal Revenue Service reminded potential homebuyers they must complete their first-time home purchases before Dec. 1 to qualify for the special first-time homebuyer credit. The American Recovery and Reinvestment Act extended the tax credit, which has provided a tax benefit to more than 1.4 million taxpayers so far. The credit of up to $8,000 is generally available to homebuyers with qualifying income levels who have never owned a home or have not owned one in the past three years.

The IRS has a new YouTube video:

and other resources that explain the credit in detail.

October 5, 2009

Modernization of New York's Land Use Laws Continues to Meet Growing Challenges of Sustainability

Patricia Salkin
Albany Law School

Pace Law Review, Vol. 29, No. 563, 2009

Abstract:     
There has never been a more challenging time to practice land use planning and zoning law in New York. With goals of sustainability at the forefront of the land use regulatory agenda, this brief account of recent developments in land use law highlights some discernable trends, namely: the modernization and increased flexibility of New York State planning and zoning enabling acts, the inspired local initiatives and lethargic State response to affordable housing issues, and the increasing impact of alternative energy systems on local regulatory schemes.

Part I of this article explores the impacts on community development caused by the many modifications to New York State’s planning and zoning enabling acts over the last two decades. Particularly, the article identifies the delegation of extensive discretionary authority to local governments as New York’s signature approach to land use control.

Part II discusses “affordable housing” as a key attractant for judicial action and local government response. With the exception of the Long Island Workforce Housing Act in 2008, the State has been slow to act on judicial calls to action, forcing local governments to develop unique solutions in order to provide affordable housing.

Finally, Part III notes the challenges being faced by lawyers and planners in light of growing preference for alternative energy systems, with specific focus on reactions to Wind Energy and Solar Energy installations.

Download the entire article here.

October 20, 2009

New Video Series Helps Exempt Organizations Understand Redesigned Form 990 Requirements


The Internal Revenue Service has launched a new case study and video program to help exempt organizations and their tax preparers better understand the newly revised Form 990 series which must be filed for the 2008 tax year. The Form 990 series, redesigned for the first time in nearly 30 years, requires more disclosure and transparency by exempt organizations. With some exceptions, organizations that are exempt for federal taxation are required to file the Form 990 information return. The additional information will give the IRS and the public a better view of how the exempt organizations work, especially in terms of expenditures and executive salaries.

October 30, 2009

Law.com - Judge Rules FTC Cannot Make Lawyers Comply With Identity Theft Laws

The Federal Trade Commission cannot force practicing lawyers to comply with new regulations aimed at curbing identity theft, a federal judge ruled Thursday at the U.S. District Court for the District of Columbia.

Read article-National law Journal.

November 6, 2009

NYS Senate: Open Legislation

Open Legislation is a Google-like search engine where you can find bills, roll call votes and all of the key information about legislation going through the New York State Senate.You may also comment on the legislation.

November 24, 2009

More Mortgage Foreclosure Legislation


On Monday November 16 Governor Patterson and Legislative Leaders jointly announced the passage of Program Bill No. 46 to significantly expand the scope of the mortgage foreclosure legislation enacted in 2008 that pertained to subprime loans.

Also known as S66007/and A40007, the legislation has not yet formally been submitted to the Governor for his signature and assignment of a Chapter Number. However, the delay appears merely procedural rather than over any substantive issue.

You may access the Bill's status, text, a brief summary and the Sponsors' Memos (which contain a longer summary) at http://public.leginfo.state.ny.us/menugetf.cgi . ( note, in some instances you may be required to insert the Bill Number in the second box for Legislative Information, IE, either S66007 or A40007 and then adjust the year in the next box to 2009 before hitting "Search" )

Here are some of the major points covered by the legislation

• Requires the 90-day foreclosure notice currently sent for subprime loans to be expanded to include all home loans. This measure allows additional time for many more homeowners to work with their lender to try to find an affordable solution to prevent unnecessary foreclosures.

• Requires lenders who serve a 90-day notice on a homeowner to within three days of that service make a regulatory filing with the Banking Department with specified information. This regulatory filing will allow the Banking Department and the Division of Housing and Community Renewal (DHCR) to provide targeted assistance to distressed homeowners during the critical pre-foreclosure timeframe and closely monitor foreclosure statistics.

• Expands the scope of early mandatory settlement conferences to include borrowers of all home loans and not just borrowers with subprime loans.

• Establishes protections for tenants in foreclosed properties by requiring that they receive written notification of the change in ownership of the property and be permitted to remain in their home for the remainder of their lease term or 90 days, whichever is longer.

• Requires plaintiffs in a foreclosure action who obtain a judgment of foreclosure and sale to maintain the foreclosed property.

• Prevents brokers who perform distressed property consulting services from accepting upfront fees.

Hat tip to Harry Meyer of the Real Property Law Section for this post

The legislation had the support of New Yorkers for Responsible Lending, a state-wide coalition of 149 non-profit groups http://www.nedap.org/programs/nyrl.html

December 1, 2009

First-Time Homebuyer Credit Extended to April 30, 2010; Some Current Homeowners Now Also Qualify


A new law that went into effect Nov. 6 extends the first-time homebuyer credit five months and expands the eligibility requirements for purchasers. The Worker, Homeownership, and Business Assistance Act of 2009 extends the deadline for qualifying home purchases from Nov. 30, 2009, to April 30, 2010. Additionally, if a buyer enters into a binding contract by April 30, 2010, the buyer has until June 30, 2010, to settle on the purchase.

IRS YouTube Video
New Homebuyer Credit, November 2009

December 16, 2009

Legislative Alert: New Residential Mortgage Foreclosure Legislation Signed Into Law


From the NYSBA Real Property Law Section:

Enactment of
New Mortgage Foreclosure Legislation

The New York State Legislature has passed and Governor Patterson has signed Program Bill No. 46 to significantly expand the scope of the mortgage foreclosure legislation enacted in 2008 that pertained to subprime loans.

Also known as S66007/and A40007, the legislation, which takes effect immediately, makes many important changes in the law and, most importantly, expands the use of early mandatory settlement conferences to include all home loans.

At the bottom of this message is a link to a copy of the Bill, the Sponsors' Memorandum and the Governor's message. Here are some of the major points covered by the legislation:

Expands the 90-day pre-foreclosure notice currently sent for subprime loans to include all home loans, including loans on cooperative apartments.

Requires lenders who serve a 90-day notice on a homeowner to make, within three days of that service, a regulatory filing with the Banking Department with specified information to allow the Banking Department and the Division of Housing and Community Renewal to provide targeted assistance to distressed homeowners during the pre-foreclosure period and closely monitor foreclosure statistics

Expands the scope of early mandatory settlement conferences to include borrowers of all home loans and not just borrowers with subprime loans and requires both plaintiffs and defendants to negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible

Establishes protections for tenants in foreclosed properties by requiring that they receive written notification of the foreclosure action and the change in ownership of the property, and be permitted to remain in their home for the remainder of their lease term or 90 days, whichever is longer, provided that such lease requires the payment of rent that is not substantially less than fair market rent

Requires plaintiffs in a foreclosure action who obtain a judgment of foreclosure and sale to maintain the foreclosed property so that it does not pose a blight or nuisance, or create a blighting influence on neighboring properties -- if the property is occupied by a tenant, the plaintiff must also maintain the property in a safe and habitable condition

Prevents brokers who perform distressed property consulting services from accepting upfront fees

Permits the court to award reasonable attorneys' fees to a prevailing borrower in a foreclosure action

This is a brief summary of the major points covered by the legislation and many of you will want to read the entire Bill.

This legislative update was prepared by Steve Alden, Rebecca Case Grammatico and Harry Meyer.

To view/download, the Bill, the Sponsors' Memorandum and the Governor's message, go to
www.nysba.org/RPLSLegislation


Joel Sachs
Section Chair

December 28, 2009

Prof. Patty Salkin On FCC Timeline Ruling

Petition Pending for Reconsideration of New FCC Rules Setting Timeframes for Governments to Act on Wireless Tower Siting Applications Under TCA « LAW OF THE LAND

Petition Pending for Reconsideration of New FCC Rules Setting Timeframes for Governments to Act on Wireless Tower Siting Applications Under TCA
In a 5-0 decision, the Federal Communications Commission (“FCC”) issued new rules, effective November 18, 2009, establishing deadlines for state and local zoning governments to act on wireless tower siting with respect to applications involving personal wireless services covered by Section 332(c)(7) of the Telecommunications Act.

***

Read entire article here.

Rights of Inpatients in New York State Office of Mental Health Psychiatric Centers

Rights of Inpatients in New York State Office of Mental Health Psychiatric Centers

Rights of Inpatients in
New York State Office of Mental Health
Psychiatric Centers

Most people are admitted to New York State psychiatric centers under the Mental Hygiene Law. If you are among them, you are entitled to a broad array of basic rights succinctly set forth in the above document. (Download full text in pdf)

***
Hat tip to Bethany Schumann-McGhee, Esq

January 19, 2010

NY: Amanda’s Law-Carbon monoxide alarm requirements to go into effect February 22, 2010

As the result of legislation, Amanda’s Law will go into effect on February 22, 2010. It requires essentially all residences, both new and existing, to have carbon monoxide alarms installed. The specific requirements differ for new and existing residences and also on when the buildings were built and subcategories of occupancy groups.

Probably the most asked question will be the requirement for existing one and two family residences. They will be required to have one carbon monoxide alarm installed on the lowest story having a sleeping area.

The proposal to modify the Uniform Fire Prevention and Building Code, in order to comply with Amanda's Law, is in the process of being adopted as an emergency rule. The following link provides the proposed code text and legislation, Amanda’s Law.

http://www.dos.state.ny.us/code/COAlarm.htm

Join the NYS DOS Codes Division mailing list: Codeslist@dos.state.ny.us

January 21, 2010

FINDLAW: Daily Opinion Summaries for U.S. Supreme Court - 01/21/10

CONSTITUTIONAL LAW, ELECTIONS

Citizens United v. FEC, No. 08–205
The Court rules that the government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. Specifically, in an action brought by a nonprofit corporation, the makers of a documentary critical of Hillary Clinton's presidential candidacy, challenging the constitutionality of a federal law prohibiting corporations and unions from using their general treasury funds to make independent expenditures for speech that was an "electioneering communication" or for speech that expressly advocated the election or defeat of a candidate, a denial of a preliminary injunction for plaintiff is reversed in part where Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), is overruled, and thus provides no basis for allowing the government to limit corporate independent expenditures. Hence, the part of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2007), that upheld the Bipartisan Campaign Reform Act section 203's extension of section 441b's restrictions on independent corporate expenditures is also overruled. However, the order is affirmed in part where BCRA sections 201 and 311 were valid as applied to the ads for the documentary and to the movie itself because disclaimer and disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign-related activities, or prevent anyone from speaking.

February 5, 2010

IRS Debunks Frivolous Tax Arguments

The Internal Revenue Service has released the 2010 version of its discussion and rebuttal of many of the more common frivolous arguments made by individuals and groups that oppose compliance with federal tax laws.

Anyone who contemplates arguing on legal grounds against paying their fair share of taxes should first read the 80-page document, The Truth about Frivolous Tax Arguments.

February 12, 2010

Dickerson on New York Consumer Law

The "bibles" of New York (mostly) consumer law are two yearly-updated treatises by Thomas A. Dickerson, an associate justice of the Appellate Division, Second Department of the New York State Supreme Court, and they're free.

Here are links:

http://courts.state.ny.us/courts/9jd/TacCert_pdfs/CONSUMERLAW2009FINAL.pdf

and

http://courts.state.ny.us/courts/9jd/TacCert_pdfs/CONSUMERPROTECTION2009.pdf

Courtesy of:

David Zevin, Esq.
55 Cedar Dr.
Roslyn, NY 11576
Ph: (516) 849-5335
Fax: (206) 333-0228

February 17, 2010

NY: Estate Planning for Domestic Partners and Non-Traditional Families

For domestic partners, same-sex spouses and their children, proper estate planning is crucial not only to ensure inheritance rights, but also to establish objective proof of the existence of a domestic partnership, as distinct from a more social relationship, and to overcome the many gaps in the legal recognition and status of their families of choice.

This excellent 30-page guide by Erica Bell, Esq. of Weiss, Buell & Bell can be downloaded from PLI for free here.

March 3, 2010

NYLJ: Paterson Charged With Ethics Violation Over World Series Tickets

;Free Breaking News:</font> Paterson Charged With Ethics Violation Over World Series Tickets

The state Commission on Public Integrity said today that there is reasonable cause to believe that the governor had accepted five $425 tickets from the New York Yankees as a gift in violation of Public Officers Law Ё73(5)(a)(b).

Read the commission's Notice of Reasonble Cause.

March 23, 2010

New York's Family Health Care Decisions Act

New York Family Health Care Decisions Act

by David Goldfarb
Goldfarb Abrandt Salzman & Kutzin LLP


On March 16, 2010, New York's Governor David Paterson signed the Family Health Care Decisions Act (FHCDA) into law. The FHCDA allows family members to make health care decisions, including decisions about the withholding or withdrawal of life-sustaining treatment, on behalf of patients who lose their ability to make such decisions and have not prepared advance directives regarding their wishes.

***

Read David Goldfarb's entire article here.

April 9, 2010

Foley Hoag LLP: HCR Key Provisions

Health Reform: Patient Protection and Affordable Care Act & Health Care and Education Affordability Reconciliation Act: KEY PROVISIONS | Foley Hoag LLP - JDSupra

Download as pdf file.

Maintaining and Protecting Racial Justice in 2010- A panel discussion with CCR Attorney Darius Charney- Ithaca, NY

Maintaining and Protecting Racial Justice in 2010- A panel discussion with CCR Attorney Darius Charney- Ithaca, NY | Center for Constitutional Rights

Join the Center for Constitutional Rights and Cornell University Law School for "Maintaining and Protecting Racial Justice in 2010", in a discussion featuring CCR Attorney Darius Charney. The event will take place at Cornell University Law School on Thursday, April 22nd from 12:30-1:30pm in Myron Taylor Hall of Cornell, room 276.

April 14, 2010

Calls for State Insurance Threaten Property Transfers


Wednesday, April 14, 2010
By Adam Leitman Bailey and Dov Treiman

Adam Leitman Bailey, founding partner of Adam Leitman Bailey, P.C., and Dov Treiman, a partner at the firm, write:

Currently before the State Legislature are two bills that would inject the state in the business of title insurance, damaging New York's standing as the capital of real estate transactions. One would broaden the power of the State Insurance Fund to provide a State alternative to the current private system of title insurance. The other would create a new state title authority for the same purpose. Many real estate attorneys see these bills as a threat, both to the heart of the safe transfer of real estate and to the capitalist system itself.

Read the full text of this article here.

April 16, 2010

Hospital visitation memo

Hospital visitation memo

April 19, 2010

Animal Legal Defense Fund: Animal Protection Laws Fifth Edition Now Available

This is an excellent resource for for lawyers, law professors, law students, legislators and other legal professionals. Download a complimentary copy! (Registration required)

A new edition of ALDF's Animal Protection Laws of the United States of America and Canada is now available. Now at more than 3,800 pages in length, the fifth (and tenth anniversary) edition of the compendium contains a detailed survey of the general animal protection and related statutes for all of the states, principal districts and territories of the United States of America, and for all of Canada; up-to-date versions of each jurisdiction’s laws; easy, clickable navigation; and fully searchable content.

April 27, 2010

Video Feeds from the House Floor

Office of the Clerk of the U.S. House of Representatives HouseLive Beta

The U.S. House of Representatives offers streaming video feeds of the House Floor Proceedings dating back to the beginning of the 111th Congress. Click Video to watch each session, or click Summary to view the text-only version of the proceedings. Windows Media Player or Silverlight is required to view the videos.

Proceedings of the House of Representatives, including any recording of such proceedings, may not be used for any political purpose or in any commercial advertisement, and may not be broadcast with commercial sponsorship except as part of a bona fide news program or public affairs documentary program.

May 12, 2010

Starting a Nonprofit Organization in New York

Starting a Nonprofit Organization in New York - New York Small Business Law
Nonprofits are businesses that made it their mission to give away all of their profits to a particular cause, rather than enrich the owners of the business.

Starting a nonprofit organization is in many ways like starting any other small business in New York. But there are additional steps required in order to get the desired status of "tax exempt" from the IRS,which means that the organization does not have to pay taxes on any of its income.

Here are some good links to get you started:

The Things you Gotta do to Start a Nonprofit Organization, by the Nonprofit Coordinating Commitee of NewYork;

Exemption Requirements by the IRS; and

A step by step Application Process by the IRS.

Another practical post from Imke Ratschko's New York Small Business Law

Follow Atty. Ratschko on Twitter.

May 14, 2010

Google Scholar Adds E-mail Alerts

The email alerts feature looks like an excellent addition to Google Scholar.

Click the "Legal Opinions..." radio button) for one of the best free sources online for searching case law.


See: Netforlawyers: Google Scholar Adds E-mail Alerts

May 22, 2010

Statement of IRS Commissioner Doug Shulman on the Filing Deadline for Small Charities

Statement of IRS Commissioner Doug Shulman on the Filing Deadline for Small Charities

 
Now that the May 17 filing deadline has passed, it appears that many small tax-exempt organizations have not filed the required information return in time. These organizations are vital to communities across the United States, and I understand their concerns about possibly losing their tax-exempt status.

The IRS has conducted an unprecedented outreach effort in the tax-exempt sector on the 2006 law’s new filing requirements, but many of these smaller organizations are just now learning of the May 17 deadline. I want to reassure these small organizations that the IRS will do what it can to help them avoid losing their tax-exempt status.

The IRS will be providing additional guidance in the near future on how it will help these organizations maintain their important tax-exempt status — even if they missed the May 17 deadline. The guidance will offer relief to these small organizations and provide them with the opportunity to keep their critical tax-exempt status intact.

So I urge these organizations to go ahead and file â€” even though the May 17 deadline has passed.

Filing a tax return for the small organizations is easier than you’d think. It just takes a few minutes to fill out the electronic notice Form 990-N (e-Postcard). This is available for small tax-exempt organizations with annual receipts of $25,000 or less.

Related Information:

For access to the e-Postcard and further details, see Annual Electronic Filing Requirement for Small Exempt Organizations, Form 990-N (e-Postcard).

 


Page Last Reviewed or Updated: May 18, 2010

May 27, 2010

Legal Clips-School Law

Legal Clips

Legal Clips, a service of the National School Boards Association Office of General Counsel has a new home. You may now subscribe to Legal Clips in a variety of ways:

1. Simply visit the new Legal Clips website: legalclips.nsba.org/
2. Subscribe to the new Legal Clips RSS feed: legalclips.nsba.org/?feed=rss2
3. Subscribe to their new e-newsletter. (Legal Clips is switching to a new e-newsletter service next week. New subscriptions have been suspended until then. Check back in June!)

This free service provides thousands of subscribers with weekly updates on important and interesting school law issues, as well as helpful resources. Anyone may subscribe. Your input is both welcome and encouraged. They hope this new website will become an interactive community generating vibrant and meaningful discussions on school law issues. You can post comments on the new website, or simply follow them on Twitter @legalclips.

June 1, 2010

USSC: Conservative Majority Limits Miranda

CRIMINAL LAW & PROCEDURE, EVIDENCE, HABEAS CORPUS

Berghuis v. Thompkins, No. 08-1470

In a murder prosecution, the Sixth Circuit's reversal of the district court's denial of petitioner's habeas petition is reversed where the state court's decision rejecting petitioner's Miranda claim was correct under de novo review and therefore necessarily reasonable under the Antiterrorism and Effective Death Penalty Act's more deferential standard of review because petitioner's silence during his interrogation did not invoke his right to remain silent.

June 16, 2010

The Law.Gov Movement

The Law.Gov Movement

The "Law.Gov" movement is a campaign to put all primary legal materials in the public domain. Some call it "democratizing" law. Attorney and co-host, Bob Ambrogi welcomes Carl Malamud, founder of Public.Resource.org and Tom Bruce, the Director of the Legal Information Institute at Cornell University Law School, to share with us the latest on Law.Gov. Carl and Tom explore the Law.Gov movement, the benefit of public access to legal materials and who opposes the idea as well as the various workshops across the states.

Download MP3

NY Court of Appeals: Real Property Tax Law section 480-a

ADMINISTRATIVE LAW, GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE, TAX LAW

In re: Gordon, No. 108 (full text from Findlaw)

In tax review proceedings against the Town of Esopus, its Assessor, and its Board of Assessment Review to challenge the taxable assessed value of petitioners' land on the assessment rolls for the years 2002 through 2005, the appellate division's denial of the petition is reversed where forest land certified as such by the Department of Environmental Conservation under Real Property Tax Law section 480-a is used, for real property tax assessment purposes, as forest land and must be assessed based on that use.

June 22, 2010

NYS Sales Tax Issues

The NY State Tax Audit staff have adopted an aggressive posture which, while focused on the restaurant business, really has significant red flags for real estate attorneys dealing with a variety of retailers, including restaurants, because of the Bulk Sales Tax Act provision for transferee liability.

As set forth in an alarming article from the Buffalo News, the requirement that a business have duplicate copies of all customer invoices for 3 years is one which trips up all sorts of businesses.

Contributed by:

Harry G. Meyer
hmeyer@hodgsonruss.com
tel. 716.848.1417
facsimile. 716.819.4632

The Guaranty Building
140 Pearl Street, Suite 100
Buffalo, New York 14202-4040
www.hodgsonruss.com

June 27, 2010

The Government Domain: New & Free Regulations Trackers

The Government Domain: New & Free Regulations Trackers | LLRX.com

The independent web developers of this 2.0 world have done a great job in making federal legislative information available in new ways; see GovTrack.us and OpenCongress.org for examples. The same is happening with federal regulatory information. New, free, nongovernment resources have come online to complement the official U.S. government regulatory information sites, RegInfo.gov and Regulations.gov. For this bounty, we can thank innovative developers and the relatively new availability of a free XML version of the Federal Register that can be downloaded in bulk. The Federal Register has long been available for searching and viewing for free, but subscribing to the data in bulk--necessary for meaningful repurposing--carried a cost that discouraged entrepreneurial individuals. In the meantime, both RegInfo.gov and Regulations.gov have been redesigned and continue to provide content and functionality not available on the other free sites mentioned in this article.

From our old friends at LLRX. Read the entire article by Peggy Garvin.

Thanks to Tom Mighell for this link. Its good to see his Inter Alia newsletter is back from hiatus.

July 2, 2010

Closing Deadline Extended to Sept. 30 for Eligible Homebuyer Credit Purchases

Eligible taxpayers who contracted to buy a home, qualifying for the first-time homebuyer credit, before the end of April now have until Sept. 30, 2010 to close the deal; the Internal Revenue Service announced today, July 2, 2010.

July 4, 2010

No Fault Divorce Passes in NY Legislature--Awaits Gov's Signature

A9753-A Bing (MS) Same as S 3890-A HASSELL-THOMPSON


Section 1. Section 170 of the domestic relations law is amended by
2 adding a new subdivision 7 to read as follows:
3 (7) The relationship between husband and wife has broken down irre-
4 trievably for a period of at least six months, provided that one party
5 has so stated under oath. No judgment of divorce shall be granted under
6 this subdivision unless and until the economic issues of equitable
7 distribution of marital property, the payment or waiver of spousal
8 support, the payment of child support, the payment of counsel and
9 experts' fees and expenses as well as the custody and visitation with
10 the infant children of the marriage have been resolved by the parties,
11 or determined by the court and incorporated into the judgment of
12 divorce.

13 § 2. This act shall take effect on the sixtieth day after it shall
14 have become a law and and shall apply to matrimonial actions commenced
15 on or after such effective date.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03530-04-0

Section 1. Section 170 of the Domestic Relations Law is amended by adding subdivision 7 allowing divorce when a marriage is irretrievably broken, for a period of at least six (6) months, provided that one party has so stated under oath.

This judgment can only be granted after the following ancillary issues have been resolved: the equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and expert fees and expenses, and custody and visitation with the infant children of the marriage.

A judgment of divorce under this subdivision could not be issued until all these issues are resolved.

Section 2 establishes that this act shall take effect on the sixtieth day after it shall have become law.

July 6, 2010

NYLJ: Divorce Lawyers Predict Reduced Costs, Less Stress Under NY No-Fault

Divorce Lawyers Predict Reduced Costs, Less Stress Under No-Fault

Matrimonial lawyers said last week that the income they stand to lose through no-fault divorce in New York would be offset by the benefits to families facing less contentious, more expeditious divorce proceedings.

Proponents of no-fault divorce won a long-standing legislative fight on Thursday, when the Assembly gave final approval to a bill making New York the last state in the nation without an option for no-fault divorce.

***

Mr. Paterson will also be sent two other bills related to the no-fault measure: A10984/S7740, providing for interim maintenance payments and a statewide study of the maintenance issue, and A7569/4532, providing for the payment of lawyer's fees for the "non-monied" spouses.

***

Read entire article by Joel Stashenko and Noeleen G. Walder.

July 30, 2010

IRS Offers One-Time Special Filing Relief Program for Small Charities; Oct. 15 Due Date to Preserve Tax-Exempt Status


The IRS has announced that small nonprofit organizations at risk of losing their tax-exempt status because they failed to file required returns for 2007, 2008 and 2009 can preserve their status by filing returns by Oct. 15, 2010. IRS Commissioner Shulman made the following comments regarding the special filing relief.

The IRS today posted on a special page of IRS.gov the names and last-known addresses of these at-risk organizations, along with guidance about how to come back into compliance.

August 14, 2010

OpenRegs.com

About | OpenRegs.com

OpenRegs.com is an alternative to the federal government's Regulations.gov regulatory dockets database. That site can be confusing and difficult to use for average citizens and experts alike. The goal of OpenRegs.com is to make the proposed and final regulations published in the Federal Register easy to find and discuss, so that citizens can become better informed and more involved in the regulatory process.

OpenRegs.com also has features not available anywhere else. These include the ability to browse by, and subscribe to, individual agencies and topics codes. Also available are discussion forums for each agency and each regulation, user-submitted related links, and much more.

Please note, though, that using OpenRegs.com is not a substitute for visiting Regulations.gov. That site is ultimately the official site. Also, if you want to see comments filed with agencies in a particular regulatory proceeding, you'll have to visit Regulations.gov or the agency's own site. OpenRegs.com should serve as the launching pad, research portal, and discussion community for your regulatory adventures.

Check out their new, FREE iPhone app, which will allow you to take the Federal Register with you wherever you go.

August 16, 2010

Paterson Signs No-Fault Divorce Bill -- August 15, 2010

Paterson Signs No-Fault Divorce Bill in New York - NYTimes.com

Gov. David A. Paterson signed into law a package of bills on divorce on Sunday, including one making New York one of the last states to allow couples to dissolve marriages by mutual consent.

The no-fault divorce bill allows a couple to dissolve the marriage by mutual consent and without requiring one spouse to accuse the other of adultery, cruelty, imprisonment or abandonment. It also allows one spouse to divorce the other unilaterally.

August 18, 2010

Federal Benefits for Veterans, Dependents and Survivors 2010 Edition

Federal Benefits for Veterans, Dependents and Survivors - Office of Public and Intergovernmental Affairs

Federal Benefits for Veterans, Dependents and Survivors 2010 covers pensions, insurance, home loans, survivor benefits, military medals and records, and a lot more. In Chapter 4, Education and Training, you’ll find the latest information on the post-9/11 GI Bill. For wounded warriors, Chapter 10, Transition Assistance, talks about a re-launched Web site, the National Resource Directory (www.nationalresourcedirectory.gov), that “provides access to thousands of services and resources at the national, state and local levels to support recovery, rehabilitation and community reintegration.”

In short, this publication has the power to give millions of people the information they need to get the benefits they deserve. You can view it here in either English or Spanish.

August 23, 2010

Power of Attorney Forms (Downloadable)-Eff. Sept. 12,2010

NYSBA | Power of Attorney2010

The New York Statutory Short Form Power of Attorney and New York Statutory Gifts Rider Authorization linked here go into effect on September 12, 2010, the thirtieth day after it became law.

Although the specific language of the statutory forms cannot be changed, modifications can be made in subsection (g) of the Power of Attorney form and under paragraphs (b) and (c) of the Statutory Gifts Rider Authorization. Sample modifications to the Power of Attorney form and the Statutory Gifts Rider Authorization are also included. The modifications are provided by Kathryn Grant Madigan of Levene Gouldin & Thompson, LLP, and other State Bar volunteers, including Michael O'Connor of Delaney and O'Connor. Please note that some of these clauses are mutually exclusive and should be inserted in accordance with the direction/best interests of the Principal. You should also enter your own modifications, as appropriate, to best meet the needs of the Principal.

Please be sure to read the instructions before downloading the forms.

September 2, 2010

NYSED: Student Registration Guidance

Legal Clips » New York state'€™s education department recommends local school districts do not ask for information related to enrolling students'€™ immigration status

NYDE issued a memo in which it explained that a 1982 Supreme Court decision had recognized the right of all children, regardless of immigration status, to attend public school as long as they met the age and residency requirements established by state law. The memo states: "Accordingly, at the time of registration schools should avoid asking questions related to immigration status or that may reveal a child’s immigration status, such as asking for a Social Security number.

For Full Text of the memo click here.

September 10, 2010

Don't Forget the Sept. 30 Deadline for Eligible Homebuyer Credit Purchases


Eligible taxpayers who contracted to buy a home, qualifying for the first-time homebuyer credit, before the end of April have until Sept. 30, 2010, to close the deal. See IRS news release IR-2010-80 from July 2 for more.

September 17, 2010

NYLJ: Title Abstracts and Public Documents Now Taxable

Title Abstracts and Public Documents Now Taxable

Joseph Lipari and Debra Silverman Herman
New York Law Journal September 17, 2010

The TSBM explains that to better reflect controlling judicial case law, the tax department is reversing its prior correspondence that indicated that sales of abstracts of title (condensed history of title to a particular piece of real estate) were not subject to sales tax. Therefore, on or after Sept. 1, 2010, sales of an abstract of title to either a prospective purchaser of real property or to an attorney who uses the abstract in connection with an opinion of title are taxable information services.

Notably, the TSBM concluded that a title search conducted by an attorney is exempt as the provision of legal services. While abstracts of title do reflect raw data, and therefore represent the type of information the sales tax law intended to be taxed as an information service, they are often used to prepare policies of title insurance. Difficult issues arise when the sale of the abstract is in connection with the sale of title insurance, since insurance is not subject to sales tax.

Read entire article (free registration required)

Download pdf of TSB-M-10(7)S

September 20, 2010

BOb Ambrogi: A Handy App for Bankruptcy Lawyers

A Handy App for Bankruptcy Lawyers · Robert Ambrogi's LawSites

A recently released iPhone and iPad app designed for bankruptcy lawyers, Bankruptcy II, describes itself as a “complete reference for the working bankruptcy attorney.” It is an overstatement to call it complete, because it does not have cases. Aside from that, however, it has pretty much everything else a bankruptcy lawyer could ask for — the full U.S. bankruptcy code, full U.S. bankruptcy rules, local rules for almost every bankruptcy court in the United States, and contact information for all bankruptcy courts, appellate courts and trustees — all within an integrated and easy to use application.

The most impressive feature of this app is that it not only provides all this content, but that it makes it searchable, cross-indexed and hyperlinked.

It is higher priced than most apps at $29.99; but it does have the advantage of integrating code and regs, with links.

September 22, 2010

JURIST: New York governor signs law allowing unmarried partners to adopt

JURIST - Paper Chase: New York governor signs law allowing unmarried partners to adopt

Jay Carmella at 11:18 AM ET

[JURIST] New York Governor David Paterson (D) signed a bill on Sunday allowing unmarried partners, including gay couples, to jointly adopt a child. The law [A 05652 materials] amends the language of Section 110 [text] of New York's domestic relations law to allow two unmarried adult intimate partners to adopt a child. The New York Assembly passed the bill in July, after finding that the amended language keeps with the state's policy to ensure the best interests of the child. The new law also removes the phrase "husband and wife" and replaces it with "married couple." This is because, while same-sex marriage is illegal in the state, New York recognizes [NY1 News> report] same-sex marriages from other states. The amended language is as follows:

An adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together may adopt another person...An adult or minor married couple together may adopt a child of either of them born in or out of wedlock and an adult or minor spouse may adopt such a child of the other spouse.

New, New NY Power of Attorney (POA) Survey

www.nysba.org/POASurvey

Here's your chance to give your opinion on the new, new POA form:

A new law regarding Power of Attorney became effective on September 1, 2009, with substantive technical amendments that took effect on September 12, 2010.

NYSBA, with the support of the Elder Law Section, is interested in examining what problems lawyers in NYS have encountered with the new POA law/form, including drafting the proper form tailored to the client's needs, problems encountered with the execution requirements and our collective experience in reviewing forms that have been drafted by other attorneys.

NYSBA would also like to determine if the new Agent's Acknowledgment and/or Gifts Rider achieve the goal of deterring financial abuse, and to what extent New York lawyers have encountered barriers with third party acceptance of pre and post 9/09 POAs.

NYSBA has developed a short survey that will collect your important thoughts and experiences. It is anticipated that NYSBA will take a position with regard to the new POA law/form and will present its position and the findings of the survey to the NYS legislature. Your response to this survey is very important and will assist NYSBA and the Elder Law Section to prepare an empirically based and compelling analysis of the law and its impact on the state’s legal profession. Please complete your survey no later than Friday, October 8, 2010. Thank you for your help and prompt response.

Use this link to access the short survey: www.nysba.org/POASurvey

September 24, 2010

Prof. Salkin: DOJ Issues Statement on Land Use Aspects of RLUIPA

DOJ Issues Statement on Land Use Aspects of RLUIPA ォ LAW OF THE LAND

The Department of Justice today issued a policy statement on the land-use provisions of RLUIPA, with questions and answers, to provide information to individuals, religious assemblies and institutions, and local government officials about the requirements of the law. This Statement of the Department of Justice on the Land-Use Provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA) is available at: http://www.justice.gov/crt/housing/documents/rluipa_q_a_9-22-10.pdf

DOJ's blog today features an entry on RLUIPA, see: http://blogs.usdoj.gov/blog/archives/969

October 13, 2010

Prof. Salkin: Social Networking and Land Use Planning Regulation: Practical Benefits, Pitfalls and Ethical Considerations

SSRN-Social Networking and Land Use Planning Regulation: Practical Benefits, Pitfalls and Ethical Considerations by Patricia E. Salkin

Patricia Salkin
Albany Law School

Patricia E. Salkin is the Raymond and Ella Smith Distinguished Professor of Law, Associate Dean and Director of the Government Law Center of Albany Law School.


Pace Law Review, Forthcoming

Abstract:
This article explores how social networking sites have been used or might be used in the land use context. Part I focuses on the use of social networking for land use planning and zoning. It includes a discussion of the pros and cons of the use of social networking sites to present public information and to gather public input and invite general participation in the process, as well as to provide notice to the public of forthcoming government decision-making. This section offers concrete examples of how this technology is currently being used in the land use context. Part II focuses on the professional ethical considerations of the various players in the land use game as it specifically relates to the use of social networking sites. For lawyers, the applicable Rules of Professional Conduct are examined and for Planners, the Code of Ethics of the American Institute of Certified Planners (AICP) is explored for guidance. The article concludes with a warning that that although there are benefits to the use of social networking tools for land use planning and zoning initiatives, attorneys, government agencies, planners and others should use caution when employing these tools, being certain to weigh ethics and professionalism implications, social justice goals and public participation mandates and aspirations against the advantages of these tools, and the uncertainty of how courts might apply myriad legal mandates in cyberspace.

Download the entire article in pdf here.

October 19, 2010

New York Temporary Maintenance Worksheets & Calculator

Effective October 12, 2010, New York divorce attorneys now need to prepare a five-page worksheet (eight pages with instructions) which determines which spouse pays maintenance and the temporary maintenance amount the attorney is asking the court to award.

The required worksheets are available from the NY Courts website:
http://www.courts.state.ny.us/divorce/TMG-Worksheet.PDF

A calculator is also available at:
http://www.nycourts.gov/divorce/calculator.pdf

October 21, 2010

Law.COM: N.Y. Courts to Require Attorneys to Verify Foreclosure Papers

Law.com - N.Y. Courts to Require Attorneys to Verify Foreclosure Papers

Amid mounting national concern over the accuracy of court documents in foreclosure cases, the New York state court system on Wednesday directed lawyers for lenders to file an affirmation that they have taken reasonable steps to verify the accuracy of papers they file to support residential foreclosures.

"We feel we have an obligation to make sure the attorneys do their due diligence and come to us with credible papers because the consequences [of wrongful foreclosures] are so great," Chief Judge Jonathan Lippman said in an interview, adding that the new filing requirement is the first in the nation.

See a sample (pdf) of the affirmation attorneys will be required to provide.

Attorneys must now certify, "under the penalties of perjury," that they have communicated with a representative of the plaintiff bank or lender and that they have personally reviewed all documents and records related to the case.

After making this review and "other diligent inquiry," they must attest that "to the best of my knowledge information and belief, the Summons and Complaint and all other documents filed in support of this action for foreclosure are complete and accurate in all relevant

***

Read entire article.

October 25, 2010

NYLJ: New York Grants Right to Claim Attorney Fees to Prevailing Homeowners in Foreclosures

Law.com - New York Grants Right to Claim Attorney Fees to Prevailing Homeowners in Foreclosures

The Access to Justice in Lending Act, A1239/S2614, will put defendants in foreclosure proceedings on the same footing as lenders, who often include in mortgage documents the right to recoup reasonable attorney fees if they bring a successful action.

Supporters of the new requirement say that it will encourage attorneys to volunteer their services to homeowners facing foreclosure, many of them who cannot afford to hire their own lawyers. At the same time, they say the measure will give the homeowners leverage to negotiate concessions from lenders seeking to avoid the potential costs of litigation.

***

The new law, Real Property Law Section282, provides that all mortgage agreements giving prevailing lenders the right to attorney fees, must be read to grant that right to borrowers as well. Although it goes into effect 60 days after its signing, it applies to all mortgages in effect on or after Oct. 20 and all proceedings begun on or after that date.

***

Read entire article.

November 16, 2010

Lawyer Appearing Pro Se on Tax Matter Denied Attorney's Fee as Prevailing Party

DOJ v. Hudson, 09-3600-bk

Finding no reason to depart from our reasoning in Pietrangelo or Hawkins, and joining our sister Circuits that have considered this provision of the IRC, see McCormack v. United States, 891 F.2d 24, 25 (1st Cir. 1989) and United States v. McPherson, 840 F.2d 244, 245 (4th Cir. 1988), we hold that lawyers appearing pro se who prevail in administrative or court proceedings against the United States are ineligible for attorneys' fees under IRC ァ7430.

DOJ v. Hudson, 09-3600-bk (full text)

NYLJ: The Right to One Phone Call - But No Tweets

The Right to One Phone Call - But No Tweets

Ken Strutin
New York Law JournalNovember 16, 2010

***

Earlier this year, New York joined those states by amending the Criminal Procedure Law to expressly require that arrestees have the right to make a phone call.

While this new mandate is a major step forward, it does not address a technological reality that for most people landlines have given way to mobile phones. Today, cellular devices have become lifelines, and this is particularly important for suspects who need to consult with counsel or seek assistance from family and friends at a crucial time.

Read full text of article.

December 7, 2010

NYS DEC: Report an Environmental Violation Online

Report an Environmental Violation Online - NYS Dept. of Environmental Conservation

The New York State Environmental Conservation Police values the watchful eyes and ears of citizens concerned with our environment. Use this form to report suspected violations of New York State environmental conservation laws. Submitted forms are immediately forwarded 24/7/365 to DEC dispatchers. If an immediate response is needed, file your complaint by phone by calling the DEC Turn in Poachers and Polluters (TIPP) hotline at 1-800-TIPP-DEC (1-800-847-7332). Caution: never put yourself at risk to get any of the information. Gather whatever information you can without trespassing or exposing yourself to harmful materials or situations.

Click here for online form.

January 7, 2011

Collection Bankruptcy Overview Webinar

Seal of the Internal Revenue Service

Image via Wikipedia

The free Jan. 25 bankruptcy webinar will address the IRS insolvency function, how to notify IRS of a bankruptcy filing and ordering tax return transcripts through IRS e-Services. The discussion will also cover how the IRS can collect taxes from exempt, excluded and abandoned property and non-dischargeable tax debts in chapter 7 and chapter 13 bankruptcy cases. Register   now. 

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January 20, 2011

Columbia Law School: Municipal Climate Change Laws Resource Center

Many state and local governments are trying to formulate their own regulatory programs and many government lawyers are resigned to starting from scratch.  The CCCL has prepared model laws and best practices to address this problem.  Examples of the Center's work in this area include preparing model ordinances for mandating energy efficiency and use of renewable energy resources, and for considering future flood and weather risks in land use planning and construction; guidelines for disclosure of climate risks in transactional documents; and guidelines for disclosure of climate risks in securities filings.

The model municipal green building ordinance presented by CCCL is the product of an empirical analysis of common practices in existing municipal green building regulation and research on possible legal impediments. Its provisions are designed to achieve effective yet feasible improvements in building practices and are drawn, in large measure, from existing ordinances. 

Commentary and legal analysis of the model ordinance are available on the CCCL site.


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January 24, 2011

State Environmental Quality Review Act - Draft Model Short and Full Environmental Assessment Forms - NYS Dept. of Environmental Conservation

New York State Department of Environmental Con...

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State Environmental Quality Review Act - Draft Model Short and Full Environmental Assessment Forms

Notice of Availability of Draft Model Environmental Assessment Forms for Public Review and Comment

Comments on the full and short EAF and supporting documents will be accepted by the department until close of business, February 18, 2011. Please submit comments to Mr. Robert Ewing, NYSDEC, Department of Environmental Permits, 625 Broadway, Albany, NY 12233-1750. Comments may also be submitted via the web to: Division of Permits email

Environmental Assessment Forms

  
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February 1, 2011

NYLJ: Court Applies Deviation Authorized by New Divorce Laws, Reduces Maintenance Obligation of Husband

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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February 2, 2011

Social Security International Operations

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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February 4, 2011

United States Code on FDsys

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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February 6, 2011

Phone Forums - Employee Plans


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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February 7, 2011

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

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.

February 9, 2011

The U.S. Government Printing Office is now on Facebook!

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:

http://www.facebook.com/home.php#!/pages/US-Government-Printing-Office/162592897126454


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February 14, 2011

NYLJ: Rule Would Address Campaign Donations and Case Assignments

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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The Budget | The White House

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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February 15, 2011

New York State Public Health Legal Manual

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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February 16, 2011

Public Playground Safety Handbook

a playground (a slide)

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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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February 28, 2011

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

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

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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March 1, 2011

NYLJ: State Bar Blasts Proposal to Cap Medical Malpractice Awards

New York Law Journal

March 01, 2011


ALBANY - The New York State Bar Association and its president yesterday blasted a recommendation by Governor Andrew M. Cuomo's Medicaid reform task force to cap medical malpractice awards for non-economic losses at $250,000.

Such caps are "anathema with respect to equal protection/access to justice," the state bar's Committee on the Tort System said in a memo in opposition to the Medicaid Redesign Team's recommendation. The memo was endorsed by the bar's executive committee.

Stephen P. Younger, the president of the state bar, said that the organization would write to Mr. Cuomo and all 212 state legislators urging them to oppose the cap proposal. Mr. Younger said he and other association officials will also ask state bar members to write letters to their legislators opposing the cap.

Read entire article at NYLJ.



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March 13, 2011

Prof. Salkin: NY Appellate Court (3rd Dept A.D.) Finds Improvements to Property Following Flood Were Substantial, Triggering Compliance with Local Flood Plain Law « LAW OF THE LAND

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NY Appellate Court (3rd Dept A.D.) finds Improvements to Property Following Flood Were Substantial, Triggering Compliance with Local Flood Plain Law.  In reviewing the National Flood Insurance Program regulations which define "substantial improvement," the Court noted that it is considered substantial if the repairs would equal or exceed 50% of the pre-flood market value of the home. To determine whether the defendants made a substantial improvement, the Town used the current tax assessment to calculate the market value of the structure. The defendants argued that the Town had to use an independent professional appraisal, but the court said this was not true as the regulation was silent as to how value was to be determined. The Court noted that FEMA's written guidelines allow for both approaches, but that the defendants did not submit any alternate property appraisal to the Town or to the Court for consideration.  


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March 23, 2011

NYLJ: Judge Squawks at Town's Bid To Penalize Chicken Owners

Justice Court of Town of Hyde Park, Dutchess County
Criminal Practice 
 
People v. Mahoney, 10-11-0062 

In the instant case, requiring the People to allege and prove that defendants' animals were not household pets would not unfairly apportion the burden of proof. Quite simply, the People would be required to affirmatively allege and prove beyond a reasonable doubt the negative fact that the animals in question were not household pets. .

The court finds several additional deficiencies in the accusatory instrument. The information does not factually allege the property in question is possessed, occupied, or owned by the defendants, and does not even allege the chickens and other animals belonged to the defendants. It does not state how many chickens were observed, or provide any identifying facts as to what "other animals typically associated with farming and animal husbandry" means in the context of constituting the offense.

Based upon the foregoing facial insufficiencies, defendants' motion to dismiss on grounds the information is jurisdictionally defective is granted and the information is dismissed.

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April 7, 2011

JURIST - Paper Chase: Washington governor signs bill recognizing out-of-state same-sex marriages



Washington governor signs bill recognizing out-of-state same-sex marriages 
Daniel Makosky at 2:14 PM ET

Photo source or description
[JURIST] Washington Governor Chris Gregoire [official website] on Tuesday signed a bill[materials] recognizing out-of-state same-sex marriages [JURIST news archive] as legal domestic partnerships. House Bill 1649 amends current law [AP report] that acknowledges out-of-state domestic partnerships and civil unions, but excludes same-sex marriage. TheSenate [official website] approved the bill by a 28-19 vote [Seattle Times report] last week after the House of Representatives [official website] passed the bill [JURIST report] by a similar margin earlier in the month. The bill will become effective 90 days after the close of the current legislative session.



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April 11, 2011

Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens by Patricia E. Salkin

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As the local and regional food shed movement and the urban agriculture movement continue to grow, uses once considered only found on the rural farm are now finding their ways into urban and suburban communities. As a result, municipalities across the country are now facing the challenge of regulating the keeping of chickens in residential districts. From nuisance law to zoning regulations addressing the number of hens that may be kept on parcels, whether roosters are allowed, the size and location of coops and other issues, this article reviews the rapidly developing trends in this area of land use law

Salkin, Patricia, Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens (March 1, 2011). Zoning and Planning Law Report, Vol. 34, No. 3, p. 1, March 2011; Albany Law School Research Paper No. 46. Available at SSRN: http://ssrn.com/abstract=1774023


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April 19, 2011

Empire Justice Center: Articles on 2011 NYS Budget

To help better understand critical components of the enacted budget, the Empire Justice Center has posted a series of articles and statements on their website, which are summarized and linked below. 

Fundamental Changes to NY Medicaid and EPIC Outcomes in the 2011 State Budget: Click Here.

Social Services and Child Care State Budget and Policy Outcomes: Click Here.

State Budget Results: Funding for Legal Services - Cuts, Restorations and Hope for the Future: Click Here. 

Foreclosure Prevention Veto Severs a Lifeline for Homeowners: Click Here.


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April 22, 2011

ILW.COM - immigration news


ILW.COM Immigration Daily 

Want to give your web site constantly updated content and provide your visitors with the latest immigration news? You can display the latest ilw.com daily immigration headlines on your web page--and they'll be automatically updated every time the stories change, with no action needed on your part! Headlines change several times each weekday and will link your visitors to a summary of each story and further background info. You'll need to insert some HTML code to make it work, but once you've added the code, you'll be all set.

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May 27, 2011

Empire Justice Center: New York State's "Exemptions" are Increased

New York State's "Exemptions" are Increased 
May 26, 2011


As one of his final acts in office, on December 22, 2010, Governor David Paterson signed a significant law regarding exemptions for personal and real property, Chapter 568 of the Laws of New York 2010.  The law amends and adds certain exemptions relating to the satisfaction of money judgments under Civil Practice Law and Rules (CPLR) § 5205(a) for exemption of personal property, and under CPLR § 5206 for the exemption of real property.  The law also amends N.Y. Debtor and Creditor Law (DCD.) §§ 282(1), 283, and adds § 285 specifically regarding exemptions for debtors in bankruptcy.  The amendments update and modernize several exemptions, some of which had not been altered for decades.


Read entire article and get details of new exemptions here.



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June 9, 2011

Same-sex stipend a first in the US - The Boston Globe



Cambridge seeks to defray federal tax on health care

By Brock Parker Globe Correspondent / June 9, 2011 

In a move that may be the first of its kind in the country, Cambridge will soon begin making payments to same-sex married public employees to defray the cost of what local officials have called a discriminatory federal tax.

Beginning in July, the city will begin paying quarterly stipends to city employees in a same-sex marriage who must pay federal taxes on the value of the health benefits their spouse receives from the city.



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June 14, 2011

Governor Cuomo Proposes Marriage Equality Act

Andrew Cuomo

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Governor Andrew M. Cuomo today submitted a program bill to bring marriage equality to New York state. The Marriage Equality Act permits all couples to enter into marriage in New York state, thereby removing the current barrier same-sex couples face in recognizing their relationships, protecting their families and obtaining essential benefits. Specifically, the Act grants same-sex couples who seek to marry equal status under the law as well as hundreds of rights, benefits and protections that are currently limited to married couples of the opposite sex.

Read full text of Gov.'s press release here.

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Marriage Equality Bill

June 20, 2011

New York State Senate-Live

Watch the NYS Senate in session--live.




Watch live streaming video from nysenate at livestream.com

June 25, 2011

NYLJ: New York Lawyers Celebrate Historic Passage of Marriage Equality Act

News that a "marriage equality" measure was headed toward passage Friday night was greeted by cheers and shouts among members of the New York State Bar Association House of Delegates attending the organization's summer meeting in Cooperstown.

After a week of nail-biting negotiations and appeals to conscience, the Senate voted, 33-29, to give final approval to a bill, A-08354,  that recognizes gay marriage in New York. The proposal passed with the support of every Democrat but one and four Republicans. Govenor Andrew M. Cuomo immediately signed a measure that he had made one of his top priorities.

"This is great news for all New Yorkers," Stephen Younger, the immediate past president of the state bar, said in an interview after the vote was announced.

It was only two years ago that the state bar's policymaking body, also in Cooperstown, voted to endorse state recognition of same-sex marriage.


Read entire NYLJ report with extensive quotes from bar associations and bar leaders here. (Requires free registration)


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June 28, 2011

NYLJ: Protections, Benefits Simplified Under Marriage Law, Lawyers Say

The new law will provide automatic state-sanctioned benefits and protections in a wide range of areas, including health care, hospital visitation, property ownership, taxation, insurance coverage, testimonial privileges, child custody and tort rights.


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June 29, 2011

Special Report: A little house of secrets on the Great Plains - Yahoo! News

CHEYENNE/ATLANTA (Reuters) - The secretive business havens of Cyprus and the Cayman Islands face a potent rival: Cheyenne, Wyoming.

At a single address in this sleepy city of 60,000 people, more than 2,000 companies are registered. The building, 2710 Thomes Avenue, isn't a shimmering skyscraper filled with A-list corporations. It's a 1,700-square-foot brick house with a manicured lawn, a few blocks from the State Capitol.

Neighbors say they see little activity there besides regular mail deliveries and a woman who steps outside for smoke breaks. Inside, however, the walls of the main room are covered floor to ceiling with numbered mailboxes labeled as corporate "suites." A bulky copy machine sits in the kitchen. In the living room, a woman in a headset answers calls and sorts bushels of mail.

A Reuters investigation has found the house at 2710 Thomes Avenue serves as a little Cayman Island on the Great Plains. It is the headquarters for Wyoming Corporate Services, a business-incorporation specialist that establishes firms which can be used as "shell" companies, paper entities able to hide assets.

Wyoming Corporate Services will help clients create a company, and more: set up a bank account for it; add a lawyer as a corporate director to invoke attorney-client privilege; even appoint stand-in directors and officers as high as CEO. Among its offerings is a variety of shell known as a "shelf" company, which comes with years of regulatory filings behind it, lending a greater feeling of solidity.


Read entire, much longer, article here.



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NYLJ: New Contribution Rule Limits Assignments to Elected Judges

ALBANY - Nearly 1,000 elected state judges will no longer receive assignments to cases where lawyers, their firms or their clients have contributed $2,500 or more to the judge's campaigns in the previous two years, or have collectively contributed $3,500 or more, under a new rule adopted by the court system.

Section 151.1 of the Rules of the Chief Administrative Judge, whose approval was announced yesterday, will take effect on July 15 and apply to any political contributions received after that date.

"This rule promotes public confidence in the independence, fairness and impartiality of the Judiciary," said Chief Judge Jonathan Lippman.

He said the new rule establishes "simple" guidelines to alleviate public suspicion of big-money influence on the administration of justice. It replaces a subjective approach that has depended on individual judges to determine when they should recuse themselves from cases.

"It is not a recusal rule," he said. "It is an assignment rule."


Read entire article in NYLJ (Requires free registration)



July 13, 2011

Governor Cuomo Signs Law Strengthening Enforcement Against Drivers Caught Using Handheld Electronic Devices | Governor Andrew M. Cuomo



Governor Andrew M. Cuomo today signed a new law that strengthens the enforcement against drivers who use handheld electronic devices for activities such as texting while a vehicle is in motion. The legislation makes this action a primary traffic offense, giving law enforcement the power to stop drivers solely for engaging in this activity.

 

The Governor also announced today that he will increase the penalty for using a cellular phone without a hands-free device or a handheld device while driving from two to three points through changes in state regulations.




The new law makes it a primary traffic offense and it will go into effect immediately. The monetary penalty for a violation of this law continues to be a fine of up to $150.

 

Illegal activity includes holding an electronic device and:

 

  • Composing, sending, reading, accessing, browsing, transmitting, saving, or retrieving electronic data such as e-mail, text messages, or webpages
  • Viewing, taking, or transmitting images
  • Playing games

 

The law does not penalize drivers using a handheld electronic device that is affixed to a surface or using a GPS device that is attached to the vehicle. The law also exempts police officers, fire fighters, or emergency vehicle drivers while they are performing their duties. In addition, a driver is exempt from the law if the driver is communicating or attempting to communicate with law enforcement, the fire department, or medical personnel during an emergency situation.




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July 16, 2011

NYSHA Animal Cruelty Investigation Manual



New York State Humane Association's manual, "How to Investigate Animal Cruelty in New York State - A Manual of Procedures" is a comprehensive document which includes chapters on how to be prepared ahead of time - before you actually receive a cruelty complaint, how to receive and investigate a complaint, examples covering many situations, all NYS laws pertinent to animals - annotated with explanations, case law relevant to animal cases, basic animal care standards, appendices containing forms to use in cruelty investigations, handouts on various animal care topics, and articles pertinent to various animal issues.

Sue McDonough, NYSHA President and Police Officer, provided technical input and expertise; Pat Valusek, NYSHA Vice-President and technical writer, researched supplementary material and additional examples, and wrote the text. Material was gathered from individuals who worked for various agencies, such as DA's offices, the Animal Rescue League of Boston, the ASPCA, SPCA with active cruelty investigation programs, state agencies such as the Dept. of Ag. & Mkts., and various police agencies.

The entire manual, HTML format -or- 8M PDF file, is now available online. Use the HTML option if you want to view/print specific sections of the manual. Use the PDF option to view a printer-friendly version of the manual in its entirety. Downloading may take a while, but, in Adobe Acrobat Reader, you'll then be able to save SAVE-AS icon a copy of the file or to print PRINTER icon the file.

NYSHA Fact Sheets relevant to animal cruelty

· Memorandum Regarding the Issue of Sustenance Including Veterinary Care
· Step by Step Example Animal Cruelty Case Investigation by Law Enforcement
· Peace Officers employed by SPCAs and What They Can Do by Law
· Jail Time and Probation in New York State
· Animal Hoarders
· Forfeiture of Animals in an Anmal Cruelty Case




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July 20, 2011

IRS Delays Overseas Bank Reporting Rule Criticized by Aegon - Bloomberg

The Internal Revenue Service is giving overseas banks an additional year before they will have to make any withholdings from U.S. customers who fail to disclose enough identifying information to U.S. tax collectors.The second round of IRS guidance issued today on the Foreign Account Tax Compliance Act, or FATCA, doesn't require banks to make 30 percent withholdings on non-compliant U.S. customers until Jan. 1, 2014. Other withholdings on gross proceeds and income that might be indirectly sourced to the U.S. won't start until Jan. 1, 2015.

The requirements, which Congress approved last year, were originally slated to take effect at the beginning of 2013. Today's announcement is intended to address the concerns of overseas financial institutions, including Toronto-Dominion Bank (TD) of Canada, Allianz SE (ALV) ofGermany and Aegon NV (AGN) of the Netherlands, which have said the proposal is too complex.

Read entire Bloomberg article on FATCA postponement here.

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July 30, 2011

Two-Year Limit No Longer Applies to Many Innocent Spouse Requests


Available only to someone who files a joint return, innocent spouse relief is designed to help a taxpayer who did not know and did not have reason to know that his or her spouse understated or underpaid an income tax liability. Publication 971, Innocent Spouse Relief, has more information about the program.

The change to the two-year limit is effective immediately, and details are in Notice 2011-70, posted today on IRS.gov.

Existing regulations, adopted in 2002, require that innocent spouse requests seeking equitable relief be filed within two years after the IRS first takes collection action against the requesting spouse. The time limit, adopted after a public hearing and public comment, was designed to encourage prompt resolution while evidence remained available. The IRS plans to issue regulations formally removing this time limit.

Read full IRS article here.


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IRS Live presents The Fresh Start Initiative

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The Internal Revenue Service presents an IRS Live webinar, The IRS Fresh Start Initiative, on Aug. 31, at 2 p.m. ET. The topic is "Learn about the IRS Fresh Start Initiative - Help for Struggling Taxpayers." This webinar will broadcast for 60 minutes. In the Aug. 31, broadcast, viewers will learn about helping individual and small business taxpayers get a Fresh Start with their tax liabilities including changes to Collection policy for:

  • Lien filing threshold
  • Lien withdrawals
  • Installment agreements
  • Offer in compromise
Viewers can register anytime before the program and download a calendar reminder. A certificate of completion will be offered for this webinar. Enrolled agents receive one CPE credit, and other tax professionals may receive credit if the broadcast meets their organization's or state's CPE requirements. The webinar will be available on demand on the IRS Video Portal one month after the live program airs. 

For more information click here.


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August 5, 2011

‪Tax Tips: Military Tax Tips‬‏ - YouTube






August 6, 2011

The Updated Circular 230 is Now Available

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The updated Circular 230, revised to reflect the new return preparer oversight program and other changes, is now available.  Click to download.

For more information on the final regulations, see IRS Finalizes Circular 230 Regulations, The Journal of Accountancy, August 2011.


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August 17, 2011

Governor Cuomo Signs New Ethics Laws--NYLJ


With a new ethics bill signed yesterday by Governor Andrew M. Cuomo, New York became one of a handful of states requiring its lawyer-legislators to disclose the identity of their clients. Under the Public Integrity Reform Act, lawyers will be required to publicly reveal the identity of their own clients and clients they referred to the firm, when the client is doing business with, receiving grants from, seeking legislation from or is in litigation with the state. Additionally, every appearance by a lawyer-legislator before a state administrative agency will be recorded by the agency and made public. New York joins California, Washington, Alaska and Louisiana in requiring its lawyer-lawmakers to reveal clients.

The disclosure requirement takes effect in mid-2013, covering matters occurring during the 2012 calendar year. It kicks in when the legal fee exceeds $10,000 and the state contract is worth more than $50,000 or the grant is worth more than $25,000. The law affects only new clients or new matters for existing clients and attorney-legislators will not have to identify clients who are being represented in connection with an investigation or prosecution, involved in a domestic relations matter or a bankruptcy or "where disclosure of a client's identity is likely to cause harm."

Read entire NYLJ article here.


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September 16, 2011

New York Enacts Complete Streets Law « LAW OF THE LAND-Prof. Salkin

Share the road sign, New York City.

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Premised on public safety and greener roads and highways, New York now requires all county and local transportation projects undertaken by the State Department of Transportation or for projects that receive both federal and state funding are subject to State DOT oversight, to consider the convenient access and mobility on the road network by all including motorists, pedestrians, bicyclists and public transportation users by incorporating complete streets design features. Such considerations are required in the planning, design, construction, reconstruction and rehabilitation of roads, but exempted are projects aimed at resurfacing, maintenance, or pavement recycling. 



                         

The new law explains that complete street design features include: sidewalks, paved shoulders suitable for bicyclists, lane striping, bicycle lanes, share the road signage, crosswalks, road diets, pedestrian control signalization, pull outs, curb cuts, raised crosswalks and ramps, and traffic calming measures.   

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A copy of the Legislation can be accessed at:http://open.nysenate.gov/legislation/bill/S5411A-2011

For a press release from Governor Cuomo see:http://www.governor.ny.gov/press/08152011CompleteStreetsLegislation

For Prof. Salkin's complete post, click here.



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September 20, 2011

America Invents Act

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On September 16, 2011, President Barack Obama signed into law the Leahy-Smith America Invents Act, intended to foster innovation and spur job creation in the United States.   This Act sets into motion the most comprehensive overhaul to our nation's patent system since 1836.

A detailed summary has been prepared by the USPTO, and can be found here.


Tuesday, September 27, 2011 @ 1:00pm:


Commissioner Robert L. Stoll


American Conference Institute


America Invents Act Webinar


https://www2.gotomeeting.com/register/127501938 


Registration is complimentary

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September 30, 2011

Tax Tips: Innocent Spouse Relief - YouTube

The IRS has lifted the two-year time limit on a particular type of innocent spouse request (equitable relief) in this new YouTube video.

Watch this and other videos on the IRS's YouTube Channel.





October 4, 2011

New York DEC Releases Proposed Hydraulic Fracturing Regulations : Oil & Gas Law Brief

On September 28, the New York Department of Environmental Conservationannounced its release of proposed regulations for "high-volume hydraulic fracturing," which the proposed regulations define as hydraulic fracturing operations that use more than 300,000 gallons of water.  





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October 6, 2011

NYLJ: Baum Firm to Pay $2 Million, Alter Practices

One of New York state's biggest foreclosure law firms will revamp its practices and pay a $2 million fine to settle a six-month probe by the U.S. Attorney for the Southern District that found it had filed misleading pleadings, affidavits and mortgage assignments in state and federal courts.

In a settlement agreement announced today, the firm, Steven J. Baum, P.C. of Amherst, will implement a series of internal controls that include a pledge not to bring foreclosure actions without reviewing the original promissory notes or reviewing a copy of the note from its client or custodian of the document.

The 12-page agreement also prohibits the firm's employees from executing mortgage assignments as officials or representatives of MERS, an electronic mortgage registry system.

Read the entire NYLJ article here (Free Registration may be required).


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October 9, 2011

Secret U.S. Memo Made Legal Case to Kill a Citizen - NYTimes.com

WASHINGTON -- The Obama administration's secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made byPresident Obama -- to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki's case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

Read entire NYTIMES Report here. (May require free registration)

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October 18, 2011

FEMA Federal Disaster Assistance Registration Deadline for Hurricane Irene--October 31, 2011

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New York State and federal officials remind those who were affected by Hurricane Irene that they have only two weeks left to register with the Federal Emergency Management Agency (FEMA) for possible federal disaster assistance. It's important that those who may need to register for aid do so as soon as possible. Registrations cannot be accepted after the October 31, 2011 deadline.

"Registration keeps open the possibility of awide range of assistance," said Philip E. Parr, FEMA Federal Coordinating Officer. "If your insurance coverage comes up short, or other damageappears later, you need to be registered with FEMA to be considered for disaster assistance."

To register, call the FEMA Helpline at 800-621-3362. Phone lines are open from 7 a.m. to 10 p.m. ET, seven days a week untilfurther notice. People with hearing disabilities can use the TTY number, 800-462-7585.Applicants can also register online at www.DisasterAssistance.gov orwith any web-enabled mobile device or smartphone at m.fema.gov. Follow the link to "apply online for federal assistance."




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October 25, 2011

NYSERDA: Agriculture Disaster Program


PON 2422 Agriculture Disaster Program

Description

The Agriculture Disaster Program is available to assist farms and on-farm producers in New York State damaged by Hurricane Irene and/or Tropical Storm Lee. Many New York State farms sustained significant damage by the recent storms and existing aid is primarily focused on crops and soil conservation. Under this program, $4,175,000 is available to provide financial assistance toward projects replacing and installing a farm's electric and natural gas distribution and use equipment and systems damaged during the storms in non-residential facilities.

Covered equipment includes pumps, compressors, lighting, HVAC, chillers, refrigeration, commercial washers and some natural gas (limited to 10% of total). Farm residences are not covered.

The funds will be dispensed on a first come first served basis.  Limit is $100,000 per farm. The details are covered in the attached NYSERDA program description .


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November 15, 2011

NYLJ: Baum Firm Challenges Affirmation Requirement

New York's largest foreclosure law firm is fighting to overturn a state court requirement that it and other firms submit an affirmation vouching for the accuracy of documents they file for lenders.

Supreme Court Justice Timothy J. Walker in Erie County (See Profile) held a hearing on Nov. 7 on a motion of Steven J. Baum P.C. in a foreclosure case arguing that the year-old rule announced by Chief Judge Jonathan Lippman and implemented by Chief Administrative Judge Ann Pfau (NYLJ, Oct. 21, 2010) violates the state Constitution.


***

The Baum firm's motion is not the first to challenge the requirement. In LaSalle Bank v. Pace, 15822-2008, Supreme Court Justice Thomas F. Whelan (See Profile) in Suffolk County ruled the affirmation requirement was invalid (NYLJ, March 9). That decision is being appealed to the Appellate Division, Second Department.

The Baum firm acknowledged that its motion in Foster "closely follows the reasoning of Justice Whelan's decision" in LaSalle.

***

Read entire Andrew Keshner NYLJ article and analysis here (may require registration).


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November 21, 2011

Empire Justice Center: New York Laws Involving the Confidentiality of Domestic Violence Victim-Related Information

For a comprehensive listing of New York's confidentiality protections for domestic violence victims, see:

Review the provisions of New York's new AddressConfidentiality Program, effective June, 2012.


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November 27, 2011

Majority of State's Fire Districts Failed to Meet Deadline Under Governor's Property Tax Cap Law

More than 56 percent of New York's 882 fire districts recently passed budgets without filing the required tax cap data with the Office of the State Comptroller, according to State Comptroller Thomas P. DiNapoli. The electronic filings were due by November 4. State law requires fire districts to file their proposed budget data for review by OSC prior to adoption of their annual budgets to ensure that the districts' tax cap calculations are accurate.

***

Comptroller DiNapoli's web page, "Real Property Tax Cap," is available to help localities navigate the complexities of the property tax cap. State law restricts tax levy increases for local governments, most school districts and other smaller independent entities, such as library, fire or water districts, to no more than 2 percent this year.


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December 1, 2011

A Tale of Two States and Three Survivors: | Marci A. Hamilton | Verdict | Legal Analysis and Commentary from Justia

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In New York, for anything other than a first-degree felony sexual assault occurring after 2006, the statute of limitations ("SOL") cuts off prosecution when the victim is 23, at the latest.  For civil claims, too, a victim would have had to file his suit by age 23 at the very latest, and likely much earlier than that. 

***
Until 2002, Pennsylvania was as bad as New York regarding child sexual abuse SOLs.  Once you turned 20, you were shut out of court.  But in August 2002, the state extended the civil SOL to the victim's 30th birthday.  Then, in 2005, it extended the criminal SOL to the victim's 50th birthday.  Neither extension, however, was retroactive, which means that if someone turned 20 before August 2002, he or she would not get the benefit of the 10-year civil extension without putting forward a legal theory alleging misrepresentation, fraud, or conspiracy.

***

This simple comparison of child sexual abuse SOLs in two contiguous states, New York and Pennsylvania, should give readers an idea of the confusion and complexity when we widen the lens to take in all 50 states.

I (Hamilton) have a website, www.sol-reform.com, for which I regularly update a 50-state survey of criminal and civil SOLs for child sexual abuse.  It is a Herculean task that takes a large team of students to accomplish.  Not only must the law in 50 states be kept current, but updates are constantly occurring, as the law is in constant flux.

Whatever limitation is set in a particular state, eventually a case of heinous abuse is discovered that is time-barred--leading to a grave injustice.  Then the state extends the SOL so the next equally heinous case will be covered.  But unless the SOLs are eliminated, there will always be the next awful case.


***



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December 2, 2011

Changes to Federal Court Rules Take Effect-US Court News

 

Amendments to the Federal Rules of Appellate, Bankruptcy, Criminal Procedure, and Evidence took effect December 1, 2011.

Congress took no action after the changes were approved by Supreme Court more than seven months earlier. That means new amendments to these rules are now in effect:

  • Appellate Rules 4 and 40
  • Bankruptcy Rules 2003, 2019, 3001, 4004, and 6003.
  • Criminal Rules 1, 3, 4, 6, 9, 32, 40, 41, 43, and 49.
  • Evidence Rules 101-1103.

In addition, new Bankruptcy Rules 1004.2 and 3002.1 are in effect, as well as new Criminal Rule 4.1.

The text of the amended rules and extensive supporting documents is available.



December 3, 2011

Property Tax Cap Filing Requirements



Local governments should be aware that they are required to file certain data with the Office of the State Comptroller under the new Property Tax Cap Law prior to the adoption of their annual budgets - even if they have overridden the cap by local law or resolution. For many municipalities, whose fiscal years are the same as the calendar year, this deadline is approaching soon. OSC is committed to helping local government officials comply with the law, and has created a website to guide you through its complexities. If you need assistance, please visit www.osc.state.ny.us and click the "Real Property Tax Cap Information" link, or call our office at (518) 473-0006.


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December 17, 2011

IRS Releases Guidance on Foreign Financial Asset Reporting



The Internal Revenue Service in coming days will release a new information reporting form that taxpayers will use starting this coming tax filing season to report specified foreign financial assets for tax year 2011. Temporary regulations have been issued for IRC 6038D reporting legislated by the Foreign Account Tax Compliance Act (FATCA). U.S. taxpayers will file Form 8938 with their individual income tax returns starting this coming tax filing season if their specified foreign financial assets exceed certain thresholds.




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January 2, 2012

Internet-Only Manuals (IOMs)

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The Internet-only Manuals (IOMs) are a replica of the Agency's official record copy. They are CMS' program issuances, day-to-day operating instructions, policies, and procedures that are based on statutes, regulations, guidelines, models, and directives. The CMS program components, providers, contractors, Medicare Advantage organizations and state survey agencies use the IOMs to administer CMS programs. They are also a good source of Medicare and Medicaid information for the general public.



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January 16, 2012

Fed. Dist. Court in NY Overturns Planning Board's Denial of Cellular Tower Finding Board's Reasons for Denial Meritless


Read Prof. Salkin's complete article here:

Fed. Dist. Court in NY Overturns Planning Board's Denial of Cellular Tower Finding Board's Reasons for Denial Meritless.

Cellco Partnership v. Town of Colonie, 2011 WL 5975028 (U.S.D.C, N.D.N.Y. 11/28/2011)

 To disguise the cellular tower, the equipment was entirely enclosed by constructing a sixty foot bell-tower, resulting in a permanent physical improvement to the church.  Thus, the cellular tower would be camouflaged-wholly invisible to the public-and the tower would permanently enhance the church, even if the cellular operation ceased.

The opinion can be accessed at:http://docs.justia.com/cases/federal/district-courts/new-york/nyndce/1:2010cv00581/80878/27/0.pdf?1322573313

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January 21, 2012

e-News for Tax Professionals

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 E-file Launches; Most Taxpayers Can File Immediately

The Internal Revenue Service opened the 2012 electronic tax return filing seasonwith a reminder to taxpayers that e-file remains the best way to get fast refunds and ensure accurate tax returns.


Get Ready for the Filing Season with this IRS Webinar

The Jan. 25 IRS Live broadcast, Getting Ready for Filing Season 2012 - Individuals and Businesses, will cover issues affecting the filing of 2011 individual and business tax returns including tax law updates, changes to forms, expiring credits and implementation of new tax legislation.


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January 27, 2012

New York State Legislative Task Force on Demographic Research and Reapportionment - Maps

For those interested in redistricting information, here is a link to the NYS Legislative Task Force on Demographic Research and Reapportionment.  You will be able to see the proposed lines for all the NYS Assembly and Senators.  The Congressional lines have not been released as of yet.

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January 28, 2012

The Mortgage Forgiveness Debt Relief Act and Debt Cancellation-IRS

If you owe a debt to someone else and they cancel or forgive that debt, the canceled amount may be taxable.

The Mortgage Debt Relief Act of 2007 generally allows taxpayers to exclude income from the discharge of debt on their principal residence. Debt reduced through mortgage restructuring, as well as mortgage debt forgiven in connection with a foreclosure, qualifies for the relief.

This provision applies to debt forgiven in calendar years 2007 through 2012. Up to $2 million of forgiven debt is eligible for this exclusion ($1 million if married filing separately). The exclusion does not apply if the discharge is due to services performed for the lender or any other reason not directly related to a decline in the home's value or the taxpayer's financial condition.

More information, including detailed examples can be found in Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments. Also see IRS news release IR-2008-17.

Click here for the most commonly asked questions and answers about The Mortgage Forgiveness Debt Relief Act and debt cancellation:


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February 6, 2012

DOL late to issue new FMLA forms: What employers can do | HR Morning | Your daily dose of HR

Read more about using outdated FMLA forms.

The Equal Employment Opportunity Commission (EEOC) has suggested employers add the following language in forms when requesting health-related information from an employee:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. 'Genetic Information' as defined by GINA includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

February 11, 2012

IRS Unveils Version 2.0 of Smartphone App



The IRS this week released IRS2Go 2.0, an expanded version of its Smartphone application designed to provide taxpayers easier access to practical tools and information.

You can access videos and more with the  enhanced IRS2Go smartphone app as described in this new YouTube video.

The 2.0 version of the phone app includes three new tools:

  • Watch Us. People can view IRS YouTube videos on their smartphones. The videos provide short, informative features on a variety of tax topics. The channel ranks as the fourth most viewed channel among more than 125 federal government YouTube channels. IRS also has YouTube channels available in multilingual and American Sign Language
  • Get the Latest News. With this tool, users can have the latest IRS news releases delivered to their phones as it becomes available.  
  • Get My Tax Record. Taxpayers can now order their tax return transcript from the IRS2Go app. The transcript will be delivered via the U.S. Postal Service to their address of record.

The free IRS2Go app will continue giving taxpayers access to the tools offered last year:

  • Get Your Refund Status. Taxpayers can check the status of their federal tax refund through the phone app with a few basic pieces of information. An updated refund status is available about three days after the IRS acknowledges receipt of an e-filed return, or four weeks after mailing a paper return.
  • Get Tax Updates. Phone app users enter their e-mail address to automatically receive simple, straightforward tips and reminders to help with tax planning and preparation. Tax Tips are issued daily during the filing season and periodically throughout the rest of the year.
  • Follow the IRS. Taxpayers can sign up to follow the IRS Twitter newsfeed, @IRSnews, which provides easy-to-use information, including updates on tax law changes and important IRS programs.

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February 29, 2012

App Store - rulebook

Access all your federal and state court rules on one app. Download only those rules and other legal authorities you actually need, which are all kept current through regular updates. (No need to check pocket parts!)

Take all the rules you have downloaded anywhere you go and quickly access them without the need for an internet connection. Download once; read and annotate anywhere.

With rulebook you can:

* Search your entire library by key words or phrases.​
* Touch any word to highlight, annotate and/or bookmark any amount of text.
* Navigate from rule to rule easily by swiping the screen or jumping to the rule using the table of contents feature.
* Keep multiple rules and authorities open at once and toggle easily back and forth between authorities with rulebook's multitask function.
* Double tap anywhere in the rule to immediately identify what rule and subsection you are viewing.
* Jump directly to cited sources through active hyperlinks.
* Easily adjust the font type and size along with other system preferences.
* Enjoy having all your content automatically kept up to date without losing any of your highlights or annotations through rulebook's proprietary update tool.

The following legal authorities are currently available in the rulebook library, with many more coming soon:

Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Federal Rules of Appellate Procedure, Federal Rules of Evidence and the United States Constitution.

New York Uniform Court Rules

N.Y. C.P.L.R. (coming soon)



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March 10, 2012

IRS Offers New Penalty Relief and Expanded Installment Agreements to Taxpayers under Expanded Fresh Start Initiative

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Read entire IRS press release here.

The IRS website has a variety of other online resources available to help taxpayers meet their payment obligations:


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April 15, 2012

IRS Releases Revised Versions of Form 8038-GC and Form 8038-CP

The Internal Revenue Service has released revised versions of Form 8038-GCInformation Return for Small Tax-Exempt Governmental Bond Issues, Leases, and Installment Sales, and Form 8038-CPReturn for Credit Payments to Issuers of Qualified Bonds.  Form 8038-GC is used by issuers of tax-exempt bonds to provide the IRS with the information required by Internal Revenue Code section 149 and to monitor the requirements of Internal Revenue Code sections 141 through 150.  Form 8038-CP is used by issuers of build America bonds, recovery zone economic development bonds, and specified tax credit bonds who elect to receive a direct payment from the Federal Government equal to a percentage of the interest payments on these bonds.  The revised Form 8038-GC and Form 8038-CP are available by clicking here.


For more information go to Tax Exempt Bond Communityon IRS.gov.


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Logo of Internal Revenue Service, USA (Photo credit: Wikipedia)


April 21, 2012

JURIST - Forum: Medicaid in the Supreme Court: Small Errors, Big Problems

Centers for Medicare and Medicaid Services (Me...

Centers for Medicare and Medicaid Services (Medicaid administrator) logo (Photo credit: Wikipedia)



Read entire opinion post by Prof. Nicole Huberfeld.

JURIST Guest Columnist Nicole Huberfeld of the University of Kentucky College of Law says that the oral arguments made before the Supreme Court regarding the Medicaid expansion of health care reform evidence a troubling lack of understanding of the Court's prior decisions in this area...

***

Medicaid was also mischaracterized and flubbed in several ways. A few examples: Clement repeatedly minimized Medicaid as covering the "visually impaired and disabled," when these are just two of the categories of "deserving poor" that have historically been covered (also included are pregnant women, children, parents and the elderly). Clement asserted that not all states cover prescription drugs when in fact all states opt to cover some prescription drugs. Clement also mischaracterized the limited coverage of the Medicaid program, claiming it was intended to protect the states. Medicaid was limited because Congress adopted antiquated ideas regarding which impoverished citizens deserve public help (a concept dating to theElizabethan Poor Laws). States' rights have been a factor in Medicaid but are reflected in options and waivers, which expand rather than limit the program (and contribute greatly to its cost).

***

Any of these gaffes, taken individually, seems small. Taken in the aggregate, it is hard to see how the Court can get the question of coercion right when so much discussed at the Court was wrong. To invalidate not only the Medicaid expansion, which finally will include all of the nation's poor in our safety net, but also all of the Patient Protection and Affordable Care Act (as the states ask) based upon so many mistakes could be the worst blunder of all.





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April 28, 2012

Changed Your Name After Marriage or Divorce?--IRS


May 3, 2012

TEB Community Update-IRS

Free Telephone Forum on the Tax Exempt Bonds Examination Process

The office of Tax Exempt Bonds (TEB) is hosting a free telephone forum on June 7 at 2:00 PM ET.  TEB Tax Law Specialists will discuss the TEB examination process.  Register online to attend the forum.  A portable document format (PDF) of a PowerPoint presentation of the topics to be discussed will be available here approximately one week before the forum.

For more information about the above item or if you have other tax-exempt bond questions, go to Tax Exempt Bonds Community onIRS.gov


If you have a specific question about Tax Exempt Bonds, call Tax Exempt Bond Customer Service at 1-877-829-5500.

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May 19, 2012

IRS changes EIN limit to one per day

Seal of the United States Internal Revenue Ser...

Seal of the United States Internal Revenue Service. The design is the same as the Treasury seal with an IRS inscription. (Photo credit: Wikipedia)



Effective May 21, the IRS will begin issuing only one employer identification number per responsible party each day, a change from the current limit of five per day. This limit applies to all requests for an EIN whether online or by phone, fax or mail. This policy was implemented to ensure fair and equitable access to all applicants with legitimate tax administration-related needs. It also ensures the EIN system continues to operate effectively. We apologize if this change affects your current business practice.

For additional information about applying for an employer identification number, go to IRS.gov or click on the links below.

Apply for an EIN Online

Employer ID Numbers (EINs)

Understanding your EIN

You Tube Video Employer Identification Number





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May 24, 2012

New IRS Publication for Conduit Issuers of Tax-Exempt Bonds

The Internal Revenue Service has released the new Publication 5005Your Responsibilities as a Conduit Issuer of Tax-Exempt Bonds. This publication provides an overview for state and local governments of the responsibilities of the conduit issuer with respect to tax compliance in municipal financing arrangements commonly known as conduit financings.  


This publication is based on the recommendations of the TE/GE Advisory Committee, also known as the ACT.

For more information about the above item or if you have other tax-exempt bonds questions, go to Tax Exempt Bond Community on IRS.gov. 

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May 31, 2012

New FEDERALLY MANDATED Income Withholding Order (IWO) REQUIRED to be in use by May 31, 2012-Broome Co. Bar Ass'n

       Please be advised that there is a new FEDERALLY
MANDATED Income Withholding Order (IWO) which is REQUIRED to be in use by May
31, 2012 - i.e. - effective immediately.

The new IWO requires all payments be sent to the Support Disbursement
Unit in Albany, and instructs employers to REJECT IWO's that are not on the
new form.

The new form and instructions (prepared by OCA and the Office of
Temporary Disability Assistance (OTDA) can be found at OCA's new child support
website:

http://www.nycourts.gov/divorce/childsupport/ 

This new child support website includes links to federal and state
child support resources - as well as OTDA's new Application for Support
Services Form and  the new IWO forms for use in both Family and Supreme Court.

Additionally - please be aware that that amendments to the Uncontested
Divorce Packet will include a special set of simplified instructions
about the new IWO and applications for child support services, copies of
which can be obtained at:

http://www.nycourts.gov/divorce/pdfs/Divorce-Packet-Instructions.pdf 

ONCE AGAIN - PLEASE NOTE THAT THESE NEW FORMS ARE EFFECTIVE TODAY.
Submission of forms not incompliance with the new federally manadate
form will be rejected by employers.

Please circulate as you deem appropriate.

Thank you!!

Sindy L. Garey
Executive Director
Broome County Bar Association
(607) 723-6331
Email:  exdirbcbar@stny.rr.com 

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June 9, 2012

Subscribe to the FATCA News and Information List--IRS

Internal Revenue Service (IRS)

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Sign up to receive the latest IRS news, guidance, regulations and other public information related to the Foreign Account Tax Compliance Act (FATCA) including information that affects:

• Individuals with foreign accounts 
• Foreign financial institutions registration, reporting and withholding requirements 
• Non-Financial Foreign Entities 
• Tax and compliance professionals interested in the implementation and requirements of FATCA

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June 21, 2012

Hero dog prompts women's shelter to accept canines - CBS News



(CBS News) KANSAS CITY, Mo. - Every day, battered women go to domestic violence shelters in this country.

But sometimes, they don't stay because they're not allowed to keep their pets with them.

That was the rule at a shelter in Kansas City, until one victim and her heroic dog needed help.

The rules have now changed. And so has the shelter.




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June 23, 2012

IRS Implements Interim Changes to ITIN Application Requirements

Logo of Internal Revenue Service, USA

Logo of Internal Revenue Service, USA (Photo credit: Wikipedia)

IRS Strengthens ITIN Application Requirements; Interim Changes Will Protect the Integrity of the ITIN Process

The Internal Revenue Service today announced important interim changes to strengthen its procedures for issuing Individual Taxpayer Identification Numbers (ITINs) from now through the end of the year.  Designed specifically for tax-administration purposes, ITINs are only issued to people who are not eligible to obtain a Social Security Number.





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June 30, 2012

July 25 Webinar: Churches and Religious Organizations-IRS

A Different Church Building

A Different Church Building (Photo credit: justshootingmemories)

Webinars for Exempt Organizations-IRS



This free webinar explains federal tax rules of interest to churches and religious organizations. Watch this webinar to learn:

• When it comes to taxes, what is a "church?" 
• What is a "religious organization?" 
• How do you apply for tax exempt status? 
• How to stay exempt: Do's and don'ts 
• Special rules for compensation of ministers 
• Recordkeeping and filing 
• Rules limiting an IRS audit of a church




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July 5, 2012

The Employees Guide to the Family Medical Leave Act--USDOL




On or about June 20, 2012, the U.S. Department of Labor, Wage and Hour Division, released a 16-page guide to the Family and Medical Leave Act ("FMLA") in an effort to inform employees of their rights.


The seal of the United States Department of Labor

The seal of the United States Department of Labor (Photo credit: Wikipedia)


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July 15, 2012

Webinars for Exempt Organizations- July 25 Webinar: Churches and Religious Organizations

This free webinar explains federal tax rules of interest to churches and religious organizations. Watch this webinar to learn:

• When it comes to taxes, what is a "church?" 
• What is a "religious organization?" 
• How do you apply for tax exempt status? 
• How to stay exempt: Do's and don'ts 
• Special rules for compensation of ministers 
• Recordkeeping and filing 
• Rules limiting an IRS audit of a church


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July 23, 2012

No Service on School District Results in Dismissal of Article 7 Petition-NYS Ct. of Appeals

Board of Managers of Copley Court Condominium v. Town of Ossining, No. 134 (June 5, 2012)

Housing Choice Voucher Program Guidebook - HUD

The purpose of this guidebook is to advise public housing agencies (PHAs) and other organizations providing services to PHAs, regarding the administration of the tenant-based subsidy programs. It includes an historical review of the tenant-based rental assistance programs, discusses program requirements in detail, and provides helpful administrative practices currently used by PHAs that operate the program.

The new Housing Choice Voucher Program Guidebook (7420.10g) is enroute to Public Housing Agencies and HUD field offices through the normal hud distribution process. Additional hard copies may be requested from the HUD distribution center by telephone (1-800-767-7468) or on-line at HUDclips. An electronic copy may also be downloaded from link below.

The new Housing Choice Voucher Program Guidebook (7420.10g) is now available. It serves to advise PHAs and other organizations providing services to PHAs, regarding the administration of the tenant-based subsidy programs.

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July 25, 2012

Debt Collection Attorney Listing: Attorney Who Can Sign Name is Good Enough (CL&P Blog)

From Craig's List.  The third paragraph is particularly interesting.

We are a collection agency/debt buyer. What we are looking for is a part time attorney to work for us as our corporate counsel, on our payroll, about 5 to 6 hours a week. This is a short term employment arrangement, no longer than 90 to 120 days.

Your job will be to sign pleadings, praecipe for entry of appearances, praecipe for writ of execution, and garnishment orders. Our paralegal will prepare all paperwork for your signature. This is very standard stuff for us.

If you are an attorney looking for challenging legal work, this is not for you. WE DO NOT NEED F LEE BAILEY- we are fee shopping. If you passed your boards with a D+, and you can sign your name, you possess all the credentials required for this job. If this opportunity interests you, please feel free to reply to this email with a brief description of who you are, when you got your law license, and what you will be needing from us in the way of compensation.


Read entire post and comments at CL&P Blog.


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August 13, 2012

The Mortgage Forgiveness Debt Relief Act and Debt Cancellation-IRS

English: Mortgage debt

English: Mortgage debt (Photo credit: Wikipedia)




If you owe a debt to someone else and they cancel or forgive that debt, the canceled amount may be taxable.

The Mortgage Debt Relief Act of 2007 generally allows taxpayers to exclude income from the discharge of debt on their principal residence. Debt reduced through mortgage restructuring, as well as mortgage debt forgiven in connection with a foreclosure, qualifies for the relief.

This provision applies to debt forgiven in calendar years 2007 through 2012. Up to $2 million of forgiven debt is eligible for this exclusion ($1 million if married filing separately). The exclusion does not apply if the discharge is due to services performed for the lender or any other reason not directly related to a decline in the home's value or the taxpayer's financial condition.

More information, including detailed examples can be found in Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments. Also see IRS news release IR-2008-17.


Click here for the most commonly asked questions and answers about The Mortgage Forgiveness Debt Relief Act and debt cancellation.




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August 16, 2012

USCIS - Consideration of Deferred Action for Childhood Arrivals Process

Filing Process

How do I request consideration of deferred action for childhood arrivals?
To request consideration of deferred action for childhood arrivals from USCIS, you must submitForm I-821D, Consideration of Deferred Action for Childhood Arrivals to USCIS. This form must be completed, properly signed and accompanied by a Form I-765, Application for Employment Authorization, and a Form I-765WS, Worksheet, establishing your economic need for employment. If you fail to submit a completed Form I-765 (along with the accompanying filing fees for that form, totaling $465), USCIS will not consider your request for deferred action. Please read the form instructions to ensure that you submit all the required documentation to support your request. 
 
You must file your request for consideration of deferred action for childhood arrivals at the USCIS Lockbox. You can find the mailing address and instructions on www.uscis.gov/i-821d. After your Form I-821D, Form I-765, and Form I-765 Worksheet have been received, USCIS will review them for completeness, including submission of the required fee, initial evidence and supporting documents. If it is determined that the request is complete, USCIS will send you a receipt notice. USCIS will then send you an appointment notice to visit an Application Support Center (ASC) for biometric services. Please make sure you read and follow the directions in the notice. Failure to attend your biometrics appointment may delay processing of your request for consideration of deferred action, or may result in a denial of your request. You may also choose to receive an email and/or text message notifying you that your form has been accepted by completing a Form G-1145, E-Notification of Application/Petition Acceptance.

Each request for consideration of deferred action for childhood arrivals will be reviewed on an individual, case-by-case basis. USCIS may request more information or evidence from you, or request that you appear at a USCIS office. USCIS will notify you of its determination in writing.

Note: All individuals who believe they meet the guidelines, including those in removal proceedings, with a final removal order, or with a voluntary departure order (and not in immigration detention), may affirmatively request consideration of deferred action for childhood arrivals from USCIS through this process. Individuals who are currently in immigration detention and believe they meet the guidelines may not request consideration of deferred action from USCIS but may identify themselves to their detention officer or to the ICE Office of the Public Advocate through the Office's hotline at 1-888-351-4024 (staffed 9 a.m. - 5 p.m., Monday - Friday) or by email atEROPublicAdvocate@ice.dhs.gov.

Will USCIS conduct a background check when reviewing my request for consideration of deferred action for childhood arrivals?
Yes. You must undergo biographic and biometric background checks before USCIS will consider whether to exercise prosecutorial discretion under the consideration of deferred action for childhood arrivals process. If you have been convicted of any felony, a significant misdemeanor offense, three or more misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety, you will not be considered for deferred action for childhood arrivals except where DHS determines there are exceptional circumstances.

What do background checks involve?
Background checks involve checking biographic and biometric information provided by the individuals against a variety of databases maintained by DHS and other federal government agencies.

If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings?
If you have submitted a request for consideration of deferred action for childhood arrivals and USCIS decides not to defer action in your case, USCIS will apply its policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear (NTA). If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances. For more detailed information on the applicable NTA policy visit www.uscis.gov/NTA. If after a review of the totality of circumstances USCIS determines to defer action in your case, USCIS will likewise exercise its discretion and will not issue you a Notice to Appear.

Can I obtain a fee waiver or fee exemption for this process?
There are no fee waivers available for employment authorization applications connected to the deferred action for childhood arrivals process. There are very limited fee exemptions available. Requests for fee exemptions must be filed and favorably adjudicated before an individual files his/her request for consideration of deferred action for childhood arrivals without a fee. In order to be considered for a fee exemption, you must submit a letter and supporting documentation to USCIS demonstrating that you meet one of the following conditions:

  • You are under 18 years of age, homeless, in foster care or under 18 years of age and otherwise lacking any parental or other familial support, and your income is less than 150% of the U.S. poverty level.
  • You cannot care for yourself because you suffer from a serious, chronic disability and your income is less than 150% of the U.S. poverty level.
  • You have, at the time of the request, accumulated $25,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for yourself or an immediate family member, and your income is less than 150% of the U.S. poverty level.

Additional information on how to make your request for a fee exemption is available onwww.uscis.gov/childhoodarrivals. Your request must be submitted and decided before you submit a request for consideration of deferred action for childhood arrivals without a fee. In order to be considered for a fee exemption, you must provide documentary evidence to demonstrate that you meet any of the above conditions at the time that you make the request. For evidence, USCIS will:

  • Accept affidavits from community-based or religious organizations to establish a requestor's homelessness or lack of parental or other familial financial support.
  • Accept copies of tax returns, banks statement, pay stubs, or other reliable evidence of income level. Evidence can also include an affidavit from the applicant or a responsible third party attesting that the applicant does not file tax returns, has no bank accounts, and/or has no income to prove income level.
  • Accept copies of medical records, insurance records, bank statements, or other reliable evidence of unreimbursed medical expenses of at least $25,000.
  • Address factual questions through requests for evidence (RFEs).

Will there be supervisory review of decisions by USCIS under this process?
Yes. USCIS will implement a supervisory review process in all four Service Centers to ensure a consistent process for considering requests for deferred action for childhood arrivals. USCIS will require officers to elevate for supervisory review those cases that involve certain factors.

Can I appeal USCIS's determination?
No. You cannot file a motion to reopen or reconsider, and cannot appeal the decision if USCIS denies your request for consideration of deferred action for childhood arrivals. USCIS will not review its discretionary determinations. You may request a review using the Service Request Management Tool (SRMT) process if you met all of the process guidelines and you believe that your request was denied due to one of the following errors:

  • USCIS denied the request for consideration of deferred action for childhood arrivals based on abandonment and you claim that you did respond to a Request for Evidence within the prescribed time; or
  • USCIS mailed the Request for Evidence to the wrong address, even though you had submitted a Form AR-11, Change of Address, or changed your address online atwww.uscis.gov before the issuance of the Request for Evidence.

Can I extend the period of deferred action in my case?
Yes. Unless terminated, individuals whose case is deferred pursuant to the consideration of deferred action for childhood arrivals process will not be placed into removal proceedings or removed from the United States for a period of two years. You may request consideration for an extension of that period of deferred action. As long as you were not above the age of 30 on June 15, 2012, you may request a renewal after turning 31. Your request for an extension will be considered on a case-by-case basis.

If my period of deferred action is extended, will I need to re-apply for an extension of my employment authorization?
Yes. If USCIS decides to defer action for additional periods beyond the initial two years, you must also have requested an extension of your employment authorization.

Will USCIS personnel responsible for reviewing requests for an exercise of prosecutorial discretion under this process receive special training?
Yes. USCIS personnel responsible for considering requests for consideration of deferred action for childhood arrivals will receive special training.



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August 21, 2012

Revised Jury Instructions Hope to Deter Juror Use of Social Media During Trial | United States Courts

A Judicial Conference Committee has updated the model set of jury instructions (pdf) federal judges use to deter jurors from using social media to research or communicate about cases on which they serve. The new guidelines provide detailed explanations of the consequences of social media use during a trial, along with recommendations for repeated reminders of the ban on social media usage.

The update comes in response to a national survey of federal trial judges by the Federal Judicial Center at the request of the Conference Committee on Court Administration and Case Management (CACM).

"The overwhelming majority of judges take steps to warn jurors not to use social media during trial, but the judges surveyed said additional steps should be taken," said Judge Julie A. Robinson, CACM Committee chair. "The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate. Jurors should be told why refraining from use of social media promotes a fair trial. Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time. Those recommendations are now part of the guidelines."

Read the full story
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August 22, 2012

USCIS - I-9, Employment Eligibility Verification

English: The logo of U.S. Citizenship and Immi...

English: The logo of U.S. Citizenship and Immigration Services (English) Español: El logotipo del Servicio de Ciudadanía e Inmigración de los Estados Unidos (Inglés) (Photo credit: Wikipedia)


Continue to Use the Current Form I-9 for Employment Eligibility Verification

Until further notice, employers should continue using the Form I-9 currently available on the forms section of http://www.uscis.gov. This form should continue to be used even after the OMB control number expiration date of August 31, 2012 has passed. USCIS will provide updated information about the new version of the Form I-9 as it becomes available.

Employers must complete Form I-9 for all newly-hired employees to verify their identity and authorization to work in the United States.

Subscribe to I-9 Central to receive Form I-9 updates. This page can be found at http://www.uscis.gov/i-9



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August 25, 2012

StayExempt.org



The IRS office of Exempt Organizations (EO) is pleased to present "Stay Exempt"--a series of dynamic and comprehensive tax courses that can help your tax-exempt organization maintain its exempt status and meet its filing requirements.

As part of the Tax Exempt and Government Entities (TE/GE) operating division of the Internal Revenue Service, EO strives to support the IRS mission of ensuring that all customers understand and meet their tax responsibilities.  It does this by offering specialized assistance to the full range of organizations exempt from Federal income tax under the Internal Revenue Code.  EO's programs and services help these organizations understand and comply with tax laws and regulations governing their tax-exempt status. 

The Director of EO plans, manages, directs, and executes nationwide activities for EO.  The Director reports to the TE/GE Division Commissioner. The Director also supervises and is responsible for EO's offices of Customer Education & Outreach, Rulings & Agreements, and Examinations.

The EO Customer Education & Outreach office coordinates, assists, and supports the development of internal and external communications, forms and publications, and external education and outreach efforts, including this website.

The EO Rulings and Agreements office processes applications for tax exemption and provides direction through private letter rulings and technical guidance.

The EO Examinations office promotes compliance by analyzing operational and financial activities of exempt organizations.  These activities include developing processes to identify areas of noncompliance, developing corrective strategies, and assisting other EO functions in implementing these strategies.

To find out more about EO, or for more information about exempt organization tax compliance issues, visit the EO pages external link at the IRS website. external link  For account-specific questions, call TE/GE's Customer Account Services, toll-free, at 877-829-5500.


Here's an example of the materials available:


playPresentation 1: Navigating IRS Resources for Tax-Exempt Organizations
Published: June 30, 2011
Ever wonder what the IRS Web site contains for exempt organizations? This mini-course will show you what's available and how to find it.
Download Printable PDF Presentation | Download Playable PDF Presentation



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September 23, 2012

R.E., M.E., et al v. NYC Dep't of Education

" In resolving a central question presented by these appeals, we hold that courts must 
evaluate the adequacy of an IEP prospectively as of the time of the parents' placement 
decision and may not consider  "retrospective" testimony regarding services not listed in 
the IEP.  However, we reject a rigid "four-corners rule" that would prevent a court from 
considering evidence explicating the written terms of the IEP.
"


R.E., M.E., et al v. NYC Dep't of Education
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October 1, 2012

Internal Revenue Service


As you may have noticed, the IRS has made extensive changes to the look and functionality of the IRS.gov website.  These changes aim to improve online services for all stakeholders with the best content and Web experience that the IRS can offer.

The new navigation is one of the most significant changes users will see on IRS.gov.  While the home page looks similar, there are new colors, new headings and a completely new way to navigate the site.  To maintain a measure of continuity between the old and new, you'll find a menu list in the upper right-hand corner called "Information for..." that incorporates virtually all content from the old site under familiar headings such as "Charities and Non-Profits," Government Entities," "Retirement Plans" and "Tax Exempt Bonds." Alternately, you can always use the web address irs.gov/govt typed directly into your browser's address window to access the page.

If you bookmarked pages in the old website, check the redesigned site and update your bookmarks and favorites.  A new feature on every page gives you the option of clicking a heart graphic to save the page as a bookmark.



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October 7, 2012

R.E., M.E., et al v. NYC Dep't of Education-Expert Analysis by John Farago

John Farago:  Administrative Law Judge (Impartial Hearing Officer), New York State Department of Education (1982-2012); State of Indiana (1980-82). I regularly serve as an impartial hearing officer pursuant to the federal Education for All Handicapped Act and the New York State Education Law and implementing regulations that govern the evaluation and placement of handicapped children. Have conducted well over 300 hearings . I teach a course that brings law student observers into the hearing process. In addition. I have twice been appointed on an ad hoc basis to serve as an independent fact finder for the Board of Education, and have designed and conducted training sessions on recent legal developments in special education for the approximately 20 hearing officers certified to hear NYC cases.  See full C.V. here.


In R.E. v. NYC DoE, the Second Circuit answered many questions about the availability of reimbursement as a remedy for defects in a child's special education program as defined by his or her IEP, but perhaps opened an even larger number of as yet unresolved questions within the circuit about the availability of the remedy for defective implementation of a valid IEP in a particular placement.  In doing so it resolves, for the Circuit at least, a tension between the often-disregarded clear holding in Rowley that the first order of inquiry - and the first line of protection of the rights afforded by the IDEA - must be into whether the Act's procedural protections have been followed, and the perhaps over-relied-upon premise in Schaffer v. Weast that school districts should be accorded the benefit of the doubt when crafting proposed educational programs for the children they serve.

The result, among other things, is a petition for rehearing en banc by the parents in R.E. arising from what they assert are five distinct problematic holdings in the case.

The implicit premises of R.E. appear to draw two bright lines, though neither is expressly articulated: The case focuses almost exclusively on program rather than placement, and it focuses almost exclusively on reimbursement rather than other remedies.  Yet, because it addresses specific narrow factual issues about both placement-related and non-reimbursement remedial orders, it may be interpreted, in my view wrongly, to stand for the conclusion that no remedy is available for defective implementation of a valid IEP.

Here's how I see what the decision actually holds:

In order to be eligible for reimbursement as a remedy for a defective IEP, a district must have had both notice - presumably in the form of a due process Complaint - and an opportunity to cure the problems alleged by the parents who seek reimbursement - by means of the 30 day resolution period.  The Court thus implicitly embraces Justice O'Connor's conclusion in Schaffer that although parents may ask courts to "to assume that every IEP is invalid until the school district demonstrates that it is not[, t]he Act does not support this conclusion . IDEA relies heavily upon the expertise of school districts to meet its goals."

Thus, if a parent believes that a CSE has proposed an IEP that does not offer FAPE, they must tell the district what their objections are and allow the district to cure them before they can count on having an IHO order reimbursement for an alternative unilateral parent placement.  If the district modifies the IEP in the resolution session, the modified IEP becomes the one that the district must defend even if it was the original proposed IEP that caused the parent to remove the child from the public schools.  Thus, the district has an opportunity to cure the defects identified by the parent, and a parent who places a child in a private school before the resolution period concludes (for example, by continuing the child in a prior year's private placement) runs the risk that they will have to bear the cost of the private placement once the resolution period ends and an IHO (or subsequent review) upholds the resolution-revised IEP.

In short, if the district gets FAPE right - either at the CSE or during resolution - reimbursement is not available as a remedy.

The Court goes on to consider the effect of the actual placement offered by the district from a variety of perspectives that are somewhat jumbled and far less clear.  In large measure the lack of clarity derives from the Court's largely exclusive focus on FAPE and program, its avoidance of identifying placement as potentially also raising the possibility of a defect in FAPE (perhaps because in its eyes all three cases under review were about program defects not actual placement defects), and its failure to connect the various placement-related questions it addresses into a single vision of how placement may affect FAPE.  An implicit cohesive model of the rights generated by IDEA with respect to FAPE does, however, emerge from the case's several holdings:

It considers at greatest length whether an actual placement may be relied upon by the district to cure an otherwise defective IEP.  The Court clearly holds that it may not.  The district's opportunity to cure ends at the end of the resolution period, and a district may not rely on the services or programs actually offered by the placement to address the valid concerns about denial of FAPE raised by the parents in their Complaint.

It also addresses, in a far more limited fashion, whether arguments about the actual placement may invalidate an otherwise valid IEP.  Where the IEP defines a program that provides FAPE, speculative arguments that the district will not in fact deliver that program adequately in the placement it offers, or arguments that the parent was not sufficiently involved in the decision of what placement to offer, do not lead to an award of reimbursement as a remedy for the alleged likely defective implementation.  In making this holding, the Court is coyly silent about whether an ACTUAL failure to implement the defective IEP could result in an award of reimbursement, in part at least because none of the three cases, in the Court's view, make that claim.

Specifically, the Court rejects the parents' claim in one of the cases that the district's past failure to provide IEP-mandated services to children at the specific placement offered may be relied upon as a basis to conclude that it will not do so for a child for whom it has drafted an appropriate IEP.  Where FAPE has been offered by the end of the resolution period, that is, Justice O'Connor's notion that districts should be given the benefit of the doubt and allowed the opportunity to deliver the services they offer before a parent may demand reimbursement for a failure to do so.

In light of the limited factual context, in my view the Court leaves open the possibility - and in my view the necessity - that reimbursement may be available if the district actually fails to implement the IEP properly in the placement it offers.  That conclusion is one of the fundamental premises not only of Burlington/Carter awards, but of the original Jose P. plaintiffs. 

But significant questions about the scope of the reimbursement remedy for a placement failure remain unresolved after R.E. and even appear to be freshly opened to a scrutiny that may have seemed settled before it:

The Rowley question of how substantial a failure must be to justify award of reimbursement (raised in Rowley around the question of procedural defects and addressed by courts and by the statute to say that only those procedural defects that rise to a denial of FAPE or of parental opportunity to participate in the CSE review may constitute a basis for reimbursement) remains open.  While the court echoes the existing law about procedural defects, it almost stops short of addressing substantive defects in the placement itself.  Is a failure to provide related services sufficient basis for reimbursement?  How about the situation that arose in one of the cases under review (the absence of a BIP)?  The court concludes that in that case, where the child was not actually attending, the absence of a BIP prior to enrollment did not invalidate FAPE (treating it as a procedural defect).

Does this mean that a child must enroll in a placement and try it out before alleging actual defects that amount to a denial of FAPE?

Is it ever possible to argue prospectively (before the actual placement starts) that the specific placement offered by the district will not provide services?  Surely the case stands for the premise that the district must be offered the opportunity to cure such alleged defects via a resolution session.  But if it fails to do so on the face of the program it continues to offer, may the parents seek reimbursement based on arguments about that placement (rather than about the IEP's program)?

The Court appears to make it far more difficult to allege a deficit in actual placement in a case where the IEP is deemed appropriate under Rowley than perhaps we have accepted by way of parent arguments in the past.  And yet, because it need not and does not reach these questions, for me at least there must remain a potential remedy for defects in an actual placement even where the IEP seems appropriate.  These will be easiest to rule on where the parent has placed the child in the district's program (but even there the Court concludes that simple failure by the child to learn in that program does not invalidate, for reimbursement purposes, an IEP that otherwise meets Rowley standards).  But there surely are circumstances in which we may find that a district's program as revealed in the testimony we hear does not in fact implement the IEP we deem appropriate, even after the district has had the opportunity in resolution to cure those defects.

On the other side of the fence, the R.E. Court, in my view, breathes new life into the Rowley holding that the first essential inquiry must be whether the procedural protections of the Act have been adhered to.  While it reiterates the notion that these defects must amount to a denial of FAPE to justify reimbursement (and concludes, inter alia, that lack of an FBA does not necessarily do so), it also distinguishes the holding in T.Y. (in which the Court notes that it upheld an award of additional services to augment an IEP that had nonetheless been deemed to provide FAPE even without those services).

I think there is only one way this dicta can be read: Reimbursement as a remedy is held to a higher and more limited standard than other equitable remedies, in particular than the curing of procedural defects or the addition of servces deemed 'necessary' in R.E. even though the IEP was held to have offered Rowley-defined FAPE.

Thus, we are in effect invited to order remedies that reshape the child's actual programs and services even where we conclude that Rowley FAPE has been offered.  How can this be possible without overturning Rowley?  Presumably (and it is, to be sure, only my presumption) under that neglected first prong of Rowley - enforcement of the IDEA-mandated procedures.  We can conclude that an IEP is procedurally defective if it offers FAPE but does not fully meet a child's needs, and we can correct those violations of both practice and program, even if we can't order reimbursement for a private placement where a program that meets Rowley's minimal substantive standard of being reasonably calculated to afford educational benefit.

Read in this light, the decision in R.E. is not an unreasonable set of conclusions, though it does appear to me at least to be a rather conservative and constraining one.  In order to obtain reimbursement as a remedy, a district must be afforded notice and an opportunity to cure a defective IEP by the conclusion of the resolution period.  If it does so, it is not liable.  If it does not, even if the placement it offers does actually subsequently cure those defects, reimbursement is called for.

When there is a valid IEP, however, actual defects in implementation could conceivably justify a reimbursement order under the proper facts (facts that were not present in any of the three cases reviewed in R.E. and that are not defined by the holding of that case).  More significantly still, non-reimbursement remedies are available for defects that do not rise to the level of a denial of FAPE, and for deficits in actual placements, even if reimbursement is not.

Such a reading of the holding both views it as clarifying and as breaking some new ground, without grossly overturning any previously clear reading of the law.  Still, there is much that could be subject to appeal or refinement in future cases (especially with regard to implementation defects).  

1.    The ruling that parents may not rely at hearing on evidence that the child did not subsequently make progress if and when they accept the district's proposed placement to demonstrate that the IEP failed to offer FAPE.  In my view the R.E. ruling is limited and not necessarily wrong, precisely because it is limited: The parents may not rely on that evidence for that purpose, but the Court seems to me to allow admission of that evidence to support a showing of what the child's actual needs were at the time the placement started.  Because the CSE could not have had that knowledge when it met, it is not sufficient to constitute a showing that the IEP was defective as drafted (in light of what the CSE could have known), but it can be used both to contribute to a clinical understanding of the child and to document defects in the actual placement's delivery of the IEP program.  Gary is likely correct to seek clarification of this matter because these conclusions are far from clear in the R.E. decision (and in their absence the decision is, in my view, problematic).  But whether this will come within the four walls of R.E. or from subsequent litigation remains to be seen.

2.  The Court's conclusion that lack of an FBA, of a BiP, and of mandated parent training on the IEP are procedural violations that in these cases did not amount to a denial of FAPE.  Gary argues that these are beyond procedural defects and speak to the substance of the child's program.  In my view, described above, the Court holds in R.E. that defects of this sort do not arise to violating the Rowley standard for FAPE, but could be predicates for IHO- or court-mandated relief other than reimbursement.  If I'm right, that's not great for many of Gary's clients, but it would address the fact that he is right to argue that the Court appears to give short shrift to these significant substantive lacunae in the chilren's programs.

3.  The Court's conclusion that the parents' allegations that the district's past practice frequently denied mandated services to children at the actual proposed placement.  Gary argues, I think correctly, that this fails to take adequate account of the NYS allocation of burden of proof - that once this reasonable concern was alleged in the Complaint, the district had the burden of showing that it would not be the case in this child's specific placement.  To the extent that the argument is limited to this procedural claim about burden of proof, and to the extent that the record did not support the district's argument that its placement could offer the services on the child's IEP, it seems well-founded to me.

4.  The conclusion that the district may cure any defect by changing its offer at resolution.  Gary argues that if a parent provides the mandated 10-day notice and a district fails adequately to respond, the district should not be allowed to cure the alleged defects subsequently, during resolution.  In my view, that's a matter for appeal, not clarification.

5.  The Court's extension of the ruling in T.Y. to the effect that parents are simply not entitled to participate in actual placement determinations.  Gary argues that the R.E. court goes a good bit further than the T.Y. court in ruling that parents have no right to participate in those decisions, and he appears to me to be correct.  But it also appears to me (a) that the decision is not inconsistent with T.Y. but rather that T.Y. is included within the broader R.E. holding; (b) that the Sevond Circuit does seem to be drawing this bright line in the sand to the effect that there is NO parent role in placement decision-making under the law; and (c) that the Circuit appears to be ignoring significant law and regulation in reaching that conclusion and that justifies further review/appeal of the matter even if the Circuit proceeds as it appears to be doing.  Its current holding, however, is binding on us even if I'm not crazy about it, of course.
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October 9, 2012

MobileLaw for iPhone 3GS, iPhone 4, iPhone 4S, iPhone 5, iPod touch (3rd generation), iPod touch (4th generation), iPod touch (5th generation) and iPad on the iTunes App Store



The MobileLaw™ application is a legal text navigation platform that currently includes more than 200 United States legal texts for download, including federal statutes and codes from New York, California, and Texas. Texts are uploaded constantly, and each is free for you to download and use at your convenience. No subscriptions; no fees.

Search for the codes you want, bookmark the sections you find, add the notes you want, and email them all for future reference.

Eliminate the cumbersome "page flipping" inherent with the use of other electronic references - the MobileLaw™ application provides the user an accordion-style, expandable table of contents, which gives immediate access to the rule you need intuitively and elegantly. Adjacent statutory provisions are available with a swipe to the right or left.


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October 18, 2012

Second Circuit Strikes Down DOMA

Windsor v. United States 12-2335-cvAP reports that:

A divided federal appeals court in Manhattan this morning became the second in the nation to strike down the Defense of Marriage Act as unconstitutional.

In Windsor v. United States, 12-2335-cv, the U.S. Court of Appeals for the Second Circuit upheld a ruling by Southern District Judge Barbara Jones (See Profile) that the 1996 law that defines marriage as involving a man and a woman was unconstitutional.

A majority of the three-judge Second Circuit panel, in a ruling by Chief Judge Dennis Jacobs (See Profile), concluded that the definition violated the Equal Protection Clause. Its opinion joined an earlier decision by the First Circuit in Boston.



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October 20, 2012

IRS Balance Due Inquiry - YouTube


October 26, 2012

Governor Cuomo Signs Legislation Strengthening New York's Domestic Violence Laws | Governor Andrew M. Cuomo

Read Gov.'s Entire Press Release here.

New Felony Crime and Expanded Definition of Aggravated Harassment

 

The law creates the Class E felony of Aggravated Family Offense, which enables law enforcement to prosecute as felons defendants who commit certain misdemeanor-level offenses and have a previous conviction for a specified misdemeanor or felony against a family or household member within the past five years. It also expands the definition of the Class A misdemeanor of Aggravated Harassment in the Second Degree to include when a defendant, with intent to harass, annoy, threaten or alarm, causes physical injury to an individual, or to a family or household member of that individual.

 

Although New York State already has a number of strong domestic violence protections, many domestic violence abusers repeatedly commit low-level offenses, which carry minor penalties, enabling them to continue subjecting their victims to fear and harm.

 

The aggravated family offense takes effect in 90 days and the aggravated harassment misdemeanor and the bail provision take effect in 60 days. The maximum sentence for a class A misdemeanor is one year in local jail; the maximum sentence for a class E felony is up to four years in state prison.

 

Allows Judges to Consider Additional Risk Factors in Determining Bail to Better Protect Victims from Further Harm

 

Under the new law, courts will be required for the first time to consider certain risk factors when determining recognizance or bail for a defendant who is charged with an offense against a family or household member.

 

Currently, courts are not required to consider any special factors when determining recognizance or bail in a domestic violence case, allowing offenders in some cases to go free on low bail and thereby be allowed to stalk, harm and sometimes kill their specifically targeted victims. Under the legislation that was signed today, judges will be required to consider well-established risk factors, such as an offender's prior violation of an order of protection and the accused's access to guns.

 

Establishes Statewide Fatality Review Team to Find New Ways to Reduce Intimate Partner Homicides

 

Under the new law, the New York State Office for the Prevention of Domestic Violence will establish a statewide domestic violence fatality review team. The review team will bring together domestic violence-related professionals to review domestic violence homicides, in an effort to understand more fully the factors involved and determine how the system can be improved in order to help prevent future deaths. The review team will report periodically to the Governor and the Legislature to assist the State and local communities in improving domestic violence prevention measures. The review team will be established in 180 days.

 

The package of laws signed today also includes provisions that address non-criminal needs of domestic violence victims, providing them options to sever their relationships with abusers in a variety of ways: enhancing last year's address confidentiality bill to provide appropriate protections for family members; ensuring that insurance companies, when notified of the domestic violence, do not jeopardize a victim's safety by disclosing confidential information to the abuser; and preventing abusers who were subject to an order of protection or charged with someone's death from making funeral or burial arrangement decisions

 

In addition to targeting domestic violence through stronger legislation, New York State will institute three new programs designed to enhance victim and officer safety, and hold offenders accountable for their crimes: a specialized domestic violence court at the Rikers Island Judicial Center for parolees with a history of domestic violence; a high-risk response team, and free, online training for police officers.

 

NYC Domestic Violence Court for Parolees

 

A joint initiative of the New York State Board of Parole and Department of Corrections and Community Supervision, the specialized court will serve the five boroughs of New York City beginning this fall. Two Administrative Law Judges will hear domestic violence cases and provide judicial oversight through the parole violation process. In addition, specially trained parole revocation specialists will work with victim advocates and other law enforcement agencies to contact the victim quickly after the incident, develop a safety plan for the victim(s) and coordinate treatment services. The ultimate goal is to provide for the safety of victims, especially children, and to enforce strong offender accountability and monitoring.


***



 


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November 21, 2012

Continuing The Suspension of Certain Provisions of Law | Governor Andrew M. Cuomo



Executive Order 81 extends the suspension of the statute of limitations.  See the specifics here.



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December 15, 2012

IRS Exempt Organizations Select Check - YouTube


Learn how to search for charities and other nonprofits using the IRS online tool called Select Check in this new YouTube video.

Watch this and other videos on the IRS YouTube Channel.



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December 18, 2012

S7641-2011 - NY Senate Open Legislation - Enacts the "uniform notice of claim act" - New York State Senate

The Governor has signed the Uniform Notice of Claim Act.  



December 20, 2012

Advising Clients on Expiring Bush Tax Cuts-Pinni Bohm


2012 should be known as the year Congress left tax and estate planning attorneys unable to properly advise clients on dealing with the Internal Revenue Code. I can assure you that the feeling is quite unsettling. As is known, the so-called "Bush Tax Cuts" are expiring December 31, taking with them the increased $5,120,000 transfer (estate and gift) tax exemption, the reduced transfer tax top bracket of 35%, the lower income tax brackets of 10%, 15%, 25%, 28%, 33%, and 35%, and the reduced taxes on qualified capital gains and dividends (which will be taxed as ordinary income next year).

How should an attorney respond to urgent tax planning questions from clients? There is no single recommendation that all tax attorneys will agree to. Nonetheless, you will likely be safe by recommending that your clients consider accelerating all income for the current year and deferring all deductions to the next year. Additionally, they should consider putting as much income as possible into retirement accounts that tax now, but do not tax future withdrawals. Lastly, if they have sufficient assets that they could afford to live without, they should be pushed to transfer them to loved ones, whether in trust or outright.

The clock is ticking...

For more detailed suggestions in advising clients on individual tax planning and estate and gift tax planning, go to Accounting Today and Forbes, respectively.

Pinni Bohm, J.D., LL.M. (Taxation), is a tax and estate planning attorney with the Bohm Law Firm, who welcomes all questions by email.


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January 3, 2013

"Fiscal Cliff" Averted: Congress Passes Tax Reform - Pinni Bohm