Not Surprising, The First Department Expects Lawyers Properly To File Motion Papers

On an appeal of a trial court order granting summary judgment to defendant in an elevator accident case, the First Department reversed the dismissal of the action because defendant’s counsel did not properly file a copy of the video on which its expert relied to show plaintiff was responsible for the accident.  Amezquita v. RCPI Landmark Props., LLC, 2021 Slip Op. (First Dep’t May 11, 2021) series/2021/2021_02979.htm?utm_campaign=Pubs&utm_medium=email&_hsmi=128508462&_hsenc=p2ANqtz–JdCcDEMXgFT9O3ly83lpRqaNf06nzY-1yUtRfKY6tKlhT4c_nq9LDel2kUktng8IwHCtuwd9942c5RVmLwIqIiF-SFg&utm_content=128508462&utm_source=hs_email

Apparently defense counsel inserted a page in its moving papers stating that video would be made available upon request of the Court. The Court made clear that is not good enough. The Court stated, “[b]ecause defendants failed to comply with these procedures, the video never became part of the record and thus cannot be reviewed by this Court.” Adding insult to injury, the Court added that “the expert’s affidavit raises issues of fact as to whether the elevator should not have been able to run if plaintiff did not fully close the scissor gate before her accident.” Accordingly, “the defendants’ motion should be denied without regard to the sufficiency of plaintiff’s papers in opposition.”

Fair warning from the First Department that showing up with all of your evidence is half the battle. Sometimes, the little things matter very much. There but for the grace of God . . . .


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Health Savings Accounts (“HSA”) Can Now Be Used For Over-the-Counter Medications

If you have a high deductible health plan with a Health Savings Account (“HSA”), the CARES Act permanently authorizes you to use HSA’s to purchase over-the-counter medication without a prescription.  In addition, menstrual care products are finally treated as HSA eligible medical expenses.  I suppose better late than never.  Too bad it required a worldwide pandemic.

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Coronavirus: Video Witnessing of Wills and Health Care Proxies

In the midst of the coronavirus pandemic, many people are trying to complete their last will and testament and health care proxy.  A valid execution of these documents in New York must be witnessed by two people, which has been an impediment in the current social distancing environment.  By Executive Order No. 202.14, New York State has facilitated this process by authorizing the the witnessing of wills and other documents required to be witnessed to be accomplished by videoconference.  The requirements are similar to notarization.

1.  The person requesting that their signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;

2.   The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);

3.  The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;

4.  The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and

5.  The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.

This should help people in this stressful time to take care of these urgent matters.  If you have any questions, you should speak with an attorney.

Contact Mollon Law

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Coronavirus Update: New York Clarifies Mortgage Forbearance Applies Does Not Apply To Commercial Mortgages

In Executive Order 202.9, Governor Cuomo ordered that New York licensed or regulated entities offer an opportunity “to any consumer in the State of New York an opportunity for a forbearance of payments for a mortgage for any person or entity facing a financial hardship due to the COVID-19 pandemic.”  On March 24, 2020, the New York State Department of Financial Services issued regulations (3 N.Y.C.R.R § 119) to implement the executive order.  The new regulations clarify that  90-day forbearance relief applies only to residential mortgages, not commercial mortgages  (3 N.Y.C.R.R § 119.3(k)).

In addition, the regulations direct that New York regulated banking organizations will eliminate ATM fees, overdraft fees, and credit card late payment fees.  Banks are required to communicate broadly how to apply for such relief.

Stay safe!

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Coronavirus Update: New York Statute of Limitations Tolled

New York Governor Cuomo by Executive Order 202.8 (Executive Order 202.8) has tolled “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state” from March 20 to April 19, 2020.

In the same order, the Governor suspended the expiration of drivers’ licenses and registrations through April 19, 2020, as well.

The requirement of in-person shareholders meetings for NY corporations has also been suspended for the same period.

There shall be no evictions or foreclosures (commercial or residential) for ninety days.

Interest and filing of sales tax returns due March 20, 2020 are also abated.

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Notarization By Video Conference–Executive Order 202.7

Pursuant to New York Executive Order 202.7, notarial acts in New York may be performed by video conference through April 18, 2020.  In order to be valid, the following requirements must be satisfied:

  1.  If the signatory is not known to the notary, valid identification must be presented in a live  video conference (emailing ID before or after is not sufficient).
  2. The signatory must affirmatively represent that he or she is located in the state of New York at the time of the signing.
  3. A legible copy of the signed document must be sent on the same date of the signature.
  4. The notary may notarize and return the document to the signatory.
  5. The notary may repeat the notarization of the original signed document as of the date of original signature provided the notary receives the original and the electronically notarized copy within 30 days of the original signature.

Here is a link to the Executive Order:

Executive Order 202.7

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Financial Advisors Duties To Clients

Last week, I had the pleasure of speaking to members of the Financial Planning Association of Long Island.  The topic was the duties of financial advisors — registered investment advisors and brokers — to their clients.  The SEC has recently issued a new regulation imposing a “Best Interest” standard on registered representatives or brokers.  That still leaves different standards governing registered investment advisors and traditional brokers, though it brings the standards closer.  The presentation summarizes the relevant standards, including the FINRA “suitability” standard.  We also discussed some recent regulatory changes designed to allow financial advisory firms to take action if the reasonably believe elder exploitation may be taking place.

The presentation slides are available at the link below and provide a good summary.  If you have any questions, just reach out.

Financial Advisor Duties

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Cruel and Heartless Child Abuse

Statement on U.S. border policy from New York State Bar Association President Michael Miller

“The current policy of separating minor migrant children from their parents as part of U.S. border policy is cruel and heartless child abuse, it is inhumane, and it is un-American.

“Many of these children have already suffered and this policy imposes a completely avoidable trauma. Additionally, the forced separation of the children from their parents deprives both parent and child of reasonable due process and is a gross departure from the norms of a civilized society.

“The American Academy of Pediatrics has pointed out that by forcefully removing children from a parent or parents on whom they have relied throughout an arduous journey to the border, the U.S. government is engaging in child abuse that can result in irreparable harm with lifelong consequences.

“The American Medical Association has adopted a resolution opposing the practice of separating migrating children from their caregivers in the absence of immediate physical or emotional threats to the child’s well-being.

“The United Nations High Commissioner for Human Rights has severely criticized the U.S. border policy of separating migrant minor children from their parents, calling such actions ‘unconscionable.’

“The New York State Bar Association calls upon the Trump administration to immediately cease this dangerous and inappropriate policy, which denies the children and their parents basic due process and potentially exposes the children to serious long-term harm.

“We also call upon our members to contact their representatives in the U.S. House and Senate with a simple message: Immediately enact legislation prohibiting the separation of children from their parents at the border, absent physical or emotional threats to the children’s well-being.”

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Business Litigation

In this day and age, unfortunately, it is almost impossible to do business without dealing with litigation.  Especially when economic times are difficult, business disputes are common.  How best for a small business to handle it disputes?

Look for the most efficient avenue of resolution.

The first thing for a business and its lawyer to understand is that litigation should be about resolving disputes efficiently.  What solution makes the most business sense?  How can the parties end up better off or at least not worse off?  That may mean litigating in court, in particular when there are unsettled issues of law and fact that are important to both sides’ economic interest and you need a final resolution.  It may mean dispassionate negotiation with the help of clear-headed lawyers who can take emotions out of the equation and can look for common ground.  It may mean mediation, where an objective third-party can give the parties to a dispute a balanced objective view of their differences and allow a rational mutually agreeable resolution based on guidance about the pros and cons of each side’s position.  It could mean arbitration, where decision makers with practical experience in your business can adjudicate a dispute relatively efficiently and with some sensitivity to the particular business issues at stake.  How do we know the best path?

Understand the Facts.

Litigation is about facts.  It’s also about law, but outcomes are almost always determined by the facts.  What happened, when, how, and why?  In order to decide the best avenue for resolution, you need to understand the problem.  All of it.  From all sides.  Objectively.  For a lawyer, the first step is to understand as quickly as possible all of the facts.  You need to speak with your client and the people with information to collect the facts.  Look at relevant documents.  In this day and age of instantaneous communication, emails, ims, tweets, facebook posts, all may have relevant information about your issues.  They need to be preserved and reviewed and put into context to understand what happened.  In running your business (or your personal life for that matter), it is important to remember that all of those things that we write on our smartphone, emails, and social networking sites are preserved somewhere in the ether for posterity to look at.  It is important to think before we commit things to writing, to understand how they may look after the fact, and to make sure they are accurate and not the result of being in a rush, being tired, being annoyed or angry, and the like.  It’s always a good rule of thumb to pause before hitting “send” or “post” and think about how what you are saying would look if it were plastered on the front page of your local newspaper.  Then decide whether to send it.

Plan Your Objective

Litigation is not a good venue for venting one’s anger or frustration.  It is important to have a clear objective before embarking on it.  Think, “What is the business objective I want to serve?”.  Are you protecting a strategic interest?  Are you trying to collect money you are due?  Are you trying to achieve some modification of an ongoing business relationship because circumstances have changed?  There are many valid business objectives that litigation can serve.  Outlining them at the outset, makes it easier to plan the right course of action.  It also avoids surprises.  Generally folks don’t get much beyond “winning.”  The more important question is what is winning?  It doesn’t always mean unconditional surrender or razing the opposition and burning it to the ground.  That ends up being very expensive and isn’t always what is best for the parties.  If you and your lawyer both understand the business objectives, you will both be in a better position to achieve what you want.  And to do it within a budget that makes sense for the objective.

Communicate Early and Often

In my experience, things work best when clients and their lawyers have clear and open lines of communication.  When everyone is on the same page, things work better.  Lawyers need to explain options and ranges of possible consequences very clearly.  Clients will appreciate being part of the decision-making process and understanding what the pros and cons of their options are.  Lawyers need to listen to and understand the objectives long and short-term.  The lawyer’s objective needs to be the client’s objective.  My job is to make your problem my problem and do my best to achieve the best obtainable result based on the circumstances.  To do that, I need to understand the client’s goals and needs and provide options available to reach them.  That requires constant communication, client and lawyer needs to listen carefully and speak clearly and openly.  Those are the most successful partnerships.

It Doesn’t Have To Be Painful

Yes, the wheels of justice sometimes turn slowly.  Yes, litigation is an unwanted distraction and expense.  No, it doesn’t always have to be painful.  Following these guidelines can take some of the unnecessary pain out of litigation.  Keeping in mind carefully thought out goals, helps to make each step of the way purposeful and intentional.  It is another step on the path to achieving a desired result that will remove an obstacle to your business.  This makes the journey a little easier to make, knowing that there is a positive end in sight.

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Welcome!  I am lawyer, I love the law, and I have great faith that it can help and protect people.  I love to talk and I love to write.  So I’ve decided to start this blog to discuss legal issues that may be of interest and could possibly be helpful.  Why am I doing this?

Leaving aside that I like to talk and write about the law, after more than 2o years of working at large law firms handling complex legal matters and working thousands of hours a year, I’ve decided to work on my own and practice law in a way that makes me happier and I hope will help people too.  In that spirit, I thought this blog would help me by having you get to know me and would help others by providing some useful information.  I hope it does both.

I’ll be updating periodically with whatever I think is interesting.  Check back and let me know what you think.

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