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Newsletter

                                                                                                         Issue 12
   Inside this                                            TCLMM CONTINUES TO GROW!!
     Issue:
        Page 2
                                          We have the pleasure of announcing that Jay F. Jason and
Is Your Estate Plan in                        Michael E. Catania have recently joined the firm.
        Order?
  Limited Liability
Companies Take Notice

        Page 3                                               Jay F. Jason            Michael E.
                                                          started with us in         C a t a n i a
  Attorneys’ Fees In
 Matrimonial Matters                                      May 2008. He was           started with the
                                                          born in Worcester,         firm in June
  Page 4 and 5                                            Massachusetts.             2008. He was
                                                                  Mr. Jason          b o r n       i n
    What’s New at
                                                                                     Newburgh, New
     TCLMM?                                               was formerly a
                                                                                     York.        Mr.
                                                          partner/principal of
        Page 6                                                                       Catania was an
                                                          Jason & Swift (and
                                                                                     associate at an
 Don’t Get Squeezed                                       predecessor firms)         upstate law firm
                                    in Chestnut Ridge, New York. His areas of        prior to joining TCLMM.        He is
        Page 7
                                    expertise include labor and civil rights liti-   admitted to practice law in New York,
   Recent Successes                 gation, commercial real estate, construc-        New Jersey, Massachusetts,
                                    tion law and employment law. He received         Connecticut and North Carolina. His
                                    his BA from Duke University, his law de-         areas of practice include general and
                                    gree from Boston University School of Law        commercial litigation and product
            July 2008                                                                warranty litigation.
                                    and a Masters from New York University.
       This Newsletter is for
    information and discussion
     purposes only. It does not                                                              Michael received his BA degree
                                            Mr. Jason is also an adjunct
    constitute the rendering of                                                      from the University of Delaware and
   legal advice or opinion and is   professor at New York University teaching
        summary in nature.                                                           his law degree from Albany Law School
                                    construction law. As a private pilot, he         of Union University. He was the
    Receipt of this newsletter
        does not create an          was involved with Angel Flight, an               Associate Editor of the Albany Law
   attorney-client relationship
    between you and the firm.       organization that arranges flights for           School Journal of Science and
     For further information,       people with medical conditions who, other-
       please contact us at
                                                                                     Technology, Trial Team Member, ATLA
      (845) 565-1100.               wise, would not be able to afford to fly.        competition and was the 2005 winner of
                                                                                     the Judgment and Liens Award in 2005.
ISSUE 12                    T A R S H I S , C A T A N I A, L IB E R T H , M A H O N & M I L L I G R A M , P L L C   PAGE 2




                                           Is Your Estate Plan In Order?


                           If you are reading this article, then you must ask yourself the following questions:

                           Do you have and is your last will and testament up to date? Do you have a properly
                           executed power of attorney? Do you have a current health care proxy and living will?
                           These instruments are the fundamental documents for any estate plan.

                                 The will is the roadmap for the distribution of your assets upon your death. It should take
                                into consideration the needs of your family. For example, is there anyone in your family
                                that has special needs, is receiving benefits form any governmental agency such as
                                   social security or Medicare or Medicaid? Are their minors that must be taken care of
   Steven L. Tarshis is a Senior
      Member of TCLM&M.
                                   for a period of time until they reach maturity? Are their business assets or real estate
                                   that must be planned for? Who will be the executor, the trustee, and guardian and
  He holds a Masters of Law in
     Taxation from New York
                                   what do these different roles mean? Who is best able to function in these roles? If you
  University School of Law and are injured or ill ,or otherwise unable to act on your own behalf, is there someone
  his practice is concentrated
                                   designated by you under a power of attorney who can fill those needs? Should the
    in business, banking, real
   estate, corporate and tax       power of attorney be immediate or deferred until some event occurs? Who knows
                                   your wishes in the event you are seriously ill or cannot otherwise make decisions on
your health treatment and, if need be, end of life decisions as to how you wish to be taken care of ? All of the
above are serious and should be considered regardless of your age and position in life.

 For those of us that are concerned about the ability that our assets will be able to maintain our care in the win-
ter of our lives, should long term health insurance should be considered ? Is Medicaid an option, and are you
medically eligible? What can you do now to make yourself Medicaid eligible? There is a variety of insurance poli-
cies available including participation in the New York State Partnership Program. When considering these insur-
ances, you must make certain that all of your concerns have been considered, and reviewed so a knowledge-
able decision can be made as to the type of insurance needed.

 At Tarshis Catania, Liberth, Mahon & Milligram, PLLC, we are prepared to sit down with you and your family to
discuss these issues and others so that you may be at ease that your estate plan and end of life issues have
been thoroughly reviewed, discussed and implemented. We invite you to contact our estate and elder law at-
torneys.


               LIMITED LIABILITY COMPANIES TAKE NOTICE
Derivative Suits Are Allowed for Limited Liability Companies
        A derivative action enables corporate shareholders to initiate suit against those who have
wronged the corporation when the directors have refused to, the directors being included as de-
fendants, often with the accusation that they acted out of selfish motives that violate their fiduciary
duties to the stockholders. However, the Limited Liability Law does not make the derivative action
available to LLC members.

          This recently changed when New York’s highest court in Tzolis v. Wolff, 10 N.Y.3d 100, 855     Jason Minard
N.Y.S.2d (Feb. 14, 2008; 4-3 decision) allowed the derivative action remedy for a limited liability company where the
plaintiffs alleged their LLC, the owner of a Manhattan building, leased and then sold it below market value, enabling
those in charge to benefit themselves. The High Court allowed the suit. The rationale was simple; LLC members should
not be deprived of legal remedy against faithless fiduciaries, which would be the result if a derivative action were not
available to LLC members.

        The Tzolis decision is valuable to the oppressed LLC members who wish to seek recourse against the LLC
directors and managers for violating their fiduciary duties to the members.
ISSUE 12                     TA R S H I S , C A T A N I A, L I B E R T H , M A H O N & M I L L I G R A M , P L L C            PAGE 3


                           ATTORNEYS’ FEES IN MATRIMONIAL MATTERS

                                   A fundamental issue in             the playing field to insure fairness and equity in the matrimo-
                         matrimonial law is the question              nial litigation.
                         of who pays for the attorneys
                                                                                 While interim counsel fees are often awarded, the ulti-
                         fees. The issue greatly affects
                                                                      mate award of attorney’s fees requires that a Court look at
                         persons in need of representa-
                                                                      the financial circumstances of the parties and all of the other
                         tion in matrimonial maters. This
                                                                      circumstances in the case, including the equities of the case.
                         article will address the relevant
                                                                      Thus, at the end of a matrimonial case when the less monied
                         law governing this issue.
                                                                      spouse requests a final award of attorney’s fees, the Court
Rhett D. Weires special-         In New York State, Do-               examines not only the financial aspects of the case, but also
izes in matrimonial and
family law, litigation,  mestic Relations Law §237 sets               the manner in which the parties conducted themselves during
insurance defense and    forth the law governing the issue            the litigation including the merits of the factual and legal posi-
medical and
professional malpractice of attorneys’ fees in matrimonial
                                                                      tions that they maintained. Where the “monied spouse” has
                        matters.    This provision provides           used an economic advantage in a manner that the Court
for the possibility of fee shifting from the “monied”                 believes was designed to deprive the less monied spouse of
spouse to the “less-monied” spouse.             Ordinarily, the       his or her rights, it is likely that the monied spouse will be re-
monied spouse is the one who earns the majority of the                quired to pay for the legal fees incurred by the less monied
marital income and/or who has titled ownership to and                 spouse.
possession of the majority of the assets. The Legislature
                                                                                 However, the Court is required to review not only the
created fee shifting in matrimonial matters in order to
                                                                      financial circumstances of the parties, and the relative merits
“level the playing field” and insure that both spouses
                                                                      of their position, but also the litigation tactics of the parties
are fully represented by counsel. This is designed to pro-
                                                                      and whether they unnecessarily prolonged the litigation. Thus,
mote fairness and equity in divorce cases. Under our
                                                                      in instances in which the Court determines that the monied
adversarial system, it is assumed that if two parties are
                                                                      spouse and the less monied spouse are going to share equally
represented by counsel then a fair resolution will result.
                                                                      in the marital assets, there may not be an award of attorney’s
Where one party is able to afford counsel and the other
                                                                      fees as long as the conduct of both of the parties was reason-
party is unable to pay for counsel, it is assumed that the
                                                                      able. Of course, whether a party is acting reasonably is deter-
litigant with the benefit of counsel will have an advan-
                                                                      mined by the Court. In cases that require a trial, the Court
tage.
                                                                      usually concludes that one or both of the parties acted irra-
          Bearing this in mind, the Legislature created the           tionally and/or litigiously. In those instances, the party viewed
system by which the “monied” spouse may be forced                     as irrational is typically not going to be rewarded. However,
to pay not only for his or her own counsel, but also for              the less monied spouse may only be “punished” by being de-
the “less-monied” spouse’s attorney. Income, access to                nied an award of attorney’s fees. The fee shifting provision is
funds and the ability to pay are some of the factors that             not reciprocal and the less monied spouse may not be di-
are taken into consideration by the courts when deter-                rected to pay the monied spouse’s attorneys fees, regardless
mining whether one of the spouses is the “monied”                     of whether the Court finds the less monied spouse to have
spouse.                                                               taken an unreasonable position in the litigation.
                                                                              The law provides for both parties in a matrimonial liti-
           At the initiation of a matrimonial action, the             gation to be represented by counsel where the parties can
“less-monied” spouse may seek to have the Court order                 afford representation. This should encourage all parties
the payment of interim attorney’s fees by the “monied”                (monied and non-monied) to retain counsel to help them
spouse. Interim fees insure that the less-monied spouse               achieve a fair and equitable resolution as quickly and cost
will have equal access to the Courts during the pend-                 effectively as possible. While the emotional aspects of divorce
ency of the matrimonial litigation. The party must estab-             cases sometimes make this goal difficult to attain, parties
lish that they are the less monied spouse, that the mon-              should take advantage of access to legal counsel in order to
ied spouse has the ability to make the attorney’s fee                 protect their rights and help achieve their reasonable objec-
payments and that the fee shifting is necessary to level              tives.
T A R S H I S , C A T A N I A , LI B E R T H , M A H O N & M I L L I G R A M , P L L C             PAGE 4
   ISSUE 12



                                       What’s New at TCLM&M
                                                                              CATANIA ON BOARD OF DIRECTORS
 MILLIGRAM ELECTED PRESIDENT OF THE
   ORANGE COUNTY BAR ASSOCIATION
                                                                                                 JOSEPH A. CATANIA, JR., a sen-
STEVEN I. MILLIGRAM, a senior
                                                                                                 ior partner, has been elected
partner of Tarshis, Catania, Liberth,
                                                                                                 to the Board of Directors of the
Mahon & Milligram, PLLC, was
                                                                                                 Builder's Association of the
elected President of the Orange
                                                                                                 Hudson Valley in New Windsor,
County Bar Association. Mr.
                                                                                                 NY. Mr. Catania, a partner in
Milligram has over 25 years’ litiga-
                                                                                                 the firm Tarshis, Catania, Lib-
tion experience representing clients
                                                                                                 erth, Mahon & Milligram, PLLC,
in personal injury litigation in the
                                                                                                 has assisted clients in the build-
Courts and through Alternative
                                                                                                 ing industry in the prevention of
Dispute Resolution. He represents
                                                                          construction disputes through appropriate contract
health care organizations and practitioners before
                                                                          negotiation and implementation and on the resolu-
Administrative Boards and in Health Law matters. He
                                                                          tion of all types of construction claims before arbi-
practices in all state and federal Courts in New York,
                                                                          tration panels, mediators and through litigation in
and is listed in “Who’s Who in American Law”.
                                                                          New York and Federal courts. He is an arbitrator
                                                                          and mediator for several alternative dispute resolu-
  TARSHIS APPOINTED SPECIAL COUNSEL
                                                                          tion entities, including American Arbitration Asso-
                     STEVEN L. TARSHIS, a senior partner                  ciation, Settlement and Resolute System. He has
                     at the firm Tarshis, Catania, Liberth,               defended and prosecuted all types of construction
                     Mahon & Milligram, PLLC has been                     litigation, homeowner warranty claims, architec-
                     appointed special counsel for The                    tural and engineering claims and major commer-
                     Hudson Valley Center for                             cial construction claims.
                     Innovation, Inc. Headquartered in
                     Kingston, NY, The Hudson Valley
                                                                             CATANIA 2008 CORPORATE COUNSEL
                     Center for Innovation, Inc. is a not-
                     for-profit corporation formed to                     Mr. Catania has again been selected for inclusion
                     foster the growth and                                in Super Lawyers in the 2008 Corporate Counsel
                     development of emerging high                         Edition because of his litigation expertise, experi-
                     value business and technology                        ence and reputation in business and corporate
development firms.                                                        matters. The process of selection includes a multi-
                                                                          step evaluation process that incorporates peer rec-
                                                                          ognition and professional achievement, resulting in
  GOINGS-PERROT LEADS DISCUSSION AT                                       a selection of a diverse and comprehensive listing
 “GETTING READY IN NEW YORK” SEMINAR                                      of outstanding lawyers. Selections are made annu-
                                                                          ally on a state by state basis. Lawyers who have
JULIA GOINGS-PERROT, an associate with TCLMM, lead
                                                                          been in practice at least five years are asked to
one of the discussion groups for a recent seminar
                                                                          nominate the best attorneys they have personally
“Getting Ready in New York: Public Health Emergency
                                                                          observed in action. An independent candidate
Legal Preparedness” jointly sponsored by Medical
                                                                          search, evaluation, consideration of verdicts, settle-
Society of the State of New York (MSSNY) and the New
                                                                          ments, scholarly lectures and writings, experience
York State Bar Association. The
                                                                          and other factors narrows the process down to only
program explored the various
                                                                          5% of the lawyers in the state who are selected for
players in a public health emer-
                                                                          inclusion in Super Lawyers. Mr. Catania is the only
gency, their roles, and how they
                                                                          business trial lawyer selected for inclusion in the
may legally and practically inter-
                                                                          2008 Super Lawyers roster in the Mid-Hudson region
act. It discussed balancing the
                                                                          between Albany and White Plains.
rights of the state to ensure that
threats to the public are con-
tained, while respecting
 individual rights and liberties in a
public health emergency.
T A R S H I S , C A T A N I A , LI B E R T H , M A H O N & M I L L I G R A M , P L L C        PAGE 5
   ISSUE 12



                                          What’s New at TCLM&M
     ERNENWEIN APPOINTED CHAIRMAN                                              WEIRES ELECTED AS VICE PRESIDENT
                                                                                OF THE BOARD OF DIRECTORS FOR
PAUL S. ERNENWEIN, a Member of the firm, is a Member
                                                                                  MATERNAL - INFANT SERVICES
of the Board of Trustees for the Orange County Citizens
                                                                                          NETWORK
                      Foundation and has been
                      appointed as Chairman of the
                      Transportation Committee. The                                              RHETT D. WEIRES, a Member
                                                                                                 of TCLMM, was recently
                      Orange County Citizens Foundation
                      is a dedicated group of engaged                                            elected as Vice President of
                                                                                                 Maternal—Infant Services
                      citizens interested in the preservation
                                                                                                 Network of Orange, Ulster
                      of Orange County as a good place
                                                                                                 and Sullivan Counties, Inc.
                      to live and work. It has pledged time
                      and effort to the promotion of that                                        The purpose of MISN is to en-
                      goal. The Transportation Committee                                         sure that women of child-
                                                                                                 bearing age and their fami-
                      will focus on County's transportation
systems and its role in our growth and economic well-                                            lies have access to preventa-
being. They often deal with issues related to State and                       tive and primary health care, social, nutritional
                                                                              and educational services needed for healthy
Federal initiatives as they impact our highways and pub-
lic transportation systems.                                                   pregnancies and children. MISN is funded through
                                                                              the NYS Department of Health, Bureau of
                                                                              Women’s Health and NYS Office of Children and
         MINARD NAMED TO CAMBRIDGE                                            Family Services.
                 WHO’S WHO
 JASON MINARD , an associate with the firm Tarshis,                             WEIRES ELECTED TO THE BOARD OF
 Catania, Liberth, Mahon & Milligram, PLLC has recently                         DIRECTORS OF THE ORANGE COUNTY
 been nominated and named to Cambridge’s Who’s                                          BAR ASSOCIATION
 Who 2008/2009 Registry. Inclu-
 sion in the Registry is an honor                                             Mr. Weires was elected to the Board of the
 limited to individual’s who have                                             Orange County Bar Association in May 2008. The
 demonstrated leadership and                                                  Board is the governing body of the Bar. Mr. Weires
 achievement in their industry                                                areas of practice include Matrimonial & Family
 and occupation.        The profile                                           Law, Litigation , General Insurance Defense and
 highlights each member’s                                                     Medical , Legal and Professional Malpractice.
 expertise, achievements,
 affiliations and education and it
 is an international publication
 and database
                                                                                    TAKE A LOOK AT WHAT ELSE IS
                                                                                              NEW…..
       PASCALE APPOINTED TO PLANNING
                 COMMITTEE
 NICHOLAS PASCALE , an associate with the firm, was                            We have recently completed construction on
                   appointed by Bankruptcy Court                               our web site. Take a moment and log onto
                   Judge Morris to the Orange                                  WWW.TCLMM.COM and see all the changes .
                   County Court Strategic Planning
                   Committee. This group is com-                               Get to know our attorneys and read the
                   prised of bankruptcy law practitio-                          informative material
                   ners who meet periodically with                             we post, including
                   the Court and Court staff to dis-                           these newsletters, to
                   cuss issues of concern to the
                   bench and the bar.                                          help you in your
                                                                               personal and
                        Mr. Pascale heads up the
                        Bankruptcy Department at
                                                                               professional life.
T A R S H I S , C A T A N I A , LI B E R T H , M A H O N & M I L L I G R A M , P L L C                                     PAGE 6
      ISSUE 12


                                                                       DON'T GET SQUEEZED
                                                   Your rights under New York's New Car Lemon Law


                                                    So, your new car spends more time in the shop than it does
                                            on the road and you spend more time talking with service manag-
                                            ers than your own kids. To make matters worse, every time the
                                            dealership tells you your car is fixed, another warning light pops up
                                            on the dash. What can you do? Buyer beware, right? Wrong. In
                                            1983, the New York Legislature enacted § 198-a of the General Busi-
                                            ness Law, commonly known as the New Car Lemon Law, which pro-
                                            vides relief for consumers who buy or lease defective new automobiles, i.e., “lemons”.


    Michael Catania, an asso-
                                 DOES YOUR CAR QUALIFY FOR RELIEF UNDER THE LEMON LAW?
    ciate with the firm, and his If, within the first 18,000 miles of operation or two years, whichever is earlier, the
    areas of law include gen-
                        “manufacturer ... or authorized dealers are unable to repair or correct any defect or con-
    eral and commercial litiga-
    tion and product warrenty.
                        ditionquot; in your car quot;which substantially impairs its value . . . after a reasonable number of
                        attempts” you are entitled to relief. GBL § 198-a(c)(1). This raises 3 questions; 1) what is a
quot;defect or conditionquot;, 2) what defects or conditions quot;substantially impairquot; the value of your vehicle; and 3) what is
quot;a reasonable number of repair attempts.” A defect or condition (quot;defectquot;) is any vehicle problem covered un-
der the manufacturer’s warranty.1 Some common examples include electrical issues, problems with your car’s
engine, transmission, and/or suspension performance and water leaks. As a practical matter, any issue
that causes you to bring your vehicle in for repair is likely a defect. The defect, however, has to be substantial. If
it affects your safety, your use of the vehicle, or your car’s value, it is substantial. This threshold is easily met and
the manufacturer then has the burden to show otherwise. Finally, quot;a reasonable number of repair attempts”
is defined as either a) four attempts by the dealership(s) for the same defect within the first 18,000 miles or two
years following the date of original delivery of the motor vehicle to the consumer, whichever is earlier, or b) dur-
ing that same time period the car was out of service by reason of repair for 30 or more calendar days. 2 If you
meet either criterion, you are presumed to have a quot;lemonquot; under the statute.
         Remember, the four or more repair attempts must be for the same defect. For example, if you bring you
car into the shop with a stalling complaint on four separate occasions and after the fourth attempt your car still
stalls, you have a lemon - it does not matter if the car is subsequently fixed on the fifth or sixth time by the dealer.
The days out of service, however, do not have to be for the same defect. Ten trips to the dealership, each of 3
days in duration, and each for a separate defect, will qualify.

                         IF YOU OWN A LEMON: WHAT IS YOUR REMEDY?
        If you qualify for relief under the Lemon Law as outlined above, the manufacturer of your vehicle must
either refund the full purchase/lease price of your vehicle, or give you a comparable replacement car. The re-
fund amount consists of the purchase price of the vehicle, including most options, monies paid for manufacturer
extended service contracts, governmental fees (title, registration, etc) minus any lawful deductions. 3 Lawful de-
ductions include a statutory mileage quot;penaltyquot;. The manufacturer is entitled to deduct a fixed amount for any
mileage over 12,000 miles. The amount is calculated by multiplying the excess mileage by the purchase price
and then dividing it by 100,000.4 Sales tax is not included in the manufacturer’s refund, but you are entitled to a
refund from the New York State Dept. of Taxation. If you have leased the vehicle, you will receive your down

1 Defects   resulting from aftermarket accessories (not installed by the manufacturer) such as remote starters and navigation systems are not covered.
2 This includes weekends and holidays.
3 New Yorker lemon law, unlike other states, does not provide for the refund of finance charges, insurance premiums or loss of use costs, such as rental expenses

4 If you paid $20,000 for your car, drove it 13,000 miles (1,000 over the limit) the deduction would be 1,000 x 20,000 divided by 100,000, or $200.                 Continued on page 7
T A R S H I S , C A T A N I A , LI B E R T H , M A H O N & M I L L I G R A M , P L L C   PAGE 7
    ISSUE 12


Continued from page 6                       DON'T GET SQUEEZED
                              Your rights under New York's New Car Lemon Law

payment plus all of your monthly lease payments minus any finance charges.
        If you opt for a replacement, the manufacturer usually will offer you the option of exchanging your car
for any new vehicle they manufacture, with you being responsible for the difference in MSRP. Thus, if your sedan
is a lemon, and you choose a new truck, you merely pay the difference in MSRP, if any (and the taxes thereon).



                              WHAT DO YOU DO IF YOU HAVE A LEMON?
       There are two options available to you if you own a lemon. The first, participate in binding arbitration
through a state run program; the second, sue the manufacturer in Court. There are benefits and drawbacks as-
sociated with either choice. There also are further questions that you may need to answer before you make your
decision. For example, if you use your vehicle for business purposes can you still bring a lemon law claim? What
are “business purposes”? What if your car was bought used but is still under warranty; do you still have a claim?
How long do you have to bring your claim before it is time barred? Are there other claims you may have against
a manufacturer, such as a breach of warranty action, that entitle you to further damages?

       TCLMM has the experienced lemon law attorneys on staff, including attorneys who have worked for car
manufactures themselves, who can answer these questions for you and who know how to successfully prosecute
your lemon law claim. One cannot overestimate the benefit of having an experienced lemon law attorney in
your corner when pursuing a claim against automobile manufacturers and the unlimited resources they possess.




                                RECENT SUCCESSES OF THE FIRM

                          A recent claim of malpractice against a physician was dropped after intense trial prepara-
                          tion and Investigation. Joseph A. Catania reports that the plaintiff in a medical malpractice
                          suit had claimed medical negligence against his client, a noted Westchester county spine
                          surgeon and others. The trial was scheduled to begin in Ulster County supreme court but just
                          before jury selection, the plaintiff discontinued the action and abandoned all claims
                          against the physician. The defense had lined up important experts to assist in the defense
                          of the claims and had conducted intense background investigation. The trial preparations
                            uncovered evidence that, contrary to the plaintiff's claims of inability to work, she was
 Joseph A. Catania, Jr.
                            working while also collecting workman's compensation



                          Jay Jason reports a recent successful defense of a major Air Freight and Logistics provider
                          in an arbitration proceeding. In that matter a former agent, whose multi-year con-
                          tract was terminated for service issues, sued the TCLMM client for $12.34MM citing lost in-
                          come and failure to make payments to it over a number of years. After 6 days of hearing
                          the arbitrator awarded the agent less than $200,000. This award was less than the client
                          had       withheld from the Agent for his non-performance



         Jay F. Jason
Presorted
                                                                                          Standard
                                                                                    U.S. Postage Paid
                                                                                      Newburgh, NY




  One Corwin Court
  Newburgh, New York 12550
  (845) 565-1100
  100 Red Schoolhouse Road Suite C-12
  Chestnut Ridge, New York 10977
  (845) 426-7799



              www.tclmm.com

           Your profiles, legal articles
           and information and much        WE OFFER A FULL RANGE OF COMMERCIAL AND LITIGATION
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WE HOPE THESE NEWSLETTERS ARE              Construction Litigation

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PUBLICATION, PLEASE CONTACT US AT          Estate Planning & Elder Law

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                                           Matrimonial & Family Law
WE INVITE YOU TO VISIT OUR WEBSITE         Municipal Law
(WWW.TCLMM.COM) TO INQUIRE ABOUT
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OUR SERVICES.
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Lemon Law Attorney New York

  • 1. Newsletter Issue 12 Inside this TCLMM CONTINUES TO GROW!! Issue: Page 2 We have the pleasure of announcing that Jay F. Jason and Is Your Estate Plan in Michael E. Catania have recently joined the firm. Order? Limited Liability Companies Take Notice Page 3 Jay F. Jason Michael E. started with us in C a t a n i a Attorneys’ Fees In Matrimonial Matters May 2008. He was started with the born in Worcester, firm in June Page 4 and 5 Massachusetts. 2008. He was Mr. Jason b o r n i n What’s New at Newburgh, New TCLMM? was formerly a York. Mr. partner/principal of Page 6 Catania was an Jason & Swift (and associate at an Don’t Get Squeezed predecessor firms) upstate law firm in Chestnut Ridge, New York. His areas of prior to joining TCLMM. He is Page 7 expertise include labor and civil rights liti- admitted to practice law in New York, Recent Successes gation, commercial real estate, construc- New Jersey, Massachusetts, tion law and employment law. He received Connecticut and North Carolina. His his BA from Duke University, his law de- areas of practice include general and gree from Boston University School of Law commercial litigation and product July 2008 warranty litigation. and a Masters from New York University. This Newsletter is for information and discussion purposes only. It does not Michael received his BA degree Mr. Jason is also an adjunct constitute the rendering of from the University of Delaware and legal advice or opinion and is professor at New York University teaching summary in nature. his law degree from Albany Law School construction law. As a private pilot, he of Union University. He was the Receipt of this newsletter does not create an was involved with Angel Flight, an Associate Editor of the Albany Law attorney-client relationship between you and the firm. organization that arranges flights for School Journal of Science and For further information, people with medical conditions who, other- please contact us at Technology, Trial Team Member, ATLA (845) 565-1100. wise, would not be able to afford to fly. competition and was the 2005 winner of the Judgment and Liens Award in 2005.
  • 2. ISSUE 12 T A R S H I S , C A T A N I A, L IB E R T H , M A H O N & M I L L I G R A M , P L L C PAGE 2 Is Your Estate Plan In Order? If you are reading this article, then you must ask yourself the following questions: Do you have and is your last will and testament up to date? Do you have a properly executed power of attorney? Do you have a current health care proxy and living will? These instruments are the fundamental documents for any estate plan. The will is the roadmap for the distribution of your assets upon your death. It should take into consideration the needs of your family. For example, is there anyone in your family that has special needs, is receiving benefits form any governmental agency such as social security or Medicare or Medicaid? Are their minors that must be taken care of Steven L. Tarshis is a Senior Member of TCLM&M. for a period of time until they reach maturity? Are their business assets or real estate that must be planned for? Who will be the executor, the trustee, and guardian and He holds a Masters of Law in Taxation from New York what do these different roles mean? Who is best able to function in these roles? If you University School of Law and are injured or ill ,or otherwise unable to act on your own behalf, is there someone his practice is concentrated designated by you under a power of attorney who can fill those needs? Should the in business, banking, real estate, corporate and tax power of attorney be immediate or deferred until some event occurs? Who knows your wishes in the event you are seriously ill or cannot otherwise make decisions on your health treatment and, if need be, end of life decisions as to how you wish to be taken care of ? All of the above are serious and should be considered regardless of your age and position in life. For those of us that are concerned about the ability that our assets will be able to maintain our care in the win- ter of our lives, should long term health insurance should be considered ? Is Medicaid an option, and are you medically eligible? What can you do now to make yourself Medicaid eligible? There is a variety of insurance poli- cies available including participation in the New York State Partnership Program. When considering these insur- ances, you must make certain that all of your concerns have been considered, and reviewed so a knowledge- able decision can be made as to the type of insurance needed. At Tarshis Catania, Liberth, Mahon & Milligram, PLLC, we are prepared to sit down with you and your family to discuss these issues and others so that you may be at ease that your estate plan and end of life issues have been thoroughly reviewed, discussed and implemented. We invite you to contact our estate and elder law at- torneys. LIMITED LIABILITY COMPANIES TAKE NOTICE Derivative Suits Are Allowed for Limited Liability Companies A derivative action enables corporate shareholders to initiate suit against those who have wronged the corporation when the directors have refused to, the directors being included as de- fendants, often with the accusation that they acted out of selfish motives that violate their fiduciary duties to the stockholders. However, the Limited Liability Law does not make the derivative action available to LLC members. This recently changed when New York’s highest court in Tzolis v. Wolff, 10 N.Y.3d 100, 855 Jason Minard N.Y.S.2d (Feb. 14, 2008; 4-3 decision) allowed the derivative action remedy for a limited liability company where the plaintiffs alleged their LLC, the owner of a Manhattan building, leased and then sold it below market value, enabling those in charge to benefit themselves. The High Court allowed the suit. The rationale was simple; LLC members should not be deprived of legal remedy against faithless fiduciaries, which would be the result if a derivative action were not available to LLC members. The Tzolis decision is valuable to the oppressed LLC members who wish to seek recourse against the LLC directors and managers for violating their fiduciary duties to the members.
  • 3. ISSUE 12 TA R S H I S , C A T A N I A, L I B E R T H , M A H O N & M I L L I G R A M , P L L C PAGE 3 ATTORNEYS’ FEES IN MATRIMONIAL MATTERS A fundamental issue in the playing field to insure fairness and equity in the matrimo- matrimonial law is the question nial litigation. of who pays for the attorneys While interim counsel fees are often awarded, the ulti- fees. The issue greatly affects mate award of attorney’s fees requires that a Court look at persons in need of representa- the financial circumstances of the parties and all of the other tion in matrimonial maters. This circumstances in the case, including the equities of the case. article will address the relevant Thus, at the end of a matrimonial case when the less monied law governing this issue. spouse requests a final award of attorney’s fees, the Court Rhett D. Weires special- In New York State, Do- examines not only the financial aspects of the case, but also izes in matrimonial and family law, litigation, mestic Relations Law §237 sets the manner in which the parties conducted themselves during insurance defense and forth the law governing the issue the litigation including the merits of the factual and legal posi- medical and professional malpractice of attorneys’ fees in matrimonial tions that they maintained. Where the “monied spouse” has matters. This provision provides used an economic advantage in a manner that the Court for the possibility of fee shifting from the “monied” believes was designed to deprive the less monied spouse of spouse to the “less-monied” spouse. Ordinarily, the his or her rights, it is likely that the monied spouse will be re- monied spouse is the one who earns the majority of the quired to pay for the legal fees incurred by the less monied marital income and/or who has titled ownership to and spouse. possession of the majority of the assets. The Legislature However, the Court is required to review not only the created fee shifting in matrimonial matters in order to financial circumstances of the parties, and the relative merits “level the playing field” and insure that both spouses of their position, but also the litigation tactics of the parties are fully represented by counsel. This is designed to pro- and whether they unnecessarily prolonged the litigation. Thus, mote fairness and equity in divorce cases. Under our in instances in which the Court determines that the monied adversarial system, it is assumed that if two parties are spouse and the less monied spouse are going to share equally represented by counsel then a fair resolution will result. in the marital assets, there may not be an award of attorney’s Where one party is able to afford counsel and the other fees as long as the conduct of both of the parties was reason- party is unable to pay for counsel, it is assumed that the able. Of course, whether a party is acting reasonably is deter- litigant with the benefit of counsel will have an advan- mined by the Court. In cases that require a trial, the Court tage. usually concludes that one or both of the parties acted irra- Bearing this in mind, the Legislature created the tionally and/or litigiously. In those instances, the party viewed system by which the “monied” spouse may be forced as irrational is typically not going to be rewarded. However, to pay not only for his or her own counsel, but also for the less monied spouse may only be “punished” by being de- the “less-monied” spouse’s attorney. Income, access to nied an award of attorney’s fees. The fee shifting provision is funds and the ability to pay are some of the factors that not reciprocal and the less monied spouse may not be di- are taken into consideration by the courts when deter- rected to pay the monied spouse’s attorneys fees, regardless mining whether one of the spouses is the “monied” of whether the Court finds the less monied spouse to have spouse. taken an unreasonable position in the litigation. The law provides for both parties in a matrimonial liti- At the initiation of a matrimonial action, the gation to be represented by counsel where the parties can “less-monied” spouse may seek to have the Court order afford representation. This should encourage all parties the payment of interim attorney’s fees by the “monied” (monied and non-monied) to retain counsel to help them spouse. Interim fees insure that the less-monied spouse achieve a fair and equitable resolution as quickly and cost will have equal access to the Courts during the pend- effectively as possible. While the emotional aspects of divorce ency of the matrimonial litigation. The party must estab- cases sometimes make this goal difficult to attain, parties lish that they are the less monied spouse, that the mon- should take advantage of access to legal counsel in order to ied spouse has the ability to make the attorney’s fee protect their rights and help achieve their reasonable objec- payments and that the fee shifting is necessary to level tives.
  • 4. T A R S H I S , C A T A N I A , LI B E R T H , M A H O N & M I L L I G R A M , P L L C PAGE 4 ISSUE 12 What’s New at TCLM&M CATANIA ON BOARD OF DIRECTORS MILLIGRAM ELECTED PRESIDENT OF THE ORANGE COUNTY BAR ASSOCIATION JOSEPH A. CATANIA, JR., a sen- STEVEN I. MILLIGRAM, a senior ior partner, has been elected partner of Tarshis, Catania, Liberth, to the Board of Directors of the Mahon & Milligram, PLLC, was Builder's Association of the elected President of the Orange Hudson Valley in New Windsor, County Bar Association. Mr. NY. Mr. Catania, a partner in Milligram has over 25 years’ litiga- the firm Tarshis, Catania, Lib- tion experience representing clients erth, Mahon & Milligram, PLLC, in personal injury litigation in the has assisted clients in the build- Courts and through Alternative ing industry in the prevention of Dispute Resolution. He represents construction disputes through appropriate contract health care organizations and practitioners before negotiation and implementation and on the resolu- Administrative Boards and in Health Law matters. He tion of all types of construction claims before arbi- practices in all state and federal Courts in New York, tration panels, mediators and through litigation in and is listed in “Who’s Who in American Law”. New York and Federal courts. He is an arbitrator and mediator for several alternative dispute resolu- TARSHIS APPOINTED SPECIAL COUNSEL tion entities, including American Arbitration Asso- STEVEN L. TARSHIS, a senior partner ciation, Settlement and Resolute System. He has at the firm Tarshis, Catania, Liberth, defended and prosecuted all types of construction Mahon & Milligram, PLLC has been litigation, homeowner warranty claims, architec- appointed special counsel for The tural and engineering claims and major commer- Hudson Valley Center for cial construction claims. Innovation, Inc. Headquartered in Kingston, NY, The Hudson Valley CATANIA 2008 CORPORATE COUNSEL Center for Innovation, Inc. is a not- for-profit corporation formed to Mr. Catania has again been selected for inclusion foster the growth and in Super Lawyers in the 2008 Corporate Counsel development of emerging high Edition because of his litigation expertise, experi- value business and technology ence and reputation in business and corporate development firms. matters. The process of selection includes a multi- step evaluation process that incorporates peer rec- ognition and professional achievement, resulting in GOINGS-PERROT LEADS DISCUSSION AT a selection of a diverse and comprehensive listing “GETTING READY IN NEW YORK” SEMINAR of outstanding lawyers. Selections are made annu- ally on a state by state basis. Lawyers who have JULIA GOINGS-PERROT, an associate with TCLMM, lead been in practice at least five years are asked to one of the discussion groups for a recent seminar nominate the best attorneys they have personally “Getting Ready in New York: Public Health Emergency observed in action. An independent candidate Legal Preparedness” jointly sponsored by Medical search, evaluation, consideration of verdicts, settle- Society of the State of New York (MSSNY) and the New ments, scholarly lectures and writings, experience York State Bar Association. The and other factors narrows the process down to only program explored the various 5% of the lawyers in the state who are selected for players in a public health emer- inclusion in Super Lawyers. Mr. Catania is the only gency, their roles, and how they business trial lawyer selected for inclusion in the may legally and practically inter- 2008 Super Lawyers roster in the Mid-Hudson region act. It discussed balancing the between Albany and White Plains. rights of the state to ensure that threats to the public are con- tained, while respecting individual rights and liberties in a public health emergency.
  • 5. T A R S H I S , C A T A N I A , LI B E R T H , M A H O N & M I L L I G R A M , P L L C PAGE 5 ISSUE 12 What’s New at TCLM&M ERNENWEIN APPOINTED CHAIRMAN WEIRES ELECTED AS VICE PRESIDENT OF THE BOARD OF DIRECTORS FOR PAUL S. ERNENWEIN, a Member of the firm, is a Member MATERNAL - INFANT SERVICES of the Board of Trustees for the Orange County Citizens NETWORK Foundation and has been appointed as Chairman of the Transportation Committee. The RHETT D. WEIRES, a Member of TCLMM, was recently Orange County Citizens Foundation is a dedicated group of engaged elected as Vice President of Maternal—Infant Services citizens interested in the preservation Network of Orange, Ulster of Orange County as a good place and Sullivan Counties, Inc. to live and work. It has pledged time and effort to the promotion of that The purpose of MISN is to en- goal. The Transportation Committee sure that women of child- bearing age and their fami- will focus on County's transportation systems and its role in our growth and economic well- lies have access to preventa- being. They often deal with issues related to State and tive and primary health care, social, nutritional and educational services needed for healthy Federal initiatives as they impact our highways and pub- lic transportation systems. pregnancies and children. MISN is funded through the NYS Department of Health, Bureau of Women’s Health and NYS Office of Children and MINARD NAMED TO CAMBRIDGE Family Services. WHO’S WHO JASON MINARD , an associate with the firm Tarshis, WEIRES ELECTED TO THE BOARD OF Catania, Liberth, Mahon & Milligram, PLLC has recently DIRECTORS OF THE ORANGE COUNTY been nominated and named to Cambridge’s Who’s BAR ASSOCIATION Who 2008/2009 Registry. Inclu- sion in the Registry is an honor Mr. Weires was elected to the Board of the limited to individual’s who have Orange County Bar Association in May 2008. The demonstrated leadership and Board is the governing body of the Bar. Mr. Weires achievement in their industry areas of practice include Matrimonial & Family and occupation. The profile Law, Litigation , General Insurance Defense and highlights each member’s Medical , Legal and Professional Malpractice. expertise, achievements, affiliations and education and it is an international publication and database TAKE A LOOK AT WHAT ELSE IS NEW….. PASCALE APPOINTED TO PLANNING COMMITTEE NICHOLAS PASCALE , an associate with the firm, was We have recently completed construction on appointed by Bankruptcy Court our web site. Take a moment and log onto Judge Morris to the Orange WWW.TCLMM.COM and see all the changes . County Court Strategic Planning Committee. This group is com- Get to know our attorneys and read the prised of bankruptcy law practitio- informative material ners who meet periodically with we post, including the Court and Court staff to dis- these newsletters, to cuss issues of concern to the bench and the bar. help you in your personal and Mr. Pascale heads up the Bankruptcy Department at professional life.
  • 6. T A R S H I S , C A T A N I A , LI B E R T H , M A H O N & M I L L I G R A M , P L L C PAGE 6 ISSUE 12 DON'T GET SQUEEZED Your rights under New York's New Car Lemon Law So, your new car spends more time in the shop than it does on the road and you spend more time talking with service manag- ers than your own kids. To make matters worse, every time the dealership tells you your car is fixed, another warning light pops up on the dash. What can you do? Buyer beware, right? Wrong. In 1983, the New York Legislature enacted § 198-a of the General Busi- ness Law, commonly known as the New Car Lemon Law, which pro- vides relief for consumers who buy or lease defective new automobiles, i.e., “lemons”. Michael Catania, an asso- DOES YOUR CAR QUALIFY FOR RELIEF UNDER THE LEMON LAW? ciate with the firm, and his If, within the first 18,000 miles of operation or two years, whichever is earlier, the areas of law include gen- “manufacturer ... or authorized dealers are unable to repair or correct any defect or con- eral and commercial litiga- tion and product warrenty. ditionquot; in your car quot;which substantially impairs its value . . . after a reasonable number of attempts” you are entitled to relief. GBL § 198-a(c)(1). This raises 3 questions; 1) what is a quot;defect or conditionquot;, 2) what defects or conditions quot;substantially impairquot; the value of your vehicle; and 3) what is quot;a reasonable number of repair attempts.” A defect or condition (quot;defectquot;) is any vehicle problem covered un- der the manufacturer’s warranty.1 Some common examples include electrical issues, problems with your car’s engine, transmission, and/or suspension performance and water leaks. As a practical matter, any issue that causes you to bring your vehicle in for repair is likely a defect. The defect, however, has to be substantial. If it affects your safety, your use of the vehicle, or your car’s value, it is substantial. This threshold is easily met and the manufacturer then has the burden to show otherwise. Finally, quot;a reasonable number of repair attempts” is defined as either a) four attempts by the dealership(s) for the same defect within the first 18,000 miles or two years following the date of original delivery of the motor vehicle to the consumer, whichever is earlier, or b) dur- ing that same time period the car was out of service by reason of repair for 30 or more calendar days. 2 If you meet either criterion, you are presumed to have a quot;lemonquot; under the statute. Remember, the four or more repair attempts must be for the same defect. For example, if you bring you car into the shop with a stalling complaint on four separate occasions and after the fourth attempt your car still stalls, you have a lemon - it does not matter if the car is subsequently fixed on the fifth or sixth time by the dealer. The days out of service, however, do not have to be for the same defect. Ten trips to the dealership, each of 3 days in duration, and each for a separate defect, will qualify. IF YOU OWN A LEMON: WHAT IS YOUR REMEDY? If you qualify for relief under the Lemon Law as outlined above, the manufacturer of your vehicle must either refund the full purchase/lease price of your vehicle, or give you a comparable replacement car. The re- fund amount consists of the purchase price of the vehicle, including most options, monies paid for manufacturer extended service contracts, governmental fees (title, registration, etc) minus any lawful deductions. 3 Lawful de- ductions include a statutory mileage quot;penaltyquot;. The manufacturer is entitled to deduct a fixed amount for any mileage over 12,000 miles. The amount is calculated by multiplying the excess mileage by the purchase price and then dividing it by 100,000.4 Sales tax is not included in the manufacturer’s refund, but you are entitled to a refund from the New York State Dept. of Taxation. If you have leased the vehicle, you will receive your down 1 Defects resulting from aftermarket accessories (not installed by the manufacturer) such as remote starters and navigation systems are not covered. 2 This includes weekends and holidays. 3 New Yorker lemon law, unlike other states, does not provide for the refund of finance charges, insurance premiums or loss of use costs, such as rental expenses 4 If you paid $20,000 for your car, drove it 13,000 miles (1,000 over the limit) the deduction would be 1,000 x 20,000 divided by 100,000, or $200. Continued on page 7
  • 7. T A R S H I S , C A T A N I A , LI B E R T H , M A H O N & M I L L I G R A M , P L L C PAGE 7 ISSUE 12 Continued from page 6 DON'T GET SQUEEZED Your rights under New York's New Car Lemon Law payment plus all of your monthly lease payments minus any finance charges. If you opt for a replacement, the manufacturer usually will offer you the option of exchanging your car for any new vehicle they manufacture, with you being responsible for the difference in MSRP. Thus, if your sedan is a lemon, and you choose a new truck, you merely pay the difference in MSRP, if any (and the taxes thereon). WHAT DO YOU DO IF YOU HAVE A LEMON? There are two options available to you if you own a lemon. The first, participate in binding arbitration through a state run program; the second, sue the manufacturer in Court. There are benefits and drawbacks as- sociated with either choice. There also are further questions that you may need to answer before you make your decision. For example, if you use your vehicle for business purposes can you still bring a lemon law claim? What are “business purposes”? What if your car was bought used but is still under warranty; do you still have a claim? How long do you have to bring your claim before it is time barred? Are there other claims you may have against a manufacturer, such as a breach of warranty action, that entitle you to further damages? TCLMM has the experienced lemon law attorneys on staff, including attorneys who have worked for car manufactures themselves, who can answer these questions for you and who know how to successfully prosecute your lemon law claim. One cannot overestimate the benefit of having an experienced lemon law attorney in your corner when pursuing a claim against automobile manufacturers and the unlimited resources they possess. RECENT SUCCESSES OF THE FIRM A recent claim of malpractice against a physician was dropped after intense trial prepara- tion and Investigation. Joseph A. Catania reports that the plaintiff in a medical malpractice suit had claimed medical negligence against his client, a noted Westchester county spine surgeon and others. The trial was scheduled to begin in Ulster County supreme court but just before jury selection, the plaintiff discontinued the action and abandoned all claims against the physician. The defense had lined up important experts to assist in the defense of the claims and had conducted intense background investigation. The trial preparations uncovered evidence that, contrary to the plaintiff's claims of inability to work, she was Joseph A. Catania, Jr. working while also collecting workman's compensation Jay Jason reports a recent successful defense of a major Air Freight and Logistics provider in an arbitration proceeding. In that matter a former agent, whose multi-year con- tract was terminated for service issues, sued the TCLMM client for $12.34MM citing lost in- come and failure to make payments to it over a number of years. After 6 days of hearing the arbitrator awarded the agent less than $200,000. This award was less than the client had withheld from the Agent for his non-performance Jay F. Jason
  • 8. Presorted Standard U.S. Postage Paid Newburgh, NY One Corwin Court Newburgh, New York 12550 (845) 565-1100 100 Red Schoolhouse Road Suite C-12 Chestnut Ridge, New York 10977 (845) 426-7799 www.tclmm.com Your profiles, legal articles and information and much WE OFFER A FULL RANGE OF COMMERCIAL AND LITIGATION LEGAL SERVICES INCLUDING: Arbitration & Mediation Bankruptcy, Creditors’ Rights & Corporate Reorganization Business, Corporate, Partnership & Limited Liability WE HOPE THESE NEWSLETTERS ARE Construction Litigation INFORMATIVE. IF YOU KNOW OF SOMEONE Criminal Defense Vehicle & Traffic Law WHO MAY BENEFIT FROM THIS FREE Environmental & DEC Issues PUBLICATION, PLEASE CONTACT US AT Estate Planning & Elder Law O U R G E N E R AL M AI L B O X Estate Administration & Probate (TCLMM@TCLMM.COM) OR CALL US AT Financing and Banking Law 1-800-344-5655 AND WE WILL ADD THEM TO General & Commercial Litigation OUR MAILING LIST. SHOULD YOU DESIRE Health Law THAT OUR NEWSLETTER BE SENT VIA Intellectual Property Law E-MAIL ADDRESS, YOU MAY ADVISE US OF Labor Law YOUR PREFERENCE BY CONTACTING US. Malpractice and Professional Negligence Defense Matrimonial & Family Law WE INVITE YOU TO VISIT OUR WEBSITE Municipal Law (WWW.TCLMM.COM) TO INQUIRE ABOUT Personal Injury Litigation OUR SERVICES. Physician, Hospital & Health Care Organization Law including Compliance, Licensure & Joint Ventures Real Estate: ●Commercial & Residential Leases & Closings ●Development & Permitting Social Security and Disability Tax Law