Survey: 2010 Trusts and Estates

Martin W. O’Toole provides an update of Trusts and Estates law from July 1, 2009 to June 30, 2010.  This article discusses recent legislation, regulatory announcements, along with federal and New York case law.

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Martin W. O’Toole is a partner at Harter, Secrest, & Emery LLP.


Survey: 2010 Health Law

Kirsten Lerch and Edward McArdle provide an update on Health Law in the state of New York between July 1, 2009 and June 30, 2010.

At the federal level, historic health legislation reform that should provide access to affordable and comprehensive health insurance coverage for practically all Americans—but carries with it the controversial individual mandate to be covered by health insurance—topped the significant health care developments this survey year. Also at the federal level, an expansion in Medicare lien reporting
requirements applicable to attorneys who bring or who defend personal injury lawsuits, and President Obama’s Executive Order directing equal visitation rights for same sex partners of hospitalized patients, are
discussed in this Article.

At the state level, the Family Health Care Decisions Act, which provides family members with legal authority to make medical treatment decisions for incapacitated patients who never executed a health care proxy or otherwise made their wishes known, was finally enacted into law after nearly twenty years of legislative logjam. Also becoming law was the Midwifery Modernization Act, which expanded the practice of midwifery by removing the requirement that a midwife have an agreement with a physician in order to engage in the profession.

In state courts, the Court of Appeals took on the difficult issue of inmate access to life-sustaining but experimental medical treatment that is available to non-incarcerated New Yorkers. Lower New York courts also took on novel issues related to the confidentiality of quality assurance and peer review process in hospitals and the duty of health care providers to the spouses of their patients for exposing the spouse to a sexually transmitted disease.

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Kristen Lerch is an Associate with Gale, Gale & Hunt, LLC, J.D., State University of New York at Buffalo; B.A., State University of New York College at Geneseo.

Mr. McArdle is an adjunct professor at Syracuse University and is employed as a government attorney; J.D., Albany Law School; B.A., Siena College.

Survey: 2010 Labor and Employment

Kerry Langan and Katerine Schafer provide an overview of Labor & Employment Law in the state of New York between July 1, 2009 and June 30, 2010.

This Survey year was highlighted by several significant legislative developments at both the state and federal level. The New York State Labor Law was amended to deter employer violations and to require written notice of rate of pay, regular payday, and overtime rate. The New York Human Rights Law was amended to protect victims of domestic violence and to provide for the assessment of civil fines and penalties in cases of employment discrimination. The New York State Department of Labor (“DOL”) issued regulations on mandatory overtime for nurses and revised regulations regarding the New York State Worker Adjustment and Retraining Notification Act. Additionally, the legislature enacted an early retirement incentive for members of the New York State Teachers’ Retirement System, created a new tier of pension benefits for public employees, and passed two health reform bills extending health insurance coverage. At the federal level, the Family and Medical Leave Act’s military provisions were expanded and Title II of the Genetic Information Nondiscrimination Act of 2008 took effect.

In addition to the legislative developments, there were a number of significant court decisions on various labor and employment law issues. Notably, the Supreme Court found that the National Labor Relations Board had no authority to decide unfair labor practice and representation cases when only two of its five seats were filled. The Supreme Court also determined that a disparate impact discrimination charge is timely if it is filed within 300 days of the application of a prior discriminatory practice. Additionally, the Second Circuit clarified the applicable standard for retaliation claims under Title VII and provided further guidance regarding an employee’s complaint requirements under the Faragher/Ellerth defense.

The New York Court of Appeals also issued several decisions on various employment law issues, including whether a teacher is entitled to back pay for a Board of Education’s failure to provide timely notice of termination and whether dismissal from employment for failure to possess a valid license or certification should be considered a disciplinary termination. The Court of Appeals also reaffirmed the narrow standard of judicial review with respect to arbitration decisions and enunciated the standard applicable in determining the validity of fee-splitting provisions in arbitration agreements.

Finally, recent decisions by the New York Court of Appeals, Second Circuit, and the First Department have continued to highlight the differences between the New York City and New York State Human Rights Laws. New York courts have also continued to address various issues surrounding the employment-at-will doctrine.

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Kerry W. Langan: Associate at Bond, Schoeneck & King, PLLC; J.D., cum laude, 2007, Syracuse University College of Law; M.A. 2004, Boston College; B.A., magna cum laude, 2003, Boston College.

Katherine Ritts Schafer: Associate at Bond, Schoeneck & King, PLLC; J.D., summa cum laude, 2008, Syracuse University College of Law; B.A., summa cum laude, 2005, Hobart and William Smith Colleges.

Survey: 2010 Zoning and Land Use

Terry Rice provides an overview of major developments in the areas of zoning enactments, zoning Boards of Appeal, enforcement, and standing in the state of New York between July 1, 2009 and June 30, 2010.

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Terry Rice is a Partner at Rice & Amon in Suffern, New York.  Mr. Rice is also the author of McKinney’s Practice Commentaries, Town Law, Village Law (West Group).

Survey: 2010 Administrative Law

This Article reviews developments in administrative law and practice during 2009-2010 in the judicial and legislative branches of New York State government. Review of judicial activity focuses on eight decisions of the New York Court of Appeals. Review of legislative activity focuses on several amendments to the Open Meetings Law.

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Rose Mary Bailly: Executive Director of the New York State Law Revision Commission; adjunct faculty member at Albany Law School

Survey: 2010 Business Associations

The period covered by this Survey saw a continuation of the trend
by New York courts to treat limited liability companies (LLC) similarly
to corporations, except in matters of dissolution when the owners are
deadlocked. Overall, there was an abundance of helpful court decisions.
Many of the decisions are discussed in a short form that focuses on their
holdings. Other cases seemed to be of greater legal interest and were
selected by the authors for more extended discussion.

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Sandra O’Loughlin: Partner, Hiscock & Barclay, LLP, Buffalo, New York; Adjunct Professor and Lecturer, University at Buffalo Law School, State University of New York; J.D., State University of New York at Buffalo Law School, B.A., Daemen College; Rosary Hill College.

Christopher Bonner: Of Counsel, Hiscock & Barclay, LLP, Syracuse, New York; J.D., Harvard Law School; B.A., Williams College.

Survey: 2010 Criminal Law

This Survey covers developments in criminal law and procedure in New York during the period of July 1, 2009 to June 30, 2010.  The Survey encompasses decisions by the Court of Appeals (the “Court”) involving issues of criminal law and procedure and, where appropriate, discusses decisions from trial and intermediate appellate courts. The Survey also includes a discussion of legislative enactments pertaining to criminal law and criminal procedure during the relevant time period.

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David E. Zukher is an attorney admitted to practice law in New York and North Carolina and is a managing partner of Weisberg, Zukher & VanStry, PLLC. His practice focuses on criminal law and general litigation. Mr. Zukher received his J.D. from Syracuse University College of Law graduating, magna cum laude, in May 1999. Mr. Zukher served as an editor of the Syracuse Law Review in 1998 and as an Executive Editor in 1999. He is the recipient of the Justinian Honorary Law Society, Order of the Coif, Robert M. Anderson Publication, and Law Review Distinguished Service awards. The author gratefully acknowledges the work of Ms. Emily G. Chumas, Mr. Colter J. Hayes, and Mr. Stephen McNamee, Syracuse University College of Law Class of 2012, for researching and organizing the legal materials for this article. The author also thanks his law partner, Donald P. VanStry, Esq., and paralegal, Michele E. Ottaway, for their help in preparing this work.

Survey: 2010 Environmental Law

This Article will discuss notable developments in the law relating to the New York State Environmental Quality Review Act (SEQRA) for the survey period in 2010.  While early 2010 saw no major cases from the Court of Appeals or groundbreaking law from appellate division courts, it did see the potential emergence from lower court decisions of the practical contours of the Court of Appeals’ 2009 standing decision in Save the Pine Bush, Inc. v. Common Council of the City of Albany.  Two cases address the unusual issue of what types of agencies are subject to SEQRA, several deal with issues of ripeness, prematurity, and equitable remedies, and other decisions concern challenges to major New York City rezoning and developments. While no court addressed climate change/greenhouse gas emissions (GHG) analysis under SEQRA, early 2010 saw significant technical guidance issued by New York City on the issue that may shape future practice in that area, particularly within New York City, while raising significant questions regarding mitigation.

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Mark A. Chertok is a partner, and Ashley S. Miller an associate, at Sive, Paget & Riesel, P.C., in New York, NY ( Both authors practice environmental law at the firm.

Survey: 2010 Evidence

For 2011, the editors have returned the Survey to its core function: providing a compendium of the statutory changes and case law developments for a one-year period, in this issue, July 1, 2009 through June 30, 2010. In years past, other authors and I have exceeded the formal end date of June 30 as we labored to cram ever more recent decisions into each Survey. While arguably increasing the utility of the Survey, the practice exponentially increased the editorial work to be performed by the members of the Syracuse Law Review, and eliminated uniformity in the coverage by the different articles.

The Evidence Survey last year contained some cases decided after July 1, 2009, and to accomplish the goal of this year’s Survey, they are included herein, as well. Thus, some old wine is in this new bottle.

Repetition is a tool used by every trial attorney.  Advocates tell a jury what they are about to tell them, tell them, and then tell them what they just told them. For this Survey, repetition will cause no harm, and perhaps a case that did not resonate last year will be of significance to readers this year.

The editors also decided this year, in an effort to streamline the Survey, not to include a separate Disclosure Survey,2 preferring instead to have disclosure cases covered in, and divided between, the Civil Practice Survey, authored by Michael A. Bottar and Kimberly Wolf-Price, and this Evidence Survey.

Readers of this Survey are invited to visit from time to time for updates on the cases reported herein, and e-mail any comments, suggestions, or criticisms to
So, on to some evidence (and a few disclosure) cases.

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For over twenty-three years David Paul Horowitz has represented injured people and the families of victims of wrongful death throughout New York State in all types of personal injury cases, including medical malpractice, product liability, construction, and mass torts. He has practiced with Ressler & Ressler in New York City for over thirteen years. As an Adjunct Professor of Law, he teaches New York Practice at Brooklyn Law School and Evidence at St. John’s Law School. As of May 2010, he is the sole author, and has undertaken a complete re-write, of the nine-volume treatise, Bender’s New York Evidence. He is also the author of the LexisNexis AnswerGuide New York Civil Disclosure and the 2011 Supplement to Fisch on New York Evidence, and pens the New York State Bar Journal’s monthly column, “Burden of Proof.” He is a member of the OCA CPLR Advisory Committee and the New York State Bar Association’s CPLR Committee. He presents CLE, including an annual CPLR Update Program, throughout the state for the New York State Judicial Institute and numerous bar associations, and is a founding Dean of CLE at the New York State Academy of Trial Lawyers. He welcomes comments, questions, and referrals, and may be contacted at or 914-424-1113.

Survey: 2010 Media Law

Roy Gutterman provides an update of Media Law between July 1, 2009 and June 30, 2010.

This year’s media law Survey covers defamation, invasion of privacy, and intellectual property disputes involving media ranging from newspapers, magazines and book publishers to websites and internet-based operations. Cases cover high-profile litigants linked to the late, tabloid star Anna Nicole Smith, radio personalities, and a host of parties involved in newsworthy and public affairs. Cases also involve allegations of criminal activity, sex tapes, copyright infringement, and even whether offensive language can be broadcast on television.

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Roy S. Gutterman is an associate professor of communications law and journalism and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.