Daily Record (Rochester, NY) articles from December 2003

Daily Record (Rochester, NY) archives from December 2003

Buffalo City code's impact on public service law analyzed in preservation district dispute.
December 1, 2003... Byline: Nora A. Jones Did the defendant gas company violate the city code when it relocated gas meters in the city's preservation district without the appropriate authorization from the Buffalo Preservation Board? Pursuant to the...

U.S. District Court of NY rules discrimination and retaliation claims are not substantiated.
December 1, 2003... Byline: Robbi Hess Was the plaintiff reprimanded, passed over for promotion, paid lower wages and ultimately terminated because of her race? Did the defendant terminate the plaintiff in retaliation for her filing of a discrimination...

Rochester office of Nixon Peabody LLP wins award for support of reserves.
December 1, 2003... Byline: Staff The Rochester office of Nixon Peabody LLP was presented with a top national defense award in recognition of its outstanding support of employees who are currently serving in the National Guard and Reserves. ...

Kenneth C. Hyland named first assistant district attorney for Monroe County.
December 1, 2003... Byline: Jill Miller Kenneth C. Hyland, a 25-year veteran of the Monroe County District Attorney's Office has been named first assistant district attorney. Monroe County District Attorney Elect Michael Green announced the appointment...

Rochester Legal Briefs December 1, 2003.
December 1, 2003... Byline: Staff Among the civil decisions handed down on Nov. 21, by the Appellate Division, Fourth Department, the court upheld a default judgment, finding insufficient evidence to vacate. In an Erie County case, the appellate court...

Matrimonial attorney, Deanne Tripi, puts artistic passion on canvas.
December 1, 2003... Byline: Robbi Hess When the all-consuming demands of being an attorney become too much, Deanne Tripi pulls out a canvas, grabs a brush and immerses herself in her art. And at the end of a three to eight-hour session she can step back and...

Three new associates join Hiscock & Barclay's Buffalo office.
December 1, 2003... Byline: Staff Three attorneys have joined the Buffalo office of Hiscock & Barclay, LLP as associates. Alison J. Cleary focuses on business law in addition to working on tax and employee benefit issues. She is a graduate of the State...

Malpractice insurer ordered to indemnify.
December 2, 2003... Byline: Helen Nguyen In a case where the plaintiff/attorney was being sued for malpractice, was the insurer's disclaimer of coverage untimely? If it was, did the delay in disclaiming coverage prejudice the plaintiff? Following a remand...

Appellate Division justices share insights into court.
December 2, 2003... Byline: Jill Miller The roles of the Justices of the Appellate Division Fourth Department and local attorneys were reversed last Tuesday, when attorneys took advantage of an opportunity presented through the Monroe County Bar Association's...

NY State Bar Assn. names new vice president.
December 2, 2003... Byline: Staff White Plains attorney Henry S. Berman has been named New York State Bar Association vice president, representing the Ninth Judicial District (Dutchess, Orange, Putnam, Rockland and Westchester counties). Berman will serve...

Rochester Legal Briefs December 2, 2003.
December 2, 2003... Byline: Staff In Appellate Division, Fourth Department decisions handed down on Nov. 21, the Fourth Department affirmed a Steuben County conviction of criminal trespass, while remanding a charge of rape. In a Monroe County appeal, the...

Coalition of 14 states seek to block change to Clean Air Act.
December 2, 2003... Byline: Staff A coalition of 14 states, the District of Columbia and numerous local governments filed papers in federal court seeking to block implementation of a change to Clean Air Act regulations that will allow vast amounts of...

Thomson West releases 'Florida Business Laws Annotated'.
December 2, 2003... Byline: Staff West, a Thomson business, now offers Florida Business Laws Annotated, 2003-2004 ed., the quickest way to research Florida business law. This book provides the complete text to major entity acts in the State of Florida along...

NY State Court of Appeals lists filings Sept. 26-Oct. 9, 2003.
December 2, 2003... Byline: Staff A list of appeals with short title, jurisdictional predicate, subject matter and key issues is prepared each week and filed with the New York State Court of Appeals. Some of these filed appeals may never reach decision on...

Redemption value of motor vehicle clarified.
December 3, 2003... Byline: Nora A. Jones Where a Chapter 7 debtor seeks to retain the use of his or her motor vehicle, should the redemption value be based on "replacement cost" or "wholesale value" of the vehicle? This was the key issue before the U.S....

'Irreparable harm' not established on motion for preliminary injunction in non-competition dispute.
December 3, 2003... Byline: Helen Nguyen Was there sufficient evidence to establish that the plaintiff would suffer irreparable harm if the court failed to grant its motion for a preliminary injunction? Alleging that the defendant, a former employee, was...

Nursing home resident cannot be forced to liquidate IRA.
December 3, 2003... Byline: Staff Until a July 8, 2003 decision in Monroe County that upheld a nursing home resident's right to direct his IRA account for his wife's benefit, New York State took the position that a nursing home resident applying for Medicaid...

Pilot program will allow bar examinees to use laptops.
December 3, 2003... Byline: Staff In a pilot program, the New York State Board of Law Examiners will permit applicants eligible to take the Feb. 24-25, 2004 bar examination the opportunity to use their personal laptop computers to take the essay portion of...

Bar Assn. of Erie County's comptroller, special project engineer are assn. mainstays.
December 3, 2003... Byline: Staff In an effort to bring the people and personalities of the Bar Association of Erie County out in the open, we offer up the next installment in our series of the people who work behind the scenes at the BAEC. This segment...

Realtor not entitled to commission due to lack of 'genuine' lender commitment.
December 4, 2003... Byline: Jill Miller Is a realtor entitled to a commission after a former client sold the listed property to another buyer? This was the central issue before New York State Supreme Court Judge Andrew V. Siracuse in Steven G. Walther,...

Mortgage payoff valuation disputed in bankruptcy.
December 4, 2003... Byline: Nora A. Jones What is the correct mortgage payoff figure where a subsidized mortgage involves recapture provisions pegged to the actual or appraised value of the property? The credit union holding a second mortgage on the...

NY State Bar Assn. supports creation of magistrate for Family Courts.
December 4, 2003... Byline: Staff The New York State Bar Association's Executive Committee has approved a measure urging the Legislature to establish the position of magistrate in the state's Family Courts. The state bar proposal, initiated by its...

Assn. of Legal Administrators teams with high school for 2003 car wash fundraiser.
December 4, 2003... Byline: Staff For this year's "ALA Community Challenge," the Rochester Chapter of the Association of Legal Administrators supported the fundraising efforts of students at the Academy of Law and Government. The Academy, appropriately housed...

NY State Court of Appeals lists filings for Oct. 10-16, 2003.
December 4, 2003... Byline: Staff A list of appeals with short title, jurisdictional predicate, subject matter and key issues is prepared each week and filed with the New York State Court of Appeals. Some of these filed appeals may never reach decision on...

Thomson West releases monthly 'disability litigation reporter'.
December 4, 2003... Byline: Staff During the last decade, the volume of disability litigation has grown immensely. To keep up with the ever-changing litigation in this area, West published a new product, Disability Litigation Reporter, an Andrews publication....

Rochester Legal Briefs December 4, 2003.
December 4, 2003... Byline: Staff In family law appeals, the Nov. 21, 2003 decisions by the Appellate Division, Fourth Department overturned family court orders in two cases, one on procedural grounds, the other finding the determination of neglect to be...

Liability, costs for groundwater and soil contamination clean up in Gates at issue.
December 5, 2003... Byline: Helen Nguyen In a case where the plaintiff sought damages to recover costs associated with the environmental clean up of a property, do any genuine issues of material fact exist to preclude the plaintiff's motion for summary...

Incorrect advice does not constitute ineffective assistance of counsel, Court of Appeals rules.
December 5, 2003... Byline: Jill Miller Does an attorney's incorrect advice regarding the deportation consequences of a plea agreement amount to ineffective assistance of counsel? This was the central issue before New York State's highest court in the...

Asset or stock agreement - Continuing Legal Ed. program discusses sale, purchase of business.
December 5, 2003... Byline: Nora A. Jones When representing a client in the purchase of a business, what are the key questions to ask during due diligence? What needs to be in the asset or stock purchase agreement? A panel of local attorneys focused on...

Nixon Peabody expands business litigation department.
December 5, 2003... Byline: Staff Expanding its Business Litigation Department in the Rochester office, Nixon Peabody LLP introduces two attorneys with experience in securities fraud cases and intellectual property litigation. John J. Field comes to the...

Rochester Legal Briefs December 5, 2003.
December 5, 2003... Byline: Staff The Appellate Division, Fourth Department's civil appeal decisions included review of a lawsuit against a town where the court found that a s. 1983 claim was sufficiently pleaded. In an Erie County case, the court upheld a...

NY State Court of Appeals lists filings for Oct. 17-23, 2003.
December 5, 2003... Byline: Staff A list of appeals with short title, jurisdictional predicate, subject matter and key issues is prepared each week and filed with the New York State Court of Appeals. Some of these filed appeals may never reach decision on...

Judges Mattina, Gerace honored at Bar Assn. of Erie County celebration.
December 5, 2003... Byline: Robbi Hess The reception to honor the retirement of two long-time judges, hosted by the Bar Association of Erie County, drew hundreds of attorneys and friends of the legal community who came to pay tribute to the men who spent...

'Person in Need of Supervision' teen placed in grandmother's care.
December 8, 2003... Byline: Jill Miller Should a 16-year-old teen who has a history of running away from foster care placements be placed in the care of his grandmother, as offered by the Office of Children and Family Services even though the Department of...

'Late' medical malpractice claim against Roswell Park Cancer Institute denied.
December 8, 2003... Byline: Nora A. Jones Is the claimant entitled to file a late claim for medical malpractice against the defendant Roswell Park Cancer Institute? Where the claimant only learned in April 2003 that she had breast cancer, does the statutory...

Volunteer lawyers needed for 9/11 Victim Compensation Fund.
December 8, 2003... Byline: Staff The New York State Bar Association's Trial Lawyers Section is urging its members to volunteer to help victims of the 9/11 attacks on the World Trade Center file applications to receive an award from the Victim Compensation...

'Ethical dilemmas' main topic of continuing legal ed. program.
December 8, 2003... Byline: Nora A. Jones As chair of the Monroe County Bar Association's Ethics Committee, it was logical for Robert D. Croog to serve as chair and moderator of the two-credit hour continuing legal education program titled "Ethical Dilemmas...

Bone marrow drive to benefit many.
December 8, 2003... Byline: Staff Gilda's Club of Rochester will conduct a Bone Marrow Drive from 10 a.m. to 2 p.m. on Saturday, Dec. 13 at their 255 Alexander St. facility. Brief meetings will be conducted with potential donors where a series of...

Rochester Legal Briefs December 8, 2003.
December 8, 2003... Byline: Staff In criminal appeals, the Appellate Division, Fourth Department reviewed search and seizure issues and also the propriety of a defendant making a motion when represented by counsel. In an Onondaga County appeal, the court...

Four firms honored for commitment to Volunteer Lawyers Project.
December 8, 2003... Byline: Robbi Hess As part of a recent celebration hosted by the Bar Association of Erie County, four law firms were honored and presented with plaques in appreciation of their support of the Volunteer Lawyers Project. VLP's Managing...

Stolen property complaint not substantiated.
December 9, 2003... Byline: Jill Miller What factors must be met in order to charge a defendant with Criminal Possession of Stolen Property in the Fifth Degree? This was the central question before Webster Town Court in People v. Robert Williams. The...

Repayment of Social Security 'overpayment' at issue.
December 9, 2003... Byline: Robbi Hess Did the Commissioner of Social Security err in her refusal to waive repayment of an overpayment of Social Security disability benefits? Did the plaintiff demonstrate that he was without fault in creating the overpayment?...

Report finds public trust in judiciary damaged by elections.
December 9, 2003... Byline: Staff Finding considerable evidence that the public's trust in New York's judiciary has been damaged by how judicial elections are being conducted, the Commission to Promote Public Confidence in Judicial Elections released an...

Commentary: Sound recording sample ruled as 'de minimis copying'.
December 9, 2003... Byline: Nora A. Jones In James Newton v. Michael Diamond, Adam Horowitz, Adam Yauch, dba Beastie Boys, Capitol Records, et al., the U.S. Court of Appeals for the Ninth Circuit determined that incorporation of short segments of copyrighted...

Rochester Legal Briefs December 9, 2003.
December 9, 2003... Byline: Staff In Appellate Division, Fourth Department decisions released Nov. 21, the court affirmed a DWI conviction and agreed with the trial court's interpretation of Penal Law s. 240.32. CRIMINAL DECISIONS Driving While...

Attorney enjoys making pottery when not in courtroom.
December 9, 2003... Byline: Robbi Hess During the week, attorney Eileen Buholtz can likely be found in a courtroom but when the weekend hits, chances are you will find her behind the foot-pedal controls of a potter's wheel at the Genesee Pottery at 713 Monroe...

Change in facts warrants reversal of conviction.
December 10, 2003... Byline: Jill Miller Should the defendant's conviction be vacated on the grounds that his plea had been based on the promise that his sentence would run concurrently with another sentence that has since been set aside? This was the...

Habeas corpus relief rejected for purse snatcher.
December 10, 2003... Byline: Deborah Fauver Finding no grounds for federal relief, U.S. Magistrate Judge Marian W. Payson recently issued an opinion denying the habeas petition of Carl Young, who was convicted by a state court jury in 1999 of Robbery in the...

Continuing legal ed. program offers lessons in direct and cross-examination.
December 10, 2003... Byline: Nora A. Jones President of the local chapter of ABOTA, Stephen G. Schwarz served as moderator and chair of the three credit hour continuing legal education program on "Direct and Cross-Examination of an Expert." Presented in...

NY State Bar Assn. releases 'pro bono' guide.
December 10, 2003... Byline: Staff To encourage greater participation in pro bono programs and to offer attorneys more information on the wide range of pro bono experiences available outside New York City, the New York State Bar Association's Department of Pro...

Attorney's fees awarded in disability case.
December 11, 2003... Byline: Helen Nguyen In a case where the plaintiff sued an insurer for disability benefits, is the plaintiff entitled to attorney's fees? In Terry R. Sunderlin v. First Reliance Standard Life Insurance Co., ENI Inc. Long Term...

Double jeopardy claim reviewed, remand ordered.
December 11, 2003... Byline: Jill Miller Does the court's withdrawal of intentional murder counts from the jury's consideration constitute an acquittal for purposes of the double jeopardy clauses of both the federal and New York State Constitutions? This...

Checking in with Michael Battle, Western NY's U.S. Attorney.
December 11, 2003... Byline: Robbi Hess For nearly two years U.S. Attorney for the Western District of New York, Michael Battle, has been working in his dream job. "This has been the most exciting experience of my career," he shared. "I am constantly...

Technology Tuesday sessions conclude with e-mail.
December 11, 2003... Byline: Nora A. Jones The blessing (or curse) of e-mail was the focus of a presentation by Greta K. Kolcon of Woods, Oviatt Gilman where she discussed e-mail's impact on attorney-client relationships; attorney-client privilege; and...

NY State Court of Appeals lists filings for Oct. 17-23, 2003.
December 11, 2003... Byline: Staff A list of appeals with short title, jurisdictional predicate, subject matter and key issues is prepared each week and filed with the New York State Court of Appeals. Some of these filed appeals may never reach decision on...

Rochester Legal Briefs December 11, 2003.
December 11, 2003... Byline: Staff A Wyoming County conviction for Rape in the First Degree was affirmed by the Appellate Division, Fourth Department in a decision released by the court for its most recent term. The court also heard appeals on "readiness for...

Equipment lease agreement not within CPLR 3213.
December 12, 2003... Byline: Jill Miller Can a lease agreement be an instrument for payment of money as outlined under CPLR 3213? This was the central issue before New York State Supreme Court Judge Thomas Stander in Real Lease, Inc. v. SMG Direct, Inc.,...

Venue at issue in action on breach of fiduciary duties.
December 12, 2003... Byline: Helen Nguyen Where the defendants' principal place of business is Kings County, is the U.S. District Court for the Western District of New York the proper venue for the action? Seeking to recover over $237,291, the plaintiff...

Woman Attorney Of The Year Award presented.
December 12, 2003... Byline: Robbi Hess Lisa Bloch Rodwin's commitment and contributions to the legal community, especially in the domestic violence unit of the district attorney's office, earned her the designation of Woman Attorney of the Year. Bloch...

Nixon Peabody co-sponsors of 'Protecting Patent Rights' seminar.
December 12, 2003... Byline: Nora A. Jones The High Tech Business Council and Nixon Peabody LLP joined forces to provide a presentation on protecting patent rights the morning of Dec. 10. Gunnar G. Leinberg and Edwin (Ted) V. Merkel discussed some of the...

Better Business Bureau expels Rochester companies.
December 12, 2003... Byline: Staff AATW, a siding contractor and DNK Asphalt Paving, a paving and sealing contractor, both Rochester area businesses, have been expelled from the Better Business Bureau according to a regional report. From counties further...

Rochester Legal Briefs December 12, 2003.
December 12, 2003... Byline: Staff In Appellate Division, Fourth Department civil decisions, the court addressed issues involving products liability and the issue of "tenure by estoppel" in a suit by a teacher in the City of Buffalo. In a case involving an...

Domestic Violence Bureau thrives under Bloch Rodwin.
December 12, 2003... Byline: Robbi Hess Many people toil for years in their chosen profession, never having received any recognition for a job well done. Lisa Bloch Rodwin, chief of the Domestic Violence Bureau, Erie County District Attorney's Office, received...

Buyer for Hamburg offices brings Harris Beach closer to relocation.
December 12, 2003... Byline: Staff For several months Harris Beach LLP has been negotiating for office space in downtown Buffalo, having announced its decision to relocate from its Grimsby Drive location in Hamburg. This week those plans inched closer to...

Identities of confidential informants not disclosed.
December 15, 2003... Byline: Helen Nguyen Should the court grant the defendant's motion for the disclosure of the identities of two confidential informants? Was there probable cause to support a search warrant? Should the superseding indictment be dismissed?...

Landlord 'out of possession' not liable for injury.
December 15, 2003... Byline: Jill Miller Is the owner of a small office building responsible for the plaintiff's fall on a staircase that had no railing? Does the exception in s. 359 of the Restatement of Torts apply to the case at hand? In Jillane...

Reception held to recognize 'up & coming' attorneys.
December 15, 2003... Byline: Nora A. Jones Family, colleagues and friends joined the 10 "Up & Coming" attorneys who were honored with a special reception by The Daily Record on Tuesday, Dec. 9. Each honoree received a plaque displaying a reprint of the...

Judge Arnold bids the judiciary a fond farewell.
December 15, 2003... Byline: Robbi Hess "Be open minded and don't let the law get in the way of being just." This motto has been the creed on which Judge Wesley Arnold has based his career as a Town of Lockport judge. The Early Years Judge Wesley,...

Defining 'Securities' Key Issue In Fraud Case.
December 16, 2003... Byline: Nora A. Jones Did the ETS program constitute an investment contract? Was the ETS program a security within the meaning of the Martin Act? These were among the questions before the New York State Supreme Court, Erie County in...

Attorney disapproval of contract deemed proper.
December 16, 2003... Byline: Jill Miller Did an attorney properly disapprove a purchase and sale contract between his clients, the sellers, and the buyer, with no bad faith on the part of the sellers? This was one of the issues before New York State...

Law firm makes donation to Mercy Residential Services.
December 16, 2003... Byline: Jill Miller Employees of Nixon Peabody hope to make the holiday season a little brighter for the residents of Mercy Residential Services. The firm's secretaries hosted a giant "baby shower" last week and all the items collected...

Miss America 2003 pays visit to Rochester City School 29.
December 16, 2003... Byline: Helen Nguyen On Thursday, Dec. 11, students at Rochester City School 29 were told the following message by Erika Harold, Miss America 2003: "Respect yourself and respect others." Harold's visit to the school was sponsored by...

November home listings drop but closings ahead of last year in Rochester market.
December 16, 2003... Byline: Jill Miller The number of homes listed for sale in November 2003 dropped 32.3 percent over October. According to the Greater Rochester Association of Realtors, 1,109 homes were listed on the market last month, down...

Bausch & Lomb receives exclusive patent rights to eye vitamin formula.
December 16, 2003... Byline: Staff The U.S. Patent and Trademark Office granted a patent for the unique high-potency antioxidant and mineral formula in Bausch & Lomb's Ocuvite PreserVision, the only dietary supplement demonstrated to preserve eye health and...

Nixon Peabody, LLP expands its Rochester office space.
December 30, 2003... Byline: Staff Nixon Peabody, LLP is expanding its office at Clinton Square in Rochester. The firm has signed a new lease for 13,000 sq. ft. of office space, which is in addition to the 121,000 sq. ft. of space it currently occupies in the...

Successful Partnering Between Inside and Outside Counsel treatise updated by West.
December 30, 2003... Byline: Staff With all of the legal issues surrounding corporations over the past year, those who provide legal services to corporate clients have faced challenging times. To help lawyers understand and navigate developments that arise...

NY State Supreme Court judge dismisses proposal for structured settlement sale.
December 30, 2003... Byline: Jill Miller What factors must a court consider before a transfer of a structured settlement can be approved? This was the central issue before New York State Supreme Court Judge Andrew Siracuse in In the Matter of the...

NY agriculture commissioner fails to establish valid warrant of sale against Ontario County farmer.
December 30, 2003... Byline: Nora A. Jones Did the Commissioner of Agriculture have a pre-petition dischargeable claim when the involuntary bankruptcy was filed against the debtor? Was the commissioner's claim discharged in the subsequent Chapter 7 discharge...

NY Ethics Commission for the Unified Court System issues 50 Notices of Delinquency.
December 30, 2003... Byline: Staff The Ethics Commission for the Unified Court System issued 50 Notices of Delinquency for failure to complete financial disclosure statements for calendar year 2002 and one Notice of Delinquency for failure to timely re-file a...

Six recent law graduates Join Nixon Peabody's Rochester office.
December 31, 2003... Byline: Staff Six recent law school graduates have joined the Rochester office of Nixon Peabody LLP. They are Steven G. Carling, David J. Cutitta, Thomas J. Maxian, Mary F. Ognibene, Daniel S. Silber, and Tate L. Tischner. Silber was...

County not obligated to defend police officer.
December 31, 2003... Byline: Jill Miller Was the county attorney's decision to deny the petitioner's request for a legal defense under Suffolk County Code s. 35-3(A), on the grounds that he was not acting within the scope of his job, arbitrary or capricious?...

Statute of limitations at issue in ERISA action.
December 31, 2003... Byline: Helen Nguyen Where the U.S. Department of Labor (DOL) alleged that the defendants breached their fiduciary obligations under the Employee Retirement Income Security Act, is the DOL's action time barred? In Elaine Chao,...

ChamberlainD'Amanda Celebrates 125 Years.
December 31, 2003... Byline: Staff Commemorating its 125th anniversary and acknowledging its mission of "Doing What's Right For You," ChamberlainD'Amanda presented a gift to the Golisano Children's Hospital. The endowment will be used for the new Ronald...