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December 2011 Archives

#73 Third Department Caselaw Round-Up For December 8, 2011, Part 3 of 12

December 28, 2011

70 Post 12-08-11, Part 3 Third Department December.pngThere are forty-five (45) decisions for this week and twenty-three (23) of those decisions are family law (or related) cases.

The first case demonstrates that in court, as in life itself, acting in good faith counts for a very great deal. And asserting that a non-willful violation of a court order needs to be punished is tantamount to placing form over substance. Courts have better things to do than to referee bickering couples.

The second case is a perfect, though sad, example of how far DSS is willing to go in its attempts to reunite children with their parents - and how often those efforts fall short, but through no lack of trying on DSS' part.

Continue reading "#73 Third Department Caselaw Round-Up For December 8, 2011, Part 3 of 12" »

#72 Third Department Caselaw Round-Up For December 8, 2011, Part 2 of 12

December 28, 2011

69 Post 12-08-11, Part 2 Third Department December.pngThere are forty-five (45) decisions for this week and twenty-three (23) of those decisions are family law (or related) cases.

Here are two (2) wonderful examples of things that annoy me. One is the failure to get into the record what you absolutely must get into the record (if you want to get paid!) and the other is having your legs cut out from under you by the very court in which you won the battle(s) but in which you apparently lost the war. The first case is the nightmare; the second case is the pet peeve.

Continue reading "#72 Third Department Caselaw Round-Up For December 8, 2011, Part 2 of 12" »

#71: Third Department Caselaw Round-Up for December 8, 2011, Part 1 of 12

December 28, 2011

41 Post Third Department December.pngThere are forty-five (45) decisions for this week and twenty-three (23) of those decisions are family law (or related) cases.

First up is a pair of cases from Albany County. The first one is from the Supreme Court and the second one is from the Family Court.

Continue reading "#71: Third Department Caselaw Round-Up for December 8, 2011, Part 1 of 12" »

#70 Thank You, Mr. Dickens

December 25, 2011

70 Post-1 Depositphotos_1357404_XS.jpg"Spirit! are they yours?" Scrooge could say no more.
"They are Man's," said the Spirit, looking down upon them. "And they cling to me, appealing from their fathers. This boy is Ignorance. This girl is Want. Beware them both, and all of their degree, but most of all beware this boy, for on his brow I see that written which is Doom, unless the writing be erased. Deny it!" cried the Spirit, stretching out its hand towards the city. "Slander those who tell it ye! Admit it for your factious purposes, and make it worse! And bide the end!"
"Have they no refuge or resource?" cried Scrooge.
"Are there no Prisons?" said the Spirit, turning on him for the last time with his own words. "Are there no workhouses?"

Stave 3: The Second of The Three Spirits
"A Christmas Carol", by Charles Dickens

Continue reading "#70 Thank You, Mr. Dickens" »

#69 Third Department Caselaw Round-Up for December 1, 2011, Part 6 of 6

December 25, 2011

69 Post 12-01-11, Part 6 Third Department December.png"Spirit," said Scrooge, with an interest he had never felt before. "Tell me if Tiny Tim will live."
"I see a vacant seat," replied the Ghost, "in this poor chimney corner, and a crutch, without an owner, carefully preserved. The child will die."
"No no," said Scrooge. "Oh no, kind Spirit! Say he will be spared."
"None other of my race," returned the Ghost, "will find him here. What then? If he be like to die, he had better do it, and decrease the surplus population."
Scrooge hung his head to hear his own words quoted by the Spirit, and was somewhat overcome with penitence and grief.
"Man!" said the Ghost, "if man you be in heart; not adamant; forbear that wicked cant until you have discovered What the surplus is, and Where it is. Will you and such as you decide what men shall live, what men shall die! It may be, that in the sight of Heaven, you are more worthless and less fit to live than millions like this poor man's child. Oh God, to hear the Insect on the leaf, pronouncing on the too much life among his hungry brothers in the dust!"

Stave 3: The Second of The Three Spirits
"A Christmas Carol", by Charles Dickens


There are twenty-five (25) decisions for this week and twelve (12) of those decisions are family law cases.

Continue reading "#69 Third Department Caselaw Round-Up for December 1, 2011, Part 6 of 6" »

#68 Third Department Caselaw Round-Up for December 1, 2011, Part 5 of 6

December 25, 2011

68 Post 12-01-11, Part 5 Third Department December.png"But you were always a good man of business, Jacob," faltered Scrooge who now began to apply this to himself.
"Business!" cried the Ghost, wringing its hands again. "Mankind was my business. The common welfare was my business; charity, mercy, forbearance, and benevolence, were, all, my business. The dealings of my trade were but a drop of water in the comprehensive Ocean of my business!"
It held up its chain at arm's length as if that were the cause of all its unavailing grief; and flung it heavily upon the ground again.
"At this time of the rolling year," the spectre said, "I suffer most: why did I walk through crowds of fellow-beings with my eyes turned down, and never raise them to that blessed star which led the wise men to a poor abode? Were there no poor homes to which its light would have conducted me!"

Stave 1: Marley's Ghost
"A Christmas Carol", by Charles Dickens


There are twenty-five (25) decisions for this week and twelve (12) of those decisions are family law cases.

Continue reading "#68 Third Department Caselaw Round-Up for December 1, 2011, Part 5 of 6" »

#67 Third Department Caselaw Round-Up For December 1, 2011, Part 4 of 6

December 25, 2011

67 Post 12-01-11, Part 4 Third Department December.png"It is required of every man," the Ghost returned, "that the Spirit within him should walk abroad among his fellow-men, and travel far and wide. And if that spirit goes not forth in life it is condemned to do so, after Death. It is doomed to wander through the world, oh woe is me! - and witness what it can no longer share, but might have shared on earth, and returned to Happiness!"
Again the spectre raised a cry, and shook its chain, and wrung its shadowy hands.
"You are fettered," said Scrooge, trembling. "Tell me why?"
"I wear the chain I forged in Life," replied the Ghost. "I made it link by link, and yard by yard; I girded it on, of my own free will, and of my own free will, I wore it. Is its pattern strange to you?"
Scrooge trembled more and more.
"Or would you know," pursued the Ghost, "the weight and length of the strong coil you wear yourself? It was full as heavy and as long as this, seven Christmas Eves ago. You have laboured on it, since. It is a ponderous chain!"

Stave 1: Marley's Ghost
"A Christmas Carol", by Charles Dickens


There are twenty-five (25) decisions for this week and twelve (12) of those decisions are family law cases.

Continue reading "#67 Third Department Caselaw Round-Up For December 1, 2011, Part 4 of 6" »

#66 Third Department Caselaw Round-Up For December 1, 2011, Part 3 of 6

December 25, 2011

66 Post 12-01-11, Part 3 Third Department December.png"Are there no prisons?" asked Scrooge.
"Plenty of prisons," said the gentleman, laying down the pen again.
"And the Union workhouses?" demanded Scrooge. "Are they still in operation?"
"They are. Still," returned the gentleman. "I wish I could say they were not."
"The Treadmill and the Poor Law are in full vigour then?" said Scrooge.
"Both very busy Sir."

...

"I wish to be left alone," said Scrooge. "Since you ask me what I wish, gentlemen, that is my answer. I don't make merry myself at Christmas, and I can't afford to make idle people merry. I help to support the establishments I have mentioned - they cost enough - and those who are badly off must go there."
"Many can't go there; and many would rather die."
"If they would rather die," said Scrooge, "they had better do it, and decrease the surplus population. Besides; excuse me. I don't know that."
"But you might know it," observed the gentleman.
"It's not my business," Scrooge returned.

Stave 1: Marley's Ghost
"A Christmas Carol", by Charles Dickens


There are twenty-five (25) decisions for this week and twelve (12) of those decisions are family law cases.

Continue reading "#66 Third Department Caselaw Round-Up For December 1, 2011, Part 3 of 6" »

#65 Third Department Caselaw Round-Up For December 1, 2011, Part 2 of 6

December 25, 2011

65 Post 12-01-11, Part 2 Third Department December.png"There are many things from which I might have derived good, by which I have not profited, I dare say," returned the nephew. "Christmas among the rest. But I am sure that I have always thought of Christmas Time, when it has come round - apart from the veneration due to its sacred name and origin, if anything belonging to it can be apart from that - as a good time: a kind, forgiving, charitable, pleasant time: the only time I know of, in the long calendar of the year, when men and women seem by one consent to open their shut-up hearts, freely, and to think of people below them as if they really were fellow-passengers to the grave, and not another race of creatures bound on other journeys. And, therefore, uncle, though it has never put a scrap of gold or silver in my pocket, I believe that it has done me good, and will do me good; and I say God bless it!"

Stave 1: Marley's Ghost
"A Christmas Carol", by Charles Dickens


There are twenty-five (25) decisions for this week and twelve (12) of those decisions are family law cases.

Continue reading "#65 Third Department Caselaw Round-Up For December 1, 2011, Part 2 of 6" »

#64 Third Department Caselaw Round-Up For December 1, 2011, Part 1 of 6

December 25, 2011

64 Post 12-01-11, Part 1 Third Department December.pngOh! But he was a tight-fisted hand at the grindstone, Scrooge! A squeezing, wrenching, grasping, scraping, clutching, covetous old sinner! Hard and sharp as flint, from which no steel had ever struck out generous fire; secret and self-contained and solitary as an oyster. The cold within him froze his old features, nipped his pointed nose, shrivelled his cheek, stiffened his gait; made his eyes red, his thin lips blue; and spoke out shrewdly in his grating voice. A frosty rime was on his head, and on his eyebrows, and his wiry chin. He carried his own low temperature always about him; he iced his office in the dogdays; and didn't thaw it one degree at Christmas.

Stave 1: Marley's Ghost
"A Christmas Carol", by Charles Dickens


There are twenty-five (25) decisions for this week and twelve (12) of those decisions are family law cases.

Continue reading "#64 Third Department Caselaw Round-Up For December 1, 2011, Part 1 of 6" »

#63 My Christmas Show Watchlist, Part 10 of 10

December 18, 2011

63-1 Post Depositphotos_4395520_XS.jpg74. "The Chronicles Of Narnia: The Lion, The Witch And The Wardrobe", by Andrew Adamson and Walt Disney Pictures (2005)

I was dragged to the movies to see this one and I expected to sleep all the way through it. I was very pleasantly surprised. Though not a fan of C.S. Lewis and definitely not a fan of movies with overtly Christian themes, I nonetheless found this movie to be both captivating and charming. The movie is initially set during the Battle of Britain, in World War II, and moves to the rustic British countryside, where four (4) children are evacuated for the duration of hostilities.

While guests of a professor on his estate, the children discover a room with an enchanted wardrobe which acts as a portal into the fantasy realm of Narnia. Without giving anything away, this is basically a poor man's Middle Earth for children. While it does deal with some of the heavier issues of human existence - in a very light and deft way - it is really nothing more than feel-good, escapist eye-candy for children.

75. "The Santa Clause 3: The Escape Clause", by Michael Lembeck and Walt Disney Pictures (2006)

Continue reading "#63 My Christmas Show Watchlist, Part 10 of 10" »

#62 Third Department Caselaw Round-Up For October 6, 2011

December 18, 2011

62 Post 10-06-11, Third Department October.pngTwenty-three (23) decisions and not a single one of them relevant to family law or matrimonial law.

With weeks like this, I'm almost tempted to analyze these non-family/matrimonial law cases, especially the criminal law ones. However, I don't engage as many clients in criminal matters as I once did, so I'd like to remain concentrated on this one area.

Also, I will definitely start to explore some of the non-appealed decisions of the trial courts with regard to traffic tickets especially. The only problem with such decisions is that they are too often extremely wordy and fact-based. They do not lend themselves to being easily summarized.

The next month to be analyzed will be December, 2011.

#61 Third Department Caselaw Round-Up For October 13, 2011

December 18, 2011

61 Post 10-13-11, Third Department October.pngAnd then, some weeks, you'll get weird dockets like the one for this week: a single appeal on election law along with four (4) miscellaneous cases. In other words, nothing much to speak of and nothing at all to analyze.

You would think that with the volume of appeals that the Third Department has, which I would be willing to bet is probably the highest of the four (4) departments on a per capita basis, it would be able to better distribute its decisions over the course of its calendar. Of course, because some appeals are voluminous and some are quite short, this probably has the effect of grossly distorting the Third Department's calendar.

In any event, you will have weeks where there are virtually no decisions issued and then have weeks of almost fifty (50) decisions issued.

If you have the time, it is often quite revealing to read all the decisions issued. Some of the criminal law cases can be quite grotesque in the descriptions of the underlying crimes.

#60 Third Department Caselaw Round-Up For October 20, 2011, Part 7 of 7

December 18, 2011

60 Post 10-20-11, Part 7 Third Department October.png26.83%!!! THAT is the amazing percentage - so far - of cases either being reversed or modified on appeal for the month of November and the half-month of October, 2011. Those are becoming impressive odds - better than a one in four chance of "winning" on appeal! Frankly, I am shocked at the percentage getting so high in such a short period of time. With odds like that, I imagine that an enormous number of notices of appeal must get filed with the Third Department. The remaining decisions from the docket of October 20, 2011, are here ...

Continue reading "#60 Third Department Caselaw Round-Up For October 20, 2011, Part 7 of 7" »

#59 My Christmas Show Watchlist, Part 9 of 10

December 17, 2011

59-1 Post Depositphotos_4453084_XS.jpg66. "Reindeer Games", by John Frankenheimer and Dimension Films (2002)

You would think that a movie starring Ben Affleck, Gary Sinise, and Charlize Theron would be amazing. And you would be wrong. Each of these actors, individually, is exceptional. Yet, together, in this film, they are exceptionally awful. The screenplay isn't as bad as I originally thought, on first viewing, but all of the actors seem underutilized and the film itself feels formulaic. Had someone taken the time to rewrite the script a few more times and edit the heck out of it, this could've been a great movie. John Frankenheimer died not long after this movie came out. It would've been far better for him to have gone out on a high note, by dying after the movie released prior to this one: the spectacular action-thriller, "Ronin", with Robert DeNiro.

67. "The Lord Of The Rings: The Two Towers", by Peter Jackson and New Line Cinema (2002)

Actually, there are many towers and quasi-towers in this epic story. Some, like Amon Sûl (Weathertop), Annúminas, Cirith Ungol, Dol Guldur, Elostirion, and the Towers of the Teeth - Carchost and Narchost - are glossed over, if they are even mentioned by name in the movie. And "the two towers" could actually refer to any of the four (4) primary towers, from west to east: Orthanc of Isengard, Minas Tirith (formerly Minas Anor), Minas Morgul (formerly Minas Ithil), and Barad-dûr of Mordor. Actually, I've always felt that "the two towers" were none other than the only two towers which stood directly in the path of Frodo's and Sam's (i.e., The Ring's) journey to Mount Doom: Minas Morgul and Cirith Ungol. But let's not quibble.

Continue reading "#59 My Christmas Show Watchlist, Part 9 of 10" »

#58 Third Department Caselaw Round-Up For October 20, 2011, Part 6 of 7

December 16, 2011

58 Post 10-20-11, Part 6 Third Department October.pngAnd here are three (3) more thought-provoking decisions from the docket of October 20, 2011, ...

Continue reading "#58 Third Department Caselaw Round-Up For October 20, 2011, Part 6 of 7" »

#57 Third Department Caselaw Round-Up For October 20, 2011, Part 5 of 7

December 16, 2011

57 Post 10-20-11, Part 5 Third Department October.pngTo give you some sort of idea as to where this whole Caselaw Round-Up concept is headed, I was hoping to explore the month of December, 2011, next, and then move on to September, 2011. The plan is to analyze ALL of the various decisions of the Third Department from 2011, retrospectively. Once a month is concluded in 2012, I will analyze those decisions as well. If I run out of cases to analyze (which actually seems quite likely!), then we will look farther afield, at decisions from the other three (3) departments.

I'm also hoping to explore those cases that never actually reach the appellate division, but are nonetheless reported in the Miscellaneous Reports 3rd and the New York Supplement 2nd. Some very interesting Vehicle and Traffic Law issues are dealt with in the trial courts. Also, some novel family law decisions are issued at the trial level that sometimes never get appealed, and are certainly deserving of attention.

Continue reading "#57 Third Department Caselaw Round-Up For October 20, 2011, Part 5 of 7" »

#56 My Christmas Watchlist, Part 8 of 10

December 14, 2011

56-1 Post Depositphotos_4218082_XS.jpg59. "Toy Story", by John Lasseter and Pixar Animation Studios (1995)

Like almost all of Pixar's creations, this one was so incredibly novel that I've seen it about twenty (20) times. And the voice talent is nothing short of spectacular. Tom Hanks as Woody, Tim Allen as Buzz Lightyear, Don Rickles as Mr. Potato Head, John Ratzenberger as Hamm, Annie Potts as Bo Peep, Laurie Metcalf as Mom.

To describe this movie would be to create a huge blog post. Suffice it to say that you simply have to see this movie, preferably with a small, impressionable child. The only animation movies that impressed me more than this were "Finding Nemo" and "Monsters, Inc.". Toy Story has a wonderful script and plot but the other two movies are much more emotionally and thematically deeper.

60. "L.A. Confidential", by Curtis Hanson and Warner Brothers (1997)

Probably in my Top 20 of all-time favorite movies. Lots of stars shining in this one. Check out this cast: Kim Basinger, James Cromwell, Russell Crowe, Danny DeVito, Guy Pearce, Ron Rifkin, Kevin Spacey, and David Strathairn.

Continue reading "#56 My Christmas Watchlist, Part 8 of 10" »

#55 Third Department Caselaw Round-Up For October 20, 2011, Part 4 of 7

December 14, 2011

55 Post 10-20-11, Part 4 Third Department October.pngAs I believe I stated in a previous post, I love reading the decisions from the Third Department. They come out every Thursday, just after noon, so I'm already looking forward to whatever is going to be coming out tomorrow. Without giving anything away, I doubt many family law decisions will be issued tomorrow, if only because so many were issued on December 1, 2011, and December 8, 2011. Don't worry, we will be getting to that month next as there are quite a few interesting decisions which I want to analyze. Once we're done with December, we'll head back to September.

Also, as luck would have it, a juvenile delinquency case on which I am the attorney for the child looks like it is going to have to be appealed. So, in another few months (I hope), I will be able to analyze my own appeal. I realize it may be a bit of a long shot but it's a novel issue which I have never seen before - so I think it's worth a shot. More later.

Anyway, on with three (3) more decisions from October 20, 2011, ...

Continue reading "#55 Third Department Caselaw Round-Up For October 20, 2011, Part 4 of 7" »

#54 Third Department Caselaw Round-Up For October 20, 2011, Part 3 of 7

December 13, 2011

54 Post 10-20-11, Part 3 Third Department October.pngHere are three (3) more interesting decisions from the rich calendar of October 20, 2011.

Continue reading "#54 Third Department Caselaw Round-Up For October 20, 2011, Part 3 of 7" »

#53 My Christmas Show Watchlist, Part 7 of 10

December 12, 2011

52-1 Post Depositphotos_1337633_XS.jpg51. "A Midnight Clear", by Keith Gordon and Interstar (1992)

I stumbled across this on HBO while at my parents one Christmas season.

As war movies go, this one is unremittingly depressing. Kevin Dillon, Ayre Gross, Ethan Hawke, Larry Joshua, John McGinley, and Gary Sinise are the stars here.

Towards the end of World War II, in the middle of winter, somewhere in the dense and hilly forests of the Ardennes (a part of Europe which always reminded me of the Adirondacks), a platoon of Americans comes across a platoon of Germans who wish to surrender to them rather than to continue on in a war in which they realize they have no chance of winning. There is always an undercurrent of anxiety and paranoia in this movie. Are things really what they seem? Or is something else going on here?

Both sides spend Christmas together. And then they kill each other.

This one really stays with you. Truly haunting.

I haven't seen this one in a long time and I'm looking forward to seeing it this year.

Continue reading "#53 My Christmas Show Watchlist, Part 7 of 10" »

#52 Third Department Caselaw Round-Up For October 20, 2011, Part 2 of 7

December 11, 2011

53 Post 10-20-11, Part 2 Third Department October.pngHere are three (3) more cases (all from the Southern Tier) from the decisions issued on October 20, 2011.

Case #24
#511812
Frank v. Frank, 88 A.D.3d 1123, 931 N.Y.S.2d 196
Broome Family - Pines
Issues: Divorce; Separation Agreement; Willful Violation of an Order
Cited statutes: FCA Art. 4
Affirmed

Here's another case involving divorced parents, a poorly drafted separation agreement, and children attending college.

The divorced parties have three (3) children. One of the children enrolled in college and was offered student loans to do so. However, the child declined the student loans, against the wishes of his father. Because the father wanted the child to "be responsible for part of his room and board and tuition", the father deducted the amount of the student loans from the child's expenses and then paid only half of the remaining balance.

The mother then filed a violation petition. The court found that the child was not obligated by the separation agreement to accept any student loans and the father was ordered to pay half of the child's total educational expenses. The father appeals.

Unfortunately for the father, the separation agreement contained no provisions concerning the children's contribution toward their college education, nor could such a requirement be reasonably inferred from the separation agreement.

I cannot emphasize enough how careful one must be in both the preparation of a separation agreement and the drafting of a separation agreement. Ideally, both the attorney and the client should have a long meeting to explore all of the various possibilities that need to be anticipated by such an agreement. If a matter is not specifically addressed by the provisions within the separation agreement, then do not assume that they may be inferred from the separation agreement.

Continue reading "#52 Third Department Caselaw Round-Up For October 20, 2011, Part 2 of 7" »

#51: Third Department Caselaw Round-Up for October 20, 2011, Part 1 of 7

December 11, 2011

36 Post Third Department October.pngThe Third Department's calendar for October 20, 2011, was a rich one for family law caselaw, with twenty-one (21) cases being decided (out of a total of thirty-seven (37) cases!).

Continue reading "#51: Third Department Caselaw Round-Up for October 20, 2011, Part 1 of 7" »

#50 Credit Where Credit Is Due: Thank You, David Soares!

December 10, 2011

50 Post Depositphotos_1029641_XS.jpgHaving defended numerous people against a wide array of criminal charges, as a criminal defense attorney, you can pretty much imagine how I feel about district attorneys. Nevertheless, I continue to be impressed by the incredibly principled stands that District Attorney David Soares has taken over the years - and especially the one that he is taking now, relative to the right to peaceably assemble on lands owned by the City of Albany.

And because of his principled stand, he has apparently received death threats. A district attorney receiving death threats!

That the Albany County GOP Chairman and the New York Post are apoplectic over Mr. Soares' refusal to prosecute citizens for exercising their constitutional right to peaceably assemble on city property tells you everything you need to know about the twisted priorities of Republicans and their pseudo-journalistic toadies.

Standing up for what is right is never an easy thing to do. It is only made that much more difficult at a time in our nation's history when so many are so ready, willing, and able to surrender hard-won freedoms for the false security of a national surveillance state.

Continue reading "#50 Credit Where Credit Is Due: Thank You, David Soares!" »

#49 My Christmas Show Watchlist, Part 6 of 10

December 10, 2011

49-1 Post Depositphotos_1517146_XS.jpg41. "Scrooged", by Richard Donner and Paramount Pictures (1988)

My take on Bill Murray is that whatever he touches turns to comedy gold. He's probably my favorite comedian. I love the guy and always have, since his debut on Saturday Night Live, back in 1976, when he took over for Chevy Chase. That being said, this is probably my least favorite Bill Murray movie (and he's made a ton of them!). Still, it's redeemed by having Bobcat Goldthwait in it (now imagine him drunk with a shotgun; yeah, comedy ensues!). And David Johansen steals the whole movie as The Ghost of Christmas Past.

While I am definitely not a big fan of Carol Kane, she is quite good as the Ghost of Christmas Present, as she manhandles Murray's character.

Other than those already mentioned, the ensemble features Karen Allen, John Forsythe, Robert Mitchum, and Alfre Woodard. Buddy Hackett appears as Scrooge and Jamie Farr (!?) appears as Marley. There are also a few star cameos. Pay special attention to the street musicians.

It's definitely an acquired taste but it feels like it needed a bit more editing before it was released.

Continue reading "#49 My Christmas Show Watchlist, Part 6 of 10" »

#48 Third Department Caselaw Round-Up for October 27, 2011, Part 6 of 6

December 10, 2011

46 Post 10-27-11, Part 6 Third Department October.pngThis is the last of the eighteen (18) decisions from the Third Department's docket on October 27, 2011. And, while I am not one to gloat, as we reach the twenty (20) decision mark, lo and behold, we come upon a reversal rate of ... wait for it ... that's right: ten (10) per cent. And I remain of the position that, even over the long-term, the reversal rate on appeal will very likely not deviate very much from this ten (10) per cent.

To be fair, "modified" appeals should have to count, to some degree, towards this reversal rate, so I suspect one could deem the reversal rate to be as high as twenty (20) per cent, or one appeal out of every five. Still, the likelihood of "winning" on appeal through either a modification or an outright reversal of the trial court's decision and order is not great. 10:1 odds are poor odds. And 5:1 odds aren't all that much better.

Still, if the trial court's decision and order seems unduly harsh or unjust - and one has the resources to perfect the appeal, the best bet is to 1) immediately and timely file a notice of appeal (together with a pre-calendar statement, if at all possible; your appellate counsel can easily do this once the notice of appeal is filed), and 2) immediately start shopping for an appellate attorney. And if you haven't already guessed, yes, I have appealed a number of cases and this Upstate New York Appellate Attorney would be happy to schedule a time to meet with you to discuss the possibility of perfecting the appeal in your case.

Continue reading "#48 Third Department Caselaw Round-Up for October 27, 2011, Part 6 of 6" »

#47 Danger: Triangulation Ahead!

December 9, 2011

47 Post Depositphotos_3671691_XS.jpgWell, well, well ... It seems that Governor One Per Cent has had an early visit from The Ghost of Christmas Future. And because the Ghost of Christmas Future has shown Ebenezer - I mean, Andrew - the premature death of his political career should he not heed the winds of change, Governor One Per Cent had a Come To Jesus Moment. It was either that or rank Clintonesque triangulation (which is much more likely), but, given the spirit of the season, I suppose I should accept his sudden change of heart - and overnight zealousness to ram through a bill with minimal debate - in the spirit of forgiveness.

But, wait, there's less!

If you feel as though you have somehow entered an absurdist comedy, you're not alone. When a bill to INCREASE taxes sails through the Republican-controlled Senate 55-0 (and 130-8 in the Democratically-controlled Assembly), and the Senate Majority Leader, Dean Skelos, is quoted as saying "We're cutting taxes, in my opinion", something very strange is afoot.

Continue reading "#47 Danger: Triangulation Ahead!" »

#46 My Christmas Show Watchlist, Part 5 of 10

December 9, 2011

46-1 Post Depositphotos_2514775_XS.jpg31. "Alvin And The Chipmunks: A Chipmunk Christmas", by ? (1981)

This Christmas special is every bit as heinous as it sounds. And then some. However, if one wishes to imbibe the Christmas spirit, this special can prove hilarious to watch. Yet, even then, by the end of this trainwreck, you'll be rooting for Alvin and the boys to become road pizzas - or at least for Alvin to become a little flat. O-Kay!

32. "Diner", by Barry Levinson and MGM (1982)

Wow! What an amazing cast of characters in this one, and almost all of them at the beginning of their careers! This movie came out just as I was about to graduate from high school (Columbia High, Class of '82!) and it is filled with an amazing spirit of hope and anticipation. Just as I was on the cusp of beginning a wonderful life as an adult, so, too, were these six (6) knuckleheads. Who are The Six? They are Kevin Bacon, as Fen Fenwick; Tim Daly, as Billy Howard; Steve Guttenberg, as Eddie Simmons; Paul Reiser, as Modell; Mickey Rourke, as Boogie Sheftell; and Daniel Stern, as Larry Schreiber. Ellen Barkin is in this as well.

I absolutely fell in love with this movie, and Barry Levinson, by extension. Where do I begin with this master's movies? Before "Diner", he made "...And Justice For All", another favorite ("YOU'RE out of order! The whole trial is out of order!"). After "Diner" came "The Natural", "Tin Men", "Good Morning, Vietnam", "Rain Man", "Avalon", "Bugsy", "Homicide: Life On The Streets", "Sleepers", and "Liberty Heights". Unfortunately, he's had a dry spell for the last twelve (12) years.

Continue reading "#46 My Christmas Show Watchlist, Part 5 of 10" »

#45 Third Department Caselaw Round-Up for October 27, 2011, Part 5 of 6

December 9, 2011

44 Post 10-27-11, Part 5 Third Department October.pngWe're nearing the end of the decisions reported for October 27, 2011. They've proven to be an amazing hodge-podge of issues, though today's assortment is a bit bland.

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#44 My Christmas Show Watchlist, Part 4 of 10

December 9, 2011

44-1 Post Depositphotos_7037483_XS.jpg21. "The Homecoming: A Christmas Story", by Earl Hammer, Jr. (1971)

I. Loved. This. I was pretty much hooked on All Things Walton after this episode. I think what I liked most about it was the closeness of the Walton family, at a time in American history (the Great Depression), when families really had to pull together to survive. Because I was also an aspiring writer, I very much identified with John Boy Walton, the scribe of the Walton clan.

My maternal grandmother lived through the Great Depression and she used to scare the bejesus out of me with tales of near-starvation from those times. Through her, I learned about those who, like my grandmother, were driven into such destitution that they were forced to scrounge for everything they had and to eat such things as ox-tail soup and grass soup and beans, beans, beans morning, noon, and night, not knowing where their next meal was coming from. Grandma said she even knew a man who was so hungry he boiled his own shoes and ate them (now that I'm older, I think she was pulling my leg with this story).

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#43 Third Department Caselaw Round-Up for October 27, 2011, Part 4 of 6

December 9, 2011

42 Post 10-27-11, Part 4 Third Department October.pngContinuing with the eighteen (18) decisions reported by the Third Department for October 27, 2001, here are three more ... one from Franklin County Supreme Court, one from Fulton County Family Court, and one from Greene County Supreme Court.

Once again, there is a good assortment of new issues here.

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#42 My Christmas Show Watchlist, Part 3 of 10

December 8, 2011

41-1 Post Depositphotos_2467606_XS.jpg12. "A Charlie Brown Christmas", by Charles M. Schulz (1965)

Admit it: you watch this one for the cool jazz of the Vince Guaraldi Trio. I know you do. Because I know I do. And it contains the wonderful tune "Christmas Time Is Here". Plus, I just love Linus' rendition of the deeply moving passage found in Luke 2:8 through 14, Charlie Brown's manic depression, and Snoopy's joie de vivre. As I recall, this was one of the first times a production company directly injected Christianity into a cartoon show. And, in my opinion, it worked spectacularly well, since it remains so memorable even today.

And it was the first time, as a kid, that I remember a Christmas story being told in the voices of children. Kids really relate to that. It was also wonderful hearing the voices of adults being represented as "wah-wah-wah-wah-wah-wah-wah", meaningless drones to us kids. It was like telling us kids that what our parents - and all adults - had to say was less important than what we had to say. What a revelation! After watching this special, it occurred to me that Charles Schulz knew kids better than kids knew themselves.

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#41 In Memoriam: A Day That Shall Forever Live In Infamy

December 7, 2011

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It is so hard to believe that it has been seventy years.

This post is a hat tip to my old man and to all of those of The Greatest Generation who served this country so courageously in World War II. This was always the one day of the year when my father would grab my arm, look me in the eye, and say two simple words to me: never forget.

Never forget.

And I didn't. And I won't. I will never forget.

Dad seems cool with people treating Memorial Day as a holiday, though less so with Veterans' Day. However, it truly saddens him that Pearl Harbor Day is not a national holiday, on a par with those two other days, if only because he reveres it with the sacredness normally reserved for church.

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#40 Third Department Caselaw Round-Up for October 27, 2011, Part 3 of 6

December 7, 2011

40 Post 10-27-11, Part 3 Third Department October.pngThree more decisions to analyze and ponder. While I would love to cover more decisions in less space, I do not wish to give these various decisions short shrift. Three at a time seems about right, so long as I can keep them coming on a regular basis. Over time, you'll come to see that most of these decisions are simply infinite variations on perhaps a hundred or so themes. Still, our written language is crafted from only twenty-six (26) letters, so just imagine what can be created by the combinations and permutations made possible by over a hundred themes. In other words, this will probably never get old.

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#39 My Christmas Show Watchlist, Part 2 of 10

December 7, 2011

Depositphotos_1121910_XS.jpgNow that I've gotten the three (3) earliest and probably best known movies out of the way, it's time to move into the 1950s and early 1960s. Yeah, yeah, I know, there are a lot more famous Christmas and holiday movies from the 30s and 40s ("Miracle On 34th Street" anyone?), but if I don't get to more modern-day fare soon, you'll lose interest. Hell, I'll lose interest.

4. "A Christmas Carol", by Brian Hurst and United Artists (1951)

This is the version I grew up on, so it is very special to me. When I think of Ebenezer Scrooge, I think of Alistair Sim. I make the time to both read the book and see at least one movie version of the book each Christmas. For me, it's simply not Christmas without "A Christmas Carol".

The Ghost of Marley kind of freaked me out as a kid. Okay, maybe it simply annoyed me. I just wanted it/him to stop shrieking and dragging all those coin boxes around with him through eternity. And I thought Fezziwig was the coolest of bosses, May we all be blessed with Fezziwigs in our lives and workplaces.

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#38 Third Department Caselaw Round-Up For October 27, 2011, Part 2 of 6

December 7, 2011

38 Post 10-27-11, Part 2 Third Department October.pngToday we have new issues to analyze with decisions concerning three (3) different courts in three (3) different counties: Chemung County Family Court, Clinton County Supreme Court, and Columbia County County Court.

Also, just to get a visual feel for how large the Third Department is, notice that Clinton County, in the northeastern corner of the state and department, is within the same department as Chemung County, in the southwestern corner of the department, in the Southern Tier. As northeastern states go, New York is huge, as is the Third Department. You will rarely see a starker difference in the size and shape of a department unless you compare the location of Herkimer County with that of Chautauqua County, in the Fourth Department.

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#37 My Christmas Show Watchlist, Part 1 of 10

December 6, 2011

Depositphotos_2068795_XS.jpgWell, now that you know what it is that I'm listening to over the holidays, here's a list of what I'm probably watching (though it's quite doubtful that I'll be able to watch them all in any one year). And it's great when you have children and nieces and nephews because you can use them as the perfect excuse to watch the shows that you would otherwise be watching anyway, if you could get away with it. Hey, I may have to grow up but I don't have to grow old.

I remember how disappointed I would be as a kid if I missed one of my favorite shows. Back then, all we had were just four (4) television stations (the affiliates of ABC (WTEN, channel 10), CBS (WRGB; channel 6), NBC (WNYT, channel 13), and PBS (WMHT, channel 17)). And, back then, our favorite Christmas shows were only on once a year, so if you missed it, then you really blew it - you wouldn't be able to see it again for an entire year! Talk about having a meltdown!

NOW, with a gazillion cable channels, you can see whatever the heck you want pretty much whenever the heck you want. Which, of course, lessens the wonder of it all and cheapens the whole experience, but hey, that's the quid pro quo I guess. I'm sorry, but seeing Christmas specials on television at any time other than around the Christmas holidays (i.e., between Thanksgiving and the weekend after New Year's Day), is just flat out wrong.

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#36: Third Department Caselaw Round-Up for October 27, 2011, Part 1 of 6

December 5, 2011

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Of the forty (40) decisions issued on October 27, 2011, almost HALF!!! (there are eighteen (18) cases from twelve (12) counties) pertained to family and matrimonial law issues. Not a bad week! And we've got cases that cover an astonishing array of areas of law this week.

God, how I love complicated things! And with eighteen (18) cases in one week, all I can say is that good things come to those who wait.

Once again, please note that of these eighteen (18) cases, all but four (4) were affirmed. And of those four (4) cases, only two (2) were reversed, with the other two (2) cases being modified. That leaves an affirmation percentage of roughly 78%, a bit better than my rule of thumb of 90%.

What I like most about the opinions of the Third Department is that they have an almost literary quality about them. If you look closely, you will find a sharp, sardonic wit within, married to a very dry and sometimes caustic sense of humor. You can tell that the attorneys and judges who write these opinions very much enjoy what they do and mull over each and every word as if it were the finest of French wine. It truly takes a special breed to meld the sacred with the profane and thereby distill the sublime. I therefore read these opinions very carefully and with great pleasure.

So, without any further ado, let's dive in. The first three (3) cases are all from Broome County Family Court.

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#35 My Christmas Song Playlist

December 4, 2011

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I honestly do not know how I would be able to live my life if music were not an integral part of it. I believe I would go insane without music.

And this time of year, what I love to do more than anything else is to listen to Christmas music. Ever since I was a kid, once December rolled around, it was time for Christmas music. My parents had (and still have!) this marvelously huge stereo system in their living room, filled with old 331/3s and even older 78s. Dad would gingerly place the discs on the stem of the turntable and we would then have a gloriously wintry soundtrack as we trimmed the tree. Me and my brothers and sister would know most of the songs by heart and lip-synch to them or - better yet - extemporize new and naughty lyrics for one and all to laugh at (or get punished for; you really had to read your audience).

I cherish memories of those times if only because family, very often my extended family, was ever-present and in good spirits.

Now that many of those much-loved family members are themselves only memories, hearing these songs helps to whisk me away to quieter, simpler, more child-like times. Of course, I prefer the unbowdlerized lyrics to the real thing (like the classics, "Frost Heave The Snowman", "Rudolph The Brown-Nosed Reindeer", and "I Saw Mommy @#$%^&* Santa Claus").

And, thanks to iTunes, I can create my own playlist of favorite Christmas songs. So, here is what I am listening to as I review all of this caselaw and type away for future blog posts. It's a pretty eclectic mix and probably not to everyone's liking. But, hey, here goes:

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#34: Third Department Caselaw Round-Up for November 3, 2011

December 4, 2011

33 Post Third Department November.png

For this week, there are a total of thirty-eight (38) decisions and not a single one of them has anything to do with family law or matrimonial law. Sometimes you'll have weeks like this. However, I also find the criminal defense and prisoners' rights cases to (usually) be quite fascinating.

Again, I suspect that you are also noticing a distinct pattern with these appeals - all of them - no matter which area of law you might choose: the overwhelming majority of cases on appeal (I suspect at least 90%) are affirmed.

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#33: Third Department Caselaw Round-Up for November 10, 2011

December 3, 2011

33 Post Third Department November.png

I will probably be going backwards as well as forwards with these caselaw round-ups if only because I don't feel like waiting a full week for the next round of decisions to be issued. So, I'm considering reviewing all of the cases for the year of 2011. Again: we shall see.

There are thirty-one (31) decisions for this week and, as always, most pertain to criminal defense and prisoners' rights. Frustratingly, once again, there were no decisions concerning any family law or matrimonial matters.

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#32: Third Department Caselaw Round-Up for November 17, 2011

December 2, 2011

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Yee-haw! Welcome to the second Caselaw Round-Up! I assure you that this will be a regular feature on this blog, since the Third Department is (usually) amazingly prolific in the volume of decisions it issues on a weekly basis.

Time willing, I intend to explore the state of the caselaw in the other three departments as well, especially the Second Department, which is at least as prolific as the Third Department. We shall see.

I'm more than happy to let you see the web site for yourself and have you read the various decisions on your own. As an attorney, I LOVE spending a day off or a lazy weekend reviewing the weekly decisions of the Third Department (no, really!), if only to stay on top of the latest developments in the law. Here is a perfect example of how quickly the law changes - on at least a weekly basis! So if you don't like to read, then being an attorney is definitely not for you.

The Third Department almost always issues decisions on Thursdays (unless the Thursday is a holiday - like Thanksgiving - in which case the decisions are issued on the preceding Wednesday) and there is almost always a handful of interesting and instructive family law or matrimonial law cases in the bunch. Of course, it seems the overwhelming majority of the cases have to do with criminal defense and prisoners' rights, together with a sprinkling of workers' compensation law cases.

This week, of the forty-one (41) decisions issued, only two (2) pertain to family law issues, and neither is illuminating in any real way.

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#31 Third Department Caselaw Round-Up For November 23, 2011

December 1, 2011

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So, after thirty (30) blog posts, I'm now ready to jump right in and start monitoring the Third Department (for now) and reviewing the pertinent decisions issued by the court every week. Those prior posts should have given you enough introductory information to be able to get started on more substantive issues.

Of course, as luck would have it, on the debut of the Caselaw Round-Up, there is no caselaw to review for the week of November 23, 2011. Of the forty-four (44) decisions issued by the Third Department on that date, none pertain to family law or matrimonial law matters. Not one.

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