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#497 Third Department Caselaw Round-Up for December 20, 2012, Part 5 of 10

November 17, 2013

497 Post 12-20-12, Part 5 Third Department December.pngThe first case is an excellent illustration of wasteful dissipation and its effects upon equitable distribution.

The second case is yet another instance where I completely disagree with the Third Department. In fact, this decision sets a bad precedent. The trial court screwed up and so did the Third Department. Due process, anyone?

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#496 Third Department Caselaw Round-Up for December 20, 2012, Part 4 of 10

November 16, 2013

496 Post 12-20-12, Part 4 Third Department December.pngThe first case involves a true rarity: the granting of a motion for summary judgment in an Article 6 case. Here's a bit of advice: if this EVER happens to you, MAKE SURE THAT YOU FILE A NOTICE OF APPEAL! Why? Because it is almost ALWAYS inappropriate for a motion for summary judgment to be granted in Article 6 cases without there being either a certified judgment of conviction or an adjudication of neglect or abuse.

The second case is a trip down Memory Lane.

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#495 Third Department Caselaw Round-Up for December 20, 2012, Part 3 of 10

November 16, 2013

495 Post 12-20-12, Part 3 Third Department December.pngThe first case is an excellent example of the use of the extremely effective tool (weapon?) of conforming the pleadings to the proof. It's also a great analysis of a family offense and an order of protection. Non-attorneys should take the time to read this case to better understand family offenses.

The second case reminds me of some exceedingly wise advice from a person who taught me how to take and ace my LSATs: when you get right down to it, law school, like life, is all about the simplest of words - conjunctions and prepositions; always pay attention to those two families of words. This has proven to be amazingly good advice.

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#494 Third Department Caselaw Round-Up for December 20, 2012, Part 2 of 10

November 15, 2013

494 Post 12-20-12, Part 2 Third Department December.pngThe first case is a nice, short decision which teaches a hard lesson.

The second case is another nice, short decision, this time teaching another, though less harsh, lesson.

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#493 Third Department Caselaw Round-Up for December 20, 2012, Part 1 of 10

November 15, 2013

493 Post 12-20-12, Part 1 Third Department December.pngThe first case is quite unusual insofar as it raises what is, to me, a novel question of law: Does a custodial parent have the authority to commence a proceeding to terminate the parental rights of the non-custodial parent on any grounds? My gut response was "Hell, no!" The Third Department agrees, though is somewhat less effusive.

Still, I'm somewhat jealous of appellate counsel for being in the amazing position of potentially making mind-blowing new law on this issue. Once again, I maintain that the more creative you are on appeal, the greater the likelihood that the Third Department will give serious consideration to your arguments. This appeal took cojones of brass.

The second case really needs to be read to be believed. Seriously: you can't make this stuff up!

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#492 What I Was Listening To ... 40 Years Ago: November 1973 Playlist, Part 2 of 2

November 15, 2013

492 Post-1 Depositphotos_2286999_XS.jpgAutumn has always been a bittersweet time for me. Great memories of people and places that are long gone. Some days, it literally hurts to remember. That's where the music comes in. Like a balm for the soul, the music takes the pain away. Don't mourn the loss of your best friend! Instead, peruse the kraut rock artists he so loved. Suddenly bummed because you realize that your dead friend's kids are now in their thirties? Tune in to the blues rock he turned you on to. Shocked to learn that the place where you lost your virginity is now a friggin' strip mall? Once again, dive into the music and the various tunes that were playing when you, um, had your fun.

Change sucks. Sure, it's inevitable. But it doesn't make it suck any less. And, since I don't abuse drugs or alcohol, or womanize, or indulge in any other vices, the only thing that gets me through is my music. Music defines me. Pick a year. Hell, pick a month! And I will recall the soundscape from that time in my life, and, through the songs, I'll remember a time when I wasn't saddled with the worries and regrets of a middle-aged man.

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#491 What I Was Listening To ... 40 Years Ago: November 1973 Playlist, Part 1 of 2

November 14, 2013

491 Post-1 Depositphotos_2286999_XS.jpgI have no idea what it is about autumn and Thanksgiving, but this time of the year, all I want to do is listen to music. Screw TV, reading, and just about everything else. All I want is my music. And, depending upon the weather, the temperature, or my mood, I might want any of a wide variety of music. If I can't decide what I want, my default setting is almost always one of The Big Five: the Beatles, the Stones, Zep, Floyd, or Tull. Like the fingers of a hand, these five are all the music I will ever truly need.

The Beatles remind me of my early childhood, singing in the car to the radio as we drove to Poughkeepsie, visiting friends and family. The Stones remind me of later childhood and hiding out in the woods and spying on people. Zep is early adolescence and the allure of girls. Floyd is late adolescence when I thought I knew everything and wanted to zone out to some cosmic bliss (you know what I'm talkin' about). And Tull? Tull is everything that came after. Tull is life up to now. For, as we all know: life's a long song.

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#490 In Memoriam: October 2013 Deaths

November 14, 2013

490 Post-1 Depositphotos_5480853_XS.jpg115. Tom Clancy, 66, April 12, 1947 - October 1, 2013:
Writer; American novelist; undisclosed illness

I read his first novel, "The Hunt For Red October", in 1984, in college, and loved it, despite its obvious love affair with conservative American politics throughout (yeah, definitely NOT a good thing). It's a better tale than it is right-wing propaganda, which one cannot honestly state with regard to his succeeding novels. In his second novel - also a ripping yarn - "Red Storm Rising", from 1986, Clancy's nostalgia for the Cold War became obvious and more of his politics seeped into the work. By the time I reached his sixth novel, "The Sum Of All Fears", in 1991, the story-telling had become formulaic and the propaganda had become laughable. So, naturally, I stopped reading him. Apparently he published another fourteen novels after this, having become a reliable publishing brand à la Stephen King. St. Ronnie Raygun loved him, which should have been the kiss of death but, instead, was accepted as high praise by the writer himself. Uh-huh. 'Nuff said.

Still, I will say this: when adapted for the big screen, it seems that all of his novels are truly kick-ass. That's gotta count for something.

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#489 Third Department Caselaw Round-Up for December 13, 2012, Part 3 of 3

November 14, 2013

489 Post 12-13-12, Part 3 Third Department December.pngThe first case brings up a pedantic point that drives me nuts on these appeals: there is no appeal of right from an order of fact-finding in a permanent neglect proceeding. Yeah, I get it and so what: if the order of disposition is nonetheless appealed, such an appeal automatically raises the order of fact-finding on appeal. So, the lesson here is simple: if you can't remember this fatal rule, then just file a notice of appeal on BOTH orders (which is what many attorneys do - just in case).

The second case is just another criminal appeal involving a sex offender.

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#488 Third Department Caselaw Round-Up for December 13, 2012, Part 2 of 3

November 7, 2013

488 Post 12-13-12, Part 2 Third Department December.pngThe first case best illustrates how the ponderous appellate process can easily render an appeal moot.

The second case shows you how incredibly complicated contested divorces can become on appeal.

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#487 Too Old To Rock And Roll; Too Young To Die

November 7, 2013

487 Post Depositphotos_1831593_XS.jpgWe haven't had a random rant in quite some time. So, let me fire up my Indignation Machine and we'll get right to it ...

Sometimes, ya gotta know when to say when. Or, as Clint might say, "a man's gotta know his limitations". And, yes, "they" are overwhelmingly male. And that ain't a good thing.

I'm soooooooooo glad to see that Proposition 6, raising the mandatory retirement age for judges (from 76 to 80 for Supreme Court judges, and from 70 to 80 for Court of Appeals judges; moreover, no other judges were included; I guess some judges are more equal than others!), went down in flames. And it looks like I'm not the only one. The proposal was thoroughly trounced with over 60% voting "HELL NO!" Look, it's bad enough that most Upstate judges are white, male, hetero, and largely conservative, but to have them be as old as 80!!?? Gimme a break!

And how's this for an ethical conflict of interest ... Proposition 6 was apparently the brainchild of a judge (who shall herein remain nameless) who would have directly, personally benefitted if this measure had passed. How lovely! It also reeks of desperation. My advice? Put down the gavel and take up a new hobby. Bocci ball, perhaps? Spending more time with your children, grandchildren, and great-grandchildren? Sleeping? But not judging. For the love of god, NOT judging.

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#486 Third Department Caselaw Round-Up for December 13, Part 1 of 3

November 6, 2013

486 Post 12-13-12, Part 1 Third Department December.pngThe first case is a felony DWI matter which the Third Department makes quick work of.

The second case involves some procedural complexities which do not often arise in criminal cases unless a co-defendant is involved. Appellate counsel did a fine job of issue-identification.

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#485 Third Department Caselaw Round-Up for December 6, 2012, Part 5 of 5

November 6, 2013

485 Post 12-06-12, Part 5 Third Department December.pngThe last case of this week is an example of a case that should not have been appealed.

When you are dealing with interstate or even international custody disputes, it helps to know the applicable statutes cold. If you do not understand the application of the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act), as codified in Domestic Relations Law Article 5-A (Sections 75, 76, 77, and 78), then you are doing a huge disservice to your client(s). Sure, parts of the UCCJEA are difficult, but the McKinney's annotations throughout are excellent and will walk you through all the complexities of it. Older, hardcore practitioners will own their own set of McKinney's (Consolidated Laws of New York, Annotated), as I do. But even the younger crowd of practitioners should have access to Westlaw, to be able to review the same statutes and annotations, as I do. As much as I love McKinney's, Westlaw is much better for immediate access to caselaw. So, as a compromise, I have both: McKinney's for the statutes and annotations, Westlaw for the caselaw.

When it comes to "reading the law", I'm old school: I want to be able to read the law from a book held in my hands. When I want a ton of caselaw, I like clicking a mouse.

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#484 Third Department Caselaw Round-Up for December 6, 2012, Part 4 of 5

November 5, 2013

484 Post 12-06-12, Part 4 Third Department December.pngSorry, but these two cases have brought out the sarcastic cynic in me. Consider yourself forewarned!

The first case is a classic case of a father not wanting to pay his child support. Ya know, I've never seen this before [obligatory eyeroll]!

The second case illustrates that once an order is issued, one cannot raise an issue that pre-dates the order as a change in circumstances. If you've got a new order, then you need a new change in circumstances to be able to try to modify it. This can be a hard lesson to have to learn.

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#483 Third Department Caselaw Round-Up for December 6, 2012, Part 3 of 5

November 5, 2013

483 Post 12-06-12, Part 3 Third Department December.pngThe first case is yet another Anders Brief.

The second case illustrates that heavy-handedness by the trial court, coupled with an insufficient record, will often be enough to get a reversal and have the matter remitted for development of the record. Once again, due process is a very big deal.

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