HoganWillig

Following a former U.S. Marine’s arrest for attempting to security-check his pistol while visiting the Empire State Building, light has been cast upon one of the Nation’s toughest gun-control laws. The Marine’s weapon was licensed in his home state of Indiana; however, New York State’s gun law fails to recognize out-of-state permits. The law prohibits Read on…

Tags: gun law, national rifle association, new york state gun law, nra

On January 10, 2012, the Court of Appeals of the State of New York, the State’s highest Court, ruled in favor of families who have lost loved ones because of the negligence of others. In Toledo v. Christo, the Court ruled that a wrongful death plaintiff may collect interest on a damage award from the date of a decedent’s death, rather than the date a court ruled on liability. Specifically, the Court held “the proper method for calculating preverdict interest in a wrongful death action is to discount the verdict to the date of liability, i.e., the date of death, and award interest on that amount from the date of death to the date of judgment.”

In New York State, a personal representative of a decedent’s estate may sue a party causing the death of a loved one, claiming compensation for lost wages, lost support and services, consortium, funeral expenses, medical expenses, and lost guidance, nurturing and instruction of a parent. Should a jury award the plaintiff damages in a wrongful death case, the plaintiff is also entitled to interest on the verdict. The Court of Appeals was very clear that this decision, and the awarding of interest on future damages to a plaintiff, is not to act as a penalty against a defendant. The moment a plaintiff is deprived of the loss of use of compensation, they should be entitled to interest until that compensation is paid. To do otherwise would allow a situation which encourages a defendant to delay payment, while at the same time benefiting from accumulating interest. In the case of the wrongful death of a loved one, the date of the loved one’s death is comparative to the date of deprivation. Hopefully, this decision will act as an incentive to at fault defendants to compensate families for the wrongful death of their loved one(s) sooner rather than later.

Tags: interest on damage, toledo v christo, wrongful death

While this article is geared towards real estate agents, we feel it is helpful for others to be aware of. With the ever-increasing importance of the internet in our day-to-day lives, scams such as the one described below, and other email scams/solicitations, are becoming more and more common. The need to be cautious and confirm the legitimacy of any solicitation is more important than ever.

In this past year alone, HoganWillig has encountered half a dozen fraudulent internet schemes stemming from residential real estate transactions. Read on…

Tags: preventing fraud

As we approach the year’s end, it is not too late to do some 2011 tax planning. Please consider the following suggestions from the IRS that may be helpful. If you have questions about how these issues might apply to your tax situation, please contact Carly Speyer or Stacy Bechakas at 716.636.7600 to discuss.

The IRS wants to remind all taxpayers that with the New Year fast approaching, there is still time for you to take steps that can lower your 2011 taxes. However, you usually need to take action no later than Dec. 31 in order to claim certain tax benefits.

Here are six tax-saving tips for you to consider before the calendar turns to 2012: Read on…

Tags: 2011 taxes, charitable contributions, lower taxes, portfolio adjustment, tax benefits

Countless divorce clients approach me with the same concern: If I move out of the house, will it be considered abandonment? The answer is no! “Abandonment” is one of the most misunderstood concepts in divorce lingo. In New York State, you must have a reason to get a divorce, called a “ground” for divorce. Abandonment is one of seven grounds on which you can commence a divorce action. In order to file for a divorce on the ground of Abandonment, you must show that your spouse abandoned you for a period of one year or more. Moving out of the marital residence after a divorce action is commenced is not considered abandonment. Even if you did abandon your spouse for a year, it merely provides your spouse with a reason to commence a divorce action. It does not in and of itself affect the outcome of the divorce action.

However, before you decide to move out there are other considerations you should discuss with your attorney. Read on…

Tags: abandonment, divorce, divorce action, divorce grounds, moving out

A question people often ask after a car crash is “I didn’t go to the emergency room after the crash, now I’m in pain days later. Am I still covered by no fault insurance?”

The short answer is yes, provided you have submitted a timely no-fault claim. No-fault insurance is extended, in general terms, to everyone who is injured during the use, operation, or maintenance of a motor vehicle. If you were so injured, you have thirty days to submit a no-fault claim regardless of whether you have insurance of your own. Wisdom suggests that any injury, bruise or break, should be listed on the claim because you don’t know which injury will require the most medical attention. No-fault insurance is responsible for physical injuries and money losses you sustained due to the use of a motor vehicle, and provided your injury is ‘reasonably ascertainable’ within one year of the crash, you will typically be covered. This amount of time permits you to have second opinions, get physical therapy, and surgical opinions, because there are times when an injury isn’t as easily diagnosed as seeing a broken bone on an x-ray.

When it comes to dealing with an insurance company, it is best to get the diagnosis sooner rather than later, because insurance companies look to the timing of your medical treatment and how soon after the crash you sought care. If there is a month or so delay between the crash and your treatment, the insurance company may investigate to see why you didn’t seek treatment sooner. The longer between medical care and the day of the crash, the more the insurance company will discount the doctor’s opinion that the crash caused the injury. It also makes medical sense to see your doctor to discuss the crash and what happened to you.

Regardless of whether you go to your primary physician, No-Fault medical care does not require that you have a referral to see a specialist, and often you get appointments sooner if you let the medical provider know you have a No-Fault case. I’ve been told by providers that a person injured in a car crash has a traumatic injury that may be more responsive to quick intervention than patients with long-term, or chronic, injuries.

So, the answer is “the sooner the better” when it comes to getting medical care in No-Fault cases, and especially when it comes to submitting your No-Fault claim.

Tags: no-fault application, no-fault claim, no-fault insurance

Are you a prospective adoptive parent considering or proceeding with a domestic or private placement adoption? If you are, chances are that you have already experienced a number of conflicting emotions. The adoption process can prove to be one of the most exciting, rewarding and fulfilling experiences of your life, while at the same time evoking some fear and angst. On the minds of many (if not all!) prospective adoptive parents is the dreaded “revocation of consent.” Of course, this is also a topic of interest to most birth parents considering the placement of their child for adoption. Before considering adoption as an option for you, either as a prospective adoptive parent or birth parent, it is important to know the laws regulating the placement and subsequent revocation of consent in an adoption setting.

This blog post is intended to provide you with an initial understanding of the law so that you can proceed with your adoption armed with knowledge and information and thereby alleviate any unnecessary anxiety that you may feel.

In New York State, the consent of both birthparents, or the sole surviving birthparent, is required when a child is conceived and/or born in wedlock. This applies even when the birthparent(s) is/are under the age of eighteen.

Of course, the consent of the birthmother is required when the child is born out of wedlock and again, this applies no matter what the age of the birthmother. Related to this issue is the topic of the biological father’s rights when the adoptive child is born out of wedlock. Oftentimes, for a number of reasons, the birthmother does not or cannot identify the birthfather. If the birthfather has maintained substantial and consistent contact with the child (i.e. the birthfather paid voluntary child support and either visited the child monthly, if able to do so, or maintained regular communications with the child or person/agency having custody of the child), their consent will be required when the child has been placed for adoption more than six months after his or her birth. Basically, there needs to be actual evidence of the birthfather’s intent to maintain a relationship with the child, not just his alleged intent.

As the law stands today, a birthfather can “block” an adoption where the child has been placed for adoption less than six months after his or her birth. This is possible as long as the birthfather is actually willing to assume custody of the child, is able to do so, and his involvement is not simply a means of blocking the adoption from proceeding. The birthfather must also take steps to toward parental responsibility within six months of the child’s placement. The Courts will determine and consider whether the birthfather is an appropriate or fit parent and whether he has effectually waived or abandoned his rights as the father.
If the adoptive child is over the age of fourteen, then the adoptive child must provide his or her consent to the adoption and no other person’s consent will be required. In some situations, the consent of any other person or agency having custody over the adoptive child may also be required.

There are a few situations in which a birthparent’s consent is not required. These situations involve the birthparent’s abandonment or surrender of the child or in situations involving an involuntary guardianship, mental illness or mental retardation.

CONSENTS

There are two kinds of consents that can be signed in a domestic private adoption. The first is known as a Judicial Consent. A Judicial Consent is signed in the presence of the Judge or Surrogate which has jurisdiction over the adoption proceeding. A Judicial Consent is preferred by most prospective adoptive parents as this consent is final (unless fraud, threat or coercion can be proven).

The second type of consent that may be signed is the Extra-Judicial Consent. An Extra-Judicial Consent is signed by the birthparent(s) at some point after the birth of the child. Although there is no law regulating how soon after the birth of the child such a consent may be signed, it is important to be certain that the birthmother is not on any medications or in any pain at the time of her signature. It is often suggested that the birthmother wait at least 24 hours before signing the Extra-Judicial Consent.

An Extra-Judicial Consent is revocable by the birth parents within 45 days after signing. In the event that a birthparent wishes to revoke this, he or she must do so in writing to the Court in which the adoption proceeding will be held. The adoptive parents will then need to decide if they will oppose the birthparents’ revocation. Should the adoptive parents contest the revocation of consent, a hearing will be held to determine the best interest of the child. It is important to note that neither the birthparents nor the adoptive parents will have superior rights over the other in this situation. It is also important to note that an Extra-Judicial Consent can be re-affirmed before the Judge and thereby become irrevocable.

It goes without saying that most prospective adoptive parents and birthparents “do their homework” before diving into their search for a child or placing their child for adoption. The laws regarding adoption are not always simple and straightforward and parents inevitably develop many questions and are always encouraged to seek the advice of an attorney.

Tags: adoption, birth parent consent, birthparent consent, domestic adoption, extra-judicial consent, judicial consent, private placement adoption, revocation of consent