Appellate Practice
The Appeals Process
Civil appeals are among the greatest challenges attorneys face. McCarthy Fingar, a Westchester law firm rich in experience in handling appeals, takes pride in the strength of our Appellate Group. Before an appeal goes forward our lawyers carefully study the record in the lower court and analyze the strengths and weaknesses of the lower court decision. Based upon that review, our appellate lawyers, usually working with lawyers in one or more of our various specialty practice groups, counsel a client as to the probable merits of an appeal, whether a client is seeking to defend or reverse a lower court decision. If we agree to represent a client and seek a reversal of a lower court decision, we then proceed with the arduous task of developing the record on appeal, working only from the lower court record. If we are seeking a reversal, we proceed to the critical task of writing a concise appellate brief to explain to an appellate court the flaws in the lower court decision and why the appellate court should reverse. One of our experienced appellate lawyers will argue the case before the appellate court, if oral argument is required.
Contact Us
McCarthy Fingar’s Appellate Practice lawyers are dedicated to our clients’ success. If you think you may require our assistance or have any questions, please contact James K. Landau by email (jlandau@mccarthyfingar.com) or phone (914-385-1030).
Landau Speaks on Cannabis Law

James K. Landau, a member of our Cannabis Law, Commercial Litigation and Appellate Practice groups, spoke on “Cannabis Law — Licensing, Ethics and Developing Case Law“, in a program hosted by the White Plains Bar Association.
McCarthy Fingar Wins Appeal Concerning Merestead, a Westchester County Park



Representing the County of Westchester, an interdisciplinary team of litigators at McCarthy Fingar, which included James K. Landau, Edward P. Borrelli and Frank W. Streng, won an appeal in Matter of Merestead in the Appellate Division, Second Department. In Merestead, the Second Department upheld a lower’s denial of an attempt by a neighboring landowner to intervene and dismiss a petition filed by the firm on behalf of its client, the County of Westchester. By the petition, the County seeks to modify or extinguish certain restrictions on the use of Merestead, 130 acres of property donated to the County so that Merestead can better carry out the original intentions of the family that donated the property for various uses, including as a park.
Landau Quoted in Article on Ability of Cannabis Businesses to Operate Successfully

James K. Landau, a member of our Cannabis Law, Commercial Litigation and Appellate Practice groups, was recently quoted in an article entitled “Cannabis is Poised to Rescue the Economy From Collapse“. Jim had this to say about the impact of tax rates on the ability of a cannabis business to operate successfully: “such high tax rates coupled with the lack of available deductions and prohibitive license fees make it virtually impossible for a cannabis business to operate successfully in the legal marketplace,” Jim said. “Intelligent regulation is needed at both the federal and state level if we are going to be successful in bringing the legacy cannabis market above-ground.”
Landau Elected President of White Plains Bar Association

James K. Landau, a member of our Cannabis Law, Commercial Litigation and Appellate Practice groups, was sworn in as President of the White Plains Bar Association (WPBA). A member of the WPBA Board of Directors since 2014, Jim previously served as Vice President and Secretary. Jim joins current and former McCarthy Fingar attorneys, Dolores Gebhardt, Joel M. Aurnou, Kathleen Donelli, Joseph P. Harrington, Martin Drazen and John G. McQuaid, all of whom served as WPBA President.
Kutzin Named as Co-Chair of NYSBA Task Force on Remote Notarization and Witnessing of Estate Planning Documents

During the COVID-19 health care crisis, McCarthy Fingar lawyers have remotely supervised the execution of many Wills, Trust Agreements and related documents. We are pleased to announce that Michael S. Kutzin, a member of various groups, including our Guardianship Practice, Trusts & Estates and Surrogate’s Court Litigation groups, has been named as a co-Chair of the NYSBA Joint Elder Law and Trusts & Estates Sections Task Force on Remote Notarization and Remote Witnessing of Estate Planning documents.
Kutzin Wins Appeal on Guardianship Matter Involving Dispute Between Divorced Parents

McCarthy Fingar lawyers represent clients in the most difficult guardianship cases. In Matter of A.A. v. A., 2020 NY Slip Op 03468 (1st Dep’t 2020), Michael S. Kutzin, a partner of the firm whose areas of concentration include guardianship and trusts & estates, represented, on a pro bono basis, the mother of an incapacitated child in an appeal to the Appellate Division, First Department, of a lower court decision in which, after a divorce, the mother had been named the guardian for her daughter, J.A. Michael succeeded in having the father’s appeal denied on the grounds that the lower court had properly exercised its discretion in naming the mother as guardian and that he had no independent right to have his adult child brought to a physician of his choice to prove his case.
Landau Speaks on Litigation Trends in Cannabis Industry

James K. Landau, a member of our Cannabis Law, Commercial Litigation and Appellate Practice groups, spoke on “Litigation Trends in the Cannabis Industry”, in a program sponsored by the Westchester County Bar Association.
Landau Authors Article on Banking and Finance for the Marijuana Industry

James K. Landau, a member of our Cannabis Law, Commercial Litigation and Appellate Practice groups, authored an article for Lexis-Nexis entitled Banking and Finance for the Marijuana Industry.
Landau in Panel Discussion on Attorneys in Social Media

James K. Landau, a member of our Cannabis Law, Commercial Litigation and Appellate Practice groups, was part of a webinar panel discussion for a program entitled “Attorneys in Social Media” sponsored by the Practicing Law Institute.
Landau Speaks on Litigation Trends in Cannabis Industry

James K. Landau, a member of our Cannabis Law, Commercial Litigation and Appellate Practice groups, spoke on “Litigation Trends in the Cannabis Industry “, in a program sponsored by the Westchester Black Bar Association.
Gebhardt & Miller Speak on Parent Education in Custody Cases

Dolores Gebhardt and Hon. Sonda M. Miller, both members of our Matrimonial & Family Law, Appellate Practice and Collaborative Law groups, presented “Mandatory Parent Education in Custody Cases: The Pilot Program” at the Westchester County Courthouse. This CLE program, sponsored by the Family Law Section of the Westchester County Bar Association, described the requirements of the new initiative in which judges must refer divorcing parents to OCA-approved classes that assist the parents in putting their children first.
Borrelli Lectures on Ethics & Diversity Training

Judge Edward P. Borrelli, a member of our Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, lectured on “Ethics” and “Diversity Training” at a program sponsored by the Yonkers Lawyers Association.
Borrelli Lectures on Judicial Ethics

Judge Edward P. Borrelli, a member of our Guardianship Practice, Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, lectured in Manhattan on “Judicial Ethics Update – 2020”, at the Annual Convention for the New York State Association of Towns, as part of its Town and Village Justices Program.
Michael S. Kutzin Joins Firm as Partner

We are pleased to announce that Michael S. Kutzin has joined the firm as a partner and is a member of our Guardianship Practice, Trusts & Estates, Surrogate’s Court Litigation, Appellate Practice, Exempt Organizations, Taxation and Charitable Gift Planning groups. Michael joins McCarthy Fingar from Goldfarb Abrandt Salzman & Kutzin LLP, where he had been a partner for 17 years. Michael has extensive experience with all forms of Surrogate’s Court and Guardianship proceedings, from the most routine to the most complex and contentious. He has appeared in Westchester matters for years, as well as Surrogate’s Court and Guardianship cases in New York City.
Landau Speaks on Cannabis Law & Enforcement Issues in Various States

James K. Landau, a member of our Cannabis Law, Business Litigation and Appellate Practice groups, spoke on “Commercial Litigation Issues to Date, Enforcement Issues, and Experience in Other Jurisdictions”, in a program entitled, “Budding Cannabis and CBD Litigation: Are You Ready for the Green Wave Heading Towards New York?”, sponsored by the Commercial and Federal Litigation Section of the New York State Bar Association. Jim’s presentation and the presentation of other speakers are in the news, as the New York State Bar Association adopted a report from its Committee on Cannabis Law that supports the legalization of adult recreational marijuana use in New York.
Borrelli Lectures to New Judges on Judicial Ethics

Judge Edward P. Borrelli, a member of our Guardianship Practice, Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, lectured at the NYS Judicial Institute in White Plains, New York on “Judicial Ethics”, for the Unified Court System Certification Program for Newly-elected Town and Village Justices.
Borrelli Lectures on Judicial Ethics for New Judges

Judge Edward P. Borrelli, a member of our Guardianship Practice, Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, lectured in Albany, New York on “Assuming the Bench – Judicial Ethics”, for the Unified Court System Certification Program for Newly-elected Town and Village Justices.
Borrelli Lectures to Law Students on Judicial Ethics

Judge Edward P. Borrelli, a member of our Guardianship Practice, Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, was a guest lecturer in White Plains, New York at a Professional Responsibility class at Pace Law School (Elisabeth Haub School of Law), speaking on “How Judicial Ethics Issues impact your Law Practice”.
McCarthy Fingar’s “Super Lawyers”




Six of our lawyers have been selected Super Lawyers in the New York Metropolitan area. Gail M. Boggio has again been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Kathleen Donelli has again been selected in the field of Family Law. Dolores Gebhardt has again been selected in the field of Family Law. James K. Landau has again been selected in the fields of Commercial Litigation and Appellate, and has again been selected for the Top 25 in Westchester County for Super Lawyers. Frank W. Streng has again been selected in the fields of Estate & Trust Litigation and Estate Planning & Probate. Douglas S. Trokie has again been selected in the fields of Business/Corporate, Closely Held Business, Real Estate, Business and Civil Litigation. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.
Borrelli Lectures on Judicial Ethics

Judge Edward P. Borrelli, a member of our Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, lectured at the Mohonk Mountain House in New Paltz, New York on “Judicial Ethics”, at the Annual Meeting for the NYS Association of Supreme Court Justices.
Borrelli Lectures on Judicial Ethics

Judge Edward P. Borrelli, a member of our Guardianship Practice, Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, lectured in Lake Placid, New York on “Judicial Ethics Update – 2019”, at the Annual Convention of the NYS Magistrates’ Association, as part of its Justices’ Advanced Certification Program.
Borrelli is Dinner Speaker for Association of Supreme Court Justices

Judge Edward P. Borrelli, a member of our Guardianship Practice, Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, was a dinner speaker for the Association of Supreme Court Justices of the City of New York in Queens, New York.
Landau & Trokie Speak on Impending Legalization of Cannabis


James K. Landau and Douglas S. Trokie, both members of our Cannabis Law group, spoke at a CLE program entitled, “Impending Legalization of Cannabis 2019: The Buzzz for Businesses.” This program was co-sponsored by the FPA Greater Hudson Valley Chapter, the Westchester County Bar Association and the Westchester Chapter of the New York State Society of CPAs.
Landau Attends Symposium Hosted by Justices of Appellate Division, Second Department

James K. Landau, a member of our Cannabis Law, Commercial Litigation and Appellate Practice groups, and Co-Chair of the Appellate Practice Committee of the Westchester County Bar Association, attending a symposium for bar leaders hosted by Justices Connolly, Cohen and Duffy of the Appellate Division, Second Department.
Judge Borelli Speaks to Judges and Judge Candidates on Campaign Ethics

Judge Edward P. Borrelli, a member of our Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, chairs the Judicial Campaign Ethics Subcommittee of the NYS Advisory Committee on Judicial Ethics. In that capacity, Judge Borrelli served on a panel at the NYS Judicial Institute in the taping of the “2019 Judicial Campaign Ethics Online Training Video.” All candidates for election to Judicial Office this year, including incumbent judges running for re-election (except Town and Village Justices), are required to timely complete this program during his/her candidacy.
Landau & Trokie Speak on Legalization Status of Cannabis & Hemp in New York & Connecticut


James K. Landau and Douglas S. Trokie, both members of our Cannabis Law group, spoke on “Legalization Status of Cannabis and Hemp in New York & Connecticut.” This program was co-sponsored by BOHCA (Business Owners Hemp Cannabis Association).
Landau Speaks on Cannabis Law

James K. Landau, a member of our Cannabis Law, Commercial Litigation and Appellate Practice groups, gave an overview on recent decisions in cannabis law in a CLE program entitled, “Impending Legalization – Hot Topics in Cannabis Law.” The program was sponsored by Celesq and hosted by the West LegalEdcenter.
Landau Authors Article on Appellate Division Judges

James K. Landau, a member of our Cannabis Law, Commercial Litigation and Appellate Practice groups, authored an article in in the May, 2019 issue of Westchester Lawyer, published by the Westchester County Bar Association, entitled, “Meet the Presiding Justices of the Appellate Division.”
Borrelli Speaks at Dinner of Association of Supreme Court Justices

Judge Edward P. Borrelli, a member of our Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, was a speaker in Staten Island at a dinner of the Association of Supreme Court Justices of the City of New York.
Landau Speaks on Ethics in Social Media

James K. Landau, a member of our Cannabis Law, Commercial Litigation and Appellate Practice groups, was part of a panel discussion in Manhattan on a program entitled “Ethics in Social Media 2019” sponsored by the Practicing Law Institute.
Landau Co-Authors Article on Cannibis Law

With the expected legalization of marijuana in New York, McCarthy Fingar’s corporate and litigation lawyers are gearing up to represent clients as to the legal issues presented by such legalization. One of our lawyers, James K. Landau, a member of our Cannabis Law, Commercial Litigation and Appellate Practice groups, co-authored an article in in the February, 2019 issue of Westchester Lawyer, published by the Westchester County Bar Association, entitled, “The Expected Legalization of Cannabis for Adult Use in New York Will Bring New Challenges for Attorneys.”
Judge Borrelli Speaks to Newly-Elected Judges

Judge Edward P. Borrelli, a member of our Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, lectured at the New York State Judicial Institute, as part of the Newly-Elected Judges’ Program.
Judge Borrelli Speaks to Judges on Judicial Ethics

Judge Edward P. Borrelli, a member of our Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, lectured on “Judicial Ethics” at a program of the New York State Unified Court System entitled “Taking the Bench – Spring, 2018” for newly-elected and recently appointed Town and Village Justices from around the state. The program was held in Albany, New York.
Landau Elected to WCBA Board

James K. Landau, a member of our Commercial Litigation and Appellate Practice groups, was elected to the Board of Directors of the Westchester County Bar Association.
Landau Speaks on Debt Collection Issues for NYSBA

James K. Landau, a member of our Commercial Litigation and Appellate Practice groups, lectured in Mt. Kisco, New York on CPLR Article 52 Enforcement Devices as part of an all-day program entitled “Debt Collections and the Enforcement of Money Judgments” for a program sponsored by the Business Law Section of the New York State Bar Association.
Landau on Panel Discussing Ethics for Attorneys in Social Media

James K. Landau, a member of our Commercial Litigation and Appellate Practice groups, was part of a panel discussion in Manhattan on a program entitled “Ethics for Attorneys in Social Media” sponsored by the Practicing Law Institute.
Nimetz Joins Firm as Associate Attorney

We are pleased to announce that Irma K. Nimetz has joined the firm as an associate attorney and is a member of our Appellate Practice, Commercial Litigation and Surrogate’s Court Litigation groups. Prior to joining McCarthy Fingar, Irma was an attorney with the New York State Attorney General’s Office, where she received the Louis J. Lefkowitz Memorial Award for outstanding performance by an Assistant Attorney General. Irma has experience handling governmental investigations against individuals, businesses and not-for-profit organizations, as well as defending actions and Article 78 proceedings brought against the State of New York and its agencies.
Judge Borrelli Presents for Unified Court System on Ethics Issues

Judge Edward P. Borrelli, a member of our Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, served on the faculty of the New York State Judicial Institute and New York State Unified Court System, Office of Justice Court Support sponsored Continuing Judicial Education Program at the NYS Association of Towns Annual Convention in New York City. Judge Borrelli presented on two topics: 1) 2018 Judicial Ethics Updates and 2) Ethics: Civic Participation Limitations
Judge Borelli Joins Firm

We are please to announce that Judge Edward P. Borrelli has joined the firm as Counsel in our Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups. Judge Borrelli joins the firm following an illustrious 40 year career in the New York State Unified Court System, where he has presided over a very wide variety of proceedings, including Civil and Criminal jury trials and non-jury trials, high exposure Supreme Court Civil litigation, matrimonial, parental and grandparental child custody, visitation, child relocation, child support, domestic violence, elder law, adult guardianship and guardianship compliance enforcement proceedings.
Judge Borrelli Part of Panel Discussion on Rules Governing Judicial Conduct

Judge Edward P. Borrelli, a member of our Trusts & Estates, Matrimonial & Family Law, Appellate Practice and Mediation & Arbitration Practice groups, was part of a panel presentation by the New York State Judicial Institute entitled, “Rules Governing Judicial Conduct”, as part of a seminar for new judges.
Pozin, Smith, Steinman & Georgiou Join Firm and Start up Municipal Law & Land Use Group



We are pleased to advise that Daniel Pozin, Clinton B. Smith and Lester D. Steinman have joined the firm as partners and Anna L. Georgiou has joined the firm as counsel. They are all members of the firm’s newly created Municipal Law & Land Use group.
Boggio, Bramson, Brophy, Donelli, Gebhardt, Miller & Streng Selected as Super Lawyers




Seven of our lawyers have been selected Super Lawyers in the New York Metropolitan area. Gail M. Boggio has again been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Howell Bramson has again been selected in the fields of Estate Planning/Tax and Corporate Business. Joseph Brophy has again been selected in the fields of Personal Injury/Medical Malpractice, General, Estate & Trust Litigation. Kathleen Donelli has again been selected in the fields of Family Law/Collaborative Law/Appellate. Dolores Gebhardt has again been selected in the fields of Family Law/Collaborative Law/Appellate. Judge Sondra Miller has again been selected in the fields of Appellate/Family Law. Frank W. Streng has been selected in the fields of Estate & Trust Litigation and Estate Planning & Probate. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.
Miller Authors Article on Prenuptial Agreements for New York Law Journal

Hon. Sondra M. Miller, who has a national reputation on family law issues and leads our Mediation & Arbitration Practice Group and Appellate Practice group, authored an article for the New York Law Journal on Prenuptial Agreements entitled, “Come Live With Me and Be my Love…But Sign This Prenup!“
Boggio, Bramson, Brophy, Donelli, Gebhardt & Miller Selected as Super Lawyers



Six of our lawyers have been selected Super Lawyers in the New York Metropolitan area. Gail M. Boggio has been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Howell Bramson has again been selected in the fields of Estate Planning/Tax and Corporate Business. Joseph Brophy has again been selected in the fields of Personal Injury/Medical Malpractice, General, Estate & Trust Litigation. Kathleen Donelli has again been selected in the fields of Family Law/Collaborative Law/Appellate. Dolores Gebhardt has again been selected in the fields of Family Law/Collaborative Law/Appellate. Judge Sondra Miller has again been selected in the fields of Appellate/Family Law. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.
Judge Miller Receives Kay Crawford Murray Award

We are pleased to announce that Judge Sondra M. Miller, who leads our Mediation & Arbitration Practice Group and Appellate Practice group, received the Kay Crawford Murray Award on January 22, 2013. The award is given by the New York State Bar Association’s Committee on Women in the Law to celebrate “an individual who, in the spirit of Ms. Murray, recognizes the value of diversity in the legal profession and has committed to advancing the professional development of women attorneys.”
Bramson, Brophy, Donelli, Gebhardt & Miller Selected as Super Lawyers


Five of our lawyers have been selected Super Lawyers in the New York Metropolitan area. Howell Bramson has been selected in the fields of Estate Planning/Tax and Corporate Business. Joseph Brophy has again been selected in the fields of Personal Injury/Medical Malpractice, General, Estate & Trust Litigation. Kathleen Donelli has again been selected in the fields of Family Law/Collaborative Law/Appellate. Dolores Gebhardt has been selected in the fields of Family Law/Collaborative Law/Appellate. Judge Sondra Miller has been selected in the fields of Appellate/Family Law. Joe Brophy has also been selected as one of Westchester’s top 25 lawyers. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.
Judge Miller Co-Chairs Judicial Seminar on Social Media & Criminal & Family Law Cases

Hon. Sondra M. Miller, who leads our Mediation & Arbitration Practice Group and Appellate Practice group, and Co-Chairs the New York State Family Violence Task Force, co-chaired a judicial seminar entitled: “’Friend’ or Foe: Social Media and the New Cyber-Landscape of Criminal and Family Law.” The seminar was part of a summer series of web casts offered by the New York State Judicial Institute for judges and non-judicial staff. The program was presented live at the Judicial Institute in White Plains, at group-viewing sites in each of the New York City counties, and on-line.
Judge Miller is Recipient of 2011 Judge Learned Hand Award

On December 1, 2011 Hon. Sondra M. Miller was the recipient of the 2011 Judge Learned Hand Award by the Westchester Region of the American Jewish Committee (AJC). This was the first time that the Judge Learned Hand Award was presented by AJC’s Westchester Region. The award ceremony took place at Chappaqua Crossing (the former Reader’s Digest site), in Chappaqua, New York. AJC is the oldest and most respected human relations organization in the United States. AJC builds bridges, advances security, promotes human rights, supports Israel and strengthens Jewish life. For over fifty years, AJC has taken great pride in publicly acknowledging the accomplishments of outstanding members of the legal community who excel in their field and give generously of themselves to the larger community.
Boggio, Donelli & Gebhardt Elected Directors of Women’s Bar Association of State of New York

Gail M. Boggio, Kathleen Donelli and Dolores Gebhardt were elected and then sworn in as directors of the Women’s Bar Association of the State of New York.
Judge Miller Receives the “Above the Bar” Award & Selected as “Pace Setter”

Hon. Sondra M. Miller was selected as the “Pace Setter” and received the “Above the Bar” award on April 28, 2011 in White Plains, New York.
Judge Miller Speaks at Induction Ceremony of Justice Linda J. Christopher

Hon. Sondra M. Miller spoke at the Rockland County Courthouse in New City at the induction ceremony of newly elected Justice Linda J. Christopher.
Judge Miller Interviewed by New York Law Journal on “No Fault” Divorce

Hon. Sondra M. Miller was interviewed by the New York Law Journal as a spokesperson for various state and local bar groups who lobbied Albany legislators for an amendment of divorce law to permit “no fault” divorce. Judge Miller, who is also the Director of the Office of Family Services for the Office of Court Administration, organized the event in Albany, to remind legislators of the need to change the divorce laws and to highlight the near-unanimous support that the no-fault option has among bar groups. In her interview, Judge Miller also spoke of the difficulties the no-fault option faced in the current legislative session, since no-fault divorce is just one of a myriad of items vying for attention. In the interview, Judge Miller said: “They are not focused on this issue. And we, as a group, are at a disadvantage because we are not lobbyists.”
Judge Miller Joins Board of Legal Services of Hudson Valley

Hon. Sondra M. Miller has joined the Board of Directors of Legal Services of the Hudson Valley.
Miller Interviewed on Recommendations of Matrimonial Commission

Hon. Sondra M. Miller In the aftermath of the recent bribery conviction of former state Supreme Court Justice Gerald P. Garson, there has been substantial media coverage of the manner in which matrimonial and family law cases are litigated in the court system. Judge Miller, who headed the Matrimonial Commission formed by Chief Judge Judith S. Kaye, was interviewed by The Institute for Judicial Studies for both her observations on the case and efforts to implement the recommendations of the Matrimonial Commission. For excerpts of that interview, click at Interview. Click at Report to see the recommendations of the Matrimonial Commission.
Judge Sondra Miller Joins Firm and Leads the Firm’s Appellate and Mediation and Arbitration Practice Groups

We are pleased to announce that Judge Sondra M. Miller, retired from the Appellate Division, Second Judicial Department, as of January 1, 2006, has joined our Firm as Chief Counsel. Judge Miller is a member of the Firm’s Commercial Litigation and Matrimonial & Family Law groups and will lead the Firm’s appellate practice.
Mandatory Parent Education in Custody Cases: The Pilot Program
by Hon. Sondra M. Miller on 02/27/2020
Family Law Section of the Westchester County Bar Association
[Read in full]Matter of A.A. v. A., 2020 NY Slip Op 03468 (1st Dep’t 2020)

Guardianship Practice – Guardianship of Adult Child – Dispute Between Divorced Parents
McCarthy Fingar lawyers represent clients in the most difficult guardianship cases, including disputes over a guardianship of an adult child. While most people understand issues involving the care and custody of children is often front-and-center in a divorce case, sometimes even adult children with disabilities become collateral damage of a divorce as parents battle over guardianship of an adult child. This can happen for myriad reasons, including where well-meaning but ill-advised parents have a different vision for what kind of care the disabled child should receive. In Matter of A.A. v. A., Michael S. Kutzin, a partner of the firm whose areas of concentration include guardianship and Trusts & Estates, represented, on a pro bono basis, the mother of an incapacitated child in the appeal to the Appellate Division, First Department, of a lower court decision in which, after a divorce, the mother had been named the guardian for her daughter, J.A. The father had fought to become his daughter’s guardian and appealed the lower court decision, arguing that the daughter’s incapacity was brought on by the anti-psychotic medication that she was taking. The father further argues that he should have the right to take his daughter to a physician of his own choice, in his effort to demonstrate that it was the medicines that caused her illness. The mother, who had already prevailed in Family Court against such allegations when she obtained custody while the child was a minor, was named guardian in the lower court proceeding. Michael succeeded in having the father’s appeal denied on the grounds that the lower court had properly exercised its discretion in naming the mother as guardian and that he had no independent right to have his adult child brought to a physician of his choice to prove his case. The First Department uphold the lower court decision, finding that the mother “had been diligently caring for [the daughter] for years and appropriately attended to her needs, and the absence of any evidence supporting plaintiff’s claims of improper medical treatment . . . “
[Read in full]Matter of Merestead, ___ AD3d ___ (2d Dep’t 2020)
James K. Landau, Hon. Edward P. Borrelli, Frank W. Streng



Appellate Practice – Municipal Law & Land Use – Trusts and Estates – Motion to Intervene
McCarthy Fingar represents a diverse collection of clients, including municipal and governmental entities. Here, McCarthy Fingar’s interdisciplinary team of litigators, which included James K. Landau, Edward P. Borrelli and Frank W. Streng, succeeded in defeating an attempt by a neighboring landowner to intervene and obtained a dismissal of a petition filed by the firm on behalf of its client, the County of Westchester. By the petition, the County seeks to modify or extinguish certain restrictions on the use of Merestead, 130 acres of property donated to the County so that Merestead can better carry out the original intentions of the family that donated the property for various uses, including as a park. The Supreme Court, Westchester County, denied the neighboring landowner’s motion, and the landowner appealed to the Appellate Division, Second Department. The Second Department unanimously affirmed the decision of the motion court, agreeing that the motion to intervene was fatally defective because the neighboring landowner did not submit a proposed pleading with their motion. The Second Department also agreed with the motion court’s decision denying the motion without leave to renew on proper papers “since the proposed intervenors failed to show a real and substantial interest in the outcome of the proceeding.”
[Read in full]Mitarotonda v. Mitarotonda, ___ A.D.3d ___ (2d Dep’t 2019)

Matrimonial & Family Law – Child Custody – Appellate Practice – Constructive Emancipation
Our matrimonial lawyers often represent clients on financial issues relating to child custody. Here, Kristen Pennessi & Kathleen Donelli won an appeal in the Appellate Division in which the lower court denied a post-divorce judgment motion, brought by the noncustodial parent (the “father”), to stop paying the custodial parent (our client, the “mother”) child support based on constructive emancipation. Under the doctrine of constructive emancipation, New York courts have held that child support payments may be suspended where the “custodial parent unjustifiably frustrates the noncustodial parent’s right of reasonable access.” Kristen and Kathleen successfully argued that our client, the custodial parent, did not deliberately frustrate or actively interfere with the father’s relationship with his children. Therefore, the court ordered that the father continue to pay child support even though his children refused to have meaningful contact with him.
[Read in full]Mamaroneck Coastal Environmental Coalition v. Village of Mamaroneck Board of Appeals ___ A.D. 3d __ (2d Dep’t July 26, 2017).

Municipal Law & Land Use – Appellate Practice – Defending Land Use Board Decision
Developing a proper record and articulating detailed findings are the keys for our Municipal Law & Land Use lawyers to successfully defending local land use board decision making, both in the lower court and in the appellate court. Here, Petitioner brought an Article 78 proceeding challenging the ZBA’s determination to grant a special permit to the Hampshire Club to conduct nonmember events on its property as arbitrary, capricious and contrary to law. Representing the ZBA, Lester D. Steinman and Anna L. Georgiou successfully argued that the ZBA’s determination was rationally based and supported by substantial evidence in the record. The Supreme Court, Westchester County, (Jamieson, J.S.C.) agreed dismissing the Article 78 proceeding. On appeal, the Supreme Court’s determination was affirmed by the Appellate Division, Second Department.
[Read in full]Matter of Imperato, 149 A.D.3d 1072 (2d Dep’t 2017)

Appellate Practice – Surrogate’s Court Litigation – Property Turnover Proceedings – Statutes of Limitations
Our firm’s Surrogate’s Court Litigation group represents both fiduciaries and beneficiaries in Property Turnover Proceedings, and statutes of limitations issues frequently arise in such cases. Here, James K. Landau, who is also a member of our Appellate Practice and Commercial Litigation groups, convinced the Appellate Division, Second Department, to reverse the Surrogate’s Court order that had granted the executor’s motion for summary judgment against Mr. Landau’s client in an action alleging conversion, fraud, breach of fiduciary duty and the imposition of a constructive trust and denied Mr. Landau’s client’s cross-motion for summary judgment dismissing the petition. In reversing, the Second Department agreed with Mr. Landau’s argument that petitioner had failed to meet her prima facie burden of establishing her entitlement to judgment as a matter of law on the causes of action alleging fraud, breach of fiduciary duty and seeking the imposition of a constructive trust. The Second Department also agreed with Mr. Landau’s argument that his client’s cross-motion to dismiss the conversion cause of action in the petition should have been granted because it was not commenced within three years of the alleged conversion.
[Read in full]Village/Town Scarsdale v. Kreuter, 144 A.D.3d 1033 (2d Dep’t 2016)
Lester D. Steinman, Daniel Pozin


Municipal Law & Land Use – In Rem Tax Foreclosure – Appellate Practice
Our Municipal Law & Land Use lawyers know that attention to procedural details is critical for the exercise of municipal rights. Here, the Appellant challenged the Village of Scarsdale’s in rem tax foreclosure proceedings on the basis of, among other things, inadequate notice. Representing the village, Daniel Pozin and Lester D. Steinman, as special counsel to the village, persuaded the Appellate Division, Second Department, that the Appellant’s arguments were wrong, and the Second Department dismissing the appeal and the case.
[Read in full]Contest over Finder’s Fee for Sale of Commercial Real Estate

Appellate Practice – Commercial Litigation – Reduction on Finder’s Fee for Commercial Real Estate Sale
Our lawyers sometimes represent clients in disputes over finder’s and brokerage fees on real estate and business transactions. Here, Dina M. Aversano, together with Judge Sondra M. Miller and Dolores Gebhardt, wrote and prepared the appellate brief in the Appellate Division, Second Department, to seek to overturn the Supreme Court, Nassau County’s award, following a bench trial, of a $500,000 finder’s fee on a commercial real estate transaction. We argued that no such fee was warranted because of the lack of any causal relationship in the “finder’s” role in facilitating the eventual transaction. The Appellate Division Second Department awarded a downward modification of the fee.
Sylvan Development Corp. v. Westchester Joint Water Works, 853 N.Y.S.2d 918 (2d Dep’t 2008).

Tax Certiorari & Condemnation – Appellate Practice – Prior Negative Declarations Support Long, Hard Look
As part of their work, Tax Certiorari and Condemnation lawyers must understand environmental issues and their impact on a property’s valuation. Representing Westchester Joint Water Works (WJWW), Stephen Davis successfully upheld WJWW’s condemnation against attack from an alleged failure of WJWW to undertake adequate environmental considerations. Exercising its original jurisdiction, the Appellate Division sustained the argument that WJWW properly relied upon three prior negative declarations for the affected subdivision in discharging WJWW’s obligation to take and consider the required long, hard look at the project’s effect upon the environment.
[Read in full]Davis v. Willinger, 31 A.D.3d 429 (2d Dep’t 2006)

Surrogate’s Court Litigation – Appellate Practice – Post Nuptial Agreement Contest – Replacing Condo Unit Triggers Ademption
Our lawyers represent clients on dispute on prenuptial and post nuptial agreements. Here, in a declaratory judgment action involving an esoteric point of law, Stephen Davis and Joel M. Aurnou achieved an abatement of a surviving spouse’s contract with her husband to bequeath the proceeds of sale of the couple’s Miami Beach oceanfront condominium residence to her late husband’s daughter. Applying the ademption concept, the trial court – unanimously affirmed by the appellate court – ruled that the promise to bequeath pertained only to the condominium owned by the couple at the time of the promise, notwithstanding that they replaced their original condominium with another in the very same Collins Avenue condominium building.
[Read in full]Keiser v. Todd, 290 A.D.2d 492, 736 N.Y.S.2d 255 (2d Dep’t 2005)

Appellate Practice – Commercial Litigation – Real Estate Transactions – Option to Purchase Real Estate
If a dispute as to a real estate transaction cannot be settled, lawyers need skill and experience to win a case in court. In this matter, Robert H. Rosh successfully defended our client at both the lower court and appellate levels, in an action brought by a tenant to enforce a purported option to purchase our client’s real property. Rob moved for, and obtained, an order dismissing the tenant’s complaint. In support of its dismissal, the court held that the draft option agreement between the parties did not identify the property to be conveyed with sufficient particularity to satisfy New York’s Statute of Frauds, General Obligations Law §5-703(2), and was therefore unenforceable.
Following our client’s victory, the tenant refused to vacate the premises and Rob successfully pursued on our client’s behalf a proceeding that resulted in the eviction of the tenant from the premises.
[Read in full]Frankel v. Ford Leasing Dev. Co., 7 A.D.3d 757, 776 N.Y.S.2d 905 (2d Dep’t 2004)

Commercial Litigation – Appellate Practice – Statute of Frauds on Real Estate Transaction
Our lawyers defend clients on unwarranted lawsuits for enforcement of alleged contracts. Here, Robert H. Rosh successfully defended an action that was brought against his client for specific performance of a contract to sell real property. Rob moved for and was awarded summary judgment dismissing the action. On appeal, the lower court’s decision was affirmed, finding that the parties never had a meeting of the minds, and that the documents which had been relied upon by the plaintiff in support of his claim had omitted essential terms of a contract; and, thus, the claim was barred under the statute of frauds. The appellate court also found that the actions taken by the plaintiff were not unequivocally referable to a contract of sale so as to constitute part performance sufficient to defeat the statute of frauds, and were merely steps taken in contemplation of a future agreement.
[Read in full]Papadopolous v. Goldstein, Goldstein & Rikon, P.C., 283 A.D.2d 649, 725 N.Y.S.2d 364 (2d Dep’t 2001), appeal denied, 97 N.Y.2d 677

Commercial Litigation – Appellate Practice – Attorney Fee Dispute
In this case, Robert H. Rosh and Robert M. Redis successfully represented two (2) individuals at both the lower court and appellate levels in a fee dispute with their former counsel involving a condemnation proceeding. The dispute arose after the individuals discharged their former counsel and negotiated a sale of their properties on their own. The court held that the individuals had the right to settle their case on their own, and that their former counsel were only entitled to recover in quantum meruit for the legal services rendered to the individuals in connection with the condemnation proceeding.
[Read in full]Matter of Marsh, 265 A.D.2d 253 (1st Dep’t 1999), app. denied, 95 N.Y.2d 755 (2000), app. dismissed, 95 N.Y.2d 956 (2000), cert. denied, 532 U.S. 1038, 121 S. Ct. 1999, 149 L.Ed.2d 1002 (2001)

Surrogate’s Court Litigation – Appellate Practice – Contested Accountings
Our lawyers often represent beneficiaries in contested accountings of executors and trustees. In one such case, Frank W. Streng and Robert M. Redis succeeded at the trial court level and obtained a surcharge against a former executor in excess of $1.6 million and an award of attorneys fees against that former fiduciary in the amount of $250,000. Bob and Frank then succeeded in upholding the Surrogate’s Court’s determinations on all appeals.
[Read in full]Hudson Communities Coalition, Inc. v. New York State Office Parks, Recreation & Historic Preservation, 251 A.D.2d 504, 673 N.Y.S.2d 595 (2d Dep’t 1998)

Commercial Litigation – Appellate Practice – Article 78 Proceeding – Nursing Home
Our lawyers represent clients in disputes over different types of real estate matters. Here, Robert H. Rosh and Robert M. Redis intervened on behalf of St. John’s Riverside Hospital and successfully defended it in the lower court in an Article 78 proceeding, and on an appeal to the Appellate Division, Second Department. In this case, a coalition sought to overturn certain administrative determinations as to the siting and design of St. John’s proposed nursing home facility in Yonkers, New York.
[Read in full]Matter of Marsh, 236 A.D.2d 404 (2d Dep’t 1997)

Surrogate’s Court Litigation – Appellate Practice – Will & Trust Contests
McCarthy Fingar often represents clients in Will & Trust Contests. Frank W. Streng, as counsel to the named executor, successfully defended against objections to the filing of a Codicil to the Decedent’s Will. At trial, a jury upheld the Codicil to the Decedent’s Will and threw out objections made to such Codicil by one family member. On appeal, we persuaded the Appellate Division, Second Depatment, to uphold the trial judge’s refusal to set aside the jury verdict.
[Read in full]Lefkowitz v. The Bank of New York as Preliminary Executor of Estate of Irene B. Marsh et al., 996 F.2d 600 (2d Cir. 1993)

Surrogate’s Court Litigation – Appellate Practice – Taxation – Spousal Consent – Challenge of Beneficiary Designation on Qualified Plan
Our lawyers often represent clients in dealing with beneficiary designations on pension and qualified plans. In one such case, Howell Bramson, Robert M. Redis and other lawyers at the firm successfully represented a surviving spouse’s estate and persuaded the lower court to invalidate a beneficiary designation on a qualified plan for the Decedent’s child (to the exclusion of the decedent’s spouse) on the grounds that the beneficiary designation violated the spousal consent rules under ERISA. The trial court’s determination was upheld, on appeal, by the Second Circuit Court of Appeals. The appeal also deal with significant legal questions, such as the applicability of ERISA to controlled foreign corporations and whether these sufficiently implicated the Interstate Commerce Clause of the United States Constitution.
[Read in full]Matter of Marsh, 173 A.D.2d 336 (1st Dep’t 1991), app. dismissed, 78 N.Y.2d 990, mot. for lv. to appeal denied, 79 N.Y.2d 751

Surrogate’s Court Litigation – Appellate Practice – Fiduciary Removal – Business Issues
Our lawyers often represent beneficiaries that suffer financial injury through improper actions of executors and trustees. Here, Frank W. Streng represented a beneficiary at a trial to obtain the removal of a preliminary executor who had acted improperly in the administration of the estate. The removed fiduciary appealed, and Frank and other McCarthy Fingar lawyers, Robert M. Redis and Deborah Yurchuck McCarthy, successfully persuaded the appellate court to affirm the trial court’s decision to remove the fiduciary.
[Read in full]Matter of Hickok, 140 Misc. 2d 650 (Surr. Ct., Orange 1989), affirmed, 158 A.D.2d 690 (2d Dep’t 1990), mot. for lv. to appeal denied, 76 N.Y.2d 712

Surrogate’s Court Litigation – Appellate Practice –Contested Accountings – Interpretation of Decedent’s Will
Often, there are issues on the interpretation of a Decedent’s Will that can have large effect on the Decedent’s testamentary plan. In this case, Frank W. Streng, and other lawyers at the firm represented children of a Decedent’s first marriage in litigation against the Decedent’s surviving spouse where the surviving spouse sought (unsuccessfully) to obtain an interpretation of her husband’s Will which would have effectively excluded the Decedent’s children as beneficiaries under the Will. The other side appealed, and the appelate court affirmed the lower court ruling.
[Read in full]Southern Westchester Associates v. Assessor of City of Yonkers, 122 A.D.2d 212 (2d Dep’t 1986)

Tax Certiorari & Condemnation – Appellate Practice – Cooperative Apartment Conversion Valued By Imputing Rental Value
Tax Certiorari and Condemnation cases almost always involve the use of experts to establish value. Here, Stephen Davis successfully used an expert to establish rental value for apartments in a cooperative apartment buildling conversion as part of the capitalization of income process. At the taxpayer’s behest, the court applied a remedial statute designed to avoid use of sales prices for each unit, the effect of which would make the sum of the parts worth more than the whole, i.e., worth more than a neighboring similar apartment building. Instead, the rental value, rather than the so-called conversion value, was considered to be the best measure of value. Then, Steve convinced the Appellate Division to affirm the lower court ruling.
[Read in full]Matter of McKinney, 117 Misc. 2d 173 (Surr. Ct., Westchester 1982), affirmed, 101 A.D.2d 477 (2d Dep’t 1984), mot. for lv. to appeal denied, 63 N.Y.2d 607

Surrogate’s Court Litigation – Appellate Practice – Taxation – Interpretation of Decedent’s Will – Allocation of Estate Taxes
Sometimes, the tax apportionment clause – an often overlooked clause in a will – has a huge impact on the actual distributions under a will. In this case, Frank W. Streng and others at the firm successfully represented a major health care institution in a contested accouting proceeding in which we challenged the executors’ interpretation of the decedent’s tax apportionment clause in her Will. The charitable beneficiary would have been deprived of hundreds of thousands of dollars of its proper share of a multi-million dollar estate had the executors’ interpretation been adopted. The lower court opinion was affirmed by the appellate court.
[Read in full]Sear, Roebuck & Co. v. Assessor of City of White Plains, 66 A.D.2d 777 (2d Dep’t 1978)

Tax Certiorari & Condemnation – Appellate Practice – User Owned Building Valued By Rental Value, Not Cost
The valuation technique used by Tax Certiorari & Condemnation lawyers is the key to success or failure of their cases. Here, Stephen Davis successfully obtained a tax assessment reduction for property owned by the user department store permitted by capitalizing rental value. He did so through the use of expert testimony on rental values, rather than employing a cumbersome reconstruction cost methodology that would have likely resulted in a higher valuation for the client’s property. Steve then won on the appeal.
[Read in full]Almar Realty Corp. v. Sockolof Bros., 35 A.D.2d 986 (2d Dep’t 1970), aff’d, 29 N.Y.2d 735 (1971)

Commercial Litigation – Appellate Practice – Landlord/Tenant – Tax Base Mutual Ignorance Fails To Support Reformation
Stephen Davis and Joel M. Aurnou prevailed in a reformation action by distinguishing mutual ignorance from mutual mistake of fact. The result was their client’s warehouse tenant paying a real estate tax escalation rental over a base of a vacant land assessment and not against a base assessment of the completed warehouse building.
[Read in full]Ercolani v. Sam & Al Realty Co., 17 N.Y.2d 299 (1966)

Commercial Litigation – Appellate Practice – Foreclosure – Surplus Monies for General Creditors
Representing a creditor, Stephen Davis successfully persuaded the Court of Appeals to reverse a decision of the Appellate Division, Second Department. Upon reversal, the lower court was compelled to recognize the right of general creditors to intervene in opposition to a referee’s report of sale, in order to restore what should have been surplus moneys from which the creditors’ claims could then be paid.
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Cannabis Law — Licensing, Ethics and Developing Case Law |
11/24/2020 | |
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Attorneys in Social Media |
03/13/2020 | |
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Litigation Trends in the Cannabis Industry |
02/28/2020 | |
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Mandatory Parent Education in Custody Cases: The Pilot Program |
Family Law Section of the Westchester County Bar Association |
02/27/2020 |
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“Ethics” and “Diversity Training” |
02/25/2020 | |
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Judicial Ethics Update – 2020 |
02/17/2020 | |
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Budding Cannabis and CBD Litigation: Are You Ready for the Green Wave Heading Towards New York? |
Commercial and Federal Litigation Section of the New York State Bar Association |
01/29/2020 |
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The Developing Commercial Cannabis Case Law |
Committee on Cannabis Law of the New York State Bar Association |
01/28/2020 |
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Judicial Ethics |
NYS Judicial Institute, Unified Court System Certification Program for Newly-elected Town and Village Justices. |
01/07/2020 |
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Assuming the Bench – Judicial Ethics |
Unified Court System Certification Program for Newly-elected Town and Village Justices |
12/06/2019 |
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How Judicial Ethics Issues impact your Law Practice |
Pace Law School (Elisabeth Haub School of Law) |
11/26/2019 |
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Judicial Ethics |
NYS Association of Supreme Court Justices |
09/18/2019 |
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Judicial Ethics Update – 2019 |
NYS Magistrates’ Association |
09/17/2019 |
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Dinner Speaker |
Association of Supreme Court Justices of the City of New York |
09/11/2019 |
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Impending Legalization of Cannabis 2019: The Buzzz for Businesses |
FPA Greater Hudson Valley Chapter, Westchester County Bar Association and Westchester Chapter of the New York State Society of CPAs |
06/18/2019 |
![]() Hon. Edward P. Borrelli |
2019 Judicial Campaign Ethics Online Training Video |
05/29/2019 | |
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Impending Legalization – Hot Topics in Cannabis Law |
Celesq and West LegalEdcenter |
05/08/2019 |
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Impending Legalization – Hot Topics in Cannabis Law |
Cannibas Law Committee of the Westchester County Bar Association |
04/11/2019 |
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Ethics in Social Media 2019 |
03/15/2019 | |
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What’s New in the Second Department |
10/16/2018 | |
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Judicial Ethics |
New York State Unified Court System |
04/13/2018 |
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“Judicial Ethics Updates” “Ethics: Civic Participation Limitations” |
02/19/2018 | |
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“Who Owns Your DNA: Property, Privacy and the Cancer Battle” |
Judges and Lawyers Breast Cancer Alert, Memorial Sloan-Kettering Cancer Center, Manhattan |
11/10/2010 |
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Keynote Speaker |
New York, New York, The Family & Divorce Mediation Council of Greater New York |
11/08/2007 |