Jim is an attorney and currently serves as Westchester County Consumer Protection Director. He served as a County Legislator for 2 decades and is a USMC Vet. Jim previously practiced law for 25 years in areas of commercial litigation, wills & estates and real estate. He shares thoughts here on legal issues.
Contact Info: JMaisanoEsq@gmail.com or 914-636-1621.
I bet you always wondered if there was an expiration date on a winning bet or lottery ticket? Well, this article from FindLaw's Blog at the following link provides you with a nice explanation of the important question:
"When Is It Too Late to Cash a Winning Bet or Lottery Ticket?"
Outside of a few vacation days for family trips and events, it was a very busy summer at my law firm, but Labor Day has come and gone, and it is time for a new legal blog post.
Before starting this firm, I worked at two large law firms in Manhattan for about eight years, and while I did have my own clients, I also worked for clients of the firm. Being a solo practitioner is different in that you must not only provide quality and affordable legal services to your clients, you must also attract clients through advertising and promotion of the firm. I have utilized social media, Facebook, Twitter, LinkedIn, Google+ and Tumblr - along with this blog and my website (www.JamesMaisanoEsq.com), as integral parts of promoting the firm, and I am pleased to report it has been successful to the point that the firm is doing well in its second year, which is why it has been so busy.
So what kinds of legal work have clients brought to my firm recently - here is a brief summary:
Since I began practicing law in 1992, the majority of my practice has involved commercial litigation. This includes helping businesses address contract disputes and collecting money owed by debtors. I am currently working on about ten such civil actions, which have been brought either in lower courts or the Supreme Court of the State of New York, and I have been successful for several clients thus far in recovering funds.
I was a solo practitioner from 1996 to 2002 and during that time I developed a significant real estate closing practice. The housing market was strong in those years and I represented hundreds of clients for closings. With the struggling economy and lack of home sales, it is much harder for attorneys to attract this work, but I am happy to report that I worked on three closings this summer.
The fastest growing part of my practice is wills, estates and probate actions in Surrogate's Court. This summer I helped about fifteen clients by drafting wills or guiding executors through the probate process.
Lastly, solo practitioners must be resourceful, and I also helped clients this summer with other legal matters such as setting up a LLC or corporation, legal name change, trademark protection, and traffic violations.
Thanks for following my efforts to build this law firm, and I am very thankful for the kind support and nice comments I have received on social media or by email. If I can ever be helpful to you in the types of legal matters discussed above, or for any other legal matter, please do not hesitate to contact me.
PS: I am now associated with an immigration attorney, and am available to help you with these matters too.
James Maisano, Esq.Jim@JamesMaisanoEsq.comwww.JamesMaisanoEsq.com(914) 636-1621
As both an attorney and elected official, people often ask me about the process to get on the ballot to run for public office in New York State. Most people seem to think that a candidate gets endorsed at a political convention, but that is only partly true. While candidates do seek the endorsement of political parties at local or county conventions, that endorsement only means that the district leaders for that political party will support you and help you get on the ballot (which is very important).
However, unless you are running for state-wide office (senator, governor, attorney general or comptroller, who are nominated at state conventions), you must obtain signatures on “designating petitions.” This is the requirement for congress, state legislature, county legislature or local city and town elections (but not villages or supreme court). We are in the final week to collect signatures on designating petitions for New York’s five established parties — Democrat, Republican, Conservative, Working Families and Independence. As a matter of fact, I walked my neighborhood this past Sunday night and collected signatures.
What do I mean by designating petitions? New York State Election Law sets forth the required procedures to collect the signatures on the designating petitions and to get on the ballot — see NYS Election Law Sections 6 – 118, 120, 122, 130, 132, 134, 136, 144 & 146. The Election Law requires candidates to obtain signatures of 5% of the registered voters in the district from the political party whose line they seek. Most candidates try to get about 10% to avoid any legal challenges. Therefore, since the first week of June, volunteers for candidates of all political parties have been ringing door bells and asking voters to sign designating petitions that will get candidates on the ballot, and this Thursday is the deadline to file these petitions with the Board of Elections.
For example, last year I needed about 375 signatures to run for re-election to the Westchester County Board of Legislators on the Republican line, and we were pleased to file more than 700 signatures.
If you are a registered voter in a political party and meet the 5% signature requirement from members of that party, you are on the ballot. If more that one candidate files petitions for a particular seat, they will face-off in a primary in mid-September. For candidates without primaries, they go straight to the November election.
What about seeking the lines of parties for which you are not a member? If you wish to run with a party line besides your own, you must meet the 5% signature requirement, as well as get permission from that party to run on its line.
And if you think your opponent’s designating petitions do not contain enough proper signatures to meet the required number, you can try to knock out those petitions with a legal challenge.
Every candidate across party lines can agree on one thing –- they are incredibly thankful for the great volunteers that have been carrying these designating petitions over the past six weeks. Many dedicated people have worked diligently to get candidates on the ballot for this November — so that voters have a real choice on Election Day. I have been carrying petitions for about twenty years now and am happy to report that most people are friendly in the doorway (but yes, there are a few cretins who are rude or too “busy” to participate in democracy). Thanks so much to all the wonderful volunteers carrying the petitions and to the helpful voters who signed them — you all play an important role in our democratic electoral process. Best of luck to all the candidates this year (especially the ones I am supporting)! James Maisano, Esq.Jim@JamesMaisanoEsq.comwww.JamesMaisanoEsq.com(914) 636-1621
On this blog and my firm’s Facebook page (www.facebook.com/JamesMaisanoEsq), I have been focusing on a few important U.S. Supreme Court decisions that were being closely watched by the legal and political worlds. Over the past week, the Supreme Court has released three of these decisions:
Arizona v. U.S.
The Court confirmed that “the Government of the United States has broad, undoubted power over the subject of immigration and the regulation of aliens . . . the federal power to determine immigration policy is well settled.” However, the Court did open the door for states to assist the federal government in the enforcement of immigration laws.
A unanimous Court (8-0 with Justice Kagan not taking part) upheld Section 2(B) of the Arizona law requiring police officers to check the immigration status of anyone arrested or detained and allowing them to stop and arrest a person if the officers have “reasonable suspicion” that the person is an illegal immigrant (known as “show me your papers”). The Court stated there was no showing that this section conflicted with federal immigration law.
The public debate over Section 2(B) being used for racial profiling in violation of the Equal Protection Clause was not addressed by the Court here, and this issue appears to be reserved for future review, although the Court did state and accept that the Arizona law specifically bars its use in racial profiling.
On split decisions, the Court rejected other sections of the Arizona law:
making it a crime for unauthorized immigrants to fail to carry registration papers and other government identification (6-2).
prohibiting those not authorized for employment in the US to seek or perform work (5-3).
authorizing police to arrest illegal immigrants without a warrant where “probable cause” exists that they committed any public offense (5-3).
There was some interesting debate around the internet and media among Supreme Court observers on the rather strong and somewhat politically charged dissent of Justice Scalia, who argued that the entire law should be upheld, and it makes for some interesting reading. Here is the link to Justice Kennedy’s majority decision and dissents: http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf
FCC v. Fox:
A unanimous Supreme Court (8-0 with Justice Sotomayor not taking part) sided with Fox over the FCC in holding, “The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.”
This is a narrow decision on due process grounds. The Court avoided the overarching constitutional challenge to such FCC regulations on 1st Amendment grounds and held that the subject regulations (addressing nudity and profanity) were vague because the FCC failed to give broadcasters fair notice of the changes to its regulations and implementation. Here is a link to Justice Kennedy’s decision:
In this narrow 5-4 ruling in a case addressing the evaluation of legislative history, the Court held that the federal Fair Sentencing Act, which reduced the disparities in the length of sentences for cocaine offenses, applies to defendants whose cocaine offenses occurred before the law went into effect, but were sentenced after the law’s effective date.
Here is a link to Justice Breyer’s decision and dissent:
This Thursday morning we will have the opportunity to review the final two cases we have been waiting for, which address Obamacare and its individual mandate and potential free speech issues with a federal law prohibiting lying about your military record. I will be posting again soon about these two interesting cases. James Maisano, Esq.Jim@JamesMaisanoEsq.comwww.JamesMaisanoEsq.com(914) 636-1621
Last week, I highlighted the six interesting cases to be decided prior to the U.S. Supreme Court ending its session over the next month. One of these decisions, Reichle v. Howards, was released this past Monday, June 4.
Upon a quick review of the media coverage, the decision is viewed as a narrow ruling. The petitioners are two Secret Service agents on assignment protecting Vice President Cheney, and they arrested the respondent following an encounter with the Vice President relating to his objections to the war in Iraq. Based on physical contact with the Vice President, the respondent was arrested. The respondent then brought a First Amendment claim for retaliatory arrest against the petitioners, and the main question presented was whether the agents had qualified and absolute immunity from said action.
“Sparing two Secret Service agents the legal chore of defending themselves at a civil trial, the Supreme Court on Monday chose to leave unanswered the power of police or federal agents to arrest a political protester whose views the officers find objectionable. Instead, the Court ruled only that these two agents were legally immune because they had no warning in 2006 that they might face a lawsuit if they retaliated by arresting an individual who approached then-Vice President Dick Cheney and complained about the war in Iraq.”
A common phone call to my law office is: “My mother/father passed away, and I’m the executor in the will, what do I have to do?”
As the designated executor in a will, you will need to file a petition, along with supporting documents, in the Surrogate Court in the county where the deceased resided. (This post only addresses NYS law). The petition will seek a decree granting probate and letters testamentary – official court documents legally appointing you as executor, so that you can conduct financial and other transactions on the estate’s behalf. When filing the petition, you are agreeing to act responsibly in a fiduciary capacity in the best interests of the estate and to fully follow the deceased’s wishes in the will.
I recommend retaining an attorney at the outset to represent the estate and guide you through the probate process. You will need to assemble documents, including an original death certificate; the original will (and codicils, if they exist); original trust documents (if they exist); addresses for executors and beneficiaries in the will; and an itemization of assets such as personal property and real property (home, coop or condo) in the deceased’s estate.
You will need to pay a fee to start your probate action in Surrogate Court on a sliding-scale based on the amount of the estate, and it varies from about $420 to $1,250. You will also need to open up a bank account for the estate.
After the Surrogate Court grants you the letters testamentary, you will begin liquidating the personal and real property and deposit the money into the estate bank account, so that it can be distributed to the beneficiaries as set forth in the will. When you are finished distributing the estate, you will need to file an inventory of assets and affidavit of completion with the Surrogate Court to demonstrate that the will has been fully complied with. You will also be responsible for filing any federal and state tax returns for the estate.
This is merely a general summary of issues to be addressed when you are the executor named in a will. Of course, the issues discussed here can be more complicated, and I have not mentioned every possible issue you may face. However, once again, an executor should meet with an attorney as soon as possible after the death to discuss the estate and probate process. And please feel free to contact me if you have any questions about this post or the probate process.
Over the next month, we should be able to review several key decisions of the U.S. Supreme Court. The Supreme Court usually finishes releasing their decisions for the previous term in June. Here are the six cases we will be reading about soon. For each case, you can find the date argued, a link to entire docket (thanks to the ABA website) and the question(s) presented to the court:
1. Arizona v. United States – Argued April 25, 2012
Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) to address the illegal immigration crisis in the State. The four provisions of S.B. 1070 enjoined by the courts below authorize and direct state law enforcement officers to cooperate and communicate with federal officials regarding the enforcement of federal immigration law and impose penalties under state law for non-compliance with federal immigration requirements.
The question presented is whether the federal immigration laws preclude Arizona’s efforts at cooperative law enforcement and impliedly preempt these four provisions of S.B. 1070 on their face.
2. Dorsey v. United States & Hill v. United States – Argued April 17, 2012
Did the Seventh Circuit err when, in conflict with the First and Eleventh Circuits, it held that the Fair Sentencing Act of 2010 does not apply to all defendants sentenced after its enactment?
Whether the District Court erred in not sentencing the Defendant-Petitioner pursuant to the “Fair Sentencing Act of 2010″ where Petitioner was sentenced on December 2, 2010 after the effective date of the FSA and the amendments to the Sentencing Guidelines mandated by the FSA?
3. National Federation of Independent Business v. Sebelius & Florida v. Department of Health and Human Services – Argued March 26-28, 2012
Congress effected a sweeping and comprehensive restructuring of the Nation’s health-insurance markets in the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 109 (2010) (collectively, the “ACA” or “Act”). But the Eleventh Circuit and the Sixth Circuit now have issued directly conflicting final judgments about the facial constitutionality of the ACA’s mandate that virtually every individual American must obtain health insurance. 26 U.S.C. § 5000A. Moreover, despite the fact that the mandate is a “requirement” that Congress itself deemed “essential” to the Act’s new insurance regulations, 42 U.S.C. § 18091(a)(2)(I), the Eleventh Circuit held that the mandate is severable from the remainder of the Act.
The question presented is whether the ACA must be invalidated in its entirety because it is non-severable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.
Petitioners, two Secret Service agents on protective detail, arrested respondent following an encounter with Vice President Richard Cheney. Petitioners had probable cause to arrest respondent, who in violation of 18 U.S.C. § 1001 falsely denied making unsolicited physical contact with the Vice President. Respondent thereafter brought a First Amendment retaliatory arrest claim against petitioners. The questions presented are:
Whether, as the Tenth Circuit siding with the Ninth Circuit held here, the existence of probable cause to make an arrest does not bar a First Amendment retaliatory arrest claim; or whether, as the Second, Sixth, Eighth, and Eleventh Circuits have held, probable cause bars such a claim, including under Hartman v. Moore, 547 250 (2006).
Whether the Tenth Circuit erred by denying qualified and absolute immunity to petitioners where probable cause existed for respondent’s arrest, the arrest comported with the Fourth Amendment, it was not (and is not) clearly established that Hartman does not apply to First Amendment retaliatory arrest claims, and the denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President.
5. United States v. Alvarez – Argued February 22, 2012
Section 704(b) of Title 18, United States Code, makes it a crime when anyone “falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.”
The question presented is whether 18 U.S.C. 704(b) is facially invalid under the Free Speech Clause of the First Amendment.
6. FCC v. Fox Television Stations – Argued January 20, 2012
Whether the court of appeals erred in invalidating a finding by the Federal Communications Commission (FCC) that a broadcast including expletives was indecent within the meaning of statutory and regulatory prohibitions on indecent broadcasts, on the ground that the FCC’s context-based approach to determining indecency is unconstitutionally vague in its entirety.
Whether the court of appeals erred in invalidating a finding by the FCC that a broadcast including nudity was indecent within the meaning of statutory and regulatory prohibitions on indecent broadcasts, on the ground that the FCC’s context-based approach to determining indecency is unconstitutionally vague in its entirety. James Maisano, Esq.Jim@JamesMaisanoEsq.comwww.JamesMaisanoEsq.com(914) 636-1621
A Minnesota attorney contact from Google+ has a very nice summary on his blog about the issues a defendant faces when accused of illegally downloading a movie, video or song from the internet. Please check out the blog of Aaron D. Hall, Esq.:
Mr. Hall provides a helpful summary on how to evaluate one of these copyright infringement lawsuits, which are usually brought by a big company against a regular person, without the financial resources to battle a team of corporate attorneys.
He makes a good recommendation to communicate directly to the plaintiff’s attorney upon being sued to see if you can work out a settlement, but speak with an attorney before making such a communication to avoid saying something that could hurt you later in the litigation.
An organization with an interesting website is the Electronic Frontier Foundation – www.eff.org. It has an informative page about what to do when notified by your Internet Service Provider (ISP) that due to a subpoena it released your name to a company alleging that you have illegally downloaded copyrighted works, such as movies, videos or songs. Here is the link: www.eff.org/issues/file-sharing/subpoena-defense.
However, of course, the best advice anyone can give you is to be very careful whenever downloading potentially copyrighted items off the internet. When in doubt – don’t download.
If you want to learn more about copyright law and rules, check out the U.S Copyright office at: http://www.copyright.gov/circs/circ01.pdf. In general, having a copyright means a party has the exclusive right to make copies, license, and otherwise utilize a literary, musical or artistic work, whether printed, audio or video, and that work cannot be illegally copied.
James Maisano, Esq.Jim@JamesMaisanoEsq.comwww.JamesMaisanoEsq.com(914) 636-1621
I am dedicating this post to my dog Marlee, because I would bring the same action here in New York if someone caused her death. I am referring to a National Law Journal article that discusses a Colorado case that makes it clear that dogs are more than just property.
In this Denver case, a dog owner sued a house cleaning company, which let her dog, Ruthie, get away and be hit by a car, despite the owner giving specific instructions to not let the dog outside except for the backyard. She sued for negligence and emotional distress and was awarded $65,000. I note these heartless workers merely brought Ruthie inside after she was hit and did not bring her to a vet or even notify the owner the dog was injured. This evidence of negligence was very helpful to plaintiff’s case.
This appears to be a precedent-setting case because courts around the country have a history of treating pets like property such as furniture, by ruling they are only worth replacement value. It appears this case is the highest award for a pet owner in Colorado history.
The article quotes plaintiff’s counsel Jennifer Edwards (and founder of The Animal Law Center), “The ruling sets a damages precedent that animals are worth more than their replacement value. When we lose a pet, we do suffer emotional distress and heartache, just as we would with any other member of our families.”
The article also mentions a recent ruling by a Texas appellate court that modified a 120-year-old precedent where plaintiffs could only recover an animal’s market value. The court held that, “Because of the special position pets hold in their family, we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet at least to the same extent as any other personal property.” This holding allows plaintiffs to seek awards based on intrinsic or sentimental value.
Because I wear two hats in my professional life (lawyer & legislator), I am going to bring this issue to the New York State Legislature and see if we need to adjust New York State law to ensure that pet owners can seek these types of damages when losing a pet due to negligence. We lost our dog Oakley to natural causes last year and that was hard enough – it would have been incredibly worse if he died due to another person’s negligence. James Maisano, Esq.Jim@JamesMaisanoEsq.comwww.JamesMaisanoEsq.com(914) 636-1621