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Two New Online Legal Research Tools

Checkmark There are two new and free online legal research tools:

  • The Public Library of Law:  Via Fastcase access to cases from the U.S. Supreme Court, Courts of Appeals Cases from all 50 states back to 1997, federal statutory law and codes from all 50 states, and  regulations, court rules, constitutions, and more.
  • AltLaw: Provides searchable text of the last few decades of U.S. Supreme Court and federal appellate decisions.

Hat tip: Above the Law.

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Define That Term #271

Dictionary_2 Last Sunday's term was expropriation, which is defined as:

n. a taking of property or rights by governmental authority such as eminent domain, possibly including an emergency situation, such as taking a person's truck or bulldozer to build a levee during a flood. In such a case just compensation eventually must be paid to the owner, who can make a claim against the taker. See also: eminent domain.

Edward Wiest's guess was awfully close.

Today's term is:

tenancy at sufferance.

As always, no dictionaries, please.


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Legal Bits and Bytes--The Many Benenfits of a Remote Office

In this video I discuss how a remote office/flexible work schedule can actually be beneficial for both the employee and the employer in times of illness.  This video is cross-posted at my new blog, Women Lawyers--Back on Track.

And, just to clarify my goals in creating these videos--I try to do them in one take and interruptions in the form of people smaller than myself, aka my offspring, occassionally occur. So, for example, when I appear to "shush" the camera in this video, rest assured, that's not the case!


Test Tube Babies Can Be Trust Fund Babies, Too

Erandisi_2_3_2      Technology has drastically changed the ways in which children can be conceived, and children can now be conceived in a laboratory long after one or both parents have died.  Trusts and Estates law, however, has been slow to catch up, and has not always followed the scientific trend.  The New York State Estates, Powers, and Trusts Law (EPTL) will only recognize a child born after its parent's death if the child was conceived during the parent's lifetime (i.e., father dies while mother is pregnant) (EPTL Secs. 4-1.1(c), 5-3.2).  In fact, by a 2006 amendment, the EPTL specifically excludes children who are conceived after the parent's decease, unless there is some written evidence that the deceased intended for the after-born children to come into being (EPTL Sec. 5-3.2).  However, the statute specifically applies to "children," not to any other category of descendant.

     In Matter of Martin B., 2007 NY Slip Op. 27306, 841 N.Y.S.2d 207 (Surr. Ct. N.Y.Co., July 30, 2007), Martin set up trusts in the 1960s that were designed to "sprinkle" money to his"issue" and "descendants" after his wife's decease.  During Martin's lifetime, his son, James, was diagnosed with Hodgkin's Lymphoma, and died.  Before James died, he had some of his semen cryopreserved, with the instructions that it be used by his wife according to her discretion.  Martin died shortly after James.

     Several years later, James's widow, Nancy, was artificially inseminated with the semen on two different occasions, and gave birth to two sons.  The question before the Court in this case was whether Martin's trusts could in the future "sprinkle" money to the two post-conceived grandsons, after the decease of Martin's widow.

        The Court reviews the laws of several jurisdictions, including the District of Columbia and New York, which allow "posthumous" children to share in such a future estate, but do not specifically address the issue of post-conception.  The Court then looks to the Uniform Probate Act (UPA), and the statutes of Louisiana, California, and California, which require specific steps be taken, generally in writing, to ensure that the post-conceived child will inherit.  In addition, the Court points out that Massachusetts, New Jersey, and Arizona have concluded that post-conceived children are entitled to Social Security benefits.

     The Surrogate concludes that the EPTL does not exclude Martin's post-conceived grandchildren, and public policy does not prevent them from inheriting.  Therefore, the two children of Nancy and deceased James are "issue" and "descendants" of their grandfather for purposes of the trusts.

     The Surrogate ends by sending copies of her decision to the Chairs of the State Senate and Assembly Judiciary Committees, with a call for legislation one way or another.

     Interesting celebrity footnote:  the guardian ad litem for the grandchildren is listed as "Mario Cuomo, Esq."

-Authored by Elizabeth Randisi, a Rochester, New York attorney associated with the law firm WeinsteinMurphy.  Her practice focuses on Trusts and Estates and elder law.

The New York Legal News Round Up

Latest_news It's just a few days until the weekend and time for the round up of interesting New York legal news headlines:

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It all depends on how you define ‘marriage’

Drlogo11_2 This week's Legal Currents column, which is published in The Daily Record, is entitled "It all depends on how you define ‘marriage’ "  The article is set forth in full below and a pdf of the article can be found here.

My past Legal Currents articles can be accessed here.


It all depends on how you define ‘marriage’

Last week, in Martinez v. County of Monroe, 2008 NY Slip Op. 00909, the Appellate Division, Fourth Department held that valid marriages of same-sex couples performed in other jurisdictions must be recognized in New York.

In Martinez, the plaintiff sued her employer, Monroe Community College (MCC), seeking, in part, a declaration that MCC was required to recognize her valid Canadian marriage to her same-sex partner and provide her partner with spousal health care benefits.

The court noted that New York recognizes all marriages occurring outside of the state unless the marriage is prohibited by the “positive” law of New York, or the marriage is contrary to the prohibitions of natural law, such as those involving incest or polygamy. The court concluded same-sex marriages did not fall within either of the exclusions to the rule.

The Fourth Department reached this conclusion in spite of the recent New York State Court of Appeal’s decision in Hernandez v. Robles, 7 N.Y.3d 338 (2007), in which the court held the New York Constitution did not compel the recognition of same-sex marriages occurring in New York. Rather, because the court in Hernandez indicated the Legislature was free to enact legislation recognizing same-sex marriages, same-sex marriages were not necessarily against public policy in our state, despite MCC’s assertions to the contrary.

From a philosophical standpoint, I agree wholeheartedly with the Fourth Department, just as I found the dissent’s argument in Hernandez to be far more palatable than the majority’s.

In my opinion, marriage, at its most fundamental level, is about the connection and commitment between two people, founded on mutual respect and love, a joining of two souls, entered into by individuals willing to weather the course together, for better or for worse, for richer or for poorer, in sickness and in health.

The Hernandez majority, however, reduces this fine institution to its most base level, and focuses an inordinate amount of attention on heterosexual sex and one potential outcome of that act — a pregnancy.

Although the Fourth Department distinguished the Hernandez decision, I predict it will be pivotal, should this case reach the Court of Appeals, although for an entirely different reason than that discussed in Martinez.

Determination of the issues raised in Hernandez necessarily revolve around the definition of the term “marriage.” The concept is not defined in the Domestic Relations Law and, instead, has been refined through case law.

As explained in Hernandez, “implicitly or explicitly, the Domestic Relations Law limits marriage to opposite-sex couples.” In New York, in other words, the term “marriage” is limited to a marriage contract entered into between a man and a woman. That another jurisdiction chooses to define marriage more broadly than New York may not require our state to expand its concept of marriage.

By way of example, suppose New York enacted a law requiring all dogs transported into the state to be quarantined for one month. Cats, however, are not to be subjected to the requirement.

One day, a woman attempts to enter the state with a dog and asserts it is not subject to the quarantine requirement since her state recently passed legislation deeming all four-legged domesticated animals as “cats”; therefore, what appears to be a “dog” actually is a “cat”.

Under this scenario, New York reasonably could assert that “a dog is a dog,” despite another jurisdiction’s legislation to the contrary, and the animal entering would be quar- antined.

Likewise, because New York defines marriage as between a man and a woman, it is not required to recognize a same- sex commitment made in another jurisdiction since it does not fall within New York’s definition of “marriage.” The issue of whether the out-of-state commitment should be recognized is moot, since the commitment is not a “marriage” under New York law.

In my opinion, the strongest defense to this argument would be that, because the Legislature chose not to specifically define “marriage” in the Domestic Relations Law or elsewhere, its intent was to allow the concept of marriage to change with the times, rather than limiting it to a single, rigid definition.

Is a “Canadian marriage” the same as a “New York marriage” in this context? For now, the answer is “yes.”

It will be interesting to see what tomorrow brings.

The (halfhearted) New York Legal Blog Round Up

Blawgs It's time for this flu-ridden blogger's halfhearted attempt at the weekly round up of interesting posts from my fellow New York law bloggers:

Indignant Indigent:

New York Civil Law:

New York Personal Injury Law Blog:

Second Opinions:

Wait a Second!:

Define That Term #270

Dictionary_2 Alas, I skipped this post on Thursday, but I have an excellent excuse.  My entire household, with the exception of our dog, has been battling the dreaded flu for the past week.  It was all I could do to function on a basic level, and I'm a bit surprised I was able to blog at all.  I'm quite the trooper, if I may say so myself.

But, back to the task at hand.  Last Sunday's term was toll:

v. 1) to delay, suspend or hold off the effect of a statute. Examples: a) a minor is injured in an accident when he is 14 years old, and the state law (statute of limitations) allows a person hurt by negligence two years to file suit for damages. But for a minor the statute is "tolled" until he/she becomes 18 and decides whether or not to sue. Thus the minor has two years after 18 to file suit. b) state law allows 10 years to collect a judgment, but if the judgment debtor (party who owes the judgment amount) leaves the state, the time is "tolled," so the judgment creditor (party to whom judgment is owed) will have extra time to enforce the judgment equal to the time the debtor was out of state. 2) a charge to pass over land, use a toll road or turnpike, cross a bridge or take passage on a ferry.

Edward Wiest got it right!

Today's term is:


As always, no dictionaries, please.

Newly Enacted NY Subpoena Rule

Checkmark CPLR 2303-a was recently enacted and became effective on January 1, 2008. 

This useful and time saving new rule simplifies the trial subpoena process by allowing a litigant to subpoena a party or a person under the party's control for appearance at trial by simply serving the subpoena upon the party's attorney of record, as set forth in CPLR 2103(b).

The new rule provides:

Where the attendance at trial of a party or person within the party's control can be compelled by a trial subpoena, that subpoena may be served by delivery in accordance with subdivision (b) of rule 2103 to the party's attorney of record.

(Added L.2
007, c. 192, § 1, eff. Jan. 1, 2008.)

McKinney's CPLR § 2303-a, NY CPLR § 2303-a

Hat tip:  NY