New York's New Power of Attorney Law

Ovid, NY--Attorney Steven Getman is reminding senior citizens and their families that major changes to the New York Power of Attorney Law will take effect this fall.

These changes include:

• The agent (the person getting power of attorney) must sign and date the power of attorney and the agent's signature must also be acknowledged (notarized). Previously, only the principal (person granting the power of attorney) was required to sign the document before a notary.
• If the principal wants the agent to have the authority to make gifts, additional requirements must be met. They include the principal initialing a separate provision granting gift-making authority and the execution of a "statutory major gifts rider" which must have two witnesses.
• Agents will now be subject to a “prudent person standard of care” with defined responsibilities. This includes keeping records (with receipts) on the agent’s transactions.
• The new power of attorney form has an optional provision that the principal can appoint a “monitor” to request and receive records of transactions by the agent.

“Most of the changes apply only to powers of attorney executed on or after the effective date. However, the provisions regarding fiduciary responsibilities apply to all powers of attorney including those executed before the effective date,” Getman noted.

The new power attorney law was originally scheduled to take effect March 1. However, on February 25, Governor Paterson signed legislation to delay the effective date until September 1, 2009.

“Anyone in New York state who plans to grant power of attorney, or accept the power of attorney, as well as those who currently have powers of attorney, should make sure to contact a competent attorney to discuss the new law, and make sure that they are in compliance with it,” Getman said.

More information on the new law can be found here.

Can You Plea-Bargain in a Traffic Case? That Depends

The New York Times:

For years it was a normal routine in traffic courts in towns and villages across New York State: Drivers would negotiate at the courthouse with the state trooper... who cited them for moving violations to reduce the charge. The judge would then make it official.

But the State Police, citing ethical concerns, issued an order in 2006 banning the practice....Now, some lawyers have taken an unusual approach to challenge the ban: fighting tickets using a law established after the Civil War to protect the rights of former slaves.

The lawyers have cited the equal protection clause of the Fourteenth Amendment, which mandates that laws be applied equally to everyone, to argue that the State Police policy prevents drivers from receiving equal justice. Whether a driver can negotiate a lower fine, the lawyers say, depends on where they get a ticket and from whom.

Even routine traffic tickets can have serious impacts on a driver's insurance premiums and, in some cases, their license to operate a motor vehicle. Drivers who receive a ticket should always consider contacting a competent attorney of their own choosing before pleading guilty or attempting to plea bargain the ticket.

Beware Tax Scam Emails

From the Washington Post:

The Internal Revenue Service is warning U.S. taxpayers to be prepared for a steady increase in scams and virus attacks via e-mail, telephone and the Web as the April 15 tax-filing deadline approaches.

The most common type of scam arrives via e-mails claiming to come from the IRS or Treasury Department. They typically try to either scare consumers into thinking there is an error with their tax filing, or that they are eligible for a tax rebate or benefit from the government economic stimulus package that just passed on Capitol Hill.

These so-called "phishing" e-mails typically arrive in an e-mail that urges users to visit a site, which in turn prompts visitors to enter their personal and financial data, information that is then sent off to identity thieves.

"The Internal Revenue Service does not communicate with taxpayers via unsolicited e-mail," said J. Russell George, treasury inspector general for tax administration.

Company Held Liable for Unwanted Faxes

From the New York Law Journal:

Carnival Corp., the world's largest cruise ship operator, faces damages of up to $2 million following a judge's finding that the company violated a federal statute by faxing a travel agent between 540 and 1,387 unsolicited advertisements over the course of about four years.

Eastern District of New York Judge I. Leo Glasser held that the faxes violated the Telephone Consumer Protection Act of 1991, which bars the use of any "telephone facsimile machine ... to send an unsolicited advertisement."

Businesses which might be contemplating the use of a fax machine to send advertisements should take heed of this decision before doing so. At the same time, consumers or others who might be on the receiving end of such faxes may wish to contact an attorney to review their legal rights.

Attorney Warns Homeowners: Beware of Deed “Scam”

OVID, NEW YORK--Attorney Steven Getman is warning homeowners not to fall for mail solicitations offering certified copies of property deeds.

The mailings, Getman said, typically include proper names, addresses and accurate dates for when the property owners’ deed was filed. It also calls the document an important one to have on hand.

The notice then offers to provide the homeowner with certified copies for approximately $60.00 to $70.00. The fee, the letter states, includes postage and handling, location and retrieval of the data.

At best, Getman said, the offer is a grossly overpriced service.

“Your local county clerk's office provides certified copies of deeds for substantially less,” Getman said. “Usually they charge about sixty-five cents a page for the deed, which is typically a four or five page document, plus a $5.00 certification fee.”

In addition, Getman explained, may counties will allow residents to view their deeds on the county’s computer system at no cost.

According to Getman, a new law took effect in October that requires that these solicitations include that fact that customers can obtain a certified copy of their deed from their county clerk for less than $20.00. This law, Getman said, is in response to concerns raised last year when many New York State residents received these notices in the mail.

“A given offer may or may not be illegal, but it’s so unfair to charge that much more for something that you can get at your local county clerk’s office,” Getman noted.

Getman urged anyone who receives a solicitation of this nature to contact their local county clerk or an independent attorney of their own choosing to review their legal rights.

Lawsuit against Zoning Board dismissed

From the Penn Yan Chronicle-Express:

PENN YAN — A Penn Yan couple’s lawsuit against the Town of Jerusalem’s Zoning Board of Appeals was dismissed on Thursday, January 8.

In a lawsuit filed in October 2008, petitioners R. Parker Reynolds and Brenda Reynolds claimed the board illegally denied them a variance to allow recreational vehicles or campers in their mobile home park, located on Route 54A.

However, at last Thursday’s hearing in Yates County Supreme Court, attorney Steven Getman, representing the town, argued that the board had followed state and local law in denying the variance. Getman noted that the Town Zoning Code treated campgrounds and campers differently than mobile homes and that state law set minimum requirements for mobile home parks that prevented the town from granting a variance. He also cited court cases that held a zoning board’s decision should not be disturbed “unless it was arbitrary, illegal or capricious.”

Finally, Getman told the court, the petitioners had not presented the board with any valid evidence of financial hardship that would justify a variance under state law.
Therefore, Getman argued, the lawsuit should be dismissed.

Appearing for the petitioners, attorney Derek Brocklebank told the court that the zoning board should have made more findings on the record before denying the variance. He also argued that the distinctions between mobile homes and recreational vehicles or campers were inadequate to justify rejecting the Parkers’ application.

After hearing from both attorneys, acting State Supreme Court Justice Dennis Bender tossed the lawsuit. Bender ruled that the Reynolds had failed to justify overturning the zoning board’s decision. Therefore, he held, their petition should be dismissed on the merits.

New York Decision on Animal Cruelty May Have Broad Implications for "Puppy Mills"

A New York City Criminal Court has concluded that a man who failed to provide medical treatment for his dog can be prosecuted for animal cruelty.

Writing in People v. Curcio, 2008KN021343, Judge Michael Gerstein held that the state law prohibiting “Overdriving, Torturing and Injuring Animals [or] Failing to Provide Proper Sustenance for Animals” applied to a man who failed to bring his ailing 2-year-old dog to a veterinarian for at least a week after discovering a tumor on the dog’s hindquarter:

Defendant [allegedly] knew the dog had a mass on its rear end and that Defendant did not and would not take said dog to the veterinarian for medical attention. The Complaint further alleges that because of Defendant's failure to seek medical attention, saving the dog's life required surgery and six days of intensive care and that Defendant's lack of care caused [the dog] to suffer needlessly [and] are sufficient to establish a prima facie case.

This failure, the Judge held, could be construed as “further[ing] any act of cruelty to any animal, or any act tending to produce such cruelty" in violation of New York State Agriculture and Market Law.

Therefore, the court denied Mr. Curcio’s motion to dismiss and allowed his case to proceed to trial.

The court’s decision, if upheld and followed elsewhere, could have broad implications against operators of so-called “puppy mills,” in which dogs are often mistreated and over bred. Prior to this decision, many local jurisdictions refrained from investigating or prosecuting mill owners, due to questions regarding the application of state animal cruelty laws to situations where a dog had adequate food and shelter, but may have suffered in other ways.

However, the principles set forth in the Curcio decision could encourage those authorities to be more vigilant against large commercial breeders whose operations inflict needless suffering on companion animals.

Lodi takes step to form planning board

From the Finger Lakes Times:

The Town Board Thursday passed a motion to begin the process of forming a five-member planning board.

[Supervisor Lee Davidson] has sought the assistance of attorney Steven Getman in enacting a local law to form the board.

Davidson has also consulted with Getman on the possibility of a one-year moratorium on new subdivisions within the town, in conjunction with the town’s effort to implement a Farmland Protection Program.

Town Clerk Lois Jennings said she was pleased to see a step toward town planning, noting that she frequently receives phone calls from attorneys asking about land use restrictions ....

Balancing the Rights of Farmers and Animals

The Town of Ovid's Farm law draft gets support:

The town board didn’t hesitate Wednesday night to support the final draft of grape grower Chris Verrill’s proposed “Right to Farm Law.”

Verrill, a planning board member who suggested such legislation several months ago, couldn’t attend the board’s meeting that night, so he missed hearing Supervisor David Dresser commend his and Town Attorney Steven Getman’s efforts to protect local farmers’ interests.

Dresser and board members had been contacted by numerous residents concerned that the original draft might leave a loophole for puppy mill operators. A paragraph in the new version specifically excludes protection for dog and cat operations and bars the law from being broadened to mean that.

Working to Regulate Puppy Mills in New York

NY STATE HUMANE GROUP PRAISES ROMULUS FOR ANTI-PUPPY MILL LAW:

ROMULUS--Supervisor David Kaiser is pleased to report that the Town of Romulus has been recognized by a state animal welfare organization for efforts to regulate inhumane “puppy mills” in that town.

....Samantha Mullen, Chair of the New York State Humane Association Legislative Committee, praised the town for its recently-enacted moratorium on commercial breeding kennels, commonly known as “puppy mills.”

Kaiser said he was happy to receive the news and said that it was a testament to the hard work of the Town’s Planning Board, chaired by J. Barry Roach, which drafted the law with the direction of local attorney Steven Getman and board member Mickie Sanders-Jauquet.