The Elliot Schlissel New York Law Blog

In 1986, the United States Supreme Court decided the case of Batsan v. Kentucky.  The court’s decision required prosecutors to explain peremptory challenges of jurors in cases where the defendant can show a pattern of exclusions based on race.

The Batsan case was considered a landmark decision.  Prior to Batsan, prosecutors routinely excluded African Americans from juries.  At the time the decision was issued, Supreme Court Justice Thurgood Marshall stated that the ruling would not end racial exclusions.  In a concurring opinion, he wrote that prosecutors would simply invent phony reasons to offer as an explanation.

Justice Marshall was correct.  Prosecutors still have little difficulty coming up with innovative reasons for excluding people of certain races or backgrounds from juries.

When prosecutors engage in conduct that shows a pattern of racial exclusions, there is no available method for dealing with this problem unless the individual charged with the crime is convicted.  The conviction can then be challenged on appeal.

Should you, a friend or a loved one ever be charged with a crime, it is important to be represented by an experienced, ”street smart” criminal attorney.  Please contact the criminal defense attorneys at the law office of Elliot Schlissel by email or at 1-800-344-6431 for a consultation.

Students have been borrowing more and more money in recent years to pay for college expenses.  Due to the downturn in the economy, many students have been unsuccessful in finding employment upon graduation.  Even those who find employment often have difficulty paying off their student loans.  Filing for bankruptcy can help with problems involving credit card, home or other types of debt; however, student loans are not dischargeable in bankruptcy.  This is true even if the student loans are from a private lender, such as a bank or Sally Mae.

Congress is considering new laws to ease the burden on students who took out loans for educational expenses and are unable to pay them back.  There are two types of student loans: loans underwritten by the federal government (such as Stafford and Perkins loans) and loans underwritten by banks.

Current Bankruptcy Law:

Under the current bankruptcy law, debtors can discharge students loans if they experience “undue hardship”.  This condition is almost impossible to prove in bankruptcy court unless the debtor has become totally disabled.

There is concern that if the bankruptcy laws are changed to allow students to discharge loans underwritten by banks for educational purposes, then the banks will stop lending money to students.

In the event that bankruptcy laws are modified to allow the discharge of student loans, the cost of such loans in the future will most likely increase.  Congress should liberalize the laws concerning the discharging of student loans but the statue should be carefully written.  Student loans should become dischargable only under limited circumstances.

Should you find yourself in financial difficulty, bankruptcy may be a solution to your problem.  Call the bankruptcy attorneys at the law office of Elliot Schlissel at 1-800-344-6431 or by email to discuss your situation.

Imagine this scenario: Your mother or father becomes ill.  You have a good job that allows you to support your family, but you feel obligated to help your parent.  Your parent has sufficient assets to hire an aid or third-party caretaker, but your parent wants you to help them.

You give up your job and begin taking care of your parent.  Your mother or father realizes that you need to support your family so they offer to pay you for the services you are rendering them.  In this situation, they end up paying you less than half of what you would make if you worked in your established profession.  Their agreement to hire you is called a personal service agreement.

In the past, Medicaid would find that the personal service agreement was an uncompensated transfer, and before your parent would become eligible for Medicaid payments should he or she enter a nursing home, these funds would have to be returned.  However, there is a new case in New York in the Fourth Department of the Appellate Division that has found otherwise.  In the matter of Warren Kerner v. Monroe County Department of Human Services (NY App., 4th Dept., No. TP-10-00-00197, July 2, 2010), the court set aside a determination that a nursing home resident’s son receiving payments from his parent were uncompensated transfers.

Warren Kerner needed to go to a nursing home in July of 2007.  He had previously entered into a personal service agreement with his son Jonathan.  Pursuant to the terms of the agreement, Jonathan was paid approximately $9,200 a month to provide care in his home for his father.  Warren eventually had to be admitted to a nursing home.

An application for Medicaid was submitted to the Monroe County Department of Human Services, which came to the conclusion that the $105,000 in payments that were made to Jonathan pursuant to the personal service agreement during the five-year look back period were uncompensated transfers.  This resulted in a 13-month penalty period for which Warren would not be eligible for nursing home benefits.

The Appellate Division of the Fourth Department of the New York Supreme Court set aside the decision of the Monroe County Department of Human Services.

The court held that although evidence of services was not submitted with regard to the fair market value of the personal services rendered, “it is undisputed that services were actually rendered by Jonathan and his wife…[and] the Monroe County Department of Human Services determination that the transfers to Jonathan were uncompensated transfers is not supported by substantial evidence.”  The court sent the matter back to Monroe County for a redetermination of Mr. Kerner’s eligibility.  The Monroe County Department of Human Services will have to ascertain the fair market value of the personal services actually rendered to Mr. Kerner.

The Fourth Department covers the Rochester and Buffalo area of upstate New York.  Hopefully, the First and Second Departments of the Appellate Division, which deal with the metropolitan New York are, will make similar decisions concerning personal service agreements for residents.  Should you have any questions concerning elder law, please contact our office at 1-800-344-6431 or by email.

In January of 2002 Jack Shay, a Lake Placid resident, was hit by a drunk driver.

Jack had been a world class speed skater. He had won the 500 and 1500 meter races at the 1932 Olympics in Lake Placid. He was killed in an accident by a drunk driver. At the time of the accident both drivers were taken to a local hospital. At the hospital a medical technician drew the blood from the drunk driver.

The blood was not taken by a doctor. There is a loophole in the New York Drunk Driving Laws. Blood has to taken by a doctor. The attorney for he drunk driver was successful in keeping the driver’s blood alcohol level excluded from the trial.

Under the new law, advanced emergency personnel such as certified nurse practitioners and medical technicians can draw blood at the scene of the accident when the driver consents. This will aid in the prosecution of driving while intoxicated (DWI) cases. It closes the loophole that has enabled criminal defense lawyers from keeping blood alcohol tests from being admitted into evidence.

It has been suggested that the original law in 1988 was impacted on by a physicians’ lobby in Albany. In 1988 their position allegedly was that personnel other than physicians were not qualified to draw blood from accident victims.

In the event you are charged with driving while intoxicated (DWI) or other criminal matters, it is important that you have an experienced criminal defense attorney to assist you. Feel free to email or call criminal DWI defense lawyers at the law office of Elliot Schlissel should you have any questions at 1-800-344-6431.

New York is now joining the other 49 states in the United States with regard to divorce laws. The New York State Assembly has passed a no fault divorce law. Now both the State Senate and the Assembly have passed the liberalized New York divorce law, and it is anticipated that Governor Patterson will sign the new no fault divorce law very soon.

The new no fault divorce law will provide a ground for divorce where one spouse can unilaterally end a marriage by swearing under oath that the marriage has been broken beyond repair for at least six months. This is a major change in the divorce laws of the State of New York. New York was the last hold out to the modernization of its divorce laws; New York is now in synch with the other 49 states.

Up until now to obtain a divorce in New York, one party had to prove a fault ground such as cruel and inhuman treatment, abandonment, constructive abandonment, or adultery. The only ground for a no fault divorce was living separate and apart pursuant to a written separation agreement for one year.

It should be noted that the new divorce law only deals with the issue of fault. It does not deal with issues concerning child custody, visitation or division of property (equitable distribution).

The new law will allow individuals in an unhappy marriages to get divorced more quickly than they could have in the past. Critics claim that the new divorce law will allow people to place less importance on marriage and therefore increase the divorce rate.

Some critics have raised issues concerning the new divorce law with regard to individuals abandoning critically ill spouses. In situations where a spouse may need to go into a nursing home, obtaining a divorce may free the individual from supporting the spouse and create a further burden on Medicaid or other publically funded programs to pay the expenses for the nursing home. There is also concern that more affluent spouses will use the new divorce law to quickly end marriages and leave the less affluent spouses destitute.

I believe the new New York No Fault Divorce Law is a good thing for the residents of the State of New York. It may help simplify some divorces and make the system more efficient and user friendly. Query: Should marriage now become contract that is subject to renewal every 5 years?

If you have any questions concerning New York Divorce, contact the divorce attorneys at the Law Offices of Elliot S. Schlissel by email or at 1-800-344-6431.

The division of assets in a divorce can be a significant issue. Lawyers are expensive. They charge on an hourly basis. A “common sense” approach to division of assets can reduce your legal expenses.

Both parties may have deferred compensation assets, such as pensions, 401Ks, 403Bs, and IRAs. You should establish the value of these assets and trade them off if possible.

If the man uses the power tools on a regular basis, the majority of these tools should be given to him. If the woman utilizes a sewing machine or other items of that nature, she would be the logical owner of this equipment.

Disagreements Concerning Property Division

The division of property should only be brought to the court as a last resort. Litigating property division issues can be very expensive. An alternative to dealing with property division issues is to simply sell the property and divide the cash. Unfortunately, used personal assets generally do not generate a reasonable sales price at a tag sale.

Should you have questions concerning division of property, contact the family law attorneys at the law office of Elliot Schlissel by email or at 1-800-344-6431.

Wills do not have to be fair. An individual has the absolute right to dispose of his or her property at the time of his or her death the way he or she sees fit. This means a mother or father can disinherit his or her children. Husbands can disinherit their wives and vice versa.

However, it should be noted in the State of New York a spouse has a right of election against the estate of his or her spouse. This right of election allows the disinherited spouse to obtain one third of the estate of the predeceased spouse. There are very specific rules concerning the exercising the of right of election. An attorney should be consulted when a spouse feels he or she is receiving less than their fair share of an estate.

In will contests judges usually find wills to be valid unless the challenger successfully proves to the court the will was not properly executed or there was fraud, duress, undue influence or that the individual lacked mental capacity to write a will.

What Happens When a Will is Invalidated?

If the entire will is held to be invalid and there is a prior will, the prior will controls the inheritance scheme. The prior will would then need to be probated. In the event there is no prior will and the will is held to be invalid all assets would pass under the statutory frame work of intestacy (dying without a will).

Should you have questions regarding a will contact the wills attorneys at the law office of Elliot Schlissel by email or at 1-800-344-6431.

For many years, I have had a one-third interest in two Knicks season tickets.  So I believe I can speak on behalf of thousands of Knicks season ticket holders when I say that we are upset that LeBron has chosen to play for Miami instead of New York. I understand LeBron made the decision because he felt that playing with Dwayne Wade and Chris Bosh in Florida would allow him to win an NBA championship, and he is probably right. However, this Knicks fan feels that Madison Square Garden is the center of the basketball universe and that New York offers much more by way of publicity, exposure, and other financial benefits for a basketball player. Yes, he would have been forced to play with the rest of the Knicks squad, but he still could have won a championship in New York!

Carmel Anthony:

My daughter attended Syracuse University.  I watched Carmelo Anthony play at Syracuse. It is my understanding that Carmelo wants to return to New York. Hopefully, when he becomes a free agent next year, New York will be in a position to bring him back to his roots in the Big Apple. This will give the Knicks a greatly improved team and could lead to a potential championship.  It will also make watching the Knicks from my season box less depressing if they could win games on a regular basis.

Irrevocable trusts cannot be changed. They are permanent trusts.

Asset Protection: When you place your assets in irrevocable trust, you remove ownership and control of those assets from the creator of the trust. These types of trusts are used for Medicaid planning purposes. It should be noted that there is a five year look-back period for medicaid eligibility. The assets placed in these trusts cannot be reached by creditors of the individual who made the trust. One type of irrevocable trust is called a self-settled irrevocable trust.

Life Insurance: Another type of irrevocable trust is called an irrevocable life insurance trust. If you purchase life insurance and transfer the policy into an irrevocable life insurance trust, the proceeds of the life insurance pass outside of your estate. They therefore are not taxed as part of your estate.

Tax Purposes: You can also create an “AB trust” for the benefit of your surviving spouse. This type of trust allows you to use the spouse’s exemption from estate taxes by funding the “B” trust with assets valued at or below the federal estate tax exemption rate, in the event the value of the deceased spouses estate assets is greater than the estate tax exemption at the existence of time of death. The “A” trust would be funded for the benefit of the surviving spouse. Estate taxes in this situation are deferred until after the surviving spouse dies.

Should you have questions regarding irrevocable trust contact the trust attorneys at the Law Office of Elliot Schlissel by email or at 1-800-344-6431.

Contesting a will involves a formal challenge to the validity of the will. The challenge to the will can be based on the failure of the execution ceremony to meet the appropriate statutory requirements. Another avenue for challenging a will involves allegations of the testator – the party making the will – not having the mental capacity to understand what he or she was doing at the time the will was executed. Wills also can be challenged for fraud, duress or undue influences in the State of New York.

Who Can Contest A Will?

The issue of who can contest a will deals with the concept of standing. Individuals who receive assets from a will are called beneficiaries. Beneficiaries have the standing to challenge a will if they feel their are not being treated appropriately. Individuals who would have inherited under intestacy (if there was no will) can also challenge wills.

In the event an individual dies without a will he or she is considered to have died intestate. Intestacy is a statutory scheme of inheritance for individuals who do not have wills. The intestacy scheme is based on blood lines. For example, children inherit from their mothers and fathers, and if there are no children, then the brothers and sisters of the individuals who died inherit and so forth down the line.

Duress is another ground for challenging a will. This happens when the individual is threatened into writing a will.

Lack of mental capacity is also a basis for challenging a will in New York. This involves situations where the individual either due to mental illness, infirmity, or taking drugs that alter his or her ability to make informed decisions, executes a will. Another ground for challenging a will is called undue influence. This is usually a case were a trusted individual, friend, relative or caretaker engages in a scheme for the purpose of having a will created for that individual’s own benefit.

Should you have questions about wills contact the wills attorneys at the law office of Elliot Schlissel by email or at 1-800-344-6431.