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What is Guardianship?

guardianshipsGuardianship involves a situation where a court appoints one person (the Guardian) to make decisions regarding personal and financial matters of another individual (the ward). In New York, a Guardian may be appointed under Article 81 of the New York Mental Hygiene Law by a Supreme Court judge or Article 17A of the Wills, Trusts & Estate Law by a Surrogate Court Judge.

Guardianship proceedings should be brought when there is an individual whose judgment or capacity is impaired or there is a major threat to an individual’s health and welfare. A physician should be consulted to render a medical evaluation of the capabilities of the individual who you seek a Guardianship for.

A Guardian can have two types of authority in the State of New York. He or she can have authority over the person, of the ward. The Guardian can also have authority over the property of ward or both the person and property of the ward.

If a Guardian is appointed to deal with the person of the ward, he or she is responsible for medical treatment. A Guardian appointed to handle the personal finances of the ward must account for of the ward’s income, assets and expenditures to the court that appointed him or her.

For help on guardianships for children under 18 or elderly individuals, you can always e-mail or call our office at 800-344-6431.

Picture courtesy of nsnn.com

Personal Injury Structured Settlement

structured_settlementIt is becoming more common in the settlement of large personal injury cases for the settlement to “be structured”. A structured settlement establishes a program whereby the injured person receives a regular predictable series of payments over a period of years instead of a lump sum payment.

These payments can be set up in a manner as to compensate the injury victim over the course of his or her life. Under certain circumstances, the payments from a structured settlement can be paid as an annuity which is placed into a Supplemental Needs Trust. This allows the injured individual to qualify for public benefits such as Medicaid.

For help with a personal injury case if you have been injured you can always e-mail us or call 800-344-6431.

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Five Million Dollars for Drowning Victims’ Families

zachary-breaux-poleyeff-eugenie-drowningIn 1997, Eugenie Poleyeff, went swimming on 29th Street and Collins Avenue in Miami Beach. Eugenie ran into trouble and screamed for help. Zachery Breaux, a jazz guitarist, jumped into the water. Zachery’s wife and children ran up and down the beach looking for a life guard.

Zachery eventually reached Eugenie in the water. However, he was not able to rescue her. In fact, they both drowned. Both Frederica Breaux and Israel Poleyeff, a rabbi, brought lawsuits. These lawsuits claim that the City of Miami was negligent in failing to have life guards. They also claimed that there should have been riptides warnings at the beach on the date of the incident. The lawsuits indicated that Miami Beach had parking facilities, shower facilities and concession stands for beach goers but had no life guards or notifications to beach goers concerning riptides.

The courts in Florida found there was no liability. In a decision in 2009, the Florida Supreme Court eventually ruled that cities had a responsibility to warn beach goers of dangerous conditions that they were aware of.

After a decade long battle, the family of Zachery Breaux, received a court award of $5,000,000. Unusual situations and unusual injuries may involve liability. Should you, a friend or family member be injured, you should consult the Law Offices of Schlissel DeCorpo for a consultation as to whether the injuries are actionable. So e-mail us or give us a call anytime at 800-344-6431.

-Elliot Schlissel, Esq.

Picture courtesy of sky.com.

False Arrests & Wrongful Shooting By Police

unmarked-police-carA couple in Louisville, Kentucky were looking for a hotel room. They had their two young children in the car. Two unmarked cars blocked their vehicle and men emerged from these vehicles with guns in their hands.

The man (Mr. Brewser), thinking the couple were going to be robbed fled nearly ran over one of the men with drawn guns. Eventually, he realized that he was being chased by the police. When the police stopped him he told them he thought he was being robbed. The men were in plain clothes and no one identified themselves as a police officer.

The police slammed Mr. Brewer to the ground, causing him injury. While the police were pursuing him they were shooting at the Brewer’s vehicle. Courtney Pruitt, who was in the vehicle with her small children was shot in the arm. Mr. Brewer and Courtney Pruitt have sued the Louisville Metro Police for false arrest and improper shooting.

Sometimes, police officers make mistakes. If you are the subject of improper police conduct, call the Law Offices of Schlissel DeCorpo for a consultation to discuss whether you have a remedy to deal with this unfortunate situation. We can always be reached by e-mail or at 800-344-6431.

Elliot Schlissel, Esq.

Picture courtesy of loganfamily.ws.

Ridiculous New York Divorce Law Promotes Dishonesty

constructive-abandonment-divorce-faultOn December 24, 2009, Judge Matthew F. Cooper, sitting in th Supreme Court of New York County, rendered a decision on the case of Davis v. Davis, 89 N.Y.S.2d 611, 2009 WL 3863026, 2009 NY Slip Op 08579. Mr. Davis brought an action for a non-contested divorce, claiming his wife constructively abandoned him. This means she had no sex with him for a period of one year. This is the most widely used ground for divorce in the State of New York. The reason this ground is widely used is that New York does not have a true no-fault ground for divorce. It is only state in the United States that still maintains an archaic fault based divorce system.

Constructive Abandonment – No Sex for a Year:

Mr. Davis alleged in his complaint that he had not had sex with his wife for over one year. He submitted an affidavit swearing to the validity of this information.

Unbeknownst to Mr. Davis, Mrs. Davis was pregnant with Mr. Davis’ child. Mr. Davis was successful in obtaining the divorce.

Mrs. Davis had a baby boy named Ethan. Mr. Davis, thereafter, moved for genetic marker testing to prove that he was the father of the child. He wanted a declaration of paternity and the divorce judgment to be modified to indicate he was Ethan’s father.

Mrs. Davis opposed the application by Mr. Davis. In her opposing papers, she indicates that in Mr. Davis’ divorce papers, it contained a signed sworn to affidavit that he hadn’t had sex with her for a period of one year. It, therefore, would be impossible for him to be the father of Ethan. Mrs. Davis also alleged that if Mr. Davis is recanting his sworn statement, he should be prosecuted under the NY Penal Law, §210.10 for perjury.

The Appellate Division, Second Department, in its decision on the appeal, indicated that this was the wrong venue to allege criminal conduct. The court further stated that “the sad truth is that New York’s insistence on fault based divorce ends up promoting a disregard for the truth by fostering and encouraging the embellishment of a spouse’s wrong doing as to grounds …”

The court found that there should a presumption of legitimacy of the child being a child of the marriage because it was in the child’s best interests. The court further stated that it is presumed that Mr. Davis was Ethan’s father by virtue of the fact that he had been married to Ethan’s mother when the child was born. The court stated it was in the child’s best interests that his father’s name appear on his birth certificate and that the father should be able to establish a father-son relationship.

If New York had a true no-fault divorce law with a ground such as “irreconcilable differences” or “incompatibility,” individuals would not be motivated to submit false affidavits in divorce lawsuits for the sole purpose of ending their marriage. Although, New York State in many respects is a very forward thinking state, this is not true when it comes to New York’s divorce laws. The court stated that the “view of marriage is more reflective of the time of the Empire of Queen Victoria than it is of the second decade of the 21st Century”. The failure of New York’s legal system to adopt a divorce law that reflects 21st Century sensibilities willl continue to impugn the integrity of the legal system in the State of New York.

The Law Offices of Schlissel DeCorpo has been providing legal services to individuals with marital problems for more than 30 years. Should you have an issue involving your marriage, feel free to call us at 1-800-344-6431 or email us anytime.

Picture courtesy of clemmentlaw.

New Orleans Settles Police Misconduct Lawsuits

police_miscondcut_lawsuitSteven Elloie, was a bar manager, working in the Sportsman’s Corner Bar in New Orleans in July 2006. Elloie was in a rear stockroom involved in inventory control when several police officers came into the bar. They were looking for two black men at the time. There were more a dozen customers in the bar who advised the police that there was no one in the bar fitting the description of the alleged two young black men the police were looking for.

The police started to search the bar. They opened doors in the bar and one officer told Elloie he was under arrest and going to jail. Thereafter, four or five police officers began beating and kicking Elloie. Elloie was charged with resisting arrest and battery. These charges were eventually dismissed. Elloie filed a complaint with the Internal Affairs Unit against these police officers. The complaint was supported by affidavits of more a dozen witnesses. The Internal Affairs Unit found the complaint to be unsubstantiated.

The American Civil Liberties Union represented Elloie in his suit against the City of New Orleans. The suit was settled for an undisclosed sum. The problem with these types of settlements is that the offending police officers are not appropriately disciplined for their conduct. Money changes hands. The offending officers are not admonished and the public trust of the police is damaged.

If you are involved in an incident with the police where you feel that they have acted inappropriately, feel free to call The Law Offices of Schlissel DeCorpo at 1-800-344-6431 or email us to discus your case.

Picture courtesy of californiacriminallawblog.

Foreclosure Rates Going Up in 2010

outstandingforeclosureswebg1111Projections have been made that there will be as many as 3,000,000 foreclosures in the United States in 2010. This will surpass the foreclosure rate for 2009.

The United States Treasury Department has been in negotiations with many of the country’s largest financial institutions regarding their participation in a new second mortgage program designed to modify foreclosures. Unfortunately, negotiations have not been successful up to this point.

New loan modification programs are necessary to help individuals going into foreclosure this year. Foreclosures have a negative effect on the value of real estate in local communities. In 2009, mortgage modifications set a record. However, foreclosure still were at an all time high in 2009. Hopefully, the new mortgage modification programs being proposed to the Treasury Department will stem the tide of new foreclosures.

If you need help with loan modification, foreclosure, or bankruptcy help, you can always e-mail us or call us anytime at 800-344-6431.

To Taser Or Not To Taser


(The “Don’t Tase Me Bro!” Video – See minute marker 1:50)

 The United States Court of Appeals for the Ninth Circuit recently ruled that the use of a taser stun gun by a police officer can be considered, under certain circumstances, excessive force which leaves the police officer open to be sued for the injuries received by the tasered individual. The taser is an electric stun gun. It is powered by a lithium battery inside his handle. It shoots two bob prongs which are attached to the end of a wire that is 21 feet long. The prongs hook on to a person’s skin or clothing. When the prongs hit the individual, they discharge 50,000 volts of electricity for up to 5 seconds. This has the effect of temporarily incapacitated the tasered individual.

Although the taser is considered a non-lethal weapon, in some situations it has caused deaths.

In the case before the Ninth Circuit, Carl Bryan, had an emotional break-down after receiving a series of traffic tickets. While the police officer was writing out the traffic tickets, Mr. Bryan exited his vehicle and started to curse at himself. Mr. Bryan was distraught, crying and yelling giberish while beating his thighs.

A police officer on the scene, Officer McPherson tasered Mr. Bryan from approximately 20 feet away. Upon being hit by the taser, Mr. Bryan fell face down to the ground. The fall caused him to break four teeth.

The court held that at no time did Mr. Bryan present a threat to Police Officer McPherson. He neither made any verbal threat or presented a physical threat. The police officer should have spoken to Mr. Bryan first and warned him if he did not control himself he could be tasered.

As a result of this decision, Mr. Bryan can bring a civil lawsuit against Officer McPherson and his police department for injuries he received by the use of excessive force (being tasered) during his traffic stop. This is one of the first cases in the nation to create a legal standard concerning the use of taser stun guns.

Should you have an encounter with law enforcement officials who have acted inappropriately, call the criminal defense and civil litigation attorneys at the Law Offices of Schlissel DeCorpo by e-mail or at 1-800-344-6431. You may have a remedy available through a Civil Lawsuit.

In Prison, But Not “In Custody”???

interrogation-police-jailWe advise our clients not to say anything to police officers if they are pulled over, or are taken into custody. Even seemingly innocuous answers to carefully crafted questions like “Do you know how fast you were going?” or “Are you dealing with some sort of emergency?” can be used to clinch a conviction in what may otherwise been a weak case against a person. This is because when one is being pulled over, he is not being “custodially interrogated,” and therefore the officer does not have to advise someone of their right to remain silent before making incriminating statements.

But recent cases have shown that there are instances, even after one has been incarcerated, where there is no “custodial interrogation,” and one can be questioned without being advised of his right to say “I don’t want to talk.”

Background

The famous Miranda decision allows a defendant to supress his or her own incriminating statements, so that they cannot be used at trial if they were elicited during a “custodial interrogation” without a valid waiver of the Miranda right to remain silent and right to counsel. The background to this rule was discussed earlier in this post.

In order to exclude one’s incriminating statements from evidence, the statements have to have been made without a valid Miranda waiver in the context of police “custody,” and while under “interrogation.” And while the meanings of those two words may seem self evident, they have developed very specific meanings in the Miranda context.

The recent Second Circuit Court of Appeals decision in Georgison v. Donelli, reported in this past Thursday’s edition of the New York Law Journal, is a good illustration of how particularly the term “custody” is defined.

While incarcerated at the Riverview Correctional Facility in 1996, New York City police officers were questioning Mr. Georgison regarding the 1993 pipe beating of a truck driver in the Bronx, a matter unrelated to his incarceration. During the conversation, he made some incriminating statements. After making those statements, he indicated that he did not want to talk anymore and walked away. At trial, those statements were then used against him at a trail relating to that beating. He appealed the judge’s decision to admit his statements into evidence, arguing that he was being sbjected to “custodial interrogation” without Miranda warnings, or a waiver of those rights, at the time the statements were made.

His arguments were rejected in this most recent Second Circuit decision. The courts held that “custodial interrogation,” for Miranda purposes, can only exist where a person does not feel free to walk away from the officers questioning him. They held that this was not the case with Mr. Georgison’s interrogation, where he felt that he was at liberty to walk away from the officers when he no longer wanted to speak to them. The courts held that this conduct indicated that he did not feel he was restrained or not at liberty to leave the interrogation, and thus that his interrogation was not “custodial.”

They held that it was irrelevant that he was in a prison, and was unable to freely leave the prison as a whole. Miranda only requires that the person being questioned must feel restrained from leaving the interrogation. Being unable to leave his general surroundings, however, is irrelevant for the purposes of determing the presence or absence of “custodial interrogation.”

Thus, one should consult a competent criminal defense attorney, such as those at The Law Offices of Schlissel DeCorpo, before saying anything to police officers, whether it is in the context of a simple traffic stop, one whether one is already incarcerated. You can contact our office, 24/7, at 800-344-6431 or by e-mail for help or more information.

Picture courtesy of FBI.gov.

Happy Chanukah! (And Fun Legal Chanukah Fact-of-the-Day)

rahm-emanuel-lighting-menorah-white-house-chief-staff-chanukah-hannukah

White House Chief of Staff Rahm Emanuel Lights Chanukah Menorah in Front of White House on Sunday

Many of us know that Chanukah is the Festival of Lights. One way that many communities have tried to spread the light of Chanukah is by holding public Menorah lighting displays in town and city centers throughout the United States and the world.

This raises an interesting question of whether public Menorah lighting ceremonies and public Menorah displays on city property violate the First Amendment’s “Establishment Clause,” which prohibits the government from passing a law” respecting the establishment of religion.” The ACLU, among others, has litigated this issue in an attempt to stop people from holding public Menorah lighting ceremonies in public parks or on public property.

When Rabbi Yossi Kaplan, of Chabad of Chester County, PA, applied to place a public Menorah on the property of the Allegheny County Courthouse, the ACLU sued the county to stop them. The two sides ultimately took the case all the way up to the Supreme Court of the United States, which issued its decision in favor of Rabbi Kaplan and Allegheny County almost exactly twenty years ago. You can read the decision of County of Allegheny v. ACLU, 492 U.S. 573 (1989).

The court held that given the context in which the Menorah was displayed, it did not appear to either endorse or prohibit a particular religion but, together with the Christmas tree that was also displayed, sent the message that both holidays held a place in the national culture, but fell short of actually endorsing a religion.

Happy Chanukah!

Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick, Bellmore

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