The Kiley Law Firm Blog

Have you ever wondered why so many cars parked on a New York City street have out-of-state license plates?  It costs a fortune to own a car and pay for insurance, tolls, gasoline and repairs.  The lure to register and insure a car in a different state where insurance rates are low is strong because New York State’s automobile insurance rates are among the highest in the nation.  But paying less for your annual premium will get you into serious trouble if you have an accident and will likely cost you much more.

A study recently submitted to the New York Senate reported that automobile insurance companies lose approximately $16 billion in lost premiums because of “Insurance Rate Evasion.”  (http://www.nysenate.gov/files/pdfs/InsuranceRateEvasion_Report_PRESSER_0.pdf.).  The only reason the Senate knows about this is because it’s a hot topic with the insurance industry.  And the insurance companies are doing all they can to plug the leaks and recover their losses.

If you report that your car is in an accident, your insurance company will quickly check to see where the accident happened and where you live.  If the accident happened in Brooklyn and your car is registered in another state, don’t expect the insurance company to “fugetaboutit.”  The adjuster will suspect that you may have committed insurance fraud.  He or she will cross check the accident information against your home address and if there’s not a match, they’ll deny your claim.  The company won’t pay to fix your car because you would have deliberately provided false information on your application for insurance.  Check your policy.  Under the “General Provisions” section you’ll find boilerplate language which provides that the company will deny coverage to any insured who has made any material misrepresentation to the company.  And the company will be legally within its rights because your insurance policy is a contract and the company is only obligated to pay claims which are their contractual obligations.  If you breach the contract, the company need not pay for the loss.

Even worse, if you’re injured, you may quickly incur thousands of dollars in medical bills.  When you attempt to collect No-Fault benefits, the company will demand that you appear for an Examination Under Oath (EUO) and ask your questions under oath, swearing to the truth of your answers.  If the company can prove that you lied about your residence in New York, it will deny your claim and you will be responsible for the medical bills.  And don’t think that your health insurance carrier will pay the claim when they discover that you were injured in an auto accident.  You will have to foot the bill yourself.

Furthermore, lying under oath can make your problems much worse.  If you lie to your mother, she may send you to bed without dinner.  If you lie to your wife, she may send you to sleep in another bed.  If you lie to the insurance company’s lawyer after swearing to tell the truth, a judge might make you sleep on a bed inside a 6 ft. by 9 ft. cell because perjury is a crime under Article 210 of the New York State Penal Code.

So think hard before you try to save the cost on your insurance premium.  The money you save will be a fraction of the money you may lose.

As a parent of a minor child, you may in your will designate a guardian for your children in the event that you die during their minority.  The New York State Domestic Relations Law (DRL) § 81 authorizes the appointment of guardians by parents.  The Surrogate, who is the judge who handles estate matters, will generally approve your designee, provided he or she is not a person of dubious character.

Of all the decisions parents make when preparing their wills, the most difficult will likely be the choice of a guardian.

Here are some issues to consider before you make your choice:

(1)        Geographical Proximity (“Something tells me we’re not in Kansas anymore, Toto”):  Your children will likely have to move in with their guardian.  If you prefer that they continue to live in your neighborhood, then your brother Travis who owns an Alpaca farm in Pocatello, Idaho may not be a good choice.

(2)        Your Children’s Choice (“You’re going to send me WHERE!?”):  This is not a consideration with young children, but once your children reach a certain age, the courts will give some “deference to their preference.”  Either way, it’s good to make sure that your children will be comfortable with your selection.

(3)        Your Spouse’s Preference (“Hey, they’re my kids, too!”):  If you die, the children will come under the care of their other “parent and natural guardian.”  But, if he or she dies first the court will likely confirm your choice.  Still it’s best if you confer and come to an agreement on the same person or persons.

(4)        Religious, Moral and Political Beliefs (Better Not Choose Uncle Buck!):  Your good friends and loving relatives may not share the same beliefs as you do.  Give this consideration, as your children will be under their guardian’s influence.  It’s not likely that your children will go to church if their guardian doesn’t.

(5)        Age and Inclination (“Been there; done that.”):  Make sure that the person you choose choice is young enough and willing to assume the awesome responsibility of raising your children.  No matter how wonderful your children may be, parenting is still a job.  Also, consider that your babies will be minors until they turn eighteen.  Grandma and Grandpa may not be up to the task in fifteen years.

(6)        The Guilt Factor (It’s not just reserved for Catholics and Jews): Your friend or relation may agree to be the guardian of your children because they love you and your child.  Make sure that they feel comfortable to say no, if they believe that the burden is too great.

(7)        The Old Woman Who Lived in a Shoe Problem (Or . . . never have more children than you have car windows.):  Consider whether your prospective guardian has too many other children.  They may always have room for your children in their hearts, but make sure they have enough rooms in their house.

(8)        Financial Stability: (“A Fool and Your Children’s Money Are Soon Parted”): Your children’s guardian need not be the same person as the trustee who will invest their assets and manage their money.  Nonetheless the guardian should be good with money.  At the very least, his or her responsibility in this regard will impart an important lesson to your children.

Too many people postpone making a will because they cannot agree or decide on a guardian.  Never fear.  There is likely no perfect choice, as you can’t expect that your friends or family will make all the same choices you might make.  Nevertheless, consider the pros and cons for each possible choice.  Make up your mind and don’t delay making your will.

When you leave the womb and greet the world your parents give you a name and put it on your birth certificate.  Nobody asks your opinion.  You get no chance to object.  As soon as they’ve determined whether your blanket should be blue or pink, they hang a name on you that you wear for the rest of your life.  So you don’t like the name Mabel?  Ignatz is not your preference?  Suck it up.  You can’t fight it.  Or can you?

You might be surprised to know that it’s relatively easy to change your name.  Article 6 of the Civil Rights Law of the State of New York outlines the procedure to make a change and the applicable rules.

People are most likely to change their surnames, rather than their given names.  But you may change either or both.  The most common scenario occurs when a wife assumes her husband’s surname at the altar.  But did you know that the marriage license application offers other options?  Under the Domestic Relations Law (D.R.L.) §15(b)(1) either or both spouses can change their names when they apply for a marriage license.  The application form prompts you to make the decision.  You can opt to change your name to:

(a)  your spouse’s surname,

(b)  your spouse’s former surname;

(c)  any name “combining into a single surname all or a segment of the premarriage surname or any former surname of each spouse”; or

(iv) a combination name separated by a hyphen, provided that each part of such combination surname is the premarriage surname,  or  any  former  surname, of each of the spouses.

Confused?  Not nearly as much as your wedding guests will be when they receive a thank you card from “Mr. and Mrs. Schwartz-O’Reilly-DiGiorgio-Slovinsky.”

Your surname, doesn’t automatically change when you get married, but if you do elect to change your name on your marriage license, the license will be proof of the change.  The procedure is relatively simple, as long as it’s done coincidentally with applying for a marriage license.

Suppose you’re not getting married, but want to change your name for another reason.  Did your parents give you a first name that makes you the subject of derision?  Maybe your last name is too difficult to spell or embarrassing to say.  Or perhaps your parents just didn’t consider that certain given names shouldn’t be matched with certain surnames.  Consider the case of poor Anita Hoare who lives in Bournemouth, United Kingdom:  http://www.linkedin.com/pub/anita-hoare/26/472/2b0

For every Constance Noring, Adam Zapel, Chris Coe or Crystal Ball there is hope.  A petition under Civil Rights Law §60 must be in “writing, signed by the petitioner and verified in a like manner as a pleading in a court of record, and shall specify the grounds of the application, the name, date of birth, place of birth, age and residence of the individual whose name is proposed to be changed and the name which he or she proposes to assume.”

The petition must be approved by a judge who will inquire if you’ve been convicted of a crime or adjudicated a bankrupt or owe back child support.  You are required to disclose any judgments or liens of record or actions or proceedings against you.  If any of these situations apply, you’ll need to explain why the change is justified and is not a surreptitious attempt to avoid your legal obligations.  Similarly, if you have been convicted of a violent felony, your application must be made on notice to the district attorney, division of parole or county probation department.

If you pay your fee, file your petition, get approval from the court and publish the judge’s order in the newspaper that he directs, you may legally change your name.  There’s also a provision in the statute that may exempt a petitioner from publishing the order if the court reasonably believes that his or her safety may be risk.

So there is hope.  If you can’t stand that your name is “Duane Pipe,” you don’t have to take it anymore.  Get up!  Be the Earl E. Bird, and file your petition.  Tell the judge you’ve been to Helen Back.  When you make the change you can celebrate by having a Hy Ball and proclaim “Ida Clair, that I’m not a Lou Zar, anymore!”

Recently, an aunt of mine was clearing out some personal items and came across a letter my grandfather had written to his mother-in-law (my great-grandmother) soon after my grandparents’ honeymoon in 1924.  It was a beautiful letter- the kind that people years ago were skilled at writing, a skill not often displayed these days in e-mail, texts and on social media. Lets face it, the art of letter writing has been lost in our digital age.  Traditionally, people have always hung on to such letters or cards for posterity- keepsakes to remember and pass on to a child or grandchild.  Is this also being lost in our digital age?

As recently reported by NPR, consider the plight of a mother in Portland, Oregon, who continued to use her son’s Facebook account to read postings on his wall after his accidental death.  Her son’s wall contained photos and postings from personal friends, many of which she had never seen before. However, when Facebook learned of the son’s death, it changed the password and closed the page.  Thus began a long legal battle by Karen Williams to regain access and obtain years worth of her son’s life on Facebook.

Now, lawmakers in many states are considering legislation that would require social networks like Facebook to grant loved ones access to the accounts of family members who have died.  In Oklahoma, a recent 2010 law grants the administrator of an estate the power to act on behalf of a deceased individual and access social media accounts.  These laws beg larger questions for the individual estate plan.  Whereas in the past, people have always properly considered the disposition of tangible personal property in their Wills, shouldn’t they now also be being given consideration to their “on line” property- the treasure trove of photos, messages and postings that accompanied them through life?

My grandfather died in 1963- 6 years before I was born.  I only know him from family stories… but his letter gave me great insight into his character.  I smile at the notion of how much more my great grandchildren will know of me.

One of the least understood and, therefore, overlooked options for automobile insurance is the one that provides uninsured and underinsured liability coverage.  It is listed on the policy declarations page under the heading “UM/SUM.”

Uninsured Motorist coverage “UM” is mandated by New York State.  It protects the driver and passengers of a vehicle who are injured by uninsured negligent drivers.  Each car insured in New York State must have, at minimum, the basic “$25K/$50K” coverage.  That is, a maximum of $25,000.00 per injured person and a maximum of $50,000.00 to be divided among all injured persons.

Confused?  Here’s how it works.  If a thrice-convicted drunk driver forgets to pay his auto insurance premium and kills a forty-year-old father of four by rear ending him into a concrete divider, the man’s wife can recover $25,000.00 from his own insurance company under his basic UM coverage.

However, if one of his children is also in the car suffers a head injury and is permanently brain damaged, he too can recover $25,000.00.

But if a second child is in the backseat and sustains bilateral comminuted “tib/fib” fractures, his wife and the two children will split $50,000.00.  And not a dime more.

“Wow,” you might wonder, “how can this family be financially protected from such an unfathomable tragedy?”  That’s where “Supplemental Underinsured Motorist” coverage helps.  If Dad has a $300K/$500K liability policy with DoRight Insurance Company, he can purchase SUM coverage up to the same amount as his liability coverage.  Then if the driver has no insurance or a policy with lower liability coverage, his own insurance company will indemnify him for the difference between the two policies.  So, if Dad was alone in the car, his wife could recover $275,000.00 from DoRight.  And if two or more people were in the vehicle, they will split $450,000.00 between them.

Purchasing UM/SUM coverage for the same limits as your liability insurance makes sense.  It’s the only way to protect yourself against uninsured and underinsured drivers.  And who wouldn’t want to protect himself and his loved ones as much as he protects a stranger?  Besides UM/SUM coverage is cheaper than a ten-dollar whore at a French seaport and UM/SUM claims are not “charged against” the owner’s policy.

So . . . why doesn’t every owner buy the maximum coverage?  There are several reasons:

(1)        IGNORANCE.  Many people just don’t understand how automobile insurance works.

(2)        STUPIDITY.  Some drivers ignore the advice of well-informed and well-intentioned insurance brokers (most are in this category) who recommend that they purchase the maximum UM/SUM.

(3)        AVARICE.  A few sleazy insurance brokers know that there is little profit to be made selling UM/SUM coverage and try to lure customers by selling policies with the cheapest premiums.

(4)        SLOTH.  A few other brokers are too lazy to bother scrutinizing the policy or explaining to the customer how SUM works and why it is so important.

Don’t fall victim to one of these sins.  Examine your insurance policy.  If you have the maximum UM/SUM coverage, pat yourself on the back, praise your insurance broker or thank your lucky stars. If you don’t have the coverage, wake up, get smart and find a good broker.

                If you are ever called for jury duty, the lawyers will say that they are looking for jurors who will be impartial.  They’re lying.  Any trial lawyer worth his salt wants jurors who will favor his client.  The jury system works when each lawyer is able to “strike” the jurors who would seem to favor the other litigant.  Each lawyer can “challenge” and eliminate any and all jurors who admit that they are predisposed to favor the other side.  But what about the jurors who say they will be fair but harbor sympathies for one side or another?  Luckily, each lawyer has a certain number (usually three) of “peremptory challenges” which may be exercised to remove a juror who the lawyer believes may harbor secret or latent sympathies for the other litigant – or worse, hate your client.  Sorting the jurors who favor your client from the ones who won’t is a tricky business. 

                Historically, attorneys select jurors based on intuition and formulaic profile.  Some lawyers hire jury consultants to render expert insight into human behavior.  But looking for jurors who will “like” your client is more of an art form than a science project.  Most people harbor prejudices of one type or another.  These are not always nefarious and many come from innocent practical experience.  Juror “number one” might like cab drivers because she’s married to one.  Juror “number two” – who’s actually ridden in a cab – might think that cab drivers are inherently reckless.  Oops . . .  there I’ve divulged one of my biases.  The problem with jury selection is that the average person doesn’t like to admit that he or she may be prejudiced, especially when challenged by a lawyer in front of the other members of the jury panel.  “Mrs. Smith,” the lawyer might ask “I know that your son was killed by a cab driver driving on the sidewalk in Manhattan, but won’t you will be fair to my client?”  In truth, it’s not that Mrs. Smith won’t be fair; she can’t be fair.  And that’s understandable.  As far as I know there was only one Mother Theresa and she’s dead and won’t be in the jury pool.  The only way that a juror may truly be fair is to recognize and admit his or her inclinations.

                The challenge for the trial lawyer is to discern a candidate’s personal history and predispositions in the space of a few minutes.  This is why attorneys profile potential jurors based upon career, education, geographic origin, race and ethnicity.  By profiling, the lawyer may seem to be showing his own prejudices.  In fact, he’s trying to intuit the jurors’ prejudices and has to rely on stereotypes to do so.  Homeowners and shopkeepers typically don’t like people who bring lawsuits when they trip and fall.  Elderly white people from Douglaston Manor typically fear black rappers from Jamaica.  Kindergarten teachers typically cry when they hear that a little child was hurt in a car accident.  Bankers typically don’t like anyone who sues for money damages (unless, of course they themselves are injured.)         

                It’s illegal to racially profile jurors, as the United States Supreme Court outlawed this practice in the case of Batson v. Kentucky,476 U.S. 79 (1986).  Mr. Batson was a black man who was convicted of burglary.  During voire dire (jury selection), the prosecutor peremptorily challenged all four black people on the jury panel.  Batson’s conviction was overturned on appeal because his jury was exclusively composed of white people.  The stated reasoning behind the Court’s decision was that a man is entitled to be tried by a jury which represents a cross section of his community.  Of course, the Court’s unstated conclusion was that a black man charged with burglary in Kentucky doesn’t have a puncher’s chance to be acquitted by twelve white people.  In reality, the Batson jurors may have been fair-minded, color-blind people and Mr. Batson may have been caught red-handed.  It’s just that the case didn’t pass the “smell test.”  Yet in making its decision the Supreme Court Justices expressed their own prejudices against white southerners.  Why did they do so?  Because guaranteeing a fair trial for Batson was more important than offending the sensibilities of the jurors whose liberty was not in issue.  Since Batson, courts have extended the prohibition against profiling to include gender-based jury challenges but the courts have expressed no opinion about other types of profiling.    

                In fact, racial and sexual profiling continues to be an acknowledged, if sub rosa, jury selection technique.  An injured plaintiff typically wants a jury composed of liberal-minded, soft-hearted, generous, empathetic people.  Defendants typically prefer conservative, unemotional, and financially prudent people.  The risk in stereotyping is that people are not always who they seem to be.  So it’s important to get a feel for the person behind his or her job, race, color, address or educational background.  Therein lies the rub and it’s most important to ask questions of the juror which will provide insight as to their character, thought processes and personal experiences. 

Next: Picking a Jury in Queens County

“Eeeney, Meeney, Miney, Moe”

With Valentine’s Day approaching, no doubt many men are considering a marriage proposal to their significant others.   But before “fools rush in”, consider this: Who gets the engagement ring if the wedding is called off?  Believe it or not, there is a law in New York State that contemplates such eventualities.   

Civil Rights Law § 80-b states that “nothing in this article [contained] shall be construed to bar a right of action for the recovery of chattel . . . or the value thereof . . . when the sole consideration for the transfer of the chattel . . . was a contemplated marriage which has not occurred . . .”  Section 80-b is intended “to return the parties to the position they were in prior to becoming engaged, without rewarding or punishing either party for the fact that the marriage failed to materialize.”  Gaden v. Gaden 29 N.Y. 2d 80, 88.

However, consider where the proposer is in the midst of a divorce that has not been finalized before the proposal.  Such was the unfortunate fate of the Romeo in Listoken v. Kreitman  2007 NY Slip  Op 34260.  Listoken sued his former fiance Kreitman for the return of the $76,000.00 engagement ring kept by Kreitman after their breakup.  The Court found that since Listoken was married at the time of the proposal, the enagement ring could not be recovered on the grounds that  “an agreement to marry under such circumstances is void as against public policy . . . and it is not saved or rendered valid by the fact that the married individual contemplated divorce and that the agreement was conditioned on procurement of the divorce.” Lowe v. Quinn 27 N.Y.2 d, 397, 400  (1971)

Public policy, however, does not proscribe a return of the ring in situations where unbeknownst to the plaintiff, the defendant recipient of the ring was still married. In Shoenfeld v Fontek 67 Misc 2d 481 (1971), the unmarried male plaintiff sought to recover property he gave to the married female defendant in contemplation of their marriage, which ultimately did not take place. The defendant argued that no recovery was permissible because she was already married, and an impediment to the marriage therefore existed. The Supreme Court determined that the rule precluding recovery in such cases “is not intended to bar an action for the return of property by an innocent party, not aware of the other’s disability to contract a marriage at the time of the “engagement'”.

Of course, the foregoing rules apply only to a ring given as an engagement ring.  If there were reasons other than a contemplated marriage why the gift was given, such as part of a birthday or holiday celebration, the ring may not be subject to return.  Where there is a genuine dispute as to the circumstances under which the ring was given, a trial may be necessary to determine the facts.