Dear Friend:

During the 2001 legislative session, the Assembly Judiciary Committee advanced a number of major proposals to prevent children from being used as pawns in interstate custody disputes and protect domestic violence victims. It was a banner year for estates and trusts law as New York became the first state to enact the historic "Principal and Income Act," permitting the use of "unitrusts" as well as laws to simplify the administration of small estates. We improved New York’s business climate by enacting a new Article IX of the Uniform Commercial Code governing secured transactions. We added new judges to upstate city courts and brought salary equity to New York City housing court judges. To ensure access to justice for all New Yorkers, we once again fought to secure funding in the state budget for civil legal services. With the recent addition of supplemental funding for FY 2001-2002, we expect that the Assembly will be able to restore partial funding for legal services. We sought to raise rates for assigned counsel in the wake of a crisis in representation for low income people in criminal and family court matters. Unfortunately, the Governor failed to provide financial support for an assigned counsel increase in the Executive budget and an appropriate source of funding has not yet been identified. Finally, the Office of Court Administration budget was adopted in full as presented by the Chief Judge.

On November 7, 2001, the Judiciary Committee co-sponsored a hearing with Speaker Sheldon Silver and other Assembly Committees on the management and distribution of charitable contributions dedicated to the September 11th World Trade Center attack victims. In addition to questions concerning the coordination and effective distribution of the over $1.2 billion raised by charities, the hearing also addressed concerns about fraudulent solicitation of funds under the guise of disaster relief.

New York has enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to bring greater certainty to custody disputes where the parents live in different states or countries, [Chapter 386 of the Laws of 2001 (A.4203; Weinstein)]. The UCCJEA - put forth by the National Conference of Commissioners of Uniform State Laws - would also make it easier for parents to enforce custody orders and bring New York into conformity with federal law on parental kidnapping. It will end confusion and frustration by establishing clear criteria on which state’s court will have the jurisdiction to issue, modify or enforce custody orders. It also increases the confidentiality protections for domestic violence victims and adds protections for children.

Two effective support enforcement tools were extended until June 2003 to ensure that New York children receive the economic support they deserve. Chapter 72 of the Laws of 2001 (A.7924; Weinstein, Glick, Eve, Canestrari, et al.) continues the suspension of drivers’ licenses for failure to pay four or more months of support. Since the inception of drivers’ license suspension in July 1995, more than 800,000 cases have been referred to the Department of Motor Vehicles, resulting in the collection of more than $72 million in support arrears.

Chapter 68 of the Laws of 2001 (A.7923; Weinstein, Glick, Eve, Canestrari, et al.) extends state tax department involvement in the collection of child support. The department is authorized to use all of its available powers to collect child support when the party owing support is four or more months in arrears. Since the inception of tax department enforcement in December 1996, $140.5 million in support arrears has been collected, $46.6 million in calendar year 2000 alone.

In February, 2001, Assembly Judiciary Chair Helene Weinstein, in collaboration with the New York State Bar Association Committee on Children and the Law, hosted a forum on the inadequate compensation for law guardians and assigned counsel to address the consequences of the "18-B" crisis on children and families in first-hand, human terms.

The acute shortage of appointed counsel in both family and criminal matters has reached crisis proportions in New York due to unrealistically low rates, which have not been raised since 1986. Appointed counsel in New York City and elsewhere have refused to take new cases. In addition, a number of lawsuits challenging the rates are currently underway. Meanwhile, judges have been raising rates on an ad hoc basis.

Assemblywoman Weinstein, along with Senate Judiciary Chair James Lack, and Katherine Lapp, Director of NYS Criminal Justice, were appointed earlier in the year to a high level task force to address the assigned counsel crisis. Among other duties, the Task Force undertook a survey of the state’s 63 counties to better assess the problem. Unfortunately, while all concerned agree on the need for action, the Governor failed to include funding in the 2001 budget to raise assigned counsel rates, and an appropriate source of funds to meet this need has not yet been identified.

Judge Joseph Lauria (far right), the Chief Administrative Judge for the New York City Family Courts, points to the stack of 100 files that represent the average caseload of one assigned counsel. From left to right: Assemblywoman Weinstein and forum presenters June Castellano, a law guardian from Rochester; Jack Carter, Director of the Third Department Law Guardian Program; Appellate Division Associate Justice Edward Spain, the Chair of the Law Guardian Advisory Committee in the Third Department; and Harriet Weinberger, Director of the Second Department Law Guardian Program.

In 2001, the Legislature passed a number of new measures to further safeguard domestic violence victims and their children.

Authorizing Night Court Orders

Chapter 340 of the Laws of 2001 (A.8961A; Rules/Carrozza) will allow domestic violence victims to go to Family Court at night to obtain an order of protection without the abuser being present (‘ex parte’). The new law authorizes judicial hearing officers and court referees to issue ‘ex parte’ orders during night court sessions, enabling domestic violence victims to get an immediate protective order. The legislation is needed because family courts in the Bronx and Brooklyn have begun having night sessions. Under current law, all parties must be present and consent to the court referee or JHO hearing the case.

Guaranteeing Mandatory Arrest

A major provision of the 1994 Family Protection and Domestic Violence Intervention Act which mandates arrests in family offense cases was extended until July 1, 2003.

Ensuring Address Confidentiality

Chapter 236 of the Laws of 2001 (A.7741A; Weinstein, et al.) will help litigants in family court and matrimonial proceedings to keep their addresses confidential where the court finds that disclosure of the address or other identifying information would pose an unreasonable risk to the health or safety of a party or their child. It will enable the court clerk to be designated as an agent for service of process in any proceedings. The law also protects the addresses of domestic violence shelters, as required by state and federal law.

The Legislature passed a law revising staffing and compensation of city court judges throughout New York State, thereby correcting inequities that have arisen over the last five years Chapter 584 of the Laws of 2001 (A.7922A; John, Tokasz, Weinstein, et al.). Taking into account actual and projected caseloads, the measure created new full-time city court judgeships where needed, converted several part-time positions into full-time positions, and revised the salary structure for part-time judges.

Chapter 324 of the Laws of 2001 (A.7341; Weinstein, Lopez, Green, et al.) increases the salary of housing court judges in New York City, thereby making their salaries comparable to state paid judges.

Chapter 47 of the Laws of 2001 (A.8937; Weinstein) makes permanent a provision which gives a trial judge in a criminal trial the discretion to decide whether deliberating jurors should be sequestered. This will reduce the strain on jurors as well as cut costs, while permitting a judge to order sequestration when separation of jurors may cause prejudice or result in jury tampering.

Chapter 42 of the Laws of 2001 (A.5305; Lentol, Weinstein, Canestrari, et al.) prohibits a party in a concluded civil or criminal matter from providing or offering a juror a gratuity. Currently, it is only a crime to offer financial compensation to a juror prior to a jury verdict.

The Legislature enacted new laws which will assist litigants in the process of civil litigation.

Chapter 392 of the Laws of 2001 (A.7344B; Weinstein) broadens the range of medical diagnostic tests that can be admitted as evidence in personal injury actions. It also permits a physician to submit an affirmation identifying a test.

Chapter 205 of the Laws of 2001 (A.7925; Weinstein) clarifies the circumstances under which a timely served notice of intention may be treated as a claim against the State in the Court of Claims.

This year the Legislature exempted towns and villages from various statutory fees that must be paid prior to the commencement of an action in town or village justice courts Chapter 489 of the Laws of 2001 (A.6140A; Gunther). Under prior law, the towns and villages pay these fees into their own courts and are later reimbursed, which leads to extra paperwork and record keeping. Under another measure, which has been vetoed by the Governor, the State would have paid jurors serving in local justice courts $40 dollars per day as compensation for serving on the jury. This is the same rate that jurors are paid for serving as jurors in Supreme Court. Under current law, jurors are paid what the local government deems appropriate to the extent compensation is provided at all (A.7753; Cahill; Veto #9).

Chapter 84 of the Laws of 2001 (A.8959A; Weinstein) enacts a revised Article 9 of the Uniform Commercial Code (UCC 9) governing secured transactions. Revised UCC 9 will make it easier for all New Yorkers to obtain loans by enabling businesses to offer lower interest rates when financing the purchase of personal property. Changes to UCC 9 include the introduction of a single statewide filing system for financing statements and statutory recognition of changes in technology. The new UCC 9 continues New York’s policy of including cooperative interests in real estate (co-ops) within its scope as well as providing greater protection for consumers. The new measure is widely supported by businesses and academics.

Chapter 141 of the Laws of 2001 (A.9113; Tokasz) exempts deferred compensation retirement savings from bankruptcy proceedings and the satisfaction of money judgments. This measure ensures that these retirement plans are accorded the same legal status as IRA or Keough plans.

The enactment of the Principal and Income Act — Chapter 243 of the Laws of 2001 (A.9050B; Weinstein) ushers in a new era for trusts and estates legislation in the United States and reconfirms New York’s status as a leading jurisdiction in this area of law. This historic legislation will permit New York trustees, beneficiaries and remaindermen to reap the benefits of total return investing and allow New York’s Prudent Investor Act to reach its full potential. The second historic aspect of the new law is its creation of a "unitrust" option for new and existing trusts. Under a "unitrust," 4% of the total trust assets will be disbursed annually, based on the total value of the trust’s income and the increase in the trust’s equity.

Chapter 204 of the Laws of 2001 (A.7699A: Rivera) removes the procedural requirement that a trustee obtain either court approval or consent of the beneficiaries prior to exercising an absolute power of appointment to invade a trust’s principal for the benefit of the beneficiaries. Changes in federal tax regulations made this change necessary.

Chapter 234 of the Laws of 2001 (A.7345; Rivera) will permit interested persons, other than claimants, to make an application to the Surrogate’s Court for authorization to enter into a compromise of a debt or claim in situations where that interested person’s rights or interests will be affected by allowance of the claim on the estate.

Chapter 376 of the Laws of 2001 (A.7792; Weinstein) clarifies which trustees are entitled to certain statutory commissions for trusts established prior to 1956. The legislation also provides guidance on how to calculate the base for the commissions. This codification of case law will make the statute easier for practitioners to understand.

Chapter 393 of the Laws of 2001 (A.8357; Klein) eliminates the current requirement that every person named in a will be provided with notice of a contested probate proceeding even when these persons have no interest to protect.

A number of important measures passed the Assembly but failed to pass the Senate. These measures would have:

Authorized guardians to make crucial health care decisions on behalf of developmentally disabled individuals who are unable to make such decisions, thus preventing needless suffering for them and their families (A.8466C; Luster, Gottfried, Canestrari, et al.).

Increased the rate of compensation for jurors that serve on Grand Juries for extended periods of time (A.7903; Canestrari, Weinstein, Seddio, et al.).

Designated March 10th as a public holiday in honor of Harriet Tubman, the American heroine who helped to guide escaped slaves to freedom on the "Underground Railroad" (A.4090; Eve, Farrell, Vann, et al.).

Exempted senior citizens from paying in excess of one month’s rent as a security deposit for residential rental property (A.2029; Colman, Gromack, Sanders, et al.).

On June 14, 2001, the Assembly Judiciary Committee, along with the Assembly Committee on Codes and the Legislative Task Force on New Americans held a public hearing in New York City on the need for affordable, quality civil legal services for New York’s poor and low-income immigrants. This hearing addressed many of the problems facing immigrants and their families, including the recent revocation of funding by the state Interest on Lawyers Account (IOLA) to programs that have been representing immigrants and other clients restricted by the Federal Legal Services Corporation.

On March 22nd, the New York State Assembly held a public hearing in New York City on the obstacles the Polish Government was attempting to impose upon New York’s Polish Holocaust survivors in obtaining restitution of their stolen property. Homes and factories were among the property seized by the Nazis and individual Poles from Jews that were deported and killed during the Holocaust and seized by the Polish communist government after W. W. II.

The hearing, which was covered by Polish television, heard testimony from the lawyer who represents Polish Holocaust survivors in a class action against Poland and a number of courageous survivors.