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Maynard, O'Connor, Smith & Catalinotto, LLP

May 28, 2010

Maynard, O'Connor Team Heads to Americade 2010

Category: Firm News — admin @ 5:54 pm

The Maynard, O’Connor team will make its debut appearance at Americade 2010 in Lake George, N.Y. Tuesday, June 8 to Saturday, June 12 operating a booth at the Americade Expo, located in the Lake George Forum off Main Street in the village.

The purpose of our presence at Americade is two fold.  First and foremost, we will be raising funds for one of our clients, Shane Foss, a 23-year-old man who suffered devastating and permanent injuries during a motorcycle accident in September 2009.  Shane is a remarkable man who is now unable to continue his career as a resident counselor working with the mentally handicapped at Alternative Living Group.  We will raffle off several items donated by local motorcycle dealers and will collect donations to help Shane with his escalating medical and living expenses.

In addition, we will raise money to promote motorcycle awareness through a public radio campaign.  It’s that time of year… the weather is warming up and motorcycles are everywhere.  Several members of the Maynard, O’Connor team and their families are motorcycle enthusiasts, and we are asking that automobile operators take a second look while they’re driving and share the road with their two-wheeled counterparts.  Remember, a second look can save a life.

If you’re in the area, stop by our booth at Americade, enter to win one of our raffle prizes and help out Shane.  If you would like to make a donation, please send a check payable to the Shane Foss Motorcycle Awareness Fund to:

Americade 2010
Shane Foss Motorcycle Awareness Fund
c/o Concetta R. Lomanto, Esq.
Maynard, O’Connor, Smith & Catalinotto, LLP
6 Tower Place, Albany, New York 12203

Maynard, O’Connor Team Heads to Americade 2010

Category: Firm News — admin @ 5:54 pm

The Maynard, O’Connor team will make its debut appearance at Americade 2010 in Lake George, N.Y. Tuesday, June 8 to Saturday, June 12 operating a booth at the Americade Expo, located in the Lake George Forum off Main Street in the village.

The purpose of our presence at Americade is two fold.  First and foremost, we will be raising funds for one of our clients, Shane Foss, a 23-year-old man who suffered devastating and permanent injuries during a motorcycle accident in September 2009.  Shane is a remarkable man who is now unable to continue his career as a resident counselor working with the mentally handicapped at Alternative Living Group.  We will raffle off several items donated by local motorcycle dealers and will collect donations to help Shane with his escalating medical and living expenses.

In addition, we will raise money to promote motorcycle awareness through a public radio campaign.  It’s that time of year… the weather is warming up and motorcycles are everywhere.  Several members of the Maynard, O’Connor team and their families are motorcycle enthusiasts, and we are asking that automobile operators take a second look while they’re driving and share the road with their two-wheeled counterparts.  Remember, a second look can save a life.

If you’re in the area, stop by our booth at Americade, enter to win one of our raffle prizes and help out Shane.  If you would like to make a donation, please send a check payable to the Shane Foss Motorcycle Awareness Fund to:

Americade 2010
Shane Foss Motorcycle Awareness Fund
c/o Concetta R. Lomanto, Esq.
Maynard, O’Connor, Smith & Catalinotto, LLP
6 Tower Place, Albany, New York 12203

May 26, 2010

Maynard Team Competes in Workforce Challenge

Category: Firm News — admin @ 8:00 am

On May 26th, 16 members of the firm competed in the 30th annual Workforce Challenge, a 3.5 mile run/walk throughout downtown Albany.  this year, a record 8,800 participants, from 450 seperate companues, turned out for the event.  Proceeds from the race support this year’s honored chairty, the Boys & Girls Club of Albany.

“Team Maynard” ranked 122nd overall and was listed as the fastest law firm!

The Maynard Team

The Maynard Team at the 2010 corporate challenge -- the fastest law firm!

May 19, 2010

‘Poison Pill’ clause can help limit will contests

Category: Legal Writing — admin @ 8:00 am

By Thomas G. Daley
Partner, Maynard, O’Connor, Smith & Catalinotto, LLP

It is not uncommon for questions to arise with regard to the validity of a will.  Specifically, there may be issues regarding the mental capacity of an individual to sign a will.  There may also be potential questions about fraud or undue influence that may have affected the contents of the will.  When issues such as these arise, there is the potential for a will contest which, if successful, could result in the will which is being offered for probate invalidated.

Attorneys who draft wills have recognized that the potential for will contests could potentially frustrate the intent of the testator (the person making the will).  In order to try to limit will contests, many wills will have a “poison pill” clause in them which states that if any beneficiary attempts to contest the will and is unsuccessful, the bequest to that beneficiary will be nullified.

In an effort to strike a balance between making sure that the will that is being offered for probate is legitimate and proper as opposed to the attempts of the deceased to prevent a will contest, SCPA § 1404 allows for the examination under oath of certain specified individuals.  The examination under oath of these individuals does not violate the “poison pill” provision in the will and will not serve to invalidate the bequest to the individual seeking these examinations.
The question recently arose in a case as to whether the list in SCPA § 1404, which allows for the examination of the will preparer as well as the witnesses to the will, is exclusive.  In Matter of Singer, 13 NY3d 447, the Court of Appeals stated that the list is not exclusive and that other individuals may be questioned under oath without losing the protection from the “poison pill” provided by SCPA § 1404.  The Court reasoned that the overriding public policy interest in having valid wills admitted to probate outweighs the intention of the deceased to avoid a will contest.  In this particular case, the beneficiary seeking to question the witnesses decided, after having completed the examinations under oath, that he did not wish to file objections to the probate of the will.  If the beneficiary had filed objections and was unsuccessful in preventing the will from being admitted to probate, his bequest would have been nullified.

May 17, 2010

Details on Services for Christopher Dressler

Category: Firm News — admin @ 3:46 pm

Calling hours for Christopher Dressler will be on Friday, May 21 from 2:00 p.m. – 5:30 p.m. at DeMarco Stone Funeral Home, 5216 Western Turnpike (Rt. 20) in Guilderland, NY followed by a memorial service at 5:30 p.m.

The Maynard, O’Connor offices will close at noon on Friday, May 21.

May 14, 2010

On the Passing of Christopher Dressler

Category: Firm News — admin @ 1:58 pm

The firm deeply mourns the loss of Christopher Dressler, who passed away on May 13th after a lengthy battle with cancer. Chris was a member of the firm for thirty years. He will be remembered not only for his renowned trial skills and dedicated service to his clients, but also for his integrity, leadership and wise counsel. Chris was a beloved partner, mentor, husband, father, and friend. He will be sorely missed.

Details for the service of remembrance will be posted here when they become available.

May 12, 2010

WHAT TO DO AFTER A CAR ACCIDENT: Tips to Protect Yourself and Your Legal Interests

Category: Legal Writing — admin @ 8:00 am

Unfortunately, statistics reflect that every driver can be expected to be involved in a motor vehicle accident in his or her lifetime.  Accidents may range from the simple and mundane “fender bender” to much more catastrophic collisions.  If you have suffered an injury, you should be aware that there are some very brief deadlines to report your injuries, and that your failure to promptly report these injuries could result in a denial of no-fault coverage.  Whether your accident involves property damage or personal injuries, and regardless of whether you or another driver are at fault, some simple measures should be taken immediately to protect your interests.

At the scene of the accident:

  • First and foremost, determine whether you or your passengers are injured.  Your well being and that of your passengers should be your first priority.
  • You should not move the vehicles until police arrive.  The position of vehicles can help the police determine fault.  Never leave the scene of an accident until police authorize you to do so.  Under some circumstances, leaving the scene of an accident could have criminal implications.
  • Exchange insurance information with other drivers involved in the collision.  Be sure to obtain the other driver’s name, address, phone number, and license plate number. Record names and contact information for other drivers, passengers and witnesses.
  • Never reach an agreement with the other driver to simply resolve the matter “out of pocket” without reporting the claim to your insurance companies.  Often, physical injuries or mechanical damages are not readily apparent and may not manifest until long after the accident.
  • If possible, before vehicles are moved, take photos of the position and condition of the vehicles and any pertinent weather conditions.  Photos are often the most compelling piece of evidence and can be used to refute claims or to help experts determine the cause of the accident and force of impact.
  • Never concede fault or make any incriminating statements to other drivers.  When reporting the accident to the police, do not admit fault, but merely report the facts, without reporting any opinions.

Following the accident:

  • Immediately contact your insurance agent.  Most policies require that an accident must be promptly reported.  The failure to promptly report an accident could provide your carrier with grounds to disclaim coverage and expose you to personal liability.  Be aware that additional coverage may also be available under your homeowner’s policy, excess policies, or even polices on other cars in your home.  You should promptly advise those carriers of the accident as well.
  • If you believe you have any injuries or require any medical treatment, it is critical that you immediately contact your insurance agent, request an application for no-fault benefits, and promptly complete that paperwork.  Be aware that there are very short deadlines for reporting injuries.  Your failure to promptly report injuries within that timeframe could lead to denial of coverage for your injuries.
  • Cooperate with your own insurance company.  The failure to cooperate with your insurance company can lead to a disclaimer of coverage.
  • In contrast, be wary of speaking to another driver’s insurance company.  We  recommend that you obtain legal counsel before you participate in such interviews.
  • Obtain a copy of the police accident report for the collision.  Be aware that the Department of Motor Vehicles also requires you to report certain accidents.  Under some circumstances, the failure to report an accident to DMV could lead to suspension of your license.
  • Do not sign any document that is any form of release, waiver, or check.  If you are not sure about what you are signing or whether it is fair, consult an attorney for assistance.

If you believe that you have suffered injuries as a result of another driver’s negligence, please consult us for assistance.  Personal injury litigation requires compliance with many specific limitation periods and statutory pleading requirements.  These details may prove to be fatal pitfalls to the unwary practitioner or pro se litigant.  At Maynard, O’Connor, Smith, & Catalinotto, we are well versed in prosecuting and defending personal injury litigation and offer years of experience in navigating these difficult issues.  In the unfortunate event that you have been injured in a motor vehicle accident, please consider consulting us for assistance

May 3, 2010

The Legal Side

Category: Legal Writing — admin @ 5:57 pm

The Legal Side
by
Ed Tobin, Jr.
Partner, Maynard, O’Connor, Smith & Catalinotto, LLP

This article first appeared in the January 2010 issue of Success Magazine.

Dealing with Business Competition from Former Employees

So you’ve brought in a fledgling employee, provided training, gave access to your methods of operation, market and profitability data, access to all your clients/customers.  Your employee excelled bringing in substantial revenues.  Shortly thereafter, the employee thinks: “Hey, I can go out there and do this myself, make lots of money, and not have to work for this schmuck any more.”  And that’s exactly what happens – an all too common scenario.  You hear that you can protect yourself with a non-compete agreement.  You grab some boilerplate language and force all your employees to sign it.  End of story?

Let’s look at some of the ins and outs of these agreements.  The first thing you should know is that non-compete agreements are generally disfavored by courts and are carefully scrutinized when enforcement is sought given what courts have deemed to be powerful considerations of public policy which facilitate against sanctioning the loss of one’s livelihood.  As such, the non-compete agreement has to be very carefully drafted.  Typically, the agreement prevents the employee from using a former employer’s customers or customer lists and may restrict them from working in an area of the prior employer’s business.  This latter restriction, typically a 25- or 100-mile radius, can be enforceable, but will only be allowed by the courts when the restricted person is a professional providing very unique services or special skills.  More generic type work, such as that of a sales representative or ordinary laborer, will not be restricted.  Also, if the restrictions are unreasonable or overreaching in scope, the court will not enforce them.

I recently had a case where the non-compete agreement prevented my client from working anywhere in the United States even though the company only did business in five states.  That was found to be overreaching.  Overreaching non-compete agreements can be subject to no enforcement at all.  In other words, the courts may decide that it is not going to try to rewrite the agreement and define the competition area.  However, case law is mixed.  Some courts are very willing to reinterpret the agreement and impose their own sense of fair play as to what the restriction should have been.  Such levels of variation from case to case, from judge to judge, make predicting what could happen in any specific case for any specific client fairly difficult.  The bottom line is that the tighter the agreement is drafted, the more likely it would be successfully enforced.

What is needed is protection for your trade secrets, your marketing practices and your customers.  Agreements preventing the solicitation of the customers of a former employer have been enforced but enforcement is variable.  The more generic the customer (i.e., readily available in any phone book), the harder it is to seek enforcement.  Nor are the agreements unlimited in time; they usually stand for one or two years at most.  For the departing employee, if clients/customers come to you and seek you out, as opposed to being solicited by you, you have a much better chance of keeping those customers and not having to pay the profits back to your former employer.  Customers that come to you should be willing to provide you with some sort of brief documentation that they were not solicited.  For the employer, when the valued employee leaves, it’s all about the relationship that you have with your clients/customers and utilizing effective communications since you are free to contact your clients/customers at any time and with no penalty, maintaining and fostering the relationship.

A claim against a former employee may include the “faithless servant doctrine,” arguing that the employee was engaged in activities in competition with the employer while still on the job and thus seeking to recoup, for example, commissions paid to the employee during that time frame.  An employee merely getting his or her own business underway, not on company time, would not qualify under the doctrine.  An employer may also have a claim for misappropriation of proprietary information or business secrets.  However, case law has held that knowledge of the intricacies of a business corporation does not necessarily constitute a trade secret and customer lists are not necessarily secret and protected information where such customers are readily available from sources outside the former employer’s business.  On the other hand, a former employee’s use of a proprietary process or method may be actionable.

The best step, whether you are the aggrieved employer or the employee about to head off on your own, is to seek legal intervention.  Missteps abound either in inartful drafting of restrictive covenants which will later not be enforced, in whole or in part, or in engaging in inappropriate actions giving your former employee a valid claim that could have been prevented. Too often a client will come to me after the damage has been done.

© 2010 All Rights Reserved.
This article is for illustrative purposes only.  You should consult your own personal attorney in any legal matters.