Jim Maisano Legal Blog!

2025-04-23T01:11:00.002-04:00

To protect yourself from identity theft in this digital age, follow these essential security practices:

1) Use Strong, Unique Passwords – stop using the same password across multiple accounts & try a password manager to generate complex passwords.

2) Enable Multi-Factor Authentication - add this extra layer of security to help prevent hacks into your online accounts.

3) Monitor Financial Statements - regularly review bank & credit card statements for suspicious transactions.

4) Secure Personal Documents - shred sensitive documents when done with them & store important paperwork securely.

5) Beware of Phishing Scams – don’t respond to unsolicited communications or click on suspicious links & never give out confidential info.

6) Use VPN on Public Wi-Fi – this encrypts your internet connection to prevent data theft.

7) Regularly Update Software – Keep your devices & apps updated to protect against vulnerabilities.

Jim Maisano
JMaisanoEsq@gmail.com
914-636-1621

2025-03-24T17:28:00.006-04:00

WESTCHESTER COUNTY CONSUMER PROTECTION DEPARTMENT WARNS RESIDENTS AS SPRING CONTRACTING SEASON APPROACHES

Residents Reminded to Verify Licenses Before Starting Home Improvement Projects

With spring beginning, many Westchester County homeowners are gearing up for home renovation projects — from landscaping and painting to major construction work. As residents plan their upgrades, the Westchester County Consumer Protection Department is reminding the public to protect themselves by hiring only licensed contractors.

Westchester County Executive Ken Jenkins said: “Operating without a home improvement license is a violation of law in Westchester County, so if you’re hiring a contractor to do home improvement work, ask the contractor to show you a license from our Consumer Protection Department.”

Consumer Protection Director Jim Maisano said: “Contractors must follow all requirements set forth on Article XVI in County Law – ‘Licensing of Persons Engaged in Home Improvement Business.’ There are almost 9,000 licensed contractors in Westchester to pick from and they all went through a background check, so you have many options and we are here to help you.”

A list of all licensed contractors and the contractors that homeowners should avoid — “Renegade Renovators” — can be found on the Westchester County Consumer Protection Department webpage.

Consumers should know that the Department is vigilant in following up on formal complaints against contractors and will take action against contractors who operate without a license or violate the terms of their contracts. Complaints can be filed online on the Department’s webpage.

Tips for Hiring Home Improvement Contractors:

Licensed home improvement contractors must display a green sticker on the rear bumper of their vehicles, which indicates the expiration date of their license.
For any hired work, there must be a written contract between the parties. All work to be performed must be spelled out, including the estimated start and completion dates and the total price, including the costs of labor and materials and any schedule of payments.
Verify that contractor is licensed to perform home improvement work prior to giving any form of payment.
Review the Department’s webpage which offers helpful advice to consumers about hiring a contractor, including a printable pamphlet.
Get references from friends and review proposals from at least three (3) licensed contractors.
Be wary of all unsolicited phone calls and door-to-door sales.

Additional information is available at consumer.westchestergov.com, including a sample home improvement contract that fully complies with law, or contact the Department of Consumer Protection at (914) 995-2155 or email at ConPro@westchestercountyny.gov for assistance.

Interesting & Scary Article in NY Post About German Police & Prosecutors Cracking Down of Free Speech!

2025-03-13T02:00:00.003-04:00

Rikki Schlott did an excellent job with an article in the New York Post explaining how German police and prosecutors have assumed the role of the "Thought Police," as they crack down on people allegedly using offensive "Hate Speech" when merely posting "insulting" memes on social media. The article is entitled, "Germans are being arrested for insulting politicians — we need to protect free speech so it never happens here." Here's the link:

https://nypost.com/2025/02/21/world-news/germans-cant-insult-politicians-which-is-why-we-need-to-protect-free-speech-in-the-us/

Schlott correctly argues, "once you open the door to prosecuting 'hate speech,' you no longer actually have free speech. 'Hate speech' is an amorphous term that can be defined differently by every judge, every prosecutor, and every individual."

This article will surely make you appreciate that our 1st Amendment remains a shield against rogue police and prosecutors showing up at your house to arrest you because you made a joke on the internet, which is scarily happening in Germany.

Jim Maisano
JMaisanoEsq@gmail.com

Inspecting The Gas Stations You Use - Consumer Protection - Westchester County Government!

2025-02-04T23:03:00.000-05:00

The Westchester County Consumer Protection Department inspects every grocery store in our County every year - here's a short video showing how we do the inspections!

2024-06-28T13:55:00.002-04:00

Listen to Consumer Podcast - Episode 4 - Advisory on Federal Stimulus Visa Debit Card

2020-05-28T04:09:00.001-04:00

See insert above that comes in mailing with the Federal Stimulus Visa Debit Card.

Listen to EPISODE 4 of the Westchester Consumer Protection weekly PODCAST (2:30 min clip on May 27, 2020) for my advisory on why people must be careful with Federal Stimulus Visa Debit Card that is arriving at homes across US over past week - some people actually threw it away thinking it was junk mail.

LINK:

https://www.podbean.com/eu/pb-5g6xk-dde67b

Here are 2 helpful posts on this issue:

https://www.consumerfinance.gov/about-us/blog/economic-impact-payment-prepaid-card/

https://www.irs.gov/newsroom/millions-of-people-will-get-their-economic-impact-payment-by-prepaid-debit-card

Check your mail and be careful.

Jim Maisano, Esq.

JMaisanoEsq@gmail.com

914-636-1621

Did you know you will be receiving a letter from 2020 Federal Census next week?

2020-03-05T08:00:00.000-05:00

Next week, most Americans should receive a letter from the Census Bureau - don't throw it away! For the first ever, you can answer that letter online. Here's what the Census' website - www.census.gov - says about this letter:

How to verify a mailing is from the Census Bureau:

If you receive a survey or a letter in the mail from the Census Bureau, the envelope contains information that will help you verify its legitimacy. For example:

“U.S. Census Bureau” in the return address or “U.S. Department of Commerce” which is the Census Bureau’s parent agency.
Jeffersonville, IN in the return address. The Census Bureau has a mail processing center located there.

Households will receive an invitation in the mail to complete the 2020 Census online, by phone, or by mail. The enclosed envelope to mail back a completed paper questionnaire would be addressed to Jeffersonville, IN, or Phoenix, AZ.

If you're wondering why we do the census every ten years, here's some background from the Census website:

As mandated by the U.S. Constitution, our nation gets just one chance each decade to count its population.
The U.S. census counts every resident in the United States.
It is mandated by Article I, Section 2 of the Constitution and takes place every 10 years.
The data collected by the census determine the number of seats each state has in the U.S. House of Representatives (a process called apportionment) and is also used to distribute billions in federal funds to local communities.

The Census was debated by our founding fathers! Here's more historical background from Census website:

The U.S. Constitution empowers the Congress to carry out the census in "such manner as they shall by Law direct" (Article I, Section 2). The Founders of our fledgling nation had a bold and ambitious plan to empower the people over their new government. The plan was to count every person living in the newly created United States of America, and to use that count to determine representation in the Congress.

Enshrining this invention in our Constitution marked a turning point in world history. Previously censuses had been used mainly to tax or confiscate property or to conscript youth into military service. The genius of the Founders was taking a tool of government and making it a tool of political empowerment for the governed over their government.

They accomplished that goal in 1790 and our country has every 10 years since then. In 1954, Congress codified earlier census acts and all other statutes authorizing the decennial census as Title 13, U.S. Code. Title 13, U.S. Code, does not specify which subjects or questions are to be included in the decennial census. However, it does require the Census Bureau to notify Congress of general census subjects to be addressed 3 years before the decennial census and the actual questions to be asked 2 years before the decennial census.

Jim Maisano, Esq.

JMaisanoEsq@gmail.com

914-636-1621

Important Free Speech Rules For College Students - PASS ON TO STUDENTS!

2020-01-29T08:30:00.000-05:00

Unfortunately, we read too often about colleges trying to stifle free speech on campus, in particular when students dare to speak about controversial views. How sad that this is happening at colleges - the exact places which should be incubators of ideas - all ideas. Students should be pushed to free their minds during college years, listen to alternative views and participate in a marketplace of ideas.

Reason.com - a website with a libertarian point of view - provides outstanding coverage of free speech issues. Reason put together nine short videos on different free speech subjects. Since I have a son in college, I enjoyed reading "College and the First Amendment: Free Speech Views." At this link you will find the post and video (just over 4 minutes):

College and the First Amendment: Free Speech Rules (Episode 7)

Please share this with any college students you know. It will certainly be an education for them on their free speech rights on campus. They will quickly learn they have substantial 1st Amendment rights if they attend a public college, although this is not true at private colleges. They will also learn that in the classroom, the professor is still in charge, and he or she can put limits on debate, challenge students and even cut them off.

Thanks,

Jim

James Maisano, Esq.

93 Wilson Dr.

New Rochelle, NY 10801

914-636-1621

JMaisanoEsq@gmail.com

Everyone Needs To Consider "Digital Assets" When Drafting A Will

2020-01-24T01:10:00.000-05:00

Over the past decade, it's become a requirement for attorneys to add some language in wills to address digital assets. Here's a sample I recently used in a will:

"Reference is made to my digital assets, an inventory of which, with a list of relevant user names and passwords, I intend to maintain. Such inventory shall be kept in a secure location and shall be made available to my Executor upon my death. Upon my death, my Executor shall have full access to my digital assets including all rights, powers and privileges that I have."

Here in New York State, we now have a law that specifically addresses access to digital assets by fiduciaries:
Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act

Section 13-A-2.2 of this law necessitates adding digital assets language to a will:

(a) A user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user's digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.

(b) If a user has not used an online tool to give direction under paragraph (a) or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user.

(c) A user's direction under paragraph (a) or (b) overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.

Here's an excellent post on this issue from the law firm of Farrell Fritz:
https://www.nyestatelitigationblog.com/2019/03/articles/fiduciaries/death-and-digital-content-protecting-digital-assets-after-the-death-of-a-user/

Please feel free to contact me if you have any questions about covering digital assets in a will or other estate planning issues.

Jim

James Maisano, Esq.

93 Wilson Dr.

New Rochelle, NY 10801

914-636-1621

JMaisanoEsq@gmail.com

National K9 Veterans Day & Statue for WWII Hero "Chips"

2019-03-13T18:18:00.001-04:00

Happy National K9 Veterans Day!

I proudly appeared and spoke at the announcement today that a statue will be built in Lasdon Park to honor "Chips" and other animals that supported our military. Last year I read an article about Chips – the most decorated dog in WWII – who performed heroic acts and saved American lives. In the article I noticed that Chips was from Pleasantville New York and passed this info over to County Executive George Latimer, which started the process that led to today's ceremony - here's the video:

LINK: https://www.youtube.com/watch?v=IhdQhuXm4Xw&feature=youtu.be

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Defend the Constitution and Rule of Law, Oppose the President's Emergency Declaration for Border Wall

2019-02-17T15:01:00.000-05:00

I joined the U.S. Marines Corps and became an attorney to defend and protect the Constitution. There's never been a question in my mind that the principle of the rule of law over the rule of man is worth fighting for and critically important to the continued success of our nation. No one can ever be above the law - not even a president. When I served for two decades as a Westchester County Legislator, I believe my colleagues on both sides of the aisle respected my commitment to always following the County Charter and other laws.

I now watch our current politics with disgust as Democrats and Republicans regularly promote the party line over the rule of law. This is perfectly illustrated by the failure of Republicans in Congress to oppose President Trump's actions on Friday. He signed the budget continuation to avoid another federal shutdown, but immediately followed that with the signing of a "Declaration for a National Emergency" to build a wall along our southern border with funds never approved by Congress. I'm not addressing the merits of the border wall here, but I do believe this emergency declaration will be blocked in the federal courts.

It's well-established that the Constitution requires all spending bills to originate in the House of Representatives. The spending bill compromise last week only provided $1.375 billion for another 55 miles of the border wall. Therefore, the President's appropriation of $8.1 billion for said wall in the emergency declaration is unconstitutional because it violates the constitutionally mandated separation of powers.

President Trump has taken an unconstitutional and illegal act to use the military to seize land and build a wall without proper congressional appropriation. This must be recognized as a historically bad and dangerous precedent for future disputes between ANY President and Congress. Remember that in the Presidential Oath, President Trump swore that he “will to the best of his ability, preserve, protect and defend the Constitution of the United States,” and he has certainly violated that commitment here.

For an excellent summary of legal problems with the emergency declaration read, Prof. Ilya Somin's posts, The Perils of Trying to Use Emergency Powers to Build Trump's Wall, and Donald Trump can call a 'national emergency,' but that doesn't mean he can build the wall where he points out the requirement for Congressional approval before all this land can be taken by eminent domain:

"Even if the president can use emergency powers to get funds, that does not mean he can seize property by eminent domain. The Supreme Court has long held that the use of eminent domain must be expressly authorized by law. No emergency law expressly permit the use of eminent domain for border walls not otherwise authorized by Congress.

Building Trump’s wall requires using eminent domain on a massive scale. A third of the needed land is owned by the federal government. The rest would have to be taken from private owners, Native American tribes and state governments, many of whom are unlikely to sell voluntarily.

The result would be one of the largest federal condemnations in modern U.S. history. In Texas alone, there are almost 5,000 privately owned lots in the likely path of the wall. Securing the land and building on it is likely to be costly and time-consuming. Construction and legal battles over compensation can drag on for years."

I consider myself to be a constitutional conservative, so I respect and support the separation of powers set forth in the Constitution, and if you consider yourself a constitutional conservative, you must oppose the President's emergency declaration.

Let's be clear, had a Democrat president signed a similar unconstitutional emergency declaration, every Republican in Congress would be criticizing it with every fiber in their bodies. If they don't oppose the Trump decalarion, they have no credibility left.

Republicans supporting Trump's emergency declaration don't understand (or are intentionally ignoring) how much it violates decades of core Republican legal and constitutional principles. Most importantly, if I'm incorrect and the Trump emergency declaration somehow survives legal challenges, then mark my word, the same Republican elected officials supporting Trump's emergency declaration now will be screaming from the mountain tops when a future Democrat president uses this bad precedent for other unconstitutional actions they disagree with by using emergency powers, and a perfect example could be the Green New Deal.

Every American should oppose this emergency declaration on constitutional grounds, and that especially includes every Republican in Congress who claims to be a constitutional conservative.

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Elected Officials Should Not Be Blocking Twitter Followers

2019-02-13T16:30:00.000-05:00

I believe that reporter Joe Mahoney is correct here:

https://twitter.com/TipMahoney/status/1095728525263421445

A state legislator would violate the First Amendment by blocking the media or constituents from his or her Twitter feed. Joe Mahoney also had a link on Twitter to a post on the ACLU website - Court Rules Public Officials Can't Block Critics on Facebook - which explains why State Senator Parker's action is unconstitutional. The President faced the same issue on Twitter and lost in federal court - Judge Rules Trump Can’t Block People on Twitter.

No one is above the law, especially elected officials. When this State Senator used Twitter to discuss state issues, his Twitter page became a public forum where viewpoint discrimination is not allowed. One benefit of social media is we can watch our representatives more closely, and we can't hold them accountable if they can simply block us from seeing what they are doing.

I hope the ACLU demonstrates a commitment to its roots as a free speech advocate and brings an action against State Senator Parker as soon as possible.

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Be Safe on Internet

2019-02-12T00:52:00.001-05:00

This post contains some excellent advice on how to stay safe on the internet:

https://securitycheckli.st/

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Professor Somin's Op-Ed on Border Wall

2019-02-07T10:00:00.000-05:00

I'm a fan of George Mason Law Professor Ilya Somin. He writes regularly for one of my favorite places on the internet - The Volokh Conspiracy - and his book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, is terrific.

Unfortunately, too much of the political debate over President Trump's proposed border wall is poisoned by knee-jerk, politically obsessed partisans. However, if you wish to review a more thoughtful perspective on this issue, check out this link from a January 19, 2019 Washington Post op-ed by Professor Somin:

To build the wall, Trump might make thousands of Americans suffer

I wish all Americans could read this op-ed to benefit from a more balanced and independent analysis of the border wall issue.

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Conference at Emory on Free Speech and Academic Freedom

2019-02-06T10:32:00.000-05:00

We should all be thankful that thoughtful and concerned people are still fighting to protect and advance free speech and academic freedom - see information on conference at Emory next month - March 21 to March 23:
https://reason.com/volokh/2019/02/04/conference-at-emory-321-323-on-academic

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Expiration date on a winning bet or lottery ticket?

2019-02-05T01:58:00.000-05:00

I bet you always wondered if there was an expiration date on a winning bet or lottery ticket?

Well, this article from FindLaw's Blog at the following link provides you with a nice explanation of the important question:

"When Is It Too Late to Cash a Winning Bet or Lottery Ticket?"

https://blogs.findlaw.com/law_and_life/2019/02/when-is-it-too-late-to-cash-a-winning-bet-or-lottery-ticket.html

Best of luck - I hope this post saves you a lot of money someday.

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Busy Summer at Law Office of James Maisano, Esq.

2012-09-07T05:34:00.000-04:00

Outside of a few vacation days for family trips and events, it was a very busy summer at my law firm, but Labor Day has come and gone, and it is time for a new legal blog post.

Before starting this firm, I worked at two large law firms in Manhattan for about eight years, and while I did have my own clients, I also worked for clients of the firm. Being a solo practitioner is different in that you must not only provide quality and affordable legal services to your clients, you must also attract clients through advertising and promotion of the firm. I have utilized social media, Facebook, Twitter, LinkedIn, Google+ and Tumblr - along with this blog and my website (www.JamesMaisanoEsq.com), as integral parts of promoting the firm, and I am pleased to report it has been successful to the point that the firm is doing well in its second year, which is why it has been so busy.

So what kinds of legal work have clients brought to my firm recently - here is a brief summary:

Since I began practicing law in 1992, the majority of my practice has involved commercial litigation. This includes helping businesses address contract disputes and collecting money owed by debtors. I am currently working on about ten such civil actions, which have been brought either in lower courts or the Supreme Court of the State of New York, and I have been successful for several clients thus far in recovering funds.
I was a solo practitioner from 1996 to 2002 and during that time I developed a significant real estate closing practice. The housing market was strong in those years and I represented hundreds of clients for closings. With the struggling economy and lack of home sales, it is much harder for attorneys to attract this work, but I am happy to report that I worked on three closings this summer.
The fastest growing part of my practice is wills, estates and probate actions in Surrogate's Court. This summer I helped about fifteen clients by drafting wills or guiding executors through the probate process.
Lastly, solo practitioners must be resourceful, and I also helped clients this summer with other legal matters such as setting up a LLC or corporation, legal name change, trademark protection, and traffic violations.

Thanks for following my efforts to build this law firm, and I am very thankful for the kind support and nice comments I have received on social media or by email. If I can ever be helpful to you in the types of legal matters discussed above, or for any other legal matter, please do not hesitate to contact me.

PS: I am now associated with an immigration attorney, and am available to help you with these matters too.

James Maisano, Esq.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621

How do you get on the ballot in New York State?

2012-07-10T11:42:00.000-04:00

As both an attorney and elected official, people often ask me about the process to get on the ballot to run for public office in New York State. Most people seem to think that a candidate gets endorsed at a political convention, but that is only partly true. While candidates do seek the endorsement of political parties at local or county conventions, that endorsement only means that the district leaders for that political party will support you and help you get on the ballot (which is very important).

However, unless you are running for state-wide office (senator, governor, attorney general or comptroller, who are nominated at state conventions), you must obtain signatures on “designating petitions.” This is the requirement for congress, state legislature, county legislature or local city and town elections (but not villages or supreme court). We are in the final week to collect signatures on designating petitions for New York’s five established parties — Democrat, Republican, Conservative, Working Families and Independence. As a matter of fact, I walked my neighborhood this past Sunday night and collected signatures.

What do I mean by designating petitions? New York State Election Law sets forth the required procedures to collect the signatures on the designating petitions and to get on the ballot — see NYS Election Law Sections 6 – 118, 120, 122, 130, 132, 134, 136, 144 & 146. The Election Law requires candidates to obtain signatures of 5% of the registered voters in the district from the political party whose line they seek. Most candidates try to get about 10% to avoid any legal challenges. Therefore, since the first week of June, volunteers for candidates of all political parties have been ringing door bells and asking voters to sign designating petitions that will get candidates on the ballot, and this Thursday is the deadline to file these petitions with the Board of Elections.

For example, last year I needed about 375 signatures to run for re-election to the Westchester County Board of Legislators on the Republican line, and we were pleased to file more than 700 signatures.

If you are a registered voter in a political party and meet the 5% signature requirement from members of that party, you are on the ballot. If more that one candidate files petitions for a particular seat, they will face-off in a primary in mid-September. For candidates without primaries, they go straight to the November election.

What about seeking the lines of parties for which you are not a member? If you wish to run with a party line besides your own, you must meet the 5% signature requirement, as well as get permission from that party to run on its line.

And if you think your opponent’s designating petitions do not contain enough proper signatures to meet the required number, you can try to knock out those petitions with a legal challenge.

Every candidate across party lines can agree on one thing –- they are incredibly thankful for the great volunteers that have been carrying these designating petitions over the past six weeks. Many dedicated people have worked diligently to get candidates on the ballot for this November — so that voters have a real choice on Election Day. I have been carrying petitions for about twenty years now and am happy to report that most people are friendly in the doorway (but yes, there are a few cretins who are rude or too “busy” to participate in democracy). Thanks so much to all the wonderful volunteers carrying the petitions and to the helpful voters who signed them — you all play an important role in our democratic electoral process. Best of luck to all the candidates this year (especially the ones I am supporting)!

James Maisano, Esq.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621

Quick Review of Key Supreme Court Decisions from Past Week

2012-06-26T14:52:00.000-04:00

On this blog and my firm’s Facebook page (www.facebook.com/JamesMaisanoEsq), I have been focusing on a few important U.S. Supreme Court decisions that were being closely watched by the legal and political worlds. Over the past week, the Supreme Court has released three of these decisions:

Arizona v. U.S.

The Court confirmed that “the Government of the United States has broad, undoubted power over the subject of immigration and the regulation of aliens . . . the federal power to determine immigration policy is well settled.” However, the Court did open the door for states to assist the federal government in the enforcement of immigration laws.

A unanimous Court (8-0 with Justice Kagan not taking part) upheld Section 2(B) of the Arizona law requiring police officers to check the immigration status of anyone arrested or detained and allowing them to stop and arrest a person if the officers have “reasonable suspicion” that the person is an illegal immigrant (known as “show me your papers”). The Court stated there was no showing that this section conflicted with federal immigration law.

The public debate over Section 2(B) being used for racial profiling in violation of the Equal Protection Clause was not addressed by the Court here, and this issue appears to be reserved for future review, although the Court did state and accept that the Arizona law specifically bars its use in racial profiling.

On split decisions, the Court rejected other sections of the Arizona law:

making it a crime for unauthorized immigrants to fail to carry registration papers and other government identification (6-2).
prohibiting those not authorized for employment in the US to seek or perform work (5-3).
authorizing police to arrest illegal immigrants without a warrant where “probable cause” exists that they committed any public offense (5-3).

There was some interesting debate around the internet and media among Supreme Court observers on the rather strong and somewhat politically charged dissent of Justice Scalia, who argued that the entire law should be upheld, and it makes for some interesting reading. Here is the link to Justice Kennedy’s majority decision and dissents:
http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf

FCC v. Fox:

A unanimous Supreme Court (8-0 with Justice Sotomayor not taking part) sided with Fox over the FCC in holding, “The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.”

This is a narrow decision on due process grounds. The Court avoided the overarching constitutional challenge to such FCC regulations on 1st Amendment grounds and held that the subject regulations (addressing nudity and profanity) were vague because the FCC failed to give broadcasters fair notice of the changes to its regulations and implementation. Here is a link to Justice Kennedy’s decision:

http://www.supremecourt.gov/opinions/11pdf/10-1293f3e5.pdf

Dorsey v. U.S. & Hill v. U.S.

In this narrow 5-4 ruling in a case addressing the evaluation of legislative history, the Court held that the federal Fair Sentencing Act, which reduced the disparities in the length of sentences for cocaine offenses, applies to defendants whose cocaine offenses occurred before the law went into effect, but were sentenced after the law’s effective date.

Here is a link to Justice Breyer’s decision and dissent:

http://www2.bloomberglaw.com/public/document/Dorsey_v_United_States_No_Nos_115683_115721_2012_BL_153786_US_Jun

This Thursday morning we will have the opportunity to review the final two cases we have been waiting for, which address Obamacare and its individual mandate and potential free speech issues with a federal law prohibiting lying about your military record. I will be posting again soon about these two interesting cases.

James Maisano, Esq.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621

U.S. Supreme Court Decision: Reichle v. Howards

2012-06-08T09:11:00.000-04:00

Last week, I highlighted the six interesting cases to be decided prior to the U.S. Supreme Court ending its session over the next month. One of these decisions, Reichle v. Howards, was released this past Monday, June 4.

Upon a quick review of the media coverage, the decision is viewed as a narrow ruling. The petitioners are two Secret Service agents on assignment protecting Vice President Cheney, and they arrested the respondent following an encounter with the Vice President relating to his objections to the war in Iraq. Based on physical contact with the Vice President, the respondent was arrested. The respondent then brought a First Amendment claim for retaliatory arrest against the petitioners, and the main question presented was whether the agents had qualified and absolute immunity from said action.

On the excellent website http://www.scotusblog.com/, Lyle Denniston reviewed the decision and stated:

“Sparing two Secret Service agents the legal chore of defending themselves at a civil trial, the Supreme Court on Monday chose to leave unanswered the power of police or federal agents to arrest a political protester whose views the officers find objectionable. Instead, the Court ruled only that these two agents were legally immune because they had no warning in 2006 that they might face a lawsuit if they retaliated by arresting an individual who approached then-Vice President Dick Cheney and complained about the war in Iraq.”

Here is the link to Denniston’s full review of the decision: http://www.scotusblog.com/2012/06/opinion-recap-narrow-ruling-on-arrests/

The New York Times also did a detailed review of the case, which can be found at: http://www.nytimes.com/2012/06/05/us/secret-service-agents-cant-be-sued-justices-rule.html?_r=2

I look forward to providing updates on the remaining five Supreme Court cases as they are released.

James Maisano, Esq.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621

A loved one dies — you are executor in the will — what to do?

2012-06-06T12:38:00.000-04:00

A common phone call to my law office is: “My mother/father passed away, and I’m the executor in the will, what do I have to do?”

As the designated executor in a will, you will need to file a petition, along with supporting documents, in the Surrogate Court in the county where the deceased resided. (This post only addresses NYS law). The petition will seek a decree granting probate and letters testamentary – official court documents legally appointing you as executor, so that you can conduct financial and other transactions on the estate’s behalf. When filing the petition, you are agreeing to act responsibly in a fiduciary capacity in the best interests of the estate and to fully follow the deceased’s wishes in the will.

I recommend retaining an attorney at the outset to represent the estate and guide you through the probate process. You will need to assemble documents, including an original death certificate; the original will (and codicils, if they exist); original trust documents (if they exist); addresses for executors and beneficiaries in the will; and an itemization of assets such as personal property and real property (home, coop or condo) in the deceased’s estate.

You will need to pay a fee to start your probate action in Surrogate Court on a sliding-scale based on the amount of the estate, and it varies from about $420 to $1,250. You will also need to open up a bank account for the estate.

If the deceased’s estate was less than $30,000, you can utilize the easier small estate affidavit program – see link at: http://www.nycourthelp.gov/diy/smallEstate.html

After the Surrogate Court grants you the letters testamentary, you will begin liquidating the personal and real property and deposit the money into the estate bank account, so that it can be distributed to the beneficiaries as set forth in the will. When you are finished distributing the estate, you will need to file an inventory of assets and affidavit of completion with the Surrogate Court to demonstrate that the will has been fully complied with. You will also be responsible for filing any federal and state tax returns for the estate.

This is merely a general summary of issues to be addressed when you are the executor named in a will. Of course, the issues discussed here can be more complicated, and I have not mentioned every possible issue you may face. However, once again, an executor should meet with an attorney as soon as possible after the death to discuss the estate and probate process. And please feel free to contact me if you have any questions about this post or the probate process.

(You can also find this post at www.JamesMaisanoEsq.wordpress.com and please see disclaimer there).

James Maisano, Esq.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621

Upcoming U.S. Supreme Court Decisions – Expected in June

2012-05-29T13:54:00.000-04:00

Over the next month, we should be able to review several key decisions of the U.S. Supreme Court. The Supreme Court usually finishes releasing their decisions for the previous term in June. Here are the six cases we will be reading about soon. For each case, you can find the date argued, a link to entire docket (thanks to the ABA website) and the question(s) presented to the court:

1. Arizona v. United States – Argued April 25, 2012

http://www.americanbar.org/publications/preview_home/11-182.html

Question Presented:

Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) to address the illegal immigration crisis in the State. The four provisions of S.B. 1070 enjoined by the courts below authorize and direct state law enforcement officers to cooperate and communicate with federal officials regarding the enforcement of federal immigration law and impose penalties under state law for non-compliance with federal immigration requirements.

The question presented is whether the federal immigration laws preclude Arizona’s efforts at cooperative law enforcement and impliedly preempt these four provisions of S.B. 1070 on their face.

2. Dorsey v. United States & Hill v. United States – Argued April 17, 2012

http://www.americanbar.org/publications/preview_home/11-5683.html

Questions Presented:

Did the Seventh Circuit err when, in conflict with the First and Eleventh Circuits, it held that the Fair Sentencing Act of 2010 does not apply to all defendants sentenced after its enactment?

Whether the District Court erred in not sentencing the Defendant-Petitioner pursuant to the “Fair Sentencing Act of 2010″ where Petitioner was sentenced on December 2, 2010 after the effective date of the FSA and the amendments to the Sentencing Guidelines mandated by the FSA?

3. National Federation of Independent Business v. Sebelius & Florida v. Department of Health and Human Services – Argued March 26-28, 2012

http://www.americanbar.org/publications/preview_home/11-393.html

Question Presented:

Congress effected a sweeping and comprehensive restructuring of the Nation’s health-insurance markets in the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 109 (2010) (collectively, the “ACA” or “Act”). But the Eleventh Circuit and the Sixth Circuit now have issued directly conflicting final judgments about the facial constitutionality of the ACA’s mandate that virtually every individual American must obtain health insurance. 26 U.S.C. § 5000A. Moreover, despite the fact that the mandate is a “requirement” that Congress itself deemed “essential” to the Act’s new insurance regulations, 42 U.S.C. § 18091(a)(2)(I), the Eleventh Circuit held that the mandate is severable from the remainder of the Act.

The question presented is whether the ACA must be invalidated in its entirety because it is non-severable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.

4. Reichle v. Howards – Argued March 21, 2012

http://www.americanbar.org/publications/preview_home/11-262.html

Questions Presented:

Petitioners, two Secret Service agents on protective detail, arrested respondent following an encounter with Vice President Richard Cheney. Petitioners had probable cause to arrest respondent, who in violation of 18 U.S.C. § 1001 falsely denied making unsolicited physical contact with the Vice President. Respondent thereafter brought a First Amendment retaliatory arrest claim against petitioners. The questions presented are:

Whether, as the Tenth Circuit siding with the Ninth Circuit held here, the existence of probable cause to make an arrest does not bar a First Amendment retaliatory arrest claim; or whether, as the Second, Sixth, Eighth, and Eleventh Circuits have held, probable cause bars such a claim, including under Hartman v. Moore, 547 250 (2006).

Whether the Tenth Circuit erred by denying qualified and absolute immunity to petitioners where probable cause existed for respondent’s arrest, the arrest comported with the Fourth Amendment, it was not (and is not) clearly established that Hartman does not apply to First Amendment retaliatory arrest claims, and the denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President.

5. United States v. Alvarez – Argued February 22, 2012

http://www.americanbar.org/publications/preview_home/11-210.html

Question Presented:

Section 704(b) of Title 18, United States Code, makes it a crime when anyone “falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.”

The question presented is whether 18 U.S.C. 704(b) is facially invalid under the Free Speech Clause of the First Amendment.

6. FCC v. Fox Television Stations – Argued January 20, 2012

http://www.americanbar.org/publications/preview_home/10-1293.html

Whether the court of appeals erred in invalidating a finding by the Federal Communications Commission (FCC) that a broadcast including expletives was indecent within the meaning of statutory and regulatory prohibitions on indecent broadcasts, on the ground that the FCC’s context-based approach to determining indecency is unconstitutionally vague in its entirety.

Whether the court of appeals erred in invalidating a finding by the FCC that a broadcast including nudity was indecent within the meaning of statutory and regulatory prohibitions on indecent broadcasts, on the ground that the FCC’s context-based approach to determining indecency is unconstitutionally vague in its entirety.

James Maisano, Esq.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621

What to do if sued for illegally downloading video or music?

2012-05-15T12:02:00.000-04:00

A Minnesota attorney contact from Google+ has a very nice summary on his blog about the issues a defendant faces when accused of illegally downloading a movie, video or song from the internet. Please check out the blog of Aaron D. Hall, Esq.:

http://minnesotaattorney.com/copyright-infringement-tips-for-illegal-movie-music-download-cases/

Mr. Hall provides a helpful summary on how to evaluate one of these copyright infringement lawsuits, which are usually brought by a big company against a regular person, without the financial resources to battle a team of corporate attorneys.

He makes a good recommendation to communicate directly to the plaintiff’s attorney upon being sued to see if you can work out a settlement, but speak with an attorney before making such a communication to avoid saying something that could hurt you later in the litigation.

An organization with an interesting website is the Electronic Frontier Foundation – www.eff.org. It has an informative page about what to do when notified by your Internet Service Provider (ISP) that due to a subpoena it released your name to a company alleging that you have illegally downloaded copyrighted works, such as movies, videos or songs. Here is the link: www.eff.org/issues/file-sharing/subpoena-defense.

However, of course, the best advice anyone can give you is to be very careful whenever downloading potentially copyrighted items off the internet. When in doubt – don’t download.

If you want to learn more about copyright law and rules, check out the U.S Copyright office at: http://www.copyright.gov/circs/circ01.pdf. In general, having a copyright means a party has the exclusive right to make copies, license, and otherwise utilize a literary, musical or artistic work, whether printed, audio or video, and that work cannot be illegally copied.

James Maisano, Esq.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621

Marlee’s Post: Colorado Court Awards Dog Owner $65,000 for Negligence & Emotional Distress

2012-04-25T10:42:00.000-04:00

I am dedicating this post to my dog Marlee, because I would bring the same action here in New York if someone caused her death. I am referring to a National Law Journal article that discusses a Colorado case that makes it clear that dogs are more than just property.

In this Denver case, a dog owner sued a house cleaning company, which let her dog, Ruthie, get away and be hit by a car, despite the owner giving specific instructions to not let the dog outside except for the backyard. She sued for negligence and emotional distress and was awarded $65,000. I note these heartless workers merely brought Ruthie inside after she was hit and did not bring her to a vet or even notify the owner the dog was injured. This evidence of negligence was very helpful to plaintiff’s case.

This appears to be a precedent-setting case because courts around the country have a history of treating pets like property such as furniture, by ruling they are only worth replacement value. It appears this case is the highest award for a pet owner in Colorado history.

The article quotes plaintiff’s counsel Jennifer Edwards (and founder of The Animal Law Center), “The ruling sets a damages precedent that animals are worth more than their replacement value. When we lose a pet, we do suffer emotional distress and heartache, just as we would with any other member of our families.”

The article also mentions a recent ruling by a Texas appellate court that modified a 120-year-old precedent where plaintiffs could only recover an animal’s market value. The court held that, “Because of the special position pets hold in their family, we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet at least to the same extent as any other personal property.” This holding allows plaintiffs to seek awards based on intrinsic or sentimental value.

Because I wear two hats in my professional life (lawyer & legislator), I am going to bring this issue to the New York State Legislature and see if we need to adjust New York State law to ensure that pet owners can seek these types of damages when losing a pet due to negligence. We lost our dog Oakley to natural causes last year and that was hard enough – it would have been incredibly worse if he died due to another person’s negligence.

James Maisano, Esq.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621

Update from Law Office of James Maisano, Esq.

2012-04-18T11:50:00.000-04:00

Over the past few months, I have been engaged in interesting and diverse legal matters:

1) helped a family that could not locate a grandmother’s will – by winning a motion – so they could move forward with a probate action in Surrogate Court;

2) settled a significant collection action for a business client that was owed money;

3) drafted several wills, health care proxies, living wills and powers of attorney;

4) worked on several real estate closings;

5) helped a mother with a name change for her daughter;

6) set up a limited liability company with a “doing business as” name, and then drafted an assignment and assumption agreement for this LLC to take over a lease; and

7) helped a landlord evict tenants that had stopped paying rent.

Do you need any legal assistance? If yes, just give me a call or send me an email.

James Maisano, Esq.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621

Jim Maisano Legal Blog!

Jim MaisanoJMaisanoEsq@gmail.com914-636-1621

Interesting & Scary Article in NY Post About German Police & Prosecutors Cracking Down of Free Speech!

Jim MaisanoJMaisanoEsq@gmail.com

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Everyone Needs To Consider "Digital Assets" When Drafting A Will

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Busy Summer at Law Office of James Maisano, Esq.

How do you get on the ballot in New York State?

Quick Review of Key Supreme Court Decisions from Past Week

U.S. Supreme Court Decision: Reichle v. Howards

A loved one dies — you are executor in the will — what to do?

Upcoming U.S. Supreme Court Decisions – Expected in June

What to do if sued for illegally downloading video or music?

Marlee’s Post: Colorado Court Awards Dog Owner $65,000 for Negligence & Emotional Distress

Update from Law Office of James Maisano, Esq.

Jim Maisano
JMaisanoEsq@gmail.com
914-636-1621

Jim Maisano
JMaisanoEsq@gmail.com