Meggesto, Crossett & Valerino, LLP

Subpoenas – What are they and what are my rights? : Gary Valerino

Posted by: In: General 31 Jan 2014 Comments: 0

Many people have heard of subpoenas before, but few know their legal effect. A subpoena is a legal document that orders a person to comply with certain requests. Subpoenas can be either judicial, issued by a judge, or non-judicial, a subpoena not issued by a judge, clerk, or officer of the court.  Generally, there are two types of subpoenas: a subpoena for a person and a subpoena for a document, which is formally known as a subpoena duces tecum. A subpoena for a person requires the attendance of that person to give testimony, whereas a subpoena duces tecum requires the production of books, papers, and other things.

Now that you know what a subpoena is, you must know your legal rights when dealing with a subpoena. The first thing you may be wondering is: if I receive a subpoena must I comply with it? The short answer is yes. A party in an action, through the use of a subpoena, may compel the opposing party or a non-party to the action to comply with its requests. If a person fails to comply with a judicial subpoena, that person may be held in contempt of court based solely on their failure to comply. Whereas, if a person fails to comply with a non-judicial subpoena, that person cannot be held in contempt until the court issues an Order to compel compliance.

Now that you know you must comply with a subpoena, you may be wondering if you are entitled to a fee for your time. When dealing with a subpoena for persons, any person whose attendance is compelled is entitled to fifteen dollars a day in fees. Each person may also receive travel expenses of twenty-three cents per mile, if traveling outside of the city in which that person was served. Furthermore, if you are not a party in the action, and are required to attend the trial, you are entitled to an additional three dollars in fees each day. When dealing with a subpoena duces tecum the party issuing the subpoena is required to defray the costs of document production if the person subpoenaed is a non-party in the action.

Although the fees paid to a layperson are relatively low, an expert in a specific field is entitled to negotiate for his/her compensation. In New York, an expert witness cannot be compelled to give testimony, but may contract to do so for fair compensation.

Since subpoenas can sometimes be complicated, if you ever receive a subpoena it is in your best interest to contact a local attorney who can offer you their assistance.

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Gary Valerino

Partner

Email: gvalerino@mcvlaw.com

Phone: 315-471-1664

Gary Valerino has been practicing law since 1989 and has been with Meggesto, Crossett & Valerino, LLP his entire career.  He is a member of the Association of Trial Lawyers of America (ATLA) and the National Association of Subrogation Professionals (NASP).  He is also an approved subrogation counsel for many of the major insurance companies.

What to do if your minor child received a speeding ticket and pleaded guilty without your knowledge : Gary Valerino

Posted by: In: Traffic 16 Jan 2014 Comments: 0

Question: My teenage daughter just got her license two months ago, received a speeding ticket and did not want her parents to know so she went to court and plead guilty to the ticket. I subsequently found out about it. Is there anything I can do at this time to help her and myself, since she is covered under my auto insurance?

Answer: There are a number of issues involved in this but the short answer is yes, there is something you can do. Your daughter receiving and pleading guilty to a speeding ticket is a conviction. If she has only had her driver’s license for a few months in all likelihood the conviction is during the probationary period as set forth by the New York State Department of Motor Vehicles. This could result in a suspension or revocation of her driver’s license depending on the severity of the speeding ticket.

If you have not already added her to your auto policy as an extra driver within your household then you should do so. Doing so will increase your insurance rates as it is an increased risk to the insurance company. In all likelihood if the insurance company becomes aware of the conviction for the speeding ticket your rates may even go up higher.

While we all want to teach our children a lesson and let them suffer fair and reasonable punishment for their mistakes, in cases such as this it is not in your or your daughters best interests to allow a speeding conviction to stay on her driver’s license. Therefore, a motion should be made as soon as is possible to vacate her conviction. This type of motion is commonly known as a Coram Nobis Motion.

The Coram Nobis Motion is made through the court where the guilty plea and conviction was entered. In sum and substance, the Coram Nobis asks the Judge to vacate the conviction based upon your daughter, the defendant, being unrepresented by an attorney and being ignorant and not knowing the ramifications of her guilty plea to the charge. This motion should be made as soon as is possible as the more time that passes the more difficult it is to have the Judge grant the motion and the impact of the conviction with regard to fines, penalties, surcharges, increased auto insurance rates, etc. to take effect.

If the motion to vacate the conviction is successful then this does not conclude the final disposition of the case. The conviction being vacated simply places the defendant in the same position as she was prior to her entry of the guilty plea. However, this gives the opportunity to negotiate a plea disposition for a dismissal or a lesser charge, which would not have the same penalties and ramifications with regard to her driver’s license. For example: if the speeding ticket was reduced to a charge which was a no-point non-moving violation then it would not have the same penalties and ramifications with regard to your daughters driver’s license, court fines, points on her license, and potential increase in insurance rates.

The best advice is that if anyone you know receives a ticket for a moving or point violation that it is recommended that they retain the assistance of an attorney to obtain a reduction of the charge. The end result is that the cost for the attorney will probably be less than the overall cost and expenses, which may result from a conviction of the original charge, when taken into consideration all fines, penalties, surcharges, and increase in insurance rates over the course of time.

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Gary Valerino
Partner

 

Email: gvalerino@mcvlaw.com

Phone: 315-471-1664

Gary Valerino has been practicing law since 1989 and has been with Meggesto, Crossett & Valerino, LLP his entire career.  He is a member of the Association of Trial Lawyers of America (ATLA) and the National Association of Subrogation Professionals (NASP).  He is also an approved subrogation counsel for many of the major insurance companies.

 

What will happen if I drive a car without liability insurance and I am in a car accident? : Heather La Dieu

Posted by: In: Traffic 08 Jan 2014 Comments: 0

We have discussed in this blog what you should do if there is going to be a lapse in your car liability insurance.  However, do you know what will happen if you are in a car accident and you are driving a car without liability insurance?

If you are in a car accident while driving a car without liability insurance, your driver’s license and vehicle registration will be revoked for at least one year.  If someone else is driving your uninsured vehicle and is in a car crash and is convicted of operating without insurance, your license and registration will still be revoked for at least one year.

In addition, to get your license back after revocation, you will have to pay the DMV an additional civil penalty of $750.  Furthermore, there may be a high traffic court fine for driving without insurance or allowing someone else to drive your uninsured vehicle.

Of course, the other major concern is that you may be personally liable for any damages that occurred if your vehicle is in an accident and there is no insurance.  In addition, you will not have an insurance company to retain a lawyer to represent you in any lawsuits that are filed against you for any personal injuries and property damages that occurred.  Certainly, if this occurs, it is highly recommended that you retain your own lawyer to represent your interests.

Therefore, it is very important that you keep your liability insurance up to date.

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Heather La Dieu

Email: hladieu@mcvlaw.com

Phone: 315-471-1664

 

Heather R. La Dieu has been an associate in Meggesto, Crossett & Valerino, LLP’s Litigation Department since 2001.  Ms. La Dieu focuses her practice primarily in personal injury cases involving motor vehicle accidents, premises liability, construction accidents, municipal liability, wrongful death and products liability.  Ms. La Dieu also practices in the area of insurance law, contract law and criminal defense.

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

Ms. La Dieu is admitted to the New York State Bar, the U.S. District Court for the Northern District and the Supreme Court of the United States of America.  Ms. La Dieu is a member of the Onondaga County Bar Association, New York Bar Association and Central New York State Women’s Bar Association.  Ms. La Dieu also has arbitrated for the Syracuse City Court Arbitration Program.

The Social Security Administration Proposes Changes to the Listing of Impairments for Cancer : Kimberly Slimbaugh

Posted by: In: Social Security 19 Dec 2013 Comments: 0

The Social Security Administration (SSA) has posted a Notice of Proposed Rule Making (NPRM) in the Federal Register regarding how it evaluates Cancer. The proposal provides changing the name of the current listing for Malignant Neoplastic Diseases to “Cancer”, as well as revising the criteria SSA uses to evaluate cases involving cancer in adults and children.

The proposed name change is intended to make the listing easier to understand.  The proposal also includes adding some new listings, e.g., Malignant Melanoma, Mantle Cell Lymphoma (MCL); Cervical Cancer that has spread to distant lymph nodes, and Secondary Lymphoma resulting from treatment for Breast Cancer. The changes are proposals and the public may review the proposal and file comments.

If you would like to review the proposed changes to the listing, which also explains how and when to file a comment, please see https://www.federalregister.gov/articles/2013/12/17/2013-30088/revised-medical-criteria-for-evaluating-cancer-malignant-neoplastic-diseases#h-26

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Kimberly Slimbaugh
Partner

 

Email: kslimbaugh@mcvlaw.com

Phone: 315-471-1664

Kimberly Slimbaugh has been practicing law since 1992 and is a current partner at Meggesto, Crossett & Valerino, LLP.  In addition to the New York State Bar, she was admitted to the Massachusetts State Bar in 1992.  She is a member of the National Association of Social Security Representatives and regularly attends its national conferences.

State of New York Commission on Quality Care and Advocacy for Persons with Disabilities, Surrogate Decision-Making Committee Panel.

 

What should I do if there is going to be a lapse in my car liability insurance? : Heather La Dieu

Posted by: In: Traffic 12 Dec 2013 Comments: 0

You should surrender your vehicle plates to the Department of Motor Vehicles (DMV) immediately.  If you do not turn in your plates, your registration will be suspended for the same number of days that you did not have insurance coverage and failed to give your plates to the DMV.  If the number of days is more than 90 days, your driver’s license will also be suspended for the same number of days as the registration.  In addition, to reinstate your driver’s license, you must pay a termination fee.  Please note that even if your vehicle is taken off the road and not driven, you must still surrender your plates, or face registration and license suspensions.

Your insurance company will notify the DMV if you cancel your liability insurance.  If you receive a letter from the DMV that states your insurance has lapsed, it is important that you follow the instructions in the letter promptly.  Contact your insurance company as soon as possible.  If you are having an issue with your insurance company, it is important that you turn in your plates while the issue is worked out.  It is important that you keep the receipt showing that you turned in your plates.  When the problem is corrected you can get your registration back and new plates.  If you get insurance through a new company, make sure the new company notifies the DMV electronically.

You may also have the option of paying a civil penalty instead of turning in your license plates to the DMV.  However, if you insurance coverage lapse is more than 90 days or if you have used the civil penalty option for registration suspension within the previous 36 months, then the civil penalty is not available.  Therefore, if you surrender your vehicle plates to the DMV before your insurance lapses, you can prevent the suspension of your registration and driver’s license.

 

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Heather La Dieu

Email: hladieu@mcvlaw.com

Phone: 315-471-1664

Heather R. La Dieu has been an associate in Meggesto, Crossett & Valerino, LLP’s Litigation Department since 2001.  Ms. La Dieu focuses her practice primarily in personal injury cases involving motor vehicle accidents, premises liability, construction accidents, municipal liability, wrongful death and products liability.  Ms. La Dieu also practices in the area of insurance law, contract law and criminal defense.

Ms. La Dieu is a graduate of Syracuse University where she earned her B.S. in Chemical Engineering and received her J.D. at Syracuse University College of Law.

Ms. La Dieu is admitted to the New York State Bar, the U.S. District Court for the Northern District and the Supreme Court of the United States of America.  Ms. La Dieu is a member of the Onondaga County Bar Association, New York Bar Association and Central New York State Women’s Bar Association.  Ms. La Dieu also has arbitrated for the Syracuse City Court Arbitration Program.

Social Security Disability and Migraines : Kimberly Slimbaugh

Posted by: In: Social Security, ssdi 22 Nov 2013 Comments: 0

If you suffer from migraines, you know how debilitating they can be at times. Not all migraines are severe, but sometimes the headaches are so severe that they prevent work. Migraine sufferers also experience symptoms of nausea and vomiting; sensitivity to light, sound and smell, and auras.

In order to qualify for Social Security Disability benefits due to migraine headaches, your doctor must first document your migraines, and show that you have followed his or her advice trying to treat the problem. You will also need to show that the migraines have lasted a year or more, or are likely to last that long. Lastly, you will need to show that due to the frequency and severity of your headaches, that you are not able to work.

If you are applying for Social Security Disability benefits, it is also a good idea to keep a journal of your migraines, listing dates you suffer headaches, including severity, duration and any associated symptoms of each headache. It is also helpful to note how your headaches affect your daily activities.

If you suffer from migraine headaches that not only affect your activities but your ability to work, you should consult a local attorney familiar with the Social Security rules to assist you in your application for benefits.

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Kimberly Slimbaugh
Partner

 

Email: kslimbaugh@mcvlaw.com

Phone: 315-471-1664

Kimberly Slimbaugh has been practicing law since 1992 and is a current partner at Meggesto, Crossett & Valerino, LLP.  In addition to the New York State Bar, she was admitted to the Massachusetts State Bar in 1992.  She is a member of the National Association of Social Security Representatives and regularly attends its national conferences.

State of New York Commission on Quality Care and Advocacy for Persons with Disabilities, Surrogate Decision-Making Committee Panel.

 

MCV Law Supports Charity for Children : William W. Crossett

Posted by: In: Community 14 Nov 2013 Comments: 0

This past Monday, November 11th 2013, was Veteran’s Day. Not only did our firm salute our clients, co-workers, family and friends who have served our Nation, we also used the evening to attend the annual Charity for Children Event, “Evening of Cuisine”.

The Charity for Children is a local charity that helps families of children with serious illnesses.  Charity for Children often helps with those indirect expenses that so many families struggle with. Additionally, the First Duds Program provides needy newborns with a set of new clothing.

Meggesto, Crossett & Valerino, LLP, is pleased to have supported the Efforts of the Charity for Children Organization for the last 9 years. Indeed, we are often referred by the Charity as their partner, and serve as the Premiere Sponsor of the evening. In my capacity as the spokesperson for the Premiere Sponsor, I made the following remarks to those gathered for the event.

 

Poster_CCGood evening, I am William Crossett. On behalf of the Charity for Children and the Law Firm of Meggesto, Crossett & Valerino, LLP, I welcome you to tonight’s event. I trust you have enjoyed the food, the shopping, and the chance to help those whose needs often fall thru the cracks. 

We all know that, at the toughest of times, it is the littlest things that get us through. That is how we at MCV Law think of the Charity for Children: As a provider of the little things.

None of us can cure disease, and none of us alone can afford to pay a family’s living expenses while treatment is being had far from home, but each of us can, and often do, lend a helping hand to a person or family when we know there is a need to fill. Even today, in the sometimes too-connected world, the needs of the less fortunate often escape our notice. The Charity for Children works to connect those in need to those willing to help; the Charity lets us make those connections, helping to multiply our efforts in ways we could not dream of.

Nina, and those who work with her, take our modest donations, bundle them up, and make someone’s day brighter.  Whether it is transportation money, living expenses, or simply a new set of baby clothes, someone’s day is made better – often in ways that anyone one of us would struggle to do on our own, without the help of groups like Charity for Children. 

The recipients, as grateful as they are, cannot hope to thank all those who make the gifts possible. Tonight, I take the liberty of speaking on behalf of the recipients. I want to thank each and every one of you who take Nina’s calls; I want to thank each and every board member who spends hours planning events over pizza and wings in our conference room. These are the things that make the Charity’s work possible.  Most importantly, on behalf of those who have benefited from the Charity’s works, I thank each and every one of you for your contributions – direct and indirect – and pray that you will continue your good deeds as long as there are children in need of your consideration and kindness.

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William W. Crossett, IV
Partner

Email: crossett@mcvlaw.com

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

 

How Worker’s Compensation Affects My Social Security Disability Benefits – by Kimberly Slimbaugh

Posted by: In: Social Security 08 Nov 2013 Comments: 0

If you are receiving Worker’s Compensation benefits and file for Social Security disability benefits, you may not be able to collect the maximum amount of Social Security benefits.  Between Worker’s Compensation and Social Security Disability, you may only receive up to 80% of your average current earnings (ACE) in total. If the total of your Worker’s Compensation and Social Security Disability benefits exceed 80% of your average current earnings, your Social Security Disability benefit will be offset or reduced.

Take this example:

First figure out your average current earnings:

Your average current earnings is calculated either by averaging  your highest consecutive 5 years of earnings or by taking the highest year of earnings in the last 5 years prior to your disability.

If your highest year of earnings in the five years before you became disabled was $40,000, then divide this number by 12 to get your monthly earnings of $3333.33. 

Then multiply this number by 80 % (3333.33 X .80) to arrive at your average current earnings of $2666.66.

How much is your monthly Workers Compensation benefit?

Take the amount of your weekly Workers Compensation benefit and multiply by 52, then divide this number by 12, to get your monthly workers compensation benefit.   

For example: Say you receive $400 per week in worker’s compensation.

Multiply this number by 52 ($400 X52) to get your yearly benefit of $20,800

Now divide this number by 12 to get your monthly Compensation benefit or $1733.33.

Now subtract your monthly compensation benefit from your ACE:  $2666.66-$1733.33= $933.33. This number ($933.33) represents the highest amount of Social Security Disability benefits you could receive (using this example).

Remember that every case is different. It is very important to report all changes, in writing, in your Worker’s Compensation benefits to Social Security. It is also important to keep proof that you submitted the information to Social Security.  You will also need to follow-up with Social Security to make sure they adjust your benefits as needed.

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Kimberly Slimbaugh
Partner

 

Email: kslimbaugh@mcvlaw.com

Phone: 315-471-1664

Kimberly Slimbaugh has been practicing law since 1992 and is a current partner at Meggesto, Crossett & Valerino, LLP.  In addition to the New York State Bar, she was admitted to the Massachusetts State Bar in 1992.  She is a member of the National Association of Social Security Representatives and regularly attends its national conferences.

State of New York Commission on Quality Care and Advocacy for Persons with Disabilities, Surrogate Decision-Making Committee Panel.

 

The Patient Protection and Affordable Care Act (ACA) – by William W. Crossett

Posted by: In: Workers Compensation 01 Nov 2013 Comments: 0

With enrollment now open, I have been asked why the New York State site https://nystateofhealth.ny.gov/ requests information about Workers’ Compensation claims.

While the ACA is new law, the principle that Workers’ Compensation is the primary payer is not.

What this means is that the compensation carrier has the responsibility for paying medical related to your Workers’ Compensation case.  Thus, no other payer, including your private insurance, is required to pay those costs.

It is my opinion that this principle will continue to control, despite the thought that compensation claims will be treated as “preexisting” conditions.  Now, it is unknown what will happen if the compensation carrier is relieved of liability for medical treatment. I suspect, however, that it will depend on how the compensation case is ultimately resolved.

Presently, when both the Medical and Indemnity (lost wages) portions of a compensation case are settled under Section 32 of the Workers’ Compensation Law, provisions are made to allocate a portion of the overall settlement as money for future medical care.  In cases where the Injured Worker is receiving Medicare, approval of a Medicare Set Aside (MSA) is typically obtained.  The idea is that the Injured Worker uses the MSA to pay for future medical cost. If the MSA sum is exhausted, Medicare then steps in and pays pursuant to Medicare’s rules.  I believe that, as time marches forward, a similar situation will take hold under the ACA.

It is also my opinion that the question relating to Workers’ Compensation coverage under the ACA may relate to more than one issue.  That is, if you already have a source of payment for a particular injury, the carrier under the ACA will not have to pay for that condition, thereby eliminating the premium for such coverage. However, if the Workers’ Compensation case was resolved in some other manner, it is likely the premium will be calculated depending on the resolution. I suspect that there may be other actuarial reasons as well.

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William W. Crossett IV
Partner

 

Email: crossett@mcvlaw.com

Phone: 315-471-1664

Mr. Crossett concentrates his practice in the representation of Injured Workers. Since 1982, he has regularly appeared before the Workers’ Compensation Board and the Courts of New York. As an advocate for the Injured Worker, he has testified before the New York State Senate and has presented many Continuing Legal Education programs. Presently, Mr. Crossett serves as President of the Injured Workers Bar Association of New York and is an active member of Workers Compensation Law Division of the New York State Bar Association. Read more In 2012, he was inducted as a fellow in the College of Workers Compensation Lawyers. Mr. Crossett practices throughout Central New York with an office in Syracuse.

What documents should I keep after buying my home? – by Christopher Stringham

Posted by: In: Real Estate 24 Oct 2013 Comments: 0

Thinking of buying your first home?  Just finished buying your first home?  Well, there is a huge difference between the two.

In the first instance the person/people are full of hope, excitement, and a whole host of other, mainly positive feelings.  The second group, those who have just finished with the process of purchasing their first, second, or third home, may be feeling a bit different.  Probably tired, frustrated, and a bit relieved.  Certainly, if the second group hired an attorney, they may be a bit less tired and frustrated, and a bit more relieved.  One of the last things on most people’s minds after the sometimes lengthy process is what documents are important enough to keep in a safe place for a long time.

Anyone that has purchased a home before knows that there is a lot of paperwork involved.  If you are getting a mortgage through a lender, then the paperwork can be overwhelming from the start to the finish.  It can seem like eons before the closing takes place, and that is if everything goes smoothly.  If a bank is involved, the closing will involve a stack of papers to sign.

At every closing that I have been to where a mortgage is involved, the bank attorney gives the home buyers a package that contains an original copy of important papers.  This package will include a copy of 2 very important documents, the Note and the Mortgage.  The Note is the homebuyers’ promise to pay the loan back to the lender, and the Mortgage is the lender’s security interest in the property if the home owner fails to pay the loan back.

There are some other important documents that home buyers should be aware of as well.  These include copies of the deed, survey, statement of sale, HUD-1, and the abstract of title.  The survey and abstract are important to hold on to and should be able to be located in the future in the event that the home is sold. By being able to locate these documents at the time the home is being sold, people selling their home can save themselves hundreds of dollars by avoiding the need for a new survey or creating a new abstract.

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Christopher Stringham

 

Email: cstringham@mcvlaw.com

Phone: 315-471-1664

Christopher Stringham graduated from Western New England College School of Law in 2010 and was admitted to the New York State Bar as well as the United States District Court, Northern District of New York in 2011. He is a member of the New York State Bar Association, Onondaga County Bar Association, and the Injured Workers’ Bar Association of New York. He has been a member of Meggesto, Crossett & Valerino, LLP since October 2010.