Wednesday, May 26, 2010

Who parks on pavement?

We've all heard of the term parking on pavement but so few of us actually know what the true definition is. The only frame of reference most people have is when they are offered this conspicuous charge when faced with a speeding ticket or some other moving violation. Section 1201 of the New York State Vehicle and Traffic Law defines Parking on pavement as the following:

Stopping, standing, or parking outside of business or residence districts. (a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park, or so leave such vehicle off such part of said highway, but in every event anunobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.

A typical example would be pulling your car off to the side of the Northway or other major highway and leaving it there to go sight-seeing.

A 1201(a) is the charge that most people wish to plead to when they receive a traffic ticket, especially when they are facing a charge that involves numerous points to their otherwise “spotless” drivers license.

A charge of parking on pavement is equivalent to a traditional parking ticket, such as parking on the wrong side of the street. The penalty comes with a fine and does not add any points to ones license. Another reason why this charge is so popular to plead to is because this violation does not appear on an individual's driving record. Hence, when authorities look at person's drivers abstract, which is basically a "rap sheet" of their driving history, nothing will appear pertaining to the charge.

Typically if a person has a clean driving record and the charge pending is not too extreme, an attorney can often negotiate a plea to parking on pavement.Some courts will offer a 1201(a), second offense if a driver has some recent infractions on their license or if the charge is a bit more severe. Parking on payment, second offense comes with a larger fine amount. It is still considered a non-moving violation and carries no points.

So if anyone has ever received a traffic ticket for speeding or some other moving violation and ultimately pled to a lesser charge, chances are “You parked on pavement.”

Thursday, May 20, 2010

You are never too young to have a will

Thinking about getting a will drafted up is often a dreadful and morbid thought. It’s something that a lot of people would rather not deal with, especially when they feel they have many more years ahead of them.

When deciding to create a will, a person does not have to be in their “Golden Years” to do so. In fact, the earlier a person puts a will in place, the better off they will be in terms of the overall security of their family’s best interest.

When a person has a properly crafted will in place, they are essentially protecting not just their monetary assets, but also making sure that that the proper person handles their estate once they pass and that their children, if any, are provided for in terms of guardianship.

Most people are under the assumption they need not be concerned about creating a will until they reach an advanced age. This train of thought is usually all well and good, but as we all know, life can throw us a few unsuspected “curve balls” and having a proper will in place is one of the best ways to ensure asset and family security.

Not only does a person better protect their assets by having a will in place, it also makes things extremely easier on the surviving family members. During the time of death, an individual’s family will no doubt be emotionally compromised. The added stress of dealing with a loved one’s estate can be overwhelming. The best way to help family members better deal with this stressful situation is to have a will in place that specifically outlines and delineates their wishes.

A typical will designates the individual’s Executor, which is the person or persons who carry out the legal acts specified in the will. The Executor, often a family member or trusted confidant, is the one who makes sure that the will’s wishes are fully executed, hence the name. By having a will in place, it gives the holder assurance that everything will be carried out according to his or her satisfaction upon death.

Practically speaking, the best time to create a will is when a person begins to start a family. Without question, one of the most important things in an individual’s life is the health and welfare of their children. If an unsuspected accident or illness occurs, one would ultimately want to be sure that their children are provided for, both in terms of finances and in terms of parental care. For example, if a tragedy occurs where both parents die in an accident, a will would then come into play to designate who will become the children’s legal guardian and caregiver. If a will is not already in place, the person(s) to take over as caregivers for said children are not always clearly defined. For this very reason, families should have a will in place as early as possible so that their loved ones are adequately protected and provided for.

On a personal note, I was 29 years old when my wife and I had our wills drawn up. This was how old I was when my first child was born. My father, who is also my law partner, encouraged me to draw up a will. I asked him why so early. His response was “You are never too young to have a will.”

Monday, May 17, 2010

Before it's Too Late, consider a Life Estate

During their lifetime, people acquire many assets. These assets often include real property such as houses and land. They also may have a large amount of cash in savings accounts and CD’s, as well as stocks and bonds. If a person becomes ill and cannot provide for him or herself, they may need to be placed in an assisted living program. As often discussed in the news, these programs and facilities are not cheap to say the least and if a person can’t afford them outright, their assets are often used up in no time at all and the remainder of the costs are then subsidized by the government. Something like this could easily be avoided if a person plans ahead.

Once this happens, one of the best ways to avoid giving up rights to one’s assets is to set up a Life Estate in their real property.

A Life Estate is defined as an estate held only for the duration of a specified person’s life. With a Life Estate, the individual has full rights and privileges to the property, as if they owned it outright. They can remain on the property or will have rights thereof to it so long as they live. Once this individual dies, said property will revert to the holder of the remainder interest, such as the property in question. The “holder of the remainder interest” is typically the life tenant’s child, children, or some other trusted family member or friend.

Put in practical terms, the Life Estate allows an individual to keep their property without sacrificing the freedom to be medically cared for in the future.

For example, if somebody has a house or summer home that they want their children to ultimately inherit, the best way to ensure that this happens is to set up a Life Estate, with a reversionary interest going to the named children. Typical language would look like “To Walter for life, remainder to Jim, Judy, and Lisa.” In this scenario, Walter would have all rights and privileges to said property for the duration of his life. Upon his death, the property or “remainder interest” would be then transferred to Jim, Judy and Lisa in equal shares. By having this Life Estate, Walter would be immune to the property being taken from him in terms of equity if needed to pay for medical services an/or assisted living services in the future.

Currently, in New York State, there is a 5-year “look back” period for which a person is subject to. If a property transfer such as this is attempted within this look back period, the “equitable immunity” so to speak will not apply. For this very reason, it is imperative that an individual take advantage of the Life Estate well in advance and not procrastinate until the onset of illness.

As one approaches their “Golden Years,” it is important that they think about protecting the assets they worked all their lives for. Before it’s too late, seriously consider the option of a Life Estate.

Thursday, May 13, 2010

Think Again before you Crumple Up that Traffic Ticket!

A lot of people when they get a traffic ticket put it on the back burner and do not treat it very seriously. They do this of course until the court date rolls around and then panic often sets in. At this point, an individual often debates whether or not to simply “mail it in” and plead guilty or instead obtain an attorney and hope to plead to a lesser charge.

While it may be easier and more convenient to sign the back of the ticket, mail it in to the “powers that be” and be done with it, this is almost always not the best choice. By blindly pleading guilty to a traffic ticket, an individual risks points being placed on their license and an increase in insurance premiums often go hand and hand. This can further be of consequence to those who are prone to getting stopped for speeding. The more points a person has on their license, the less likely of a chance they may have in successfully negotiating a plea to a reduced charge.

This is all common sense of course, which is why it should be a no brainer to hire an attorney when getting a traffic ticket. The cost in legal fees will be far less than the increase in insurance rates if a ticket is ignored or a blind plea of guilty is entered.

A lot of times, people plead guilty not knowing of the consequences to only later find out that they now have numerous points on their license. They then tend to seek legal counsel to try to remedy the situation. At this point, an attorney can file what is known as a Coram Nobis, which is a request to the court to review its own judgment. This is an up hill battle to say the least and it can be expensive in terms of legal fees.

In short, when a person gets a traffic ticket, whether it be for speeding or running a red light or stop sign, it is wise to seek legal counsel right away in order to avoid unnecessary points on ones license and increased insurance premiums. To avoid financial burden and overall stress, be sure to think again before you crumple up that traffic ticket.

Monday, May 10, 2010

Why do you need an attorney for the purchase or sale of Real Property?

In order to purchase or sell real property you must first enter into a written contract. A lawyer is then needed to review and approve the contract. They will make sure the parties to the contract are the ones buying or selling the property. They also make sure the property being sold is adequately identified and that the use of the property is specified in the contract, such as single family residential.

An important element for the purchaser is the mortgage contingency paragraph. A lawyer can explain what is needed to meet the contingency within the time frame set out in the contract.


If representing the purchaser he should recommend an owner’s policy of Title Insurance. The lender’s attorneys represent the bank and not the purchaser or seller. Most often a mortgage commitment will require Title Insurance in the amount of the loan with the lender as the insured. This does not insure the purchaser’s interest in the property.

If representing the seller the lawyer will review title to make sure it is marketable and/or insurable. This protects the seller who is warranting title to the property.

Structural, Pest and Radon Inspections should also be made. If there is a problem with any of these it is important to be represented by an attorney who can advocate on your behalf so as to resolve any issues.

If you are selling property, it is important to have an attorney who will prepare the deed and other necessary documents in order to transfer title to the purchaser. Conversely, if you are purchasing property, your attorney will review the closing documents and title to ensure you are being transferred good title free of any liens or encumbrances.

At closing the attorney will provide a closing statement which will include the costs and credits adjusted as of the date of closing for such items as taxes, water, sewer, fuel etc.

As you can see, there are a lot of verbose elements, factors and circumstances that arise during the transaction of real property. Buying or or selling a home can and often is a stressful process. This is why you should be represented by an attorney who will be there to advise accordingly.

Tuesday, May 4, 2010

Top 5 Things to look for in hiring a Traffic Lawyer

Location. Make sure the attorney you choose has some familiarity with the area in which you received a ticket. Small Town and Village courts have a lot of idiosyncrasies that local attorneys are likely to know about and can better be of service to you. Also, the less travel time an attorney has to make to court, the less likely he/she is to charge.

Communication. Make sure that when you contact a traffic attorney, he/she is up front with you and conveys his/her advice in an articulate fashion. Most attorneys will offer a free initial phone consultation. Based off this consultation, size up what the attorney has to offer and if you establish a good rapport, this is a positive indication as to how the attorney-client relationship is likely to go.

Price. Be mindful that there are some attorneys out there who advertise a very low flat fee, but once you hire them, they change their tune and inflate the price to reflect your “special” or “unique” circumstances. The old saying holds true in that “You get what you pay for.” Don’t be so quick to hire an attorney solely on price, as more often than not, the lowest priced attorney is not necessarily the most competent attorney.

Referrals. Do an online search when hiring a traffic attorney. If someone refers an attorney by name, check them out for yourself, either by doing a google or bing search or by going directly to their website. In this day and age, most attorneys have their own website. If they don’t, that may tell you something right of the bat. By going to an attorney’s website prior to speaking with them, you will get a chance to go into the conversation already knowing something about them and when speaking to them, you can see if the information they give you “jibes” with the information that is on their site. You would be amazed as to how many attorneys don’t know that they even HAVE a website, let alone know what content about them and their services is on it.

Experience. Make sure that the attorney you hire to represent you in your traffic matter has actually handled cases like yours in the past. Many attorneys dabble in all sorts of areas of law and if traffic is not one they handle on a regular basis, they are not in a good position to advocate in your best interest. The attorney you choose does not have to have a legacy dating back to the 1800’s. Nor do they require “over 50 years combined experience.” More times than not, an attorney who has handled his/her fair share of vehicle and traffic cases will suffice. Just make sure that this area of law is one in which they consistently and continuously take on. You certainly don’t want to hire an attorney who has tons of experience in traffic law, but has been out of the loop for a good number of years. Like mentioned above, all City, Village, and Town courts operate a bit different and have their own way of doing things. By hiring a lawyer who is “in the know” will ultimately be of best interest to your legal needs.