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 L E G A L   B R I E F
May  2013
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Real Estate
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Campolo, Middleton & McCormick, LLP, is a full-service business law firm that represents clients in a wide variety of legal matters including litigation and appeals; corporate and technology; real estate development and zoning; wills, trusts and estates; labor and employment; personal injury matters including the defense of general liability, construction, premises liability and transportation cases.
3340 Veterans Highway Suite 400
Bohemia, NY 11716
p 631-738-9100
f  631-738-0659

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The information contained in this newsletter is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The Firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship. No recipients of information from this newsletter, clients or otherwise, should act or refrain from acting on the basis of any information included in this newsletter without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this newsletter contains general information and may not reflect current legal developments. The Firm disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this newsletter.

Real Estate

Demystifying the Mechanics of the 1031 Like-Kind Exchange Part II: Who is the QI? 

by Alyson S. Repp, Esq.


Last month I gave a basic overview of the complexities of a 1031 exchange.  This month let's delve a little deeper and discuss the players often involved in a 1031 exchange, more specifically the Qualified Intermediary or "QI."  Repp Before I explain the intricacies of the QI's role, some key consultants you should confer with are: (1) an experienced real estate attorney who will help guide you through the process of buying and selling your relinquished and replacement properties, and (2) an accountant familiar with the 1031 process to help explain tax consequences of the exchange.  Besides your attorney and accountant, the key player leading this process should be an experienced and competent QI.  The right QI can help facilitate the process.

What makes a Qualified Intermediary qualified?
In order to "qualify" as a QI, the person cannot be the taxpayer or a "disqualified person."   The IRS has not established licensing requirements for QIs; rather, the person cannot be an unqualified or disqualified person as defined by the Internal Revenue Code.  Examples of disqualified persons include persons who have acted as the taxpayer's employee, attorney, accountant, investment banker or broker, or real estate agent or brokers within the two-year period ending on the date of the transfer of the first of the relinquished properties in a like-kind exchange (nor can the QI be related to one of the above disqualified persons).  

To read more click here >>


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SCOTUS Update 

With a Little Help from My Friends:
Study Finds the Roberts Supreme Court
the Friendliest Court to Business in Decades

by Lauren Kanter, Esq.
The decisions of the current Supreme Court are the friendliest to business of any court since World War II, according to a recent study published in the Minnesota Law Review. Kanter

In "How Business Fares in the Supreme Court," Lee Epstein, William M. Landes, and Richard A. Posner discuss their analysis of nearly 2,000 decisions from 1946 through 2011. The study considered cases with a business on only one side. A vote in favor of the business was considered a pro-business vote.

The authors concluded that five of the ten Supreme Court Justices who have been most favorable to business currently serve on the Court, and two of them, Chief Justice John G. Roberts, Jr. and Justice Samuel A. Alito, Jr., ranked at the top of the list of the 36 most pro-business Justices in the study. The study found that after Roberts and Alito were appointed to the Court, the other three conservative Justices became more business-friendly in their decisions. The authors surmise that "the three may not have been as interested in business as Roberts and Alito and decided to go along with them to forge a more solid conservative majority across a broad range of issues."

To read more click here >>

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Intellectual Property Update

Second Circuit Holds that Appropriation Art Constitutes Fair Use
by Eryn Y. Deblois, Esq.

In a recent decision, Cariou v. Prince1, the Second Circuit held that 25 works of appropriation art that incorporated original copyrighted photographs constituted fair use under the Copyright Act, 17 U.S.C. � 107. Appropriation art is the Deblois "more of less direct taking over into a work of art a real object or even an existing work of art."2

In this action, defendant Prince took Cariou's photographs and incorporated them into 30 works. Images of the 30 works and the corresponding Cariou photographs used are available through the Second Circuit's website:

Cariou sued for copyright infringement and the district court granted Cariou summary judgment, holding that no reasonable jury could find Prince's work to be fair use. The Second Circuit reversed in part, vacated in part and remanded for further proceedings.

The Second Circuit's analysis focused on the four non-exclusive fair use factors provided in the Copyright Act: (i) the purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use upon the potential market for the value of the copyrighted work.

To read more click here >>


Wills, Trusts & Estates Update

I Left a Child Out of My Will. Now What?
by Martin Glass, Esq.

Is this a tragic scenario? Probably not, but it certainly represents what is an entirely avoidable estate planning consequence. Here's the dilemma. Assume after having your first child, you do the smart, responsible thing -- you Glass draft a Last Will and Testament which sets forth your final wishes with regard to the distribution of your estate. Fast forward a couple years and say that your first child now has a sibling and that you unintentionally failed to accommodate for in your Will. OK, one last fast forward in time. Twenty-five years later, despite your best intentions and the daily grind always seemingly getting in the way, you find that you never quite got around to updating your Will to reflect your wishes regarding that later born child before you pass away. So much for the best laid plans.

Even though you love your children equally and probably want them to similarly share in your estate, will that actually happen? Will that later born child you omitted from your Will be disinherited because of your planning error, or will the law accommodate her somehow? These are scary questions. It's my hope to not only calm your fears, but prompt you to action in order to avoid any unwanted estate planning consequences down the road.

If it's not already abundantly clear, today I'm writing about the inheritance rights of children in New York, and specifically those that are left out of a parent's estate plan (sometimes referred to pretermitted heirs). For better or worse, it's more common than you might think that children are left out of a parent's Will. The good news is that New York State recognizes that drafters sometimes make unintentional planning errors. The legislature has set in place certain rules to ensure that pretermitted children are not precluded from inheriting.

To read more click here >>


Firm News

     CM&M Supports Child Abuse Prevention 

                            Services (CAPS)


We congratulate Patrick McCormick, Esq., on being appointed President of Child Abuse Prevention CAPS Logo2

Services (CAPS).


Please join us in supporting the Child Abuse Prevention Services (CAPS) 15th Annual Golf Outing on Monday, June 17th. We would also like to congratulate this year's honoree, John J. Corrado, President of Suffolk Transportation Service, Inc. 

For more information click here


        Druek Joins CM&M in Corporate Group

Campolo, Middleton & McCormick welcomes attorney Brandon Druek to the firm. He is practicing with our Corporate & Private Equity team. Brandon is a graduate of New York University and received his J.D. from the Benjamin N. Cardozo School of Law.

          Campolo to Speak at 3 Events in June


Joe Campolo will be speaking at the Nonprofit Update Seminar sponsored by Cerini & Associates on June 27th Cerini Logo from 8:00 am to 1:00 pm at the Smithtown Sheraton.  The seminar is free to attend and CPE credits will be given.  Topics being discussed will include a legal and accounting update, new pension disclosure rules, executive compensation issues and more.  Joe Campolo will be speaking at the event addressing legal issues facing not-for-profit organizations.




Joe Campolo will be moderating a panel at the HIA-LI Small Business Summit on June 27th at 8 am. The topic HIA-LI Logo will be "Building a Business to Sell."  Learn the principles and business practices that will help you build a valuable, profitable and sellable business from day one.  Whether you're planning an exit strategy or if you have no future intentions of cashing out, the most successful businesses are those that are built to be attractive to potential buyers.  Join our panel of professionals, as they discuss how to maximize the value of your business for future acquisition while increasing current profits and cash flow.


To learn more click here >>




Joe Campolo will be presenting at a seminar entitled " Campolo3 Avoiding Fines and Fees- 2013 Employment Law Updates" on June 13th, 2013. Join us for a legal update covering the new laws, rules and regulations affecting business owners. The event will be sponsored by Maher & Associates and the Park Shore School.   

To learn more and register click here >>


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Campolo, Middleton & McCormick, LLP
3340 Veterans Highway, Suite 400
Bohemia, NY 11716
p 631-738-9100 | f 631-738-0659
contact@cmmllp.com | www.cmmllp.com