In New York State, the number of points you can expect to receive on your license for a speeding conviction is as follows:

Points based on rate of speed

• 1-10 MPH over posted limit: 3 points
• 11-20 MPH over posted limit: 4 points
• 21-30 MPH over posted limit: 6 points
• 31-40 MPH over posted limit: 8 points
• Over 40 MPH over posted limit: 11 points

Tickets for speeding in a school zone or a construction zone carry the same number of points based on the posted speed limit (see chart above) – but the fines may be drastically higher. If convicted of speeding in a construction zone more than once in an 18 month period, you can expect your driver’s license to be suspended by the New York Department of Motor Vehicles.

If you receive a speeding ticket, you should retain an attorney to protect your rights, your driving privileges, and your auto insurance rates.

Colman & Underwood has many years of experience in handling speeding and other vehicle traffic tickets. We handle many vehicle and traffic infractions in Onondaga County and Madison County, including the towns, cities and villages of Fayetteville, Manlius, DeWitt, Morrisville, Cicero, Liverpool, East Syracuse, Syracuse, Baldwinsville, Camillus, Clay, Fabius, Elbridge, Geddes, Jordan, Lafayette, Lysander, Marcellus, Minoa, North Syracuse, Otisco, Pompey, Salina, Skaneateles, Spafford, Tully, Van Buren, Eaton, Cazenovia, Canastota, Brewerton, Solvay, Central Square, Cato, Chittenango, Oneida and many other areas.

About the Author
Michael E. Underwood, Esq. is an attorney with Colman & Underwood.

Frequently I am asked, “Do I need a lawyer for my cell phone ticket received in New York?”

In my professional opinion, Yes, you should contact an attorney who handles vehicle and traffic matters.

It is very distracting to be talking on a cell phone while driving. The New England Journal of Medicine found that, “the use of cellular telephones in motor vehicles is associated with a quadrupling of the risk of a collision during the brief period of a call.”

The New York State Department of Motor Vehicles (DMV) mandates that if you use a hand-held mobile telephone while you drive, except to call 911 or to contact medical, fire or police personnel about an emergency, you can receive a traffic ticket and pay a fine of $100 plus surcharges of an additional $50. The DMV does not assess any points for a cell phone infraction.

So, as a general rule, the ticket will not add “points” to a license. However, there are other consequences. If there is an accident involved, the driver who is on the phone may be considered the driver at fault. If you are in an accident and you are found to be “at fault,” your insurance rates may increase.

In addition, any traffic ticket conviction, including a cell phone ticket, will remain a part of your driving record for the next few years. If you are pulled over, or receive any other tickets within that time frame, law enforcement may not be willing to negotiate or reduce those tickets because you will not have an unblemished driving record. Consequently, it may be more expensive and challenging for you to contest any future tickets. Most driving infractions do carry points against your license which can lead to loss of driving privileges and increases to your auto insurance rates. Often times, an auto insurance company will terminate a policy for a risky driver.

If you receive a ticket for talking on a cell phone while driving, you should retain an attorney.

Colman & Underwood has many years of experience in handling vehicle traffic tickets. We handle many vehicle and traffic infractions in Onondaga County and Madison County, including the towns, cities and villages of Fayetteville, Manlius, DeWitt, Morrisville, Cicero, Liverpool, East Syracuse, Syracuse, Baldwinsville, Camillus, Clay, Fabius, Elbridge, Geddes, Jordan, Lafayette, Lysander, Marcellus, Minoa, North Syracuse, Otisco, Pompey, Salina, Skaneateles, Spafford, Tully, Van Buren, Eaton, Cazenovia, Canastota, Brewerton, Solvay, Central Square, Cato, Chittenango, Oneida and many other areas.

About the Author
Michael E. Underwood, Esq. is an attorney with Colman & Underwood.

In simplest terms, a malicious prosecution claim can be brought against a party who initiates a lawsuit with bad intent and without cause. But what about the party’s lawyer? Can an attorney be accused of bringing a false or malicious claim?

Attorneys do not necessarily know everything about a case and its underlying facts, but they are supposed to use some independent judgment in regards to filing a lawsuit. An attorney should not file a lawsuit where he or she knows, or should know, that the claim is certainly false.

However, even where an attorney knows or believes a claim to be true, it should not be filed as a lawsuit if there is no legal basis for the claim. There are some types of grievances and bad feelings that can not be addressed by a court of law. In those situations, a lawsuit can be viewed as malicious and without cause. For that reason, it is possible for an attorney, and not the client, to be the subject of a malicious prosecution claim. Just this year, a recent federal case involving the music business held that an attorney representing a record label, and not his client, was potentially abusing the legal system by filing a malicious lawsuit without cause.

About the Author
Derek S. Underwood, Esq. is an attorney with Colman & Underwood.

Open Source software has many advantages. Typically, the full source code is provided and the software is free. However, the use of Open Source projects as a basis or a component of a new commercial software product requires close attention to the specific terms of the licenses that accompany the respective projects. For example, Verizon was recently sued by the Software Freedom Law Center over its unauthorized use of an Open Source project called BusyBox which provides several common UNIX utilities in a single unit.

“Open Source” is a broad term and license terms vary from one software project to another. For example, some licenses require that if used as part of a new project, sometimes referred to as a derivative work, the new work must include not only the same source code provided by the Open Source project, but also the source code for the new work. This can be problematic for a new commercial software system that is closed and proprietary. Other licenses require that derivative works be the same cost to others as the Open Source project – free. Yet others allow for any use whatsoever, even without credit to the authors, in exchange for free beer.

Web languages and runtime systems, such as PHP or Ruby, often do not place requirements on authors of scripts and applications to provide source code to end users. However, third party Open Source web frameworks may contain restrictions and licensing requirements.

The Open Source community is savvy, vigilant, and organized. When using any Open Source software in the development of a proprietary system, it is important to work with your attorney to stay clear of licensing violations. Otherwise, the negative publicity, legal expenses and possible damages can be catastrophic.

About the Author
Derek S. Underwood, Esq. is an attorney with Colman & Underwood.

Clients frequently want to collaborate with a writer who will bring their ideas to life on the printed page. However, working with a ghost writer can be problematic without strong contract terms.

Often, an author and a ghost writer will undertake a collaboration as a lark, or a long shot, with neither party predicting success with any certainty. Regardless of whether the ghost writer is a friend or not, a written agreement is imperative before any substantial work on the project is underway. If the project is completed and is successful in the marketplace, resentment can motivate ghost writers to reinterpret themselves as official co-authors, or to seek a portion of the profit far beyond what the parties may have originally intended. Likewise, a decisive written contract can also protect a ghost writer from the author’s motivation to seek more profits. As with any enterprise, success can breed animosity amongst collaborators.

Issues of compensation, copyright, public authorship, licensing, publishing, jurisdiction, and alternative media rights need to be very specific and set in writing. In addition, both parties should consider retaining separate legal counsel to guard against future attacks on the contract.

The best way to protect against future disputes between collaborators is to work with your attorney to draft and execute a binding legal contract between the parties for each project that is undertaken. If collaborators respect each other, they should have no reason to fear a written legal contract. A handshake goes a long way - but not always in the wake of commercial success.

About the Author
Derek S. Underwood, Esq. is an attorney with Colman & Underwood.

We often incorporate businesses for our clients. Although LLCs are very popular, they may not always be the best choice for a small business with a single owner.

As a business structure, a Limited Liability Company (LLC) certainly has its advantages. It provides protection for its members while allowing for extremely flexible ownership, membership, and operation. In addition, it provides a means for the transfer of certain assets to and from its owner with limited or no tax consequences.

However, for some small businesses, an S corporation may be a better choice. The S indicates a type of corporation allowed by the Internal Revenue Service where the corporation, itself, does not pay taxes. Instead, its profits pass through to its owners, based on their respective shares of ownership, and are reported on their individual tax returns as S corporation income.

In the case of the single business owner with an LLC, he or she is required to pay self-employment tax on the LLC income, just like a sole proprietor. In contrast, the single owner of an S corporation does not pay self-employment tax on the income of the corporation, as long as the owner also receives a reasonable salary from the S corporation.

For example, if the business has an annual profit of $100,000.00, and if it is formed as an LLC, its single owner will be assessed self-employment tax on the entire profit of $100,000.00. In contrast, if the business is an S corporation, and the single owner receives a reasonable salary of $50,000.00, the remaining $50,000.00 passes to the owner free and clear of self-employment tax. It is still part of the owner’s gross income, but at least it is not subject to the self-employment tax.

The federal self-employment tax rate for 2007 is approximately fifteen percent (15.3%) on income up to $97,500. The self-employment tax on any additional income beyond $97,500.00 is approximately three percent (2.9%).

Besides possible tax advantages, an S corporation is usually less expensive to initially form. So, before jumping to an LLC, check with your attorney and your accountant to see if an S corporation might be a better choice for your particular circumstances.

About the Author
Derek S. Underwood, Esq. is an attorney with Colman & Underwood.

Whenever people get divorced, it is an emotional and stressful period in their lives. It will likely be one of the lowest points of their lives emotionally. A long and heated court battle over property division can make matters even worse.

Although there are exceptions, under New York law each spouse is typically entitled to approximately 50% of the marital assets, which are broadly defined as any assets acquired during the marriage. This could potentially include money in bank accounts, investments, real estate, vehicles, etc.

Lawyers with experience in divorce proceedings know that when a spouse is courteous and respectful to the other spouse, it will substantially shorten the legal battle. The parties, with advice from their respective attorneys, can often divide all of the marital assets amicably outside of court.

One tactic I find particularly useful is to hold a conference with both spouses and their lawyers in attendance. Frequently, the parties will be able to discuss, compromise and divide every marital asset at the conference. With everyone at the meeting, if there is a problem with a specific asset, or questions, or even hurt feelings, it usually can be resolved at that time through mutual communication. Regardless, if a divorce action requires the court to decide the terms of divorce, one of the first things the court will require is a preliminary conference. The preliminary conference is an official meeting between the parties and their attorneys designed to evaluate and streamline the issues that are contested. The point here is that this meeting can be simulated ahead of time, if both parties are in agreement, and lead to an expedited resolution of the divorce action.

Although it is not always possible, it is very important to get along with your spouse during the divorce process. It will make things run faster and it will make the process more cost-effective.

About the Author
Michael E. Underwood, Esq. is an attorney with Colman & Underwood.

While eBay has a complaint mechanism, and a mechanism to give “negative feedback” to sellers, sometimes a buyer wants a more substantial recovery against an online swindler.

Clients often contact us about eBay or other online auction fraud. Usually, they have purchased something online, but the seller has not provided the item, or else the item is significantly different from what they expected, or the seller misrepresented the condition of the item.

Unfortunately, if the seller is an individual in another state who has posted the item online for anyone to purchase, the buyer will most likely need to start a lawsuit against the seller in the state and county where the seller lives. For example, if a seller lives in Tampa, Florida and posts an item on eBay, and the buyer is a resident of Rochester, New York, the buyer would most likely need to file a lawsuit against the seller in Hillsborough County, Florida. Depending on the circumstances, the expense and complication of suing the seller in another state may not be worth it for the buyer.

While this may seem unfair to the buyer, it is based on the legal principle of personal jurisdiction. Put simply, a court only has authority over those individuals within its territory. In our example, the buyer’s local court (Monroe County, New York) would probably not have personal jurisdiction over the seller in Florida. Even though eBay and the Internet provides a means of interconnecting everyone, it does not currently interconnect everyone for the purposes of personal jurisdiction in court.

Luckily, there are exceptions to the general rules of personal jurisdiction. If the Florida seller in our example was a company with significant New York business or contacts, it may be possible to sue the seller in New York. In that case, the court would look at the nature and quality of the seller’s connections with New York state. The most obvious connections would be if the seller has offices in New York, or a New York Department of State certificate to transact business in New York.

However, even without such obvious connections, the seller may still be subject to jurisdiction in New York. Perhaps the seller has continuous income derived from New York or has systematically targeted New York buyers. Internet advertising, including Google search engine placement that targets New York, could show that the seller has significant connections to New York.

Aside from a lawsuit, other avenues that a buyer may be able to pursue against an online swindler include complaints with the US Postal Service or the FBI. A seller that deliberately sends an item through the mail, as part of a scam or fraud, may be committing mail fraud. In addition, there are also laws about scams and fraud via Internet and telephone communications, sometimes referred to as “wire fraud” laws, that may apply in a given case. If the seller is systematically swindling buyers as part of a scam, the FBI or other law enforcement agencies may be interested in investigating.

About the Author
Derek S. Underwood, Esq. is an attorney with Colman & Underwood.