Social media platforms like Facebook, Instagram, and Twitter allow us to communicate instantaneously with people around the world. With a few taps of a finger or thumb, we can share status updates, pictures, and political commentary with friends any time of day, wherever they may be. A 2017 report estimates that more than 5 billion people use a smart phone and more than 3 billion people use social media. By comparison, another report estimates that there are still 2.3 billion people without access to a toilet. Perhaps it says something about our collective priorities that there are more people with smart phones than toilets.


The prolific spread of social media has created some interesting challenges for our legal system. With so many people posting so much information, is any of it truly “private.” Even setting aside the threat posed by hackers, is a private post subject to discovery in litigation? This issue was recently addressed by the New York State Court of Appeals, the state’s highest court, in the case of Forman v. Henkin. A full copy of the Court’s February 13, 2018, decision can be found at

In Forman, the plaintiff, Kelly Forman, sued the owner of a horse after she fell from the horse and suffered traumatic spinal and brain injuries. She alleged that she was left with cognitive deficits, memory loss, social isolation, and difficulties with written and oral communication. During her deposition she said that before the accident she used to post a lot of pictures of her active lifestyle on her Facebook account, but that she had deactivated the account about six months later because her injuries made it difficult for her to use a computer and compose coherent messages. Some of those posts were made to a “private” group of friends. The defendant’s lawyers requested that the plaintiff disclose all of her private Facebook posts, arguing that the posts would shed light on her activities both before and after the accident. When the plaintiff refused to disclose her private posts, the defendant filed a motion with the trial court to compel disclosure.

The trial court was faced with a somewhat novel issue. Does the general rule that all “material and necessary” information is subject to disclosure in litigation apply to private Facebook posts? The plaintiff argued that it does not apply. The defendant argued that it does. The trial court ruled in favor of the defendant, but imposed some modest restrictions on the disclosure. While the plaintiff was not required to produce the text of her private posts, she was required to produce all pictures that did not depict nudity or romantic encounters. On appeal, the Appellate Division reversed the decision of the trial court and held that private posts were afforded protection and that the defendant could only see pictures from the plaintiff’s private posts if the plaintiff elected to introduce them at trial.

When the issue finally reached the Court of Appeals, the Court sided with the initial decision of the trial court and held that there is no special protection for “private” posts. The Court of Appeals held that courts should apply established discovery rules and that “there is no need for a specialized or heightened factual predicate” when seeking the disclosure of private Facebook posts. When information in a Facebook post is “material and necessary” to the prosecution or defense of an action, it is subject to disclosure regardless of whether it is a public or private post. Social media may be a relatively new medium, but courts will not afford social media platforms any special protection. As noted by the Court of Appeals in Forman, “[w]hile Facebook – and sites like it – offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.”

The decision in Forman is an important reminder that there really is no such thing as a “private” post on social media once a court is involved. As social media use continues to grow and expand, the pull to post ever more about ourselves will grow as well. That impulse to share must be measured and balanced against the potential risk. While it may be cathartic to post a rant on social media about an employer, colleague, friend, or spouse who has wronged you, those rants will be discoverable if the dispute ever goes in front of a court.

The common proverb “discretion is the better part of valor,” which has Shakespearian and biblical roots, has served many well. In today’s modern age of social media, perhaps it should be modified to “discretion is the better part of posting.”

Terence Robinson is a Partner at Boylan Code LLP, a full service law firm with more than fifty legal professionals focused on serving you, the client. Offices are conveniently located in Canandaigua, Newark, and Rochester. This article is not legal advice.

To read the published article in the Daily Messenger, click here.

Practice Discretion When Posting on Social Media

While married couples may seem to obviously need estate planning services, especially when children arrive, unmarried couples may actually need it more.  It’s a pretty well known fact that when a married spouse passes away, the other will likely inherit a considerable portion of the estate, simply by virtue of the marriage. In the absence of a will, under our New York intestacy statutes found in the Estates, Powers and Trusts Law, surviving spouses are entitled to certain specific property including an assortment of cash, a vehicle, and personal property, then if there are no children, the survivor receives all remaining assets. If there are children, the spouse still receives those estate setoffs as well as $50,000 cash and half of the remainder of the estate. If the decedent named individuals or entities other than the spouse to receive property via beneficiary designations or joint title, whether inadvertently or intentionally, the surviving spouse can elect against assets other than life insurance to ensure a minimum of $50,000 or one third (1/3) of the net estate, whichever is greater.

But, what about individuals who are cohabitating but not legally married?  The situation for them can become much more dire should one partner pass away without a solid estate plan in place.  Unmarried couples typically keep their assets titled in indivdual name, so even if the couple lives together in a home, if the partner in title to the home dies , the other may have no legal right to the property. And it makes no difference if the survivor helped pay the mortgage, property taxes and repairs. If the decedent’s estate plan fails to address the survivor’s rights, he or she could be summarily evicted from a home of decades. Intestacy laws favor descendants and then ancestors; there is no provision for domestic partners or committed companions of any title. In our firm we have seen frail senior citizens who cared for a partner with dementia for years asked by surviving adult children to vacate property within days of their loved one’s passing. We have also seen the situation where the parents of an adult child who did not approve of their son’s lifestyle threatened to change the locks on their son’s business and life partner of years after their son died. To suffer a devastating loss and then to be treated callously by entitled survivors, sometimes without prior warning, only compounds an already difficult situation. Knowing the cruelty is often motivated by desire for the financial gain to be had from liquidation of a valuable asset is sickening. Saddest of all is that these dilemmas could be easily avoided with some proactive planning. (more…)

What You Don’t Know Could Hurt You, Especially for the Unmarried

If you are getting ready to buy or sell a house, the process can be overwhelming.

Here are a few points to consider as you go:



  1. Price per square foot – comparable to other homes sold?
  2. How far above assessed value is the price – taxes may go up
  3. Any additions? Permits or C of O should be requested/required
  4. Start your mortgage process early and work hard to get the lender everything they request
  5. Inspection results are negotiable (fixed by seller/credit to do work you yourself) – Don’t call movers until scheduled (Google “inspection checklist” beforehand)
  6. Closing dates in the contract are target dates, often closes a bit after
  7. If selling/buying on the same day, do you have a fallback for where you and your belongings can stay for a day or more?
  8. If you expect to be able to move in early, GET IT IN WRITING. People can and do change their minds.
  9. Is there water nearby? Flood Insurance is expensive if in a flood zone.  Is there already an elevation survey and a letter of map amendment (LOMA) with FEMA?
  10. If important to your family, check: (a) sex offender registry and (b) DEC spill registry
  11. If you have plans to make changes, be sure you are permitted to do so (i.e. knock down and rebuild, is it within current town code?)
  12. At walk-through – all appliances and personal property present? In the agreed upon condition? When and where will keys be delivered?
  13. Never wire funds unless you have verbally confirmed the information with the recipient – using a phone number separate from the wire instructions themselves. Wire fraud is a major problem in the industry.  Bringing a bank check to closing is the most typical form of payment.


  1. Sale price, may want to set a “reserve” for yourself – a “do not go below”
  2. Consider troubleshooting/fixing issues that potential buyers might see
  3. Keep bill/taxes current
  4. Can you locate abstract/survey
  5. Do you have any permits or certificates of occupancy (C of O) or certificates of compliance – should you?
  6. Be ready to provide mortgage and/or home equity line of credit (HELOC) information for payoff, think ahead if the sale price will not cover payoff
  7. Warn your attorney if you have any know title issues – judgments, bankruptcies, tax liens – these may take some time to fix before closing
  8. Name of the bank (attorney you last purchased or refinanced with if old title curatives become necessary)
  9. Stay on track for vacating the house – may not be able to get extra time
  10. If you expect to be able to stay after closing for a period of time, get it in writing.
  11. Spell out any personal property to be left early, do not assume buyer will want or accept extra items (spare paint, work bench, extra wood or building materials)
  12. If you have a pool, recognize on escrow may be requested if you sell during the winter
  13. Inspection results are negotiable, but if it is a problem that any inspector/buyer will find, give serious consideration to fixing it

For both buyers and sellers, if there is something that really matters to you, then it should be in writing!

Article written by: Partner, Cassandra C. Rich, Esq.

A Few Things to Think About When Buying and Selling a House

We’ve all heard that commonly yelled phrase “get off my property!!” Some of us may have even been the intended listener of that order, which is to say some of us have been troublemakers on someone else’s property. In either case, that demand by the property owner is normally complied with because we all know that the owner has property rights that he or she can enforce. As an avid “Devil’s Advocate”, I’m here to tell you that you may be able to ignore that order under the law.

Maybe you have a great relationship with your neighbor and they’ve given you permission to put up a fence that crosses into their boundary for a few yards. Or perhaps you bribed them with fresh baked pies and warm words for their consent to use their driveway. That’s all well and good, but let’s talk about something a little more contentious. What if you can’t get permission, or worse, permission is revoked after you’ve gotten used to the arrangement?

There are a number of devices in law that allow a person access to another individual’s land. Some of the most commonly known and used mechanisms are easements and licenses. Although easements can be complicated, these two instruments are usually about obtaining a right to use another’s property for a specific purpose (i.e. a shared driveway that gives access to a public road). The essential difference between the two is that a license is a personal right that is non-assignable, and a license is revocable at the whim of whomever granted permission in the first place. (more…)

Get Off My Property!! The Counter-Arguments.

The Tax Cuts and Jobs Act, which became effective on January 1, 2018, is considered the most significant overhaul of the U.S. Tax Code since 1986.  The changes will have a profound impact on individuals, trusts, estates, and businesses in a variety of ways.

Generally, the new tax law alters individual income taxation and estate planning concepts, reduces corporate income taxes, and introduces a new method of taxing the earnings from certain pass-through entities.  It also significantly impacts taxation for multi-national entities.

The purpose of this article is to consider the impact of the new tax law solely upon estate planning.

At the outset, it is important to understand that the provisions relating to estate taxation expire on December 31, 2025.  The “covered years” for estate planning purposes are 2018 through 2025.  Thereafter, the exemptions noted in the next paragraph sunset after 2025 and return to the 2017 amounts, as adjusted for inflation.  Additionally, it is possible and perhaps probable that such exemptions may be reduced should there be a change in the administration or the composition of Congress before the end of the covered years.

There had been a great deal of attention paid to the possible repeal of the federal estate and gift tax law.  However, the new tax law does not provide for repeal, but does double the amount a person may transfer free of federal estate, gift, and generation skipping transfer taxes either by gift or at death, making federal transfer taxes irrelevant for all but the very wealthiest Americans. (more…)

Estate Planning After The Tax Cuts and Jobs Act

(This is the final part of a three-part series of columns on water rights.)

When I was a boy a neighbor of ours built a wooden fence around his horse pasture. It had large posts and wide rails, and was painted with dark paint right down to the ground. When spring came and the snow melted I was surprised to see a large section of unpainted wood at the bottom of each post. I was confused. Had the snow eaten away the paint? Had our neighbor started pulling up the posts?

When I asked my dad what had happened he explained that when water freezes it expands, and the water in the ground pushed the posts up when it froze and expanded. If the fence posts had only been buried below the frost line they would have been able to resist the upward pressure caused by the ice in the ground. Like every child who has ever watched the incoming tide destroy their sand castle, I knew the power of water on land, but this was the first time I became aware of its subterranean power. Whether above ground or below, water is a force to be reckoned with.

The U.S. Department of the Interior estimates that 1,430 cubic miles of rain water falls on the conterminous (48) United States every year. That is enough rain to cover the entire area under 30 inches of water. All of that water brings opportunities and risks for property owners. In this final part of our three part series on water rights we will examine some of the key legal principles applicable to surface and subterranean water. (more…)

Surface and Subterranean Water Rights