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November 2009 an Analysis of the Immigration Questions Motion to Set BY: ALLEN E

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November 2009 an Analysis of the Immigration Questions Motion to Set BY: ALLEN E Queenswww.qcba.org Bar Bulletin Queens County Bar Association / 90-35 One Hundred Forty Eighth Street, Jamaica, NY 11435 / (718) 291-4500 Vol. 73 / No. 2 / November 2009 An Analysis of the Immigration Questions Motion to Set BY: ALLEN E. KAYE The Healthcare "Debate" and Immigration Reform Immigration Reform Would Boost US Unless you have had your head buried in the Aside the Verdict: Economy sand for the last thirty days, you are aware that The Center for Trade Policy Studies issued a America is having a national "Debate" on health- report which claims that an immigration reform care reform. That is if you call a "debate" yelling Subsection 21 program which included a legalization would save at each other, accusing the other side of the BY ANDREW J. SCHATKIN* literally billions of dollars over the current policy "debate" of being a Nazi, a socialist, a birther, or a Restriction or of enforcement only. In communist. Frankly, the only part of this debate This article will consider Legalization? Measuring the Economic Benefits of that is not surprising to me is how calm it is com- the ground set forth in sub- Immigration Reform, Peter B. Dixon and Maureen Allen E. Kaye pared to the national debate we have experienced section 2 of CPL Sec. T. Rimmer claim that using standard economic in the recent past on immigration enforcement and 330.30. That section con- analysis tools (most of which are too complicated for mere reform. tains and sets forth three mortals to understand), legalization is a huge net gain to the We, as advocates for immigrants, whether or not we agree grounds and bases to set U.S. economy over the alternative current policy of immigra- with whatever reform package has been introduced in aside a Criminal jury ver- tion restriction and deportation. To this finding I can only September by Senator Schumer, or what might ultimately be dict. Those three grounds say, No Duh! voted on by Congress, have to understand is that the vehe- are as follows: Andrew J. Schatkin We have known for more than a decade, since the passage mence, vituperation, passion, and outright hatred we are A ground appearing in of Illegal Immigration Reform and Immigrant Responsibility experiencing right now over the healthcare reform agendas the record, which if raised Act (IIRAIRA) that enforcement was going to cost the U.S. will PALE in comparison to what we will hear during the upon appeal from the Judgment of Conviction taxpayer billions of dollars. The alternative option of a work- immigration debate. would result in a reversal or modification of that able, immigration law, with a forward looking vision for U.S. Let's not kid ourselves. The groups that oppose immigrants Judgment by the Appeals Court; families, business and our economy would clearly be a better are as strong as ever. Heck, the Know Nothings over at the That during the trial there occurred, out of the alternative to the anti-immigration restrictionist model found Center for Immigration Studies even have a "press confer- presence of the Court, improper conduct by a juror in IIRAIRA. The question once again becomes, does ence" next week touting their newest anti-immigrant theory or another person in relation to a juror, which Congress have the courage to do what is right and pass com- about how the entire healthcare crisis in America is caused could have affected a substantial right of the prehensive immigration reform and put the vestiges of immi- and increased by immigrants, both legal and illegal. And this defendant; gration restrictionism behind us, or not? Or, will it cave under from what some in the media believe is a mainstream non- That new evidence has been discovered since the pressure of a vocal minority of those for him deportation partisan research group! Groups such as Numbers USA, the trial, which could not have been produced by __________________________________ is the only solution? Continued On Page 7 the defendant at the trial, even with due diligence on his part, and which is of such a character as to create a probability that if the evidence had been The Following Summary of Second Department Decisions in Medical received at trial, the verdict would be more favor- able to the defendant.1 This article will consider, more specifically, the Malpractice Cases Decided Between January 1 to February 15, 2009 proper interpretation of the language in Subsection (2), which references, as a basis for setting aside Prepared by Brooklyn Bar Association Medical Malpractice Committee Chair John Bonina the verdict, conduct by a juror, of an improper Venue - Procedure and Timing of Motion: Baez v. tinuous treatment doctrine applied. The Court held that nei- character, which could have effected a substantial Marcus ther a 24 month gap between office visits, nor a consultation right of the defendant, during the trial, outside of Defendants moved to change venue from Kings County to with a different physician, rendered the continuous treat- the presence of the court. New York County, on the grounds that Kings County was ment doctrine inapplicable as a matter of law. There is a general rule that the trial court is invested, with discretion, with respect to this spe- an improper venue. The Court denied the motion noting 2 that a demand to change venue based on designation of an Statute of Limitations - Dental Malpractice - continu- cific matter and issue. People v. McMillan is improper county must be served with the answer or before ous treatment toll applied to dentists’ treatment of instructive. In McMillan, the Appellate Division the answer is served (CPLR 511(a)). Since the defendants some teeth, but not others: Zito v. Jastremski First Department ruled that the summary denial of failed to serve a timely demand for change of venue and Defendant’s motion for Summary Judgment on statute of a Motion to Set Aside a Verdict of guilty of failed to make a motion for that relief within the statutory limitations grounds was granted by the Trial Court. This Criminal Possession of a Controlled Substance in 15 day period, they were not entitled as of right to change Order was modified on appeal, with the Court holding that the Third Degree, on the ground of misconduct venue to New York County. Further, defendants failed to plaintiff raised a triable issue of fact as to whether the con- during jury deliberations, was an appropriate exer- meet their initial burden of demonstrating that none of the tinuous treatment doctrine operated to toll the statute of lim- cise of discretion. The Court stated that the parties resided in Kings County at the time of commence- itations as to some teeth. Motion papers contained only conclusory allega- ment of the action. The Second Department determined that plaintiff was not tions that the incident in question constituted entitled to the benefit of the continuous treatment doctrine improper influence on the jury verdict and the Statute of Limitations - Continuous Treatment with respect to the claims involving teeth 14 and 15, as dropping of the bag of candy could not reasonably Doctrine: Gomez v. Katz there was no treatment for these teeth after November 12, have been viewed as determinative of the ultimate Defendant’s motion for Summary Judgment seeking dis- 2001 (2 1/2x years prior to commencement of the action). issue in case, as to whether the defendant crimi- missal on statute of limitations grounds denied. The Court However as to teeth 3, 4 and 5, the dental records and nally possessed crack cocaine with the intent to sell it, and upon which issue the People offered held that there were questions of fact as to whether the con- ___________________________________ Continued On Page 15 _________________________Continued On Page 13 INSIDE THIS ISSUE Analysis of the Motion to Set Aside Taking the Pain Out of Foreign the Verdict: Subsection 21............1 Language Documents ....................3 Decisions in Medical Court Notes ......................................4 Legal Fees: Contractual & Illusory..5 Malpractice Cases .........................1 Culture Corner..................................6 Immigration Questions.....................1 Books at the Bar ..............................9 President’s Message ........................3 Photo Corner: Annual Golf Outing .10 Profile of Hon. Fernando Photo Corner: Significant Decisions M. Camacho....................................3 in Appellate Courts......................11 2 THE QUEENS BAR BULLETIN – NOVEMBER 2009 THE DOCKET . NEW MEMBERS being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be held at the Bar Association Building, 90-35 148th St., Jamaica, New York. More information and any changes will be made available to mem- bers via written notice and brochures. Questions? Please call (718) 291-4500. Crystal Beaumont Wendy Pelle-Beer PLEASE NOTE: Eric Eason Michael J. Resko The Queens Bar Association has been certified by the NYS Continuing Legal Education Board as an Accredited Legal Sean C. Guthrie Michael Schuster Education Provider in the State of New York. Denise Evita Johnson Robert L. Sharoff 2009 FALL CLE Seminar & Event Listing Christine Julien Hsu Adam Small November 2009 Dorothy Catherine Kaldi Mark A. Torres Tuesday, November 3 Election Day - Office Closed Lauren Debra Kantor Danielle Nikole Young Wednesday, November 4 Summary Jury Trials & Trial Preparation 4-Part Luncheon Series Gillian Taicia Ballentine Agnes A. Zawadzki Trial Preparation - The Plaintiff 1:00 - 2:00 p.m. Tuesday, November 10 Summary Jury Trials & Trial Preparation 4-Part Luncheon Series NECROLOGY Trial Preparation - The Defendant 1:00 - 2:00 p.m. Wednesday, November 11 Veteran’s Day - Office Closed Tuesday, November 17 Nuts & Bolts of Appellate Practice - Hon. Philip J. Chetta Appeal Tech 1:00 - 2:00 p.m. Tuesday, November 17 Ethics Seminar 6:00 - 9:00 p.m. Thursday, November 19 Landlord & Tenant Update 6:00 - 9:00 p.m.
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