The Journal of the Nassau County Bar Association February 2020 www.nassaubar.org Vol. 69, No. 6

NCBA COMMITTEE MEETING CALENDAR Page 20 NCBA Past President SAVE THE DATE WE CARE CHILDREN’S FESTIVAL Christopher T. McGrath WEDNESDAY, FEBRUARY 19, 2020 See pg. 16 for details NAME THAT TUNE WEDNESDAY, MARCH 4, 2020 to Receive 2020 NCBA See pg. 6 for details NASSAU ACADEMY OF LAW BRIDGE THE GAP WEEKEND Distinguished Service Medallion March 14 and 15, 2020 Contact Jennifer Groh at (516) 747-4070 Each year, the Distinguished Service as a legal television commentator on CourtTV or [email protected]. Medallion is awarded to an individual who and various news channels, including Live at has enhanced the reputation and dignity of Five on WNBC New York and At Issue on News WE CARE DRESSED TO A TEA the legal profession. This prestigious award 12, Long Island. He has also written articles for THURSDAY, MARCH 26, 2020 is the highest honor one can receive from See pg. 16 for details Nassau Lawyer, the New York State Bar Asso- the Nassau County Bar Association and each ciation’s New York Injury News, and New York year the recipient is carefully selected. Past LAW DAY: YOUR VOTE, YOUR Law Journal, among others. VOICE, OUR DEMOCRACY recipients have included U.S. presidents, a vast WEDNESDAY, APRIL 29, 2020 array of judges of various courts, including the McGrath received his B.A. from St. John’s United States Supreme Court and the Court University and his J.D. from the University 121ST ANNUAL of Appeals, world-renowned philanthropists, of Dayton. For the past 37 years, McGrath NCBA DINNER DANCE SATURDAY, MAY 9, 2020 various political leaders, including presiden- is an active volunteer for Camp Anchor in See pg. 6 and insert for details tial advisors, governors, and county execu- Lido Beach at their annual Special Handi- tives, as well as the top attorneys throughout capped Field Day event, and is a two-time our country. Past President and current board member WHAT’S INSIDE This year, we are proud to announce that the of the Peninsula Kiwanis chapter where he seventy-seventh Distinguished Service Medal- Personal Injury/Workers’ heads numerous projects that help improve lion will be awarded to one of our very own local communities and lives of people in need. Compensation NCBA Past Presidents, Christopher T. McGrath In addition to his volunteer work, McGrath Recent Appellate Decisions on (2005-2006). We look forward to honoring him Workers’ Compensation Page 3 at our 121st Annual Dinner Dance Gala on May served as a volunteer Mock Trial Judge for the Going, Going…Goniometer—What 9, 2020 at the Long Island Marriott. of both the Judiciary Committee and the Nassau County Bar Association since 2008, Constitutes “Objective” Evidence of McGrath is a Senior Partner and top trial Supreme Court Committee. a program that motivates and inspires high Serious Physical Injury Under the attorney at Sullivan Papain Block McGrath Since 2008, McGrath has been a member school students who wish to pursue a career Insurance Law? Page 5 & Cannavo P.C., a premiere personal injury of the Committee on Character and Fitness in the legal profession. Castro v. Malia Realty and the firm in Garden City. He is also a long-stand- for the Second, Tenth, Eleventh and Thir- When he is not in the courtroom, lectur- Future of Bifurcated Trials in the ing adjunct professor at Hofstra School of teenth Judicial Districts. He is also a member Second Department Page 6 ing, or volunteering, McGrath enjoys spend- Law School, teaching NY Civil Practice, Trial of multiple legal associations, including the ing time with his wife Monica, three daughters Discovery of Prior Injuries and Techniques, and Advanced Torts. McGrath New York State Bar Association, the New York Medical Treatment Kristin Seibert (Robert), Kelli, and Katelynn has also been a sought after lecturer at numer- State Trial Lawyers Association, and the Asso- After Brito v. Gomez Page 7 and his granddaughter, Madelyn. ous seminars for both the NCBA and New ciation of Trial Lawyers of America. The Annual Dinner Dance Gala is the 2019 Labor Law §240(1) Decisions: York State Bar Association (NYSBA). Some of Acknowledged for his work and nota- What Constitutes a Physically ble accomplishments within the legal field, largest social event of the Nassau County Bar Significant Elevation Differential? Page 8 his most recent lectures have included Trial Techniques at the NYSBA Annual Convention McGrath is Board Certified by the National Association. It will be held on Saturday, May Are Out-of-Possession Board of Trial Advocacy and has been named 9, 2020 at the Long Island Marriott. In addi- Landowners Out of Liability? Page 9 and Labor Law Litigation Verdict Sheet and Charge at the NYS Judicial Institute. by Best Lawyers as the 2020 “Lawyer of the tion to the Distinguished Service Medallion A Theoretical Solution for Endometrial In addition to his Bar presidency, McGrath Year” in the practice of personal injury litiga- Honoree, NCBA Members who have been Cancer Claims to the VCF Page 10 has remained an integral member of the tion. He has also been included on the Amer- admitted to the Bar for fifty, sixty, and seventy General NCBA and legal community. Throughout the ican Institute of Personal Injury Attorneys 10 years will also be honored that evening and years, he has chaired many committees. For Best Attorneys list and has been recognized by recognized for their years of service to the The Never-Ending Escrow Page 11 the second time, he currently serves as the New York Super Lawyers since its inception, legal profession. We hope you will join us to The Hidden Cost of a New York among numerous other notable awards and Co-Chair of WE CARE, part of the Nassau pay tribute all of the honorees. Vacation Home Page 14 Bar Foundation, the charitable arm of NCBA. recognitions. In 2012, McGrath received the Invitations to the Dinner Dance will be The Cinematic Trials of WE CARE is comprised of NCBA members Attorney Professionalism Award by the New Henry Fonda Page 15 who strive to improve the quality of life for York State Trial Attorneys, one of the highest mailed in March. If you are interested in children, the elderly, and others through- awards to obtain as a legal professional. He purchasing sponsorships or Journal ads, see out Nassau County through charitable grants was the second attorney from Long Island to the insert in this issue of the Nassau Lawyer. and has raised millions of dollars through ever receive this honor. You may also contact Ann Burkowsky in the OF NOTE In addition to his impressive roster of NCBA Special Events Department at (516) NCBA Member Benefit - I.D. Card Photo numerous fundraising events and generous Obtain your photo for Secure Pass Court donations. McGrath is a two-time past chair accomplishments, McGrath has been featured 747-4071 or [email protected]. ID cards at NCBA Tech Center Only For New Applicants Cost $10 • March 3, 4, and 5 CONFIDENTIAL HELP IS AVAILABLE 9:00 AM—4:00 PM TO LAWYERS AND JUDGES UPCOMING PUBLICATIONS alcohol or drug use, depression or COMMITTEE MEETINGS AT other mental health problems THE BAR ASSOCIATION Call Lawyer Assistance Program Thursday, March 5, 2020 at 12:45 PM (888)408-6222 Thursday, April 2, 2020 at 12:45 PM 2 February 2020 Nassau Lawyer

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® (800) 358-2550 | namadr.com The Better Solution Nassau Lawyer February 2020 3 Personal Injury/Workers’ Compensation Recent Appellate Decisions on Workers’ Compensation This past year saw several appellate deci- consultant. The WCLJ gave the received a report of his incident on Czechowski: Board May Resolve sions interpreting New York’s workers’ com- claimant additional time to submit Form ADR–1, and that it would Conflicting Medical Evidence pensation laws. While none of these decisions the form, but the claimant instead be administered under the Board’s revolutionized the regime by which workers reiterated his request for cross-ex- alternative dispute resolution pro- In Czechowski v. MCS Medical Services, the receive compensation for work-related injuries, amination. The WCLJ denied this, gram under WCL 25(2–c). Three Third Department held that the Board has many of them applied established principles and on review the Board adopted days later, the employer terminat- the authority to resolve conflicting medical to novel circumstances. Those decisions offer the consultant’s findings. ed the claimant, and subsequently evidence in determining whether surgery is justified under the Workers’ Compensation an important reminder to all personal injury The appellate court held that placed a “Do Not Return” letter Medical Treatment Guidelines.6 practitioners of the rules to follow when rep- though regulations do not provide in his file, indicating some sort of the right of cross-examination, it The claimant had established a claim for resenting injured workers or their employers. problem with the claimant’s job “is permitted under tenets of due work-related injuries to his left foot and performance. The claimant then Ferguson: Due Process Rights Exist process.”2 While this right may Christopher J. lower back. He visited an orthopedic surgeon, in WC Hearings be waived if not timely asserted, DelliCarpini brought a discrimination claim to who requested authorization from the car- a “claimant’s request for cross-ex- the Board, alleging that he was dis- rier to perform surgery. The carrier denied In Ferguson v. Eallonardo Construction, missed for filing accident reports. Inc., the Third Department held that claim- amination is not invalidated by the request, based on a report from another the failure to produce a C–4.3 [form].”3 Since The Board, however, found that the claimant orthopedic surgeon that the need for surgery ants have the right to cross-examine physi- was terminated for legitimate business reasons. cians in WCLJ hearings, even if they do not claimant’s counsel made his request at the first was not established under the Guidelines. permanency hearing, denying cross-examina- The Third Department recognized that seek to call their own physician.1 After taking the claimant’s deposition, howev- tion here was an abuse of discretion. WCL § 120 prohibits an employer from dis- After examination, a consultant for the er, a WCLJ authorized the surgery. The carrier charging an employee for filing or attempting carrier determined that the claimant had sus- then issued an authorization, but also applied Peterec-Tolino: Limited Review of to file for benefits, but also that the employee tained a 40% schedule loss of use of his right for Board review. The Board considered the arm. The claimant’s counsel received notice of Board Findings bears the burden of proof. The court noted opinions of both surgeons, and concluded this finding, and then had 60 days to submit In Peterec-Tolino v. Five Star Electric Corp., the evidence before the Board of layoffs due that the surgery was improperly authorized. his own physician’s report on Form C–4.3. the Third Department affirmed a Board deci- to a furlough replacement program, as well On the claimant’s appeal, the Third Instead, at the first permanency hearing, the sion that a claimant had not been terminated as complaints about the employee’s perfor- Department affirmed the Board’s decision. claimant’s counsel asked to cross-examine the by his employer in violation of the Worker’s mance. While the timing of the firing was The court noted at the outset that “[t]he Board consultant, betting that he could undermine Compensation Law.4 suspicious, the court concluded that “we have has the authority to promulgate medical treat- the consultant’s determination and show a The claimant had been injured on the limited power ‘to review the sufficiency of the ment guidelines defining the nature and scope 50% schedule loss. The WCLJ, however, ruled job, but never sought medical treatment or evidence and lack[] the ability to weigh con- of necessary treatment.”7 The court also noted that by not submitting Form C–4.3 the claim- missed time from work. Three weeks later, flicting proof or substitute our judgment for ant had waived his right to cross-examine the the Board notified the claimant that it had the inference drawn by the Board.’”5 See APPELLATE DECISIONS, Page 19

Annamarie Bondi-Stoddard, Esq. is the managing partner of Pegalis Law Group, LLC in Lake Success, NY. She represents patients in medical negli- gence cases focusing on women’s health issues, children’s birth injuries, cancers, surgical and neurosurgical cases, and medical specialty cases where negligence is involved. She has developed an encyclopedia-like knowledge of medical terms in more than 30 years of practice, and is a leading advocate of being a proactive patient. 4 February 2020 Nassau Lawyer Nassau Winter Warmth at Domus Lawyer The Official Publication of the Nassau County Bar Association As we slog through the doldrums of the post-hol- all categories. As an added incentive for non-mem- 15th & West Streets, Mineola, N.Y. 11501 iday winter season, Domus remains a refuge from bers, any fees paid for the lecture series will be cred- Phone (516)747-4070 • Fax (516)747-4147 the cold—a place where you can enjoy a hot bev- ited toward the 2020-21 NCBA membership year if www.nassaubar.org erage and the toasty warmth of camaraderie with you sign up your paralegals by July 1, 2020. E-mail: [email protected] friends. I find myself here most days of the week for The Bar has made a concerted effort to increase NCBA Officers committee meetings, Deans’ Hours, special events, value to its members, and we hope that by extending President discussions with staff, or just lunch with friends. the amazing offerings here under the roof of Domus Richard D. Collins, Esq. Domus is buzzing with activity most days of the President-Elect to ALL of your law firm staff, you will understand Dorian R. Glover, Esq. week, and I am gratified to see so many of you here more than ever why Domus is truly the home for the Vice President regularly. I’m so very proud to be your president! practice of law on Long Island. Gregory S. Lisi, Esq. This month, I thought I might highlight a few of the I would like to thank those attorneys and mem- Treasurer NCBA events and issues thus far in the new year, to bers who volunteer to help those who need access to Rosalia Baiamonte, Esq. give a flavor of what’s going on at your favorite bar From the justice when facing the loss of their home. Over the Secretary association. past decade, our Mortgage Foreclosure Project has Sanford Strenger, Esq. They say “the times they are a-changin,” and so Executive Director President counseled more than 16,000 families. Our volun- Elizabeth Post may be the courts. We started the year with a joint teer attorneys assist the homeowners by providing meeting of the Boards of the Nassau County and representation for their day in court or consulting Editor-in-Chief Suffolk County Bar Associations. The meeting was Richard D. Collins with them at bi-monthly clinics. None of this would Christopher J. DelliCarpini, Esq. attended by New York State Chief Administrative be possible without our volunteers! We can’t thank Copy Editor Judge Lawrence K. Marks, Nassau County District these individuals enough for their generosity of Allison C. Shields, Esq. Administrative Judge Norman St. George, Suffolk time and expertise (see page 18 for a list of those Editor/Production Manager Ann Burkowsky County District Administrative Judge C. Randall Hinrichs, volunteers). When Superstorm Sandy struck, we were able to NYSBA President Henry Greenberg, and NYSBA President-Elect Photographer “hit the ground running,” consulting with those who needed it Hector Herrera Scott Karson. Judge Marks presented New York State Chief Judge most. Unfortunately, the need for our help still exists and luckily Janet DiFiore’s vision of a revised court system which would our volunteers are still helping! Please volunteer if you have a February 2020 replace the 11 separate trial courts with a simplified three-level few hours a month; it is truly rewarding. Personal Injury/Workers Compensation structure. I have appointed a task force headed by NCBA Past We also hold Open Houses (previously fairs) to help all res- Christopher J. DelliCarpini, Esq. President Marc Gann to explore the impact of the proposal on idents with any type of legal question they may need answered. Focus Editor the legal community. I look forward to feedback from the task Rudy Carmenaty, Esq. In the past, we have recognized all our volunteers at a cocktail force. Also at the joint meeting, the two bars together adopted Ellin Regis Cowie, Esq. reception. This year’s Reception will be on July 22, 2020. Please a resolution, drafted by NCBA’s Michael Markowitz and Suffolk Andrea M. DiGregorio, Esq. save the date to support our volunteers. (Open House volunteers Bar’s Vincent Messina, urging the New York State Board of Legal Thomas McKevitt, Esq. are not listed in the current advertisement as they are listed in Jeff H. Morgenstern, Esq. Examiners to identify and establish a site within Nassau and/or the issue immediately after each Open House is held). Tammy Smiley, Esq. Suffolk Counties for applicants residing in these counties to take the New York State Bar Examination. A joint letter was drafted As NCBA President, it’s a tremendous honor to be extended invitations to a variety of professional events, meetings and din- Upcoming Focus Issues and sent to Judge DiFiore, signed by the presidents of both Long March 2020 Island bar associations. We share many interests with our neigh- ners, often from other bar associations or professional organiza- Elder Law/Trust and Estates bor bar to the east, and it’s a pleasure working with them. tions. I do my best to attend as many as possible. In the coming April 2020 In honor of Martin Luther King Jr. Day, the NCBA Diversity weeks, I will attend the New York State Bar Association annual General/OCA & Inclusion Committee, Chaired by the Hon. Maxine Broderick, meetings in Manhattan and the American Bar Association mid- May 2020 Matrimonial/Family/Adoption Law in collaboration with the Nassau County Office of Youth year meeting in Austin, Texas. But when I’m not out and about, you’ll mostly find me at Domus. Don’t forget that there’s a Keurig Services, supported Jack & Jill Nassau County in its presenta- Committee Members tion at Domus of “The Amistad: A Reenactment of a Landmark machine and free coffee always available in the Great Hall. Stop by Domus for a hot cup on a cold day! I hope to see you there! Christopher J. DelliCarpini, Esq., Decision.” The script was written by Kathy Hirata Chin, a Co-Chair partner at Crowell & Moring, and her husband Denny Chin, Andrea M. DiGregorio, Esq., Co-Chair Judge for the US Court of Appeals for the Second Circuit. The Rhoda Y. Andors, Esq. reenactment tells the story of the events that led to the 1841 Deborah S. Barcham, Esq. Supreme Court decision United States v. Schooner Amistad. The Felicia Binkis, Esq. case represents the first time the high court directly confronted Wahida Bhuyan, Esq. the question of slavery. The matter stemmed from a rebellion Deanne Marie Caputo, Esq. by captives aboard the Spanish schooner La Amistad in 1839, in Rudolph Carmenaty, Esq. Joel S. Charleston, Esq. which the captives, who were to be sold as slaves, took control Ellin Regis Cowie, Esq. of the vessel and tried to return to Africa. They were intercepted Gianna Crespo, Esq. by the U.S. Coast Guard off the coast of Long Island and initially Thomas J. Deas, Esq. charged with piracy. The question of whether they were human Anthony J. Fasano, Esq. beings or cargo was litigated in the federal courts. The Supreme Nancy E. Gianakos, Esq. Court ruled that the captives were free people who were illegal- Naela Hasan, Esq. ly held and transported as slaves, and that their rebellion was Adrienne Flipse Hausch, Esq. justified. The decision strengthened the resolve of abolitionists Patricia Kessler, Esq. Kenneth J. Landau, Esq. and helped build momentum for an end to slavery in America. Michael J. Langer, Esq. The student-actors in the reenactment were wonderful, and the Hon. Thomas F. Liotti appreciative audience found it to be a fitting way to spend the Cheryl Y. Mallis, Esq. morning on Martin Luther King Jr. Day. Rudy Carmenaty, Vice- Michael H. Masri, Esq. Chair of the Diversity and Inclusion Committee, did an amazing Thomas McKevitt, Esq. job as emcee! Bravo to everyone involved! Daniel McLane, Esq. As many of you know, I have prioritized efforts to increase Jeff H. Morgenstern, Esq. membership, not only among lawyers but also among the Sasha A. Navarrete, Esq. Marian C. Rice, Esq. other categories of membership. I have reached out to local Michael A.H. Schoenberg law school staff and students in an effort to better understand Allison C. Shields, Esq. how best to connect with and recruit new members. I have met Tammy Smiley, Esq. with the Chairs of the Paralegal Committee and the Law Office Ellen B. Tobin, Esq. Administrator Committee, and hope to establish a schedule of Eric Anthony Zeni, Esq. regular meetings at Domus. Jen Groh, Director of the Nassau Published by Academy of Law, our educational arm, has created a new lecture Long Island Business News series, aptly titled Purely Paralegal, which is geared towards (631)737-1700; Fax: (631)737-1890 enhancing the skill set of the paralegals and other non-attorney Publisher Graphic Design support staff in your offices. There are four programs scheduled Joe Dowd Wendy Martin for this spring, with more to be planned for fall 2020. Pricing is Nassau Lawyer (USPS No. 007-505) is published extremely affordable, and is free for current NCBA members of monthly, except combined issue of July and August, by Long Island Commercial Review, 2150 Smithtown Ave., Suite 7, Ronkonkoma, NY 11779-7348, under the auspices of the Nassau County Bar Association. Periodicals postage paid at Mineola, NY 11501 Nassau Lawyer welcomes articles written by members of the Nassau County Bar Association that are of substantive and procedural legal interest and at additional entries. Contents copyright ©2019. Postmaster: Send address changes to the Nassau to our membership. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to Nassau Lawyer, County Bar Association, 15th and West Streets, its editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations. Mineola, NY 11501. Nassau Lawyer February 2020 5 Personal Injury/Workers’ Compensation Going, Going…Goniometer—What Constitutes “Objective” Evidence of Serious Physical Injury Under the Insurance Law? Under New York’s No-Fault Law1 a person file, relying upon x-ray and MRI inconsistent with the injuries shown Split Interpretation of Perl injured in a motor vehicle accident can main- reports, as well as notes regarding in the EMT and hospital emergency The disagreement between the First tain a civil lawsuit only if their injuries surpass the plaintiff’s range of motion room records. However, the court and Second Departments can seemingly the “serious injury” threshold. Recent deci- For obvious reasons, proffering held that plaintiff’s opposition, be traced to courts’ interpretations of the sions in the First and Second Departments of “objective” proof of many of the which included plaintiff’s physicians’ Court of Appeals’ holding in Perl v. Meher.7 the Appellate Division further highlight the serious injuries listed in § 5102(d) affirmed medical reports, raised an In Perl, the plaintiff’s physician examined split in authority regarding the level of proof —death, dismemberment, signifi- issue of fact as to causation suffi- the plaintiff shortly after the accident. This necessary for litigants to demonstrate a prima cant disfigurement, bone fracture, cient to deny defendants’ motion initial examination was subjective in nature facie “serious physical injury” to overcome the loss of a fetus, permanent loss for summary judgment. Specifically, summary judgment “threshold.” the court found that the physicians’ insofar as the doctor did not quantify the of use of a body organ—is easi- range of motion he observed with numeri- Section 5102(d) defines “serious injury” to ly attainable. However, for other findings that the plaintiff’s symp- include one or more of the following: death, Brian Gibbons toms, which included “quantified cal testing. However, the physician did con- injuries, most notably, significant duct an examination years later, at which dismemberment, significant disfigurement, limitation and non-permanent range of motion restrictions,” were bone fracture, loss of a fetus, permanent loss “sufficient to demonstrate continu- time he used “instruments to make specific, disability, what constitutes “objec- numerical range of motion measurements.”8 of use of a body organ, function, or member, tive” proof is less easily discernable. It is ing limitations.” In fact, the court significant limitation of use of a body organ relied on these reports, even though the doctors The Court of Appeals held that, while it therefore not surprising that the First and was debatable whether the observations at or member, and non-permanent disability for Second Departments have recently diverged “did not specify the instrument used to measure 90 days. It has been the judiciary’s duty, in the range of motion.” the initial examinations met the “objective” regarding what type of evidence is necessary standard, the later numerical observations first instance, to scrutinize the medical evi- to satisfy the “objective” standard in this con- In contrast, the Second Department in Cho v. dence and to bar claims which do not qualify. Demelo4 implicitly found that measurements were sufficient to create a triable issue of text. At particular issue is whether “objective” fact with respect to whether the injuries The Court of Appeals has required “objective evidence of a plaintiff’s lost range of motion taken via a goniometer were required to meet proof of a plaintiff’s injury in order to satisfy the “objective” proof of injury standard. There, were “serious.” 2 requires readings from a medical device such Thus, after Perl, while numerical mea- the statutory serious injury threshold.” as a goniometer or inclinometer, or, whether the plaintiff’s physician reported that range The court’s role in determining whether a of motion was “objectively measured in the surements certainly satisfied the “objec- other diagnostic tests without such an instru- tive proof” standard, the question was left “serious injury” is most pronounced during ment are sufficient. affected joints using a goniometer,” whereas the summary judgment phase of litigation. the defendant’s expert stated that “ranges of open as to whether non-numerical visu- In particular, courts must decide whether the Conflicting Standards in the First motion are done visually and/or with the use al observations could meet this standard. 5 Shortly after Perl, the First Department evidence submitted by the parties’ physicians and Second Departments of a hand-held goniometer.” constitutes “objective” proof to either meet The court found that the defendant failed answered this question in the affirmative. 9 their burden for entitlement to summary Two recent cases underscore this disagree- to meet its burden in the first instance where In Frias v. Son Tien Liu, the court ruled judgment or to otherwise raise a triable issue ment. In De Los Santos v. Basilio,3 the court held the “affirmed report of their orthopedic sur- the defendant’s physician’s examination was of fact sufficient to dismiss a summary judg- that the defendant met its prima facie burden for geon failed to identify the objective tests sufficient to meet their burden for summa- ment motion. Such evidence usually comes summary judgment through an affirmed report that were utilized to measure the plaintiff’s ry judgment, notwithstanding the fact that in the form of affidavits or affirmations of of an emergency medicine physician. The physi- ranges of motion, and thus, did not support the doctor did not take range of motion medical experts who examined the plain- cian opined that the shoulder and spine injuries the conclusion that the plaintiff suffered no tiff, reviewing plaintiff’s complete medical claimed by the plaintiff during litigation were limitations as a result of the accident.”6 See GONIOMETER, Page 19 FREE CONFIDENTIAL* HELP IS AVAILABLE Tax Defense & Litigation The NCBA Lawyer Assistance Program offers professional and peer support to lawyers, judges, law students, and their immediate family members who are struggling with:

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Long Tuminello, LLP The NCBA Lawyer Assistance Program is directed by Beth Eckhardt, PhD, and the Lawyer Assistance Committee is chaired by Henry Kruman, Esq. This program is supported by grants 120 Fourth Avenue from the WE CARE Fund, a part of the Nassau Bar Foundation, the charitable arm of the Nassau Bay Shore, New York 11706 County Bar Association, and NYS Office of Court Administration. *Strict confidentiality protected by § 499 of the Judiciary Law. (631) 666-2500 Nassau County Bar Association ncba_lawyersassistance www.longtuminellolaw.com Lawyer Assistance Program NASSAUBAR-LAP.ORG 6 February 2020 Nassau Lawyer Personal Injury/Workers’ Compensation Castro v. Malia Realty and the 121st Annual Future of Bifurcated Trials in DINNER DANCE GALA OF the Second Department

THE ASSOCIATION For decades, trial courts with- the ground, losing consciousness. in the Second Department have Upon regaining consciousness, required the bifurcation of person- Castro got up, found his foreman $225 per person al injury trials, with a trial on the and told him what had occurred. issue of liability preceding one on Castro’s foreman corroborat- damages. While this practice was ed most of these facts. Although at one time codified in a Second he had not observed the accident MAY 9, 2020 AT 6:00 PM Department rule, that rule was itself, he acknowledged that the short-lived and was superseded scaffold had not been properly long ago by a statewide rule that secured, that it would “move,” and Long Island Marriott merely encouraged bifurcation as that Castro had told him that he Uniondale, New York long as it promoted a fair resolu- Ameer Benno had fallen from it. tion of the action. Castro also called two of his Despite this, courts within the treating physicians, who testified Celebrating our 77th Distinguished Service Medallion Recipient Second Department had routinely that Castro had “reported falling disregarded the statewide rule and had con- from a scaffold and sustaining head, neck, Christopher T. McGrath, Esq., NCBA Past President, Co-Chair tinued to strictly require bifurcation of the shoulder, arm, leg, and back injuries,” and trial in personal injury cases. that Castro’s injuries were consistent with a of WE CARE, and Partner at Sullivan, Papain, Block, McGrath & Recently, in Castro v. Malia Realty, Inc.,1 fall. Critically, however, the trial court pro- Cannavo, and our 50-, 60- and 70-year honorees. the Second Department declared that the hibited Castro from eliciting testimony from bifurcation of the trial in personal injury his treating neurologist about the results of cases is not required. Instead, courts must diagnostic testing of Castro’s brain.5 determine on a case-by-case basis whether Target called another of Castro’s treat- bifurcating the liability and damages issues at ing physicians, who testified that Castro had trial will help (1) clarify or simplify the issues, complained only of neck, back and shoulder To take a sponsorship or journal ad in the Dinner Dance Gala and (2) achieve a fair and more expeditious injuries, but not of any injury to his head or Journal, see the insert in this issue or contact Special Events resolution of the action. Only if both prongs brain. According to this doctor, Castro had at (516) 747-4071 or [email protected]. are satisfied will bifurcation be appropriate. stated that his injuries resulted from lifting wooden planks. While this physician tes- Facts of the Case tified that Castro’s injuries were consistent Visit www.NCBADinnerDance.com. On June 15, 2010, the plaintiff, Manuel with lifting wooden planks, he conceded on Castro, was working at a construction site cross-examination that the injuries also were when the scaffold beneath him collapsed, consistent with a fall. causing him to fall approximately seven feet to The jury rendered a defense verdict on the ground. He suffered brain, head, shoulder liability, finding that Castro did not fall from and spine injuries as a result of the fall. Castro the scaffold. Castro appealed to the Appellate thereafter brought an action against Malia Division, Second Department, arguing, THE NCBA PRESENTS Realty, LLC, the owner of the construction among other things, that because the issues site, alleging negligence and violations of of liability and damages were intertwined, the Labor Law §§ 200, 240(1) and 241(6). Malia trial court’s refusal to unify the trial constitut- then commenced a third-party action against ed reversible error. Castro’s employer, Target Contracting, LLC. Bifurcation in the NAME THAT After discovery, Castro’s attorney moved for summary judgment on liability. In oppo- Second Department sition to the motion, both Malia and Target The CPLR has long allowed for the bifur- TUNE argued that factual questions existed regard- cation of liability and damages if doing so will ing the cause of Castro’s injuries. They main- help “avoid prejudice”6 or achieve an “unprej- tained that Castro had not injured his neck udiced disposition of the matters at issue.”7 and back in a fall, but as a result of lifting In 1979, the Appellate Division, Second wooden planks—assertions that were based Department adopted a rule which required on entries in Castro’s post-accident medi- that “[i]n all negligence actions to recover cal records. On that basis, the court denied damages for personal injury, the issues of Castro’s motion for summary judgment and liability and damages shall be severed and set the case over for trial. the issue of liability shall be tried first.”8 An Before trial, counsel for Target stated that, exception could be made if a party could MARCH 4, 2020 AT THE during the liability phase of the trial, it intend- demonstrate to the trial judge’s satisfaction ed to introduce testimony from medical pro- “exceptional circumstances” and “good cause” viders to whom Castro had allegedly made for a unified trial.9 NASSAU COUNTY BAR ASSOCIATION 2 these damaging admissions. Based on this, Over the years, a body of case law defining Castro moved for a unified trial, contending “exceptional circumstances” and “good cause” 5:30 PM that it was necessary to rebut the defendants’ developed. Exceptional circumstances existed claims regarding the cause of his injuries. when the issues of liability and damages were $45 PER PERSON Although Malia did not oppose the motion, “intertwined”10 or where the “nature of the Target did. injuries ha[d] an important bearing on the The trial court denied Castro’s motion, issue of liability.”11 holding that a bifurcated trial was “required In 1987, Section 202.42 of the Uniform NETWORK SOCIALIZE BUFFET DINNER BEER & WINE BAR under the [S]econd [D]epartment rules,” but Rules for the New York State Trial Courts went that it would allow Castro to cross-examine into effect, replacing the Second Department the treating physicians “as to whether Castro’s rule. Section 202.42 states that judges “are Create a team with your friends injuries were consistent with a fall,” as long as encouraged to order a bifurcated trial of the 3 and colleagues for an evening of fun! he did not go “into too much detail.” issues of liability and damages in any action for At the liability trial, Castro testified that personal injury where it appears that bifurca- he had been instructed by his foreman to tion may assist in a clarification or simplifica- lower some wooden planks from a scaffold tion of issues and a fair and more expeditious that was situated seven feet above the ground. resolution of the action.”12 Unlike the earli- To RSVP, contact Special Events at When Castro asked for a harness, he was er Second Department rule which mandated told that “there was only one on site and it bifurcation, Section 202.42 simply encourages was being used.”4 As Castro was lowering a (516) 747-4071 or [email protected]. wooden plank, the scaffold plank on which he was standing shifted, and Castro fell to See BIFURCATED TRIALS, Page 21 Nassau Lawyer February 2020 7 Personal Injury/Workers’ Compensation Discovery of Prior Injuries and Medical Treatment After Brito v. Gomez When a plaintiff seeks compensation for ly resolve a split between the First Conclusion It should also be noted that in Brito, the an injury by bringing a personal injury action, and Second Departments concern- plaintiff’s accident occurred in May 2014, The Court of Appeals decision the defendant invariably demands medical ing the scope of a plaintiff’s waiver nearly five years before the Court of Appeals in Brito reaffirms that discovery records concerning injuries and treatment of the physician-patient privilege. issued its ruling on this significant, yet com- disputes should be resolved with pre-dating the incident at issue in the liti- By way of brief background, monplace, discovery dispute. While the exis- a focus on that which is material gation. The overarching goal of doing so is the First and Second Departments tence or absence of prior injuries is bound to and necessary, given the particu- to identify alternative explanations for the have historically held slightly dif- impact the monetary value of the case, time lar claims at issue. A key takeaway plaintiff’s pain and suffering, and to ensure ferent views on how to define the is also money, especially considering the from Brito is that a plaintiff’s that the plaintiff is not seeking compensation scope of a plaintiff’s waiver of his time that it takes for an issue to be resolved prior injuries can be relevant to for an injury that was not caused, in whole or or her physician-patient privilege by what can be a lengthy appellate process. the issues in dispute even where in part, by the defendant’s negligence. by virtue of the claims made in At the end of a very long day, the facts, an aggravation of that prior injury Plaintiffs are generally (and understand- the bill of particulars. In the First Melissa A. including the existence of pre-existing med- is not claimed in the bill of partic- ably) reluctant to provide discovery concerning Department, the case law on dis- Danowski ical conditions and prior injuries, will come ulars. So long as the injury bears prior medical treatment and conditions that are coverability of medical records to light. It is for the jury to decide how much some relation to the claims being believed to have little bearing on the litigated concerning prior injuries is more the case is worth and to what extent prior made, whether in the bill of particulars or by claim and could be of a personal or embarrass- restrictive of discovery than the precedent injuries actually matter. ing nature. Battles over these competing con- from the Second Department. The Second a plaintiff at a deposition, the records should cerns of discoverability and privacy are nearly Department has traditionally approached be deemed discoverable. Melissa A. Danowski is a senior associate at Mauro Lilling Naparty LLP in Woodbury, as old as the physician-patient privilege itself, these disputes with a more expansive view, The Brito decision is significant for 1 where she is a member of the appellate prac- and are often hard fought. In Brito v. Gomez, finding that defendants are entitled to dis- defendants seeking to defend against claims tice and litigation strategy group. She can be one such dispute made its way to the New York covery of “records pertaining to [a plaintiff’s] of injury that may have either pre-dated the reached at [email protected]. State Court of Appeals for resolution.2 preexisting medical condition” where a plain- accident or that were at least connected in tiff has “affirmatively placed her entire medi- some (even if tangential) way to a prior med- 1. See Koump v. Smith, 25 N.Y.2d 287, 293-294 (1969). The Brito Decision ical condition. If prior injuries and medical 2. 33 N.Y.3d 1126 (2019). cal condition in controversy through [ ] broad 3. Id. In Brito, the Court of Appeals held that a allegations of physical and mental injuries” conditions are brought to light, they could 4. Brito v. Gomez, 168 A.D.3d 1 (1st Dept. 2018). plaintiff waived her physician-patient priv- and “claims of loss of enjoyment of life.”11 have a significant impact on the monetary 5. Id. at 2-3. ilege concerning prior knee injuries, even The First Department addressed this dis- value of the case. 6. Id. at 3. 7. Id. at 3. though she was not claiming injuries to her tinction in its opinion in Brito and acknowl- For plaintiffs, while the claims made in 8. Id. at 3. 3 knees in the pending lawsuit. The plaintiff, edged that “unlike the Second Department, the bill of particulars will traditionally define 9. Id. at 5. Benedicta Brito, claimed that she injured her ‘we do not regard generalized allegations the scope of the waiver of privacy concerns 10. Brito, 33 N.Y.3d at 1127. neck and back when her driver’s vehicle col- of loss of enjoyment of life or of the ability and privilege, it is important to consider that 11. Bravo v. Vargas, 113 A.D.3d 577, 578-579 (2d Dept. 2014). lided with a school bus in May 2014.4 Her bill to work as opening the door to a plain- discovery may not be limited just because the 12 12. Brito, 168 A.D.3d at 8. of particulars alleged injuries to only her cer- tiff’s entire medical history.’” When the case specific injury or condition is not part of the 13. Brito, 33 N.Y.3d at 1127. vical spine, lumbar spine and left shoulder.5 came before the Court of Appeals, the Court case in chief. If the items sought by a defen- 14. See Kakharrov v. Archer, 166 A.D.3d 746 (2d Dept. Although the claimed injuries were limited declined the opportunity to more definitively dant are demonstrated as likely to reveal 2018). 15. McGlone v. Port Auth. of N.Y. and N.J., 90 A.D.3d 479, to those body parts, Ms. Brito also included resolve the split, and qualified its ruling by information that is relevant to the claims and 480 (1st Dept. 2011); Rega v Avon Prods., Inc., 49 A.D.3d a generalized claim for “loss of enjoyment of noting that it was based on the “particular cir- defenses made, they are fair game. 329 (1st Dept. 2008). life.”6 At her deposition, Ms. Brito testified cumstances of this case.”13 The short decision that her neck and back injuries made it dif- also did not address the Second Department’s ficult for her to walk and prevented her from long line of precedent that has consistently wearing high-heeled shoes. held that broad allegations of injury in a bill of Notably, Ms. Brito also testified that she particulars can serve as the basis of a waiver of injured both knees before the subject acci- the physician-patient privilege as to his or her dent—her left knee five years prior, and her entire medical condition.14 right knee two years prior. As a result of While the Court of Appeals did not these prior injuries, she required surgery on reject or disavow the Second Department’s both knees and had to use a cane while she approach, it did not adopt its language either. BLACK HISTORY MONTH recovered.7 Following the plaintiff’s depo- Instead, it found that the plaintiff’s prior inju- sition, the defendant demanded discovery ries were sufficiently related to the particular CELEBRATION concerning treatment Ms. Brito received for limitations claimed in the pending litigation. her knees. The plaintiff’s counsel objected to However, even though the split between the F R I D A Y F E B R U A R Y 2 1 , 2 0 2 0 A T 1 2 : 3 0 P M the demand and contended that the records First and Second Departments was not com- N A S S A U C O U N T Y S U P R E M E C O U R T sought were not discoverable because they pletely resolved, the Court’s holding provided 8 C E R E M O N I A L C O U R T R O O M concerned unrelated medical treatment. The a more liberal interpretation of discoverabil- 1 0 0 S U P R E M E C O U R T D R I V E M I N E O L A N Y 1 1 5 0 1 First Department agreed with the plaintiff ity than what had been applied in the First and found that neither the bill of particulars Department previously. In that sense, the P R E S I D I N G nor plaintiff’s deposition testimony affirma- decision is a victory for defendants. HON. NORMAN ST.GEORGE tively placed her prior knee injuries in con- Historically, the First Department has ADMINISTRATIVE JUDGE OF NASSAU COUNTY troversy, since her claims were limited to back held that discovery of medical records of and shoulder injuries.9 a prior injury or condition is appropriate In an opinion rendered on September 10, only where the plaintiff has alleged an HONOREES 2019, the Court of Appeals found that by suing aggravation or exacerbation of that prior HON. ANDREA PHOENIX 15 to recover damages for injuries impacting her condition. This restrictive approach had JUDGE OF THE NASSAU COUNTY DISTRICT COURT ability to walk and stand, the plaintiff put her the potential to lead to inconsistent results ACTING JUDGE OF THE NASSAU COUNTY COURT prior knee injuries at issue. Specifically, the in the trial courts where the outcome of a HON. ALFRED S. ROBBINS AWARD Court reasoned that the plaintiff affirmatively discovery dispute could depend on whether placed the condition of her knees into contro- the plaintiff’s attorney drafting the bill of NYS COURT OFFICER TROY M.COLEY versy by alleging that the underlying accident particulars was candid enough to include HON. MICHELE M. WOODWARD SERVICE AWARD caused difficulties in walking and standing that a claim of exacerbation of a prior injury. affect her ambulatory capacity.10 In cases where a claim of exacerbation was H. SCOTTIE COADS not made, it was difficult for a defendant to CHAIR OF CIVIC ENGAGEMENT NAACP NYS CONFERENCE The Interpretation and Impact of Brito obtain records of a prior injury, even though THE AMISTAD PRESIDENTIAL AWARD The Brito decision will undoubtedly have that injury may have impacted a plaintiff’s a significant impact in discovery disputes quality of life, life-expectancy, employabili- between litigants contesting the disclosure of ty, or other factors bearing on the damages ART EXHIBIT BY: medical records concerning prior injuries and claimed. Where artful drafting of a bill of THE LI BLACK ARTISTS ASSOCIATION conditions that are not specifically claimed or particulars could dictate whether or not GALVIN BISSERUP mentioned in a plaintiff’s bill of particulars. prior injuries were discoverable in the First STANLEY COVINGTON The Court of Appeals’ decision in Brito clari- Department, the Second Department would fies that the fact that a bill of particulars which likely allow the discovery so long as a claim does not specifically mention a particular for loss of enjoyment of life or similar broad MUSICAL PERFORMANCE AND REFRESHMENTS body part or condition will not necessarily claim was contained in the bill of particu- TO FOLLOW THE CEREMONY. preclude discovery into that condition. As lars. The Court of Appeals’ ruling in Brito long as the materials relate to the claims or implicitly rejects the First Department’s defenses, they are discoverable. But, equally rule that a claim of exacerbation be made significant is what the decision did not do: the in order for a prior injury to be considered Court of Appeals declined to more definitive- relevant to the claims. 8 February 2020 Nassau Lawyer Personal Injury/Workers’ Compensation 2019 Labor Law §240(1) Decisions: What Constitutes a Physically Significant Elevation Differential Labor Law §240(1), commonly known as The Court of Appeals also The fact that a worker and court, relying heavily upon the just five-inch the “scaffold law,” imposes absolute liability agreed with the trial court that the the injury-causing instrumental- elevation differential between the heights of on building owners and contractors whose harm to plaintiff was the direct ity were both at the same level at the plaintiff and the scaffold, affirmed the failure to provide proper protection to workers consequence of the application of the time the accident occurred dismissal plaintiff’s complaint. employed on a construction site proximately the force of gravity to the reel. The does not necessarily preclude a Not every “same level” scenario resulted in causes injury to a worker. Whether a plaintiff is court reasoned that the injury to finding that a significant elevation the application of Section 240(1). In Lombardi entitled to recovery under the statute requires a plaintiff was every bit as direct a differential exists. In Encarnacion v City of New York, the plaintiff allegedly was determination of whether the injury sustained consequence of the descent of the v 3361 Third Avenue Housing injured when a metal plate, which was used is the type of elevation-related hazard to which reel as would have been an inju- Development Fund Corp., plaintiff to cover an excavated trench located on the the statute applies. The result often turns on ry to a worker positioned in the alleged that he was injured during roadway, struck him as it was being removed whether a “physically significant elevation dif- descending reel’s path, a worker the disassembly of a formwork from the roadway surface.7 The court held ferential” is found to exist. who would certainly be entitled to Ira S. Slavit structure used to construct a con- that defendants established, prima facie, that In 2019, several appellate decisions addressed recover under Section 240(1). crete wall.4 Brace frames attached the plaintiff’s injury did not result from the circumstances where defendants disputed that to the formwork stood at least 12 type of elevation-related hazard contemplated plaintiffs’ injuries arose from a “physically sig- Recent Decisions feet tall and weighed approximately 1,500 by Section 240(1). nificant elevation differential,” a critical term The phrase, “a physically significant eleva- pounds. While both the plaintiff and the Similarly, in Clark v FC Yonkers Assoc., in Section 240(1) cases. In a field of law where tion differential,” has spawned an abundance brace frame were at ground level, the brace LLC, the plaintiff allegedly suffered a her- claims arise under a broad variety of circum- of decisional law during the ensuing years, frame fell and struck him. niation in his neck as he, while standing on stances, any of these decisions may bear on with 2019 being no exception. In Ali v Sloan- The court held that although plaintiff and the ground, attempted to throw a 100–pound cases in your own practice. Kettering Inst. for Cancer Research, plaintiff the brace frame stood at the same level at the hose onto an area located 15 to 20 feet above time of the accident, the work plaintiff was 8 was injured when an air conditioning system him. The court held that although the acci- Runner: The Seminal “Scaffold doing posed a substantial gravity-related risk, coil that weighed at least 300 pounds that was dent tangentially involved elevation, it was because the falling of the brace frame away Law” Decision being transported secured to two dollies fell on not caused by any elevation-related risk con- from the formwork panel would have gen- templated by the statute. The Court of Appeals, in the seminal case his leg as he and three coworkers unloaded it 2 erated a significant amount of force. Citing The mere fact that a worker is injured by of Runner v New York Stock Exchange, Inc., by from a truck. The court held that in view of the pre-eminent Court of Appeals decision being struck by a falling object while engaged its own account addressed for the first time the weight of the coil and the amount of force it regarding “same level” cases, Wilinski v. 334 in an activity covered by Section 240(1) is not the applicability of Section 240(1) to a factual was able to generate, even in falling a relatively E. 92nd Street Housing Development Fund alone sufficient to afford the worker the pro- scenario that did not involve a worker injured short distance off of the dolly, plaintiff’s injury Corp.,Encarnacion concluded that the evi- tections of the statute. In Djuric v City of New either by falling or by being struck by a falling resulted from a failure to provide protection dence established prima facie that the activity York, the statute was found to be inapplicable object that was being used in the work being required by Section 240(1) against a risk aris- in which plaintiff was engaged was covered because the pipe saddle that detached from undertaken, and stated that the statute was not ing from a significant elevation differential. 5 under Section 240(1). an overhead ceiling pipe assembly and struck limited to those two scenarios.1 The task being In Davies v Simon Property Group, Inc., An interesting decision in a “same level” plaintiff was not an object that required secur- undertaken in Runner was moving a large reel the plaintiff alleged that he was injured while case that applied an intensive quantitative ing for the purposes of the undertaking but of wire weighing 800 pounds down a set of four pushing a cart of concrete across a piece of ply- analysis of the force of the impact on the was rather a permanent part of the structure.9 stairs. The plaintiff was injured not by falling or wood that had been laid by his employer on the plaintiff in order to determine whether a phys- by being struck by the reel, but rather when the ground from which a sidewalk had previously ically significant elevation differential existed Conclusion jerry-rigged device being used to try to regulate been removed.3 The plywood “flexed,” causing came from the Third Department in Wright v Evaluations of what constitutes a phys- and control the reel’s descent caused injuries to the plaintiff and the cart to fall into an adjacent Ellsworth Partners, LLC.6 In moving for sum- ically significant elevation differential will his hands. hole. While the plaintiff testified at his depo- mary judgment, the defendants submitted an no doubt continue to be the subject of court The court in Runner noted that the purpose sition that the plywood bridged a three-foot affidavit from an engineer who compared the decisions in 2020 and beyond. If history is any of the strict liability statute is to protect con- wide and three-foot deep hole or trench that he height of the plaintiff to the height, weight guide, the results in this ever-evolving issue struction workers not from routine workplace fell into, two other witnesses testified at their and number of scaffolds that fell forward and are not always predictable, making it import- risks, but from the pronounced risks arising depositions that there was no hole or trench struck him and from that calculated that the ant for practitioners to keep abreast of the from construction worksite elevation differ- underneath the plywood. kinetic energy at the time of impact as being latest developments in the often high-stakes entials. The relevant inquiry, said the court, Defendants moved for summary judgment 154.83 joules. The engineer compared that to Labor Law 240(1) litigation. is whether the harm flows directly from the on the ground that the three-foot height differ- the number of joules (700.95) he calculated application of the force of gravity upon the ential of the sidewalk was not a significant ele- were involved in Wilinski, where a significant Ira S. Slavit is Chair of the NCBA Plaintiff’s object. The Runner court emphasized that the vation differential that the statute was designed elevation differential was found to exist, and Personal Injury Committee and serves on the single decisive question is whether plaintiff’s to protect against. In answering Runner’s single NCBA Board of Directors, and is an attorney to the number of joules he calculated (185.90) with Levine & Slavit, PLLC, with offices in injuries were the direct consequence of a failure decisive question of whether plaintiff’s inju- were involved in an earlier case the Third Manhattan and Mineola, representing plain- to provide adequate protection against a risk ries were the direct consequence of a failure Department had dismissed where scaffold tiffs in personal injury cases. He can be arising from “a physically significant elevation to provide adequate protection against a risk frames fell on the plaintiff when he attempted reached at [email protected]. differential.” arising from a physically significant elevation to move them. The defendants in Runner argued that the differential, the Davies court held that the con- Defendants’ engineer opined that the five- 1. 13 N.Y.3d 599 (2009). 2. 176 A.D.3d 561 (1st Dept. 2019). elevation differential was de minimis. The court flicting deposition testimony raised an issue of inch differential between the top of plaintiff’s 3. 174 A.D.3d 850 (2d Dept. 2019). rejected the argument, stating that the elevation fact regarding whether the plywood was, under head and the maximum height of the frames 4. 176 A.D.3d 627 (1st Dept 2019). differential involved cannot be viewed as de the circumstances, the functional equivalent of did not significantly contribute to the “total” 5. 18 N.Y.3d 1 (2011). minimis given the weight of the reel and the a scaffold meant to prevent the plaintiff from force at impact of the offending frame as it 6. 173 A.D.3d 1409 (3d Dept. 2019). 7. 175 A.D.3d 1521 (2d Dept. 2019). amount of force it was capable of generating, falling into a three-foot-deep hole or trench. struck plaintiff. Although the plaintiff sub- 8. 172 A.D.3d 1159 (2d Dept. 2019). even over the course of a relatively short descent. The grant of summary judgment was reversed. mitted an affidavit from an architect, the 9. 172 A.D.3d 456 (1st Dept. 2019).

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538 BROADHOLLOW ROAD SUITE 301 WEST MELVILLE, NY Nassau Lawyer February 2020 9 Personal Injury/Workers’ Compensation Are Out-of-Possession Landowners Out of Liability? A vast majority of the commercial-type owner rule to these defendants. In er, essentially because it was an not a covenant that could be said to displace premises liability cases in this State result in turning to the express language of out-of-possession landlord. In the nursing home’s duties or alter the relation- landowners being shielded from liability as Section 7-210, the Court highlight- Henry, plaintiff sustained injuries ship between landlord and tenant.”11 a result of the well-known out-of-possession ed that “it applies to every ‘owner after having slipped on water in Given the Henry decision, it is certainly landlord rule. Under this rule, landowners who of real property abutting any side- a nursing home that came from important for plaintiffs’ counsel to review and have contracted out the responsibility for main- walk’ (§ 7-210 [a]) and makes no a leaking roof. The original lease consider all the agreements turned over to tenance of their property to their tenants distinction for those owners who shifted the duty to maintain the discovery in order to determine whether any do not assume liability for breach of that are out of possession, and the fact premises to the tenant in pos- of them contain clauses which displace the duty. However, in recent months, the liability that it expressly excludes certain session of the nursing home. tenant’s duties or alter the relationship between of out-of-possession landlords and owners owner-occupied properties from Subsequent to entering into the landlord and tenant. By using the analysis in has come before the Court of Appeals in its reach demonstrates that if the lease, the defendant landowner Henry, one could determine whether liability Deanne M. entered into a regulatory agree- two notable cases: Xiang Fu He v. Troon City Council meant to exclude a should be extended to an out-of-possession 1 Caputo ment with the United States Management, Inc. and Henry v. Hamilton class of owners, it knew how to do landlord that would otherwise be shielded Equities, Inc.2 These opinions are important so (§ 7-210 [b]).”6 Department of Housing and Urban Development (HUD) “related to from liability. In addition, such an analysis will not only for landlords and tenants but also for The Court also reasoned that help plaintiffs better evaluate their claims and attorneys practicing landlord-tenant law, as “a landowner’s duty under section 7-210 is an the facility’s construction requiring defen- how to litigate their case. well as personal injury. affirmative, nondelegable obligation which dants to ‘maintain the mortgaged premises … 8 As for defense counsel, it is important incentivizes owners to make decisions that in good repair and condition’ … .” to be mindful of the documents negotiated Xiang: Lessors Still Liable Under optimize the safety and proper care of side- The defendants landowners moved for “Sidewalk Law” walks, reducing harm to third parties and summary judgment on the basis that they and agreements entered into as to whether litigation costs.”7 The Court concluded that its were an out-of-possession landowner with a promise to make repairs will induce the In Xiang, plaintiff alleged he slipped and a lease agreement placing the onus on the tenant to forego repair efforts which it might fell from ice “that had accumulated due to interpretation of this Section of the Code was in line with the City Council’s intent to place tenant to maintain the property. The motion otherwise have made. If ignorant to this issue, defendant landlords’ negligent maintenance was granted, and was affirmed by the First defendants may find themselves to be liable of the city-owned sidewalk abutting their the duty to maintain sidewalks on landown- 3 ers, who are in the best position to maintain Department. The plaintiff argued that the in circumstances where it typically would property[.]” The case came before the Court defendants should be liable, claiming that have been afforded the protection of the of Appeals when an appeal was taken from the sidewalks. Based on Xiang, it is now apparent that an the subsequent HUD regulatory agreement out-of-possession landowner rule. a decision of the First Department, which altered the original lease with the nursing the owner of real property that falls within Deanne M. Caputo is a partner with Sullivan reversed a Supreme Court order that denied home placing the burden to maintain the summary judgment to defendants and dis- the ambit of Section 7-210 can contract out Papain Block McGrath & Cannavo P.C. in premises in good repair on the landowners. Garden City, representing plaintiffs in per- missed the complaint. the work to actually maintain the sidewalk in that it can hire or retain another to perform The Court of Appeals explained that sonal injury cases. She can be reached at The defendants originally moved for “a duty to remedy dangerous conditions is [email protected]. summary judgment claiming that they were the actual work. However, it cannot shift the actual duty and avoid liability in the event the imposed on a landlord who has made a cov- not liable under New York Administrative 9 1. 34 N.Y.3d 167 (2019). work is negligently performed, resulting in enant to repair directly with the tenant.” The Code § 7-210, since they were out-of-pos- Court stated that even though the terms of the 2. 34 N.Y.3d 136 (2019). session landlords. The Court of Appeals held injuries. Although this case may be casted as 3. Id. at 170. HUD regulatory agreement were to supersede 4. Id. at 169. that “Administrative Code § 7-210, which a win for the plaintiff’s bar, it should not be ignored by defendants. It serves as an incen- all other contradictory requirements, “the 5. Id. at 167. imposes a non-delegable duty on certain real HUD regulatory agreement did not conflict 6. Id. at 172. property owners to maintain city sidewalks tive for defendants to properly and carefully 7. Id. at 174. vet out contractors to perform their work with, or absolve the nursing home of, its abutting their land in a reasonably safe con- responsibilities under the original lease.”10 8. Id. at 136. dition, applies with full force notwithstand- and to ensure that its property is maintained 9. Id. at 143. in a reasonably safe condition, whether it As such, “the HUD regulatory agreement, as 10. Id. at 145. ing an owner’s transfer of possession to a incorporated into the lease amendment, was 11. Id. lessee or maintenance agreement with a non- be through more detailed or more frequent ow n e r.” 4 Accordingly, the Court of Appeals inspections or some other means. held that “defendants were not entitled to Henry: Lessees Can Contractually summary judgment as a matter of law based solely on their out-of-possession status.”5 Assume Liability The Court, in a carefully detailed analysis, The Court of Appeals in Henry did not Attorney Grievance & refused to extend the out-of-possession land- impose liability on the defendant landown- Disciplinary Defense An allegation of professional misconduct can tarnish your Thank You for Making reputation and place your law license in jeopardy. Let the Thank you for experienced team of David H. Besso and Michelle Aulivola help supporting the a Donation to the you achieve a favorable result. NCBA Annual NCBA Pro Bono Holiday Staff Fund Campaign Michael Coco, Esq. James P. Joseph John F. Kuhn, Esq.

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10 February 2020 Nassau Lawyer Personal Injury/Workers’ Compensation A Theoretical Solution for Endometrial Cancer Claims to the VCF On July 29, 2019, President Trump rat- of developing endometrial cancer; terrorist-related aircraft crashes of suit charged the U.S. Government and several ified the Never Forget the Heroes: James however, because neither study was a September 11, 2001.”10 chemical corporations with the injuries and Zadroga, Ray Pfeifer, and Luis Alvarez peer-reviewed, published, epidemio- The truth of the matter is that deaths believed to be caused by exposure to Permanent Authorization of the September logical study of endometrial cancer epidemiological studies are virtu- the chemical compound “Agent Orange” used 11th Victims Compensation Fund (hereinaf- in a 9/11-exposed population, nei- ally ineffective when it comes to during the Vietnam War.13 The evidence put ter, “VCF”).1 This law countered the financial ther study was considered relevant understanding the causes of con- forth by the plaintiffs was regarded at best deficit underlying the fifty to seventy percent or given further consideration.6 ditions that fall on the outskirts as inconclusive due in part to the weakness reduction in the compensatory awards paid The WTC Health Program, of the standard deviation bell in proof of causal relationship as demon- out on victim claims due to an insufficiency in their response to Petition 23, curve where data numbers tend strated in the epidemiological studies relied of funds. Under the statute the VCF may then conducted a search for rel- to decrease. That is an approach upon.14 The court reasoned that “it is likely compensate for a list of conditions that have evant peer-reviewed case studies Jaquay B. Felix that helps identify conditions that that because of the epidemiological nature of been established as certifiable conditions by and in one such study, Report plague the vast majority of affected much of the evidence, no individual plain- the World Trade Center Health Program and on Carcinogens7 published by the members, not the minority. The tiff would be able to prove that his or her the National Institute for Occupational Safety National Toxicology Program, VCF however is still tasked with particular adverse health effects are due to and Health (“NIOSH”).2 cadmium was listed among 39 toxic agents the duty of compensating all those individuals Agent Orange exposure.”15 While the court However, there are a group of 9/11 sur- present in World Trade Center toxic dust who were injured by 9/11 or its aftermath, not in this matter noted several obstacles to the vivors that are being denied compensation that were either known or reasonably antici- just the ones where the causal link is verifiable plaintiff’s recovery, it ultimately held that the under this statute and those are victims who pated to be human carcinogens. However, it by large-scale studies. plaintiffs should recover under a reasonable have been diagnosed with endometrial can- was concluded that the link between these 39 In a typical case where a VCF claimant has settlement agreement.16 cer. On September 24, 2019, the WTC Health carcinogenic substances and the causation of filed a claim seeking compensatory recovery Similarly, here provisions for recovery Program published their response to Petition endometrial cancer was insufficient, primar- for endometrial cancer, their case will be should be made for plaintiffs that struggle 23, which requested to add endometrial can- ily because there were not enough studies inevitably denied because the condition has with the factual impossibility of adequately cer to the list of certifiable 9/11 related condi- to show a consistent result of endometrial not been deemed a certifiable 9/11 condition. proving causation. Minority victims suffer- tions. The petition was denied due to a find- cancer development.8 The claimant will then be offered an oppor- ing from endometrial cancer may not have ing of insufficient evidence that endometrial Consequently, 9/11 victims with endome- tunity to appeal the decision. At the appeal the luxury of being able to benefit from an cancer was 9/11 related.3 Here we analyze a trial cancer are often denied compensation hearing, the claimant will be faced with the epidemiological decision in their favor years theoretical solution to the problem. by the VCF. Unfortunately, the process of impossible task of trying to establish a causal from now. They may have already passed filing a VCF claim includes a general waiver link between their exposure to World Trade away from their conditions. Even those that The Denial of against any future lawsuits for 9/11 damages.9 Center toxic dust and the development of survive will continue to endure severe losses Endometrial Cancer Claims Once the claim is filed, the general waiver their endometrial cancer. The VCF will have in other areas of their lives such as loss of Petition 23 petitioned that endometrial can- operates as a trapdoor that prevents seeking a no other choice under the current policy but gainful employment opportunities, friends, cer be added to the list of 9/11 conditions refer- court remedy after the claim has been denied. to maintain their denial of the claim until services or intimacy with a significant other, 4 This result is in direct contravention to the such time that the condition is deemed certi- and general loss of quality of life well into encing a 2002 study by Lioy et al. and a 2017 11 study by McElroy et al.5 These studies provided overall purpose of the VCF statute which is to fiable by NIOSH. their remaining years. Cancer is inherently “provide compensation to any individual (or A similar problem was faced by the life threatening, and it poses this lethal threat a scientific basis showing a causal link between 12 toxic cadmium exposure and an increased risk relatives of a deceased individual) who was Veteran plaintiffs in In re Agent Orange. In physically injured or killed as a result of the that matter, Veteran plaintiffs in a class action See THEORETICAL, Page 21

Nassau County Bar Association LOWER COST and Suffolk County Bar MEDIATION AND Association Joint Meeting ARBITRATION

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Mediators and arbitrators are highly skilled attorneys NYS Chief Administrative Judge Lawrence K. Marks addressed the Board of Directors of the Nassau County Bar Association and Suffolk County Bar admitted to the New York Bar for a minimum of 10 Association at a joint meeting on January 14. Other dignitaries present included years, as well as screened and approved by the NCBA District Administrative Judges C. Randall Hinrichs and Norman St. George and NYSBA President Hank Greenberg. (L-R) Suffolk County District Administrative Judiciary Committee. Judge C. Randall Hinrichs, SCBA President-Elect Hon. Derrick J. Robinsom, SCBA President Lynn Poster-Zimmerman, NYSBA President-Elect Scott Karson, NYSBA President Henry Greenberg, Chief Administrative Judge Lawrence K. Marks, NCBA For rules, applications, and additional information, President Rick Collins, NCBA President-Elect Dorian Glover, and Nassau County please call (516) 747-4070. District Administrative Judge Norman St. George. Nassau Lawyer February 2020 11 General Law The Never-Ending Escrow Whenever I speak at continuing legal edu- “The undersigned shall hold ments at delineated times, subject good faith and pursuant to the escrow cation programs, particularly on the subjects $2,000 in escrow to ensure that a to the buyer’s right to make claims agreement; of real estate or escrow, I am approached by CO is issued for the deck within against the funds by submitting • include conditions and mechanisms attorneys seeking guidance on one of the more 60 days from the date hereof. In Claims Notices and “Disbursement regarding dispute resolution tailored to vexing nuisances afflicting the profession: what the event said certificate is not Letters” to the bank. to do with funds sitting in an escrow account issued within said 60 days the The buyer in Schoolman did the specific purpose of the escrow; when the client or party entitled to the funds escrow shall be released to the not timely submit such documents • require an objecting party to commence cannot be located or a dispute exists over the purchaser to cover the cost of to the bank; instead, days after an action within a specified and reason- money and no resolution is in sight. Criminal obtaining the CO.” the second installment was due, able time-frame; defense practitioners deal with the same prob- the buyer unilaterally notified the The problem with such an • reserve to yourself the options of con- lem when restitution checks issued on behalf of Mitchell bank there was a dispute over the agreement is that it is often so hasti- Borkowsky tinuing to hold the funds, releasing the their clients are not negotiated and the victims ly and inartfully drafted that no one escrow and directed the bank to funds pursuant to the terms of the agree- are nowhere to be found. Indeed, just about could possibly know what his or continue to hold an amount equal every practitioner with an escrow account can her obligations are, least of all the attorney who to the tax lien. On that basis, the bank failed ment, or seeking a court order directing relate to this problem. obligated himself or herself to hold the money. to release the entire balance of the escrow to their deposit with the court and the pay- Although the amounts at issue are often If no CO is issued within the timeframe Schoolman. Schoolman sued. ment of reasonable attorney’s fees. de minimis and the attorneys are generally provided and the attorney remits a check The Court found that because the escrow not civilly or professionally at risk (provided to the purchaser’s attorney, it would seem agreement clearly and unambiguously delin- Always remember, however, that because they’ve acted in good faith and the funds as if the conditions of the agreement have eated the procedures, manner, and timing of you may be dealing with less sophisticated have been preserved), the obligation gnaws been complied with and the attorney’s obli- the release of the escrow amount, and explicit- clients, you might still be better served by on their psyche like a distant siren. Their gation satisfied. However, if the purchaser’s ly stated that the funds “shall … [be] released anxiety is reasonable, however, because while from escrow by the Escrow Agent only in continuing to hold the funds in escrow. But, attorney returns the check because his client by having a solid agreement and strictly the funds may not be large in amount, the feels it’s insufficient and instructs the escrow accordance with the terms and conditions of consequences if the funds are mishandled are agent to retain the funds until the dispute this Agreement,” the bank had inappropriate- complying with its terms, you will at least enormous, and, let’s face it, nobody likes to be is resolved, the escrow agent has no choice ly withheld the funds from Schoolman. force the other side’s hand, spur some action, stuck in the middle with no upside or benefit but to preserve the funds indefinitely, pend- and have some legal basis if you do choose to themselves. Avoiding the Never-Ending Escrow ing his or her own commencement of an to release the funds pursuant to the terms of Unlike the typical post-closing residen- The Lawyer’s Fund as Repository interpleader action or commencement of an the agreement. action by one of the parties.5 tial real estate escrow, the Schoolman case Fortunately, the Rules of Professional Ironically, the attorney in our example involved sophisticated clients, a non-attorney Mitchell T. Borkowsky provides representation Conduct (“RPC”)1 provide a relatively simple strictly complied with the terms of the agree- escrow agent, and significant amounts of to lawyers before state grievance committees solution for instances in which a client or other ment but is still stuck because she cannot money. Nevertheless, the lessons from that and to disbarred or suspended attorneys party entitled to funds cannot be located. force the purchaser to negotiate the check. case are manifest. seeking reinstatement. He can be reached at Pursuant to RPC, Rule 1.15(f), if a law- Moreover, no matter how much time passes To avoid the “never-ending escrow,” the [email protected]. yer cannot locate a client who is owed funds or how little is done by either party to resolve most important task is to tighten up your from a trust account, the lawyer is required the situation, the attorney cannot release the escrow agreements. Among other things: 1. 22 NYCRR Part 1200. to seek a judicial order fixing the lawyer’s fees funds to her client, as Rule 1.15(c)(4) states • include specific dates, notice require- 2. www.nylawfund.org. and disbursements, and to deposit the miss- that funds may only be released to a client or ments, and triggering events establishing 3. Erie Co. Ethics Opinion 04-01 (2004). ing client’s share with the Lawyers’ Fund for third party when “the client or third party is parameters for the release of the escrow; 4. Farago v. Burke, 262 N.Y. 229 (1933). Client Protection (“Lawyer’s Fund”). While entitled to receive” them. • clearly define yourself as a stakeholder 5. Brooklyn Bar Ethics Opinion No. 1993-1. Rule 1.15(f) only refers to a missing “client,” and provide yourself with indemnifica- 6. 2012 NY Slip Op 32394(U) (Sup. Ct., Suffolk Co. Sept. when read together with Rule 1.15(g), which Potential Grievance Inquiry tion by the parties for actions taken in 10, 2012). provides a mechanism for depositing funds held Adding insult to injury, these cases fre- in a deceased lawyer’s escrow account with the quently result in grievances being filed by Lawyer’s Fund, it is not unreasonable to envision one side or the other, usually the purchaser. Rule 1.15(f) as being elastic enough to cover In case you’re wondering how a legal dispute missing payees who are not clients. between clients could result in a grievance 2 The Lawyer’s Fund website provides sam- investigation against an attorney, well… it Mindfulness Yoga ples of pleadings under a variety circumstanc- really shouldn’t. However, such complaints es, including where the party in interest is not often include other assertions, such as that the a “client,” and affirmatively states that it will escrow agent has failed to respond to repeated Workshop accept funds of less than $1,000 without a calls and letters from the purchaser’s attorney, court order based on a 2004 Erie County Bar or there’s a good faith belief that the escrow The NCBA Lawyer Assistance Program is pleased to invite members 3 Association Ethics Opinion. agent improperly released the funds. In those to participate in an eight-week yoga workshop. Caught In the Middle instances, the grievance committees are more likely to inquire and ask for records estab- The more difficult situation arises where lishing that the funds have been preserved Held Wednesday Evenings by Edith Jason, E-RYT 500 there is a dispute over entitlement to escrow throughout the entire escrow period. funds and the escrow agent is caught in the 5:30 PM to 6:45 PM in the NCBA President's Room middle. Acting as escrow agent is essentially Fiduciary Duties and Contract Law a service provided by attorneys and others to Sometimes, entitlement to the funds is not $120 workshop fee—open enrollment welcome for $15 per class, help facilitate agreements between other par- as clear as in the above example. Perhaps the space permitting. Cash or check payable to Edith Jason. ties. The permutations and scenarios under purpose of the escrow is to ensure funds are which attorneys obligate themselves to hold available to satisfy an existing or anticipated funds in escrow are endless. In all cases, tax lien or assessment against the property SPRING TERM DATES however, the attorney is saddled with con- attributable to the seller. If funds are withheld February 19, 26 tractual and fiduciary duties to all parties to from the seller at closing but the lien is not the escrow agreement and may dispose of enforced or doesn’t materialize after a few March 4, 11, 18, 25 the escrow funds only in strict accordance years, it would seem reasonable that the seller April 1, 22 4 with the terms of the agreement. Despite should be entitled to receive the balance of the best intentions, escrow agents are frequently sales proceeds at some point. However, if the dragged into court as stakeholders or accused purchaser instructs the escrow agent to contin- Reduce stress, aid relaxation, facilitate health of bad faith and professional misconduct. ue to hold the funds, then… well, again… what and well being. Mindfulness is for everybody, This happens in the most routine and sophis- does the agreement say? Clearly, these are legal ticated circumstances. issues that require not just an examination of flexibility irrelevant. fiduciary duties but also contract law. Post-Closing Escrows The case of Schoolman v. U.S. Bank One of the most simplistic but frequent National Association6 can be instructive. scenarios involves real estate practitioners Schoolman involved an asset purchase agree- ENROLLMENT IS LIMITED. ACT NOW! who at the closing table agree to continue ment in which some of the assets sold by acting as escrow agent, “post-closing,” to Schoolman were subject to a tax lien. The For more information, contact Beth Eckhardt at ensure their client or the other party satisfy defendant bank, acting as escrow agent pur- a condition. Many of us have been at closing suant to a comprehensive escrow agreement, [email protected] or (516) 747-4070, or Edith Jason at tables where one attorney quickly drafts an agreed to hold in escrow an amount signifi- [email protected] or (516) 935-8460. agreement, stating, in form and substance, cantly greater than the tax lien and to disburse as follows: the funds to Schoolman in two equal install- LIBN—CLE centerfold February 2020 Paper12 size February 23” x 202015”; image Nassau size Lawyer 21.25 x 13.25

Pre-registration is required for all Academy programs. Seating limited for those that do not pre-register. Call (516) 747-4464 for PROGRAM CALENDAR ease of registration or email [email protected]. Please note that outside food is not permitted at Dean’s Hours. Lunch is February 4, 2020 available for purchase through in-house caterer. The Academy office is open 8:30 AM to 5:00 PM, Monday through Friday. Champion Office Suites Lecture Series Presents: Dean’s Hour: For Better or Worse—Ethical Pitfalls in Matrimonial Law Sponsored by NCBA Corporate Partners Champion Office Suites and March 2, 2020 MPI Valuation Forever Solutions to Forever Chemicals: Exploring Drinking With the NCBA Matrimonial Law Committee Water Alternatives For Long Island Sign-in begins at noon; Program 12:45—1:45 PM With the NCBA Environmental Law Committee and the NYSBA Credits offered: 1 credit in ethics Environmental and Energy Law Section Sign-in begins 5:30 PM; Program 6:30—8:30 PM February 4, 2020 Credits offered: 2 credits in professional practice How Not to Get Hacked: Treading Carefully in Cyberspace With the NCBA Community Relations and Public Education March 3, 2020 Committee Champion Office Suites Lecture Series Presents: Dean’s Hour: Sign-in begins 5:00 PM; Program 5:30—7:30 PM Practicing Law in the Cloud Credits offered: 2 credit in professional practice or skills Sponsored by NCBA Corporate Partners Champion Office Suites With the NCBA Legal Administrators and General, Solo and Small February 5, 2020 Law Practice Committees Criminal-Immigration Review: Best Practices When Defending Sign-in begins at noon; Program 12:45—1:45 PM Non-Citizens Credits offered: 1 credit in professional practice or skills With the NCBA Immigration Law Committee and the Assigned Counsel Defenders Plan Inc. of Nassau County March 4, 2020 Sign-in begins 5:00 PM; Program 5:30—7:30 PM Dean’s Hour: Debtor and Creditor Law Update: New York’s Credits offered: 2 credits in professional practice or skills New Voidable Transactions Act With the NCBA Bankruptcy Law Committee February 6, 2020 Sign-in begins at noon; Program 12:45—1:45 PM Dean’s Hour: Gerrymandering and Its Impact on Communities of Credits offered: 1 credit in professional practice or skills Color With the NCBA Diversity and Inclusion Committee March 6, 2020 Sign-in begins at noon; Program 12:45—1:45 PM Dean’s Hour: Holmes and the Crafting of American Credits offered: 1 credit in diversity, inclusion and elimination of bias Constitutional Jurisprudence: The Ambiguous Legacies of Oliver Wendell Holmes, Jr. February 24, 2020 Sign-in begins at noon; Program 12:45—1:45 PM Dean’s Hour: Health Care Decision Making: Who, What, Where, Credits offered: 1 credit in professional practice When, Why and How? With the NCBA Senior Lawyer and Hospital and Health Law March 12, 2020 Committees Champion Office Suites Lecture Series Presents: Dean’s Hour: Sign-in begins at noon; Program 12:45—1:45 PM LGBTQ Issues in Employment Law Credits offered: 1 credit in professional practice or skills Sponsored by NCBA Corporate Partners Champion Office Suites With the NCBA LGBTQ and Labor and Employment Law February 27, 2020 Committees Champion Office Suites Lecture Series Presents: Dean’s Hour: Sign-in begins at noon; Program 12:45—1:45 PM Defensive Lawyering: Learn from Others’ Mistakes: Part 1 Credits offered: 1 credit in diversity, inclusion and elimination of Sponsored by NCBA Corporate Partners Champion Office Suites bias With the NCBA Ethics Committee Sign-in begins at noon; Program 12:45—1:45 PM March 12, 2020 Credits offered: 1 credit in ethics Aging in the Legal Profession: Be Aware and Be Prepared With the NCBA Lawyer Assistance Program February 27, 2020 Sign-in begins 5:00 PM; Program 5:30—7:30 PM Microaggressions in the Workplace Credits offered: 2 credits in ethics With the NCBA Diversity and Inclusion Committee Sign-in begins 5:00 PM; Program 5:30—7:30 PM March 14-15, 2020 Credits offered: 1 credit in diversity, inclusion, and elimination of bias Hon. Joseph Goldstein Bridge-the-Gap Weekend and 1 credit in ethics Completely free to NCBA members. Sign-up for a class, a day, or the full weekend.

LIBN—CLE centerfold February 2020 Paper size 23” x 15”; image size 21.25 x 13.25 Nassau Lawyer February 2020 13

Pre-registration is required for all Academy programs. Seating limited for those that do not pre-register. Call (516) 747-4464 for PROGRAM CALENDAR ease of registration or email [email protected]. Please note that outside food is not permitted at Dean’s Hours. Lunch is February 4, 2020 available for purchase through in-house caterer. The Academy office is open 8:30 AM to 5:00 PM, Monday through Friday. Champion Office Suites Lecture Series Presents: Dean’s Hour: For Better or Worse—Ethical Pitfalls in Matrimonial Law Sponsored by NCBA Corporate Partners Champion Office Suites and March 2, 2020 MPI Valuation Forever Solutions to Forever Chemicals: Exploring Drinking With the NCBA Matrimonial Law Committee Water Alternatives For Long Island Sign-in begins at noon; Program 12:45—1:45 PM With the NCBA Environmental Law Committee and the NYSBA Credits offered: 1 credit in ethics Environmental and Energy Law Section Sign-in begins 5:30 PM; Program 6:30—8:30 PM February 4, 2020 Credits offered: 2 credits in professional practice How Not to Get Hacked: Treading Carefully in Cyberspace With the NCBA Community Relations and Public Education March 3, 2020 Committee Champion Office Suites Lecture Series Presents: Dean’s Hour: Sign-in begins 5:00 PM; Program 5:30—7:30 PM Practicing Law in the Cloud Credits offered: 2 credit in professional practice or skills Sponsored by NCBA Corporate Partners Champion Office Suites With the NCBA Legal Administrators and General, Solo and Small February 5, 2020 Law Practice Committees Criminal-Immigration Review: Best Practices When Defending Sign-in begins at noon; Program 12:45—1:45 PM Non-Citizens Credits offered: 1 credit in professional practice or skills With the NCBA Immigration Law Committee and the Assigned Counsel Defenders Plan Inc. of Nassau County March 4, 2020 Sign-in begins 5:00 PM; Program 5:30—7:30 PM Dean’s Hour: Debtor and Creditor Law Update: New York’s Credits offered: 2 credits in professional practice or skills New Voidable Transactions Act With the NCBA Bankruptcy Law Committee February 6, 2020 Sign-in begins at noon; Program 12:45—1:45 PM Dean’s Hour: Gerrymandering and Its Impact on Communities of Credits offered: 1 credit in professional practice or skills Color With the NCBA Diversity and Inclusion Committee March 6, 2020 Sign-in begins at noon; Program 12:45—1:45 PM Dean’s Hour: Holmes and the Crafting of American Credits offered: 1 credit in diversity, inclusion and elimination of bias Constitutional Jurisprudence: The Ambiguous Legacies of Oliver Wendell Holmes, Jr. February 24, 2020 Sign-in begins at noon; Program 12:45—1:45 PM Dean’s Hour: Health Care Decision Making: Who, What, Where, Credits offered: 1 credit in professional practice When, Why and How? With the NCBA Senior Lawyer and Hospital and Health Law March 12, 2020 Committees Champion Office Suites Lecture Series Presents: Dean’s Hour: Sign-in begins at noon; Program 12:45—1:45 PM LGBTQ Issues in Employment Law Credits offered: 1 credit in professional practice or skills Sponsored by NCBA Corporate Partners Champion Office Suites With the NCBA LGBTQ and Labor and Employment Law February 27, 2020 Committees Champion Office Suites Lecture Series Presents: Dean’s Hour: Sign-in begins at noon; Program 12:45—1:45 PM Defensive Lawyering: Learn from Others’ Mistakes: Part 1 Credits offered: 1 credit in diversity, inclusion and elimination of Sponsored by NCBA Corporate Partners Champion Office Suites bias With the NCBA Ethics Committee Sign-in begins at noon; Program 12:45—1:45 PM March 12, 2020 Credits offered: 1 credit in ethics Aging in the Legal Profession: Be Aware and Be Prepared With the NCBA Lawyer Assistance Program February 27, 2020 Sign-in begins 5:00 PM; Program 5:30—7:30 PM Microaggressions in the Workplace Credits offered: 2 credits in ethics With the NCBA Diversity and Inclusion Committee Sign-in begins 5:00 PM; Program 5:30—7:30 PM March 14-15, 2020 Credits offered: 1 credit in diversity, inclusion, and elimination of bias Hon. Joseph Goldstein Bridge-the-Gap Weekend and 1 credit in ethics Completely free to NCBA members. Sign-up for a class, a day, or the full weekend.

14 February 2020 Nassau Lawyer General Law The Hidden Cost of a New York Vacation Home In 2011, Nelson Obus purchased a vaca- nature maintained by the taxpay- than 183 days in New York City, weeks out of the year and he rented an apart- tion home in the village of Northville in er, whether or not owned by such again on account of their employ- ment to a tenant year-round. That argument upstate New York. He envisioned his family taxpayer[.]”1 It goes on to say, “a ment. The judge determined that unfortunately fell flat as the Administrative spending summers at the Saratoga Racetrack mere camp or cottage, which is the Barkers clearly fell under the Law Judge decided against him. and winters engaging in cross-country skiing. suitable and used only for vaca- statutory residency requirements In the Administrative Law Judge’s estima- What Obus did not expect was to receive a tions, is not a permanent place of despite the fact they actually used tion, the property met the requirements of a tax bill from New York State for $527,000, abode.” To be considered a per- the vacation house quite sparingly. permanent place of abode. It was habitable including interest and penalties. This figure manent place of abode, the dwell- New York State residency law year-round, and the taxpayer had unfettered was more than double the $290,000 purchase ing needs to have cooking and was further qualified in 2014 by access to it. Additionally, unlike in Gaied, the price of the property in question. bathing facilities and be suitable the decision in Matter of Gaied 3 taxpayer very clearly had dedicated space and Obus is a hedge fund manager who resides for year-round use. Additionally, v. New York State Appeals Trib. belongings in the property. Leo Gabovich Gaied owned and operated an in New Jersey and commutes daily from the taxpayer must have unfettered While determinations by an Administrative automotive repair business in his home to his office in Manhattan. The access to the property. Law Judge are not precedential, the fact pat- Staten Island near which he pur- Northville property was a good two-hundred For example, a small cottage in tern in Obus4 lends itself more readily to the miles away from New York City, too far for the mountains which has no heat chased a multi-family apartment building. He did so as both an proposition that a vacation home qualifies the any reasonable commute. Nevertheless, he or running water would not be taxpayer as a statutory resident. Furthermore, found himself being taxed as a New York State considered a permanent place of investment property and as a place for his elderly parents to live. the Tax Appeals Tribunal has already ruled resident on his entire income. The reason for abode. Likewise, if a taxpayer is on a fact pattern very similar to the one in his situation lies in New York State’s statutory renovating a home to the point Gaied himself lived in New Jersey and would return there Barker. As the law currently stands, it appears residency rules. that it is uninhabitable for at least a likely that Obus could lose on appeal if he Taxpayers living outside New York who few months of the given tax year, it every night after work. About once a month, his parents would chose to pursue one. commute to work in-state are unaware of all may not be considered a permanent ask him to spend the night to aid The legislature in Albany and the courts of the ramifications surrounding statutory place of abode for tax purposes. in some tasks and errands. He need to reconsider the nature of use aspect residency. Most people know the general However, this is distinguish- had no bedroom or even a bed, in residency cases. New York is purportedly rule, “don’t spend more than one-hundred able from winterizing a home. Karen sleeping on the couch. He neither losing residents due to high taxes and reduced and eighty-three days in the state.” However, The voluntarily closing up of a Tenenbaum kept personal belongings in nor state and local tax deductions stemming from many fail to appreciate the second prong of vacation home for the winter, so had his own key to the apartment. the recently enacted Tax Cuts and Jobs Act of the statutory residency test, the maintenance long as it’s equipped for year- Prior to the case reaching the 2017.5 Does the state really want to scare off of a “permanent place of abode.” round use, will not prevent the property Court of Appeals, one would think that Gaied In order to qualify for statutory residency from being deemed a permanent place of high-net worth individuals who would pur- clearly fell within the statutory residency chase vacation homes to spend their summers in New York, one must spend more than 183 abode by New York State. requirements. He spent more than 183 days days in the state and maintain a residence for For statutory residency purposes and the or winters in New York? in New York. He also owned a property that New York State tax residency is a high- “substantially all of the tax year.” The New tolling of the day count rule, actual time spent was habitable year-round for which he had York State Tax Department has defined this at the permanent place of abode is not rele- ly involved and complex calculation that unfettered access to as the landlord. Not requires a comprehensive understanding of term to mean more than 11 months of the vant. In Matter of John J. & Laura Barker, the surprisingly, he lost his initial case and his the law and the rules which are applicable. year. The crux of the Obus case, and the issue taxpayers in the case had a vacation house in subsequent appeals until reaching the state’s 2 If one is planning a change of residency or that confuses taxpayers, is what exactly is the Hamptons which they used infrequently. highest court. if confronted with a residency audit, it is required to have a property deemed as a per- Despite having spent about 15 days a year However, the Court of Appeals decided manent “place of abode”? there, the premises were suitable for year- that in order for a dwelling to qualify as a strongly advisable to speak to a qualified tax The tax law defines a permanent place of round use. permanent place of abode the taxpayer must attorney to gauge and/or limit any unantici- abode as “a dwelling place of a permanent As well, the taxpayers had spent more have a residential interest in the property. pated tax liability. Therefore, it is not just the habitability of a Leo Gabovich is an associate attorney at dwelling that is at issue, but the nature of Tenenbaum Law, P.C. Karen J. Tenenbaum is the taxpayer’s use of the dwelling as well. In the founder of Tenenbaum Law, P.C. Leo and Gaied, the court determined that the taxpayer Karen focus on the resolution of federal and did not have a residential interest in the prop- New York state tax controversies, including erty since he did not carry a key, did not have offers in compromise, installment agree- ments, liens, levies, and warrants. Leo can his own bed or bedroom and had no belong- be reached at [email protected] NCBA LUNCH ings in the apartment. As such, he could not and Karen can be reached at ktenenbaum@ have actually resided there. litaxattorney.com or (631) 465-5000. Returning to Obus, he argued that his WITH THE JUDGES fact pattern was similar to the one in Gaied. 1. 20 CRR-NY 105.20(e)(1) His upstate vacation home is a five-bedroom, 2. Matter of John J. & Laura Barker, DTA No. 822324 three-bathroom house. Obviously, it is more 3. Matter of Gaied v New York State Tax Appeals Trib. 2014 Thursday, February 27, 2020 NY Slip Op 01101 than a camp or cottage. But the nature of his 4. Matter of Obus, DTA 827736 (August 22, 2019) Nassau County Bar Association use of the residence was for vacations only a few 5. S. 2254 — 115th Congress: Tax Cuts and Jobs Act Meet with local judges Ask questions outside the courtroom NCBA Hector Herrera Receives Citation from Share stories about the practice of law Nassau County Executive Laura Curran Explore other practice areas Learn the benefits of Bar Association involvement THANK YOU TO OUR SPONSORS

As part of the NCBA Martin Luther King celebration, Nassau County Executive Laura There is no charge to attend; however, you must Curran presented a Citation to longtime NCBA building manager Hector Herrera for his RSVP to NCBA Membership Coordinator Donna Gerdik at service to the Bar and the County. [email protected] or (516) 747-4876 to (L-R) NCBA President Richard D. Collins, NCBA Diversity & Inclusion Committee guarantee your seat at the table. Chair Hon. Maxine Broderick, NCBA Diversity & Inclusion Committee Vice-Chair Rudy Carmenaty, NCBA Building Manager Hector Herrera, Nassau County Executive Laura Curran, NCBA President-Elect Dorian Glover. Nassau Lawyer February 2020 15 General Law The Cinematic Trials of Henry Fonda

“I know Henry Fonda as an actor, a Fonda vividly recreates Lincoln’s stated power is that none of the man when defending his home against a racist warmth and courage, his strength jurors, even Fonda’s character, is mob. Never one to back down, Darrow does devoted, hard-working, responsible one and simplicity, and, most engaging- 100% certain the accused is inno- not flinch in his advocacy of Sweet, exposing with an urge toward perfection…. Times ly, his humble faith in the majesty cent. The thirteenth character in the insidious cancer that is racial prejudice. pass; we change; the urgency departs, of the law. From the moment that that jury room is the concept of Lincoln first opens a law book “reasonable doubt” itself. Twelve and this is called ‘dating’…. Then a lean, “Law is a lot more than words you put in a to when the more accomplished Angry Men, in its dark and gritty stringy, dark-faced piece of electricity Stephen A. Douglass congratulates way, is an affirmation that it is book, or judges or lawyers or sheriffs you hire walked out on the screen, and he had me. him on his courtroom victory, the preferable that a guilty man go to carry it out. It’s everything people ever have free than allow an innocent one to I believed my own story again. It was fresh audience sees Lincoln come to found out about justice and what’s right and maturity as both man and lawyer. be falsely convicted. and happening and good. The poetry of Young Mr. Rudy Carmenaty Set in Manhattan State Supreme wrong. It’s the very conscience of humanity. Hank can do that.” Lincoln rests largely on Fonda’s Court, this landmark film provides There can’t be any such thing as civilization a glimpse inside the inner-workings characterization, which fore- unless people have a conscience, because if —John Steinbeck shadows the virtues the audience of the criminal justice system in the mid-twentieth century. It is in this murky people touch God anywhere, where is it except Henry Fonda was among the finest of would come to associate with Lincoln’s presidency. Great credit belongs to John world, that Fonda’s Juror #8, like Lincoln in the through their conscience.” American actors. In a long and distinguished prior film, stands out. Juror #8 is a paragon of career, he crafted a dramatic persona which Ford. An extraordinary filmmaker, Ford, —Fonda, in The Ox Bow Incident working with Fonda, would form one of the moral clarity holding firm until a unanimous presented the American experience in all its not guilty verdict is rendered. quiet dignity and decency. From farmers to cinema’s great partnerships, coming togeth- The genius of Henry Fonda rested in his presidents, cowboys to admirals, the men er for such film classics as The Grapes of ability to embody American ideals with just Fonda portrayed reflected the very best of our Wrath and My Darling Clementine. “I shall not argue to you whether the about every breath he took on stage or screen. country and of ourselves. defendants’ ideas are right or wrong. I am Nearly forty years after his passing, the beau- Henry Fonda was an actor, not an attorney. “[T]his is a fascinating movie, but more than ty and the passion of his life’s work remains Nevertheless, he made an indelible contri- not bound to believe them right in order to undiminished. Fonda is remembered as a that, it points up the fact which too many of us bution to the way the law is perceived in the take their case, and you are not bound to great actor. United States and how American justice is have not taken seriously, of what it means to believe them right in order to find them not Pablo Picasso once viewed from abroad. Whether he was play- serve on a jury when a man’s life is at stake… observed that “art is a lie ing a lawyer, a judge or a juror, he lent an guilty. But if this jury should make it harder that makes us realize the it makes vivid what “reasonable doubt” means 9 aura of authenticity to every role he played. for any man to be a rebel, you would be doing t r ut h .” In the numerous Courtroom advocates have often found them- when a murder trial jury makes up its mind on the most you could for the damnation of the fictions that Fonda brought selves mimicking Fonda. Frankly, I must plead circumstantial evidence.” to life, be it Lincoln or Juror guilty on this particular count. human race.” #8 or Clarence Darrow or Fonda never took an acting lesson. In fact, —Eleanor Roosevelt —Fonda, in Clarence Darrow over a hundred other roles, Fonda managed to convey he owed his career to the encouragement In real life, Fonda of family friend Dorothy Brando, mother of Henry Fonda was one of the few movie simple and eternal truths was a far more com- actors who also maintained a substantial that continue to speak to every one of us. Marlon Brando. Naturalness was Fonda’s plicated figure than touchstone: “My goal is that the audience never career in the theater. He appeared frequently Art transcends all boundaries and the art of his all-American see the wheels go around, not see the work that on Broadway. Many of these productions Henry Fonda was not only transcendent, it image let on. “I was goes into this. It must seem real and effortless.”1 dealt with legal themes. Notably, there was was inspired. a painfully self-con- By the time of his passing, Fonda was more The Caine Mutiny Court Martial, a stage For those of us who toil in the vineyards scious, shy young than a celebrated performer. He had become a adaptation of Herman Wouk’s novel, and of the law, Fonda’s art is of inestimable value. man and had very part of the tapestry of American culture. First Monday in October, in which he played Many of us were initially motivated to enter little to say… . Part of the whole attraction of a liberal Supreme Court justice modeled after this realm by seeing Fonda in one incarna- acting was that it was therapy. I was wearing William O. Douglas. tion or another. For others who aspire to “What’s all this about you not wanting to a mask. It was like hiding behind the char- But the crowning glory of these theatrical “justice”—however one seeks to define the 5 play this picture? You think Lincoln’s a great acter.” There was in Fonda an inner tension achievements was Clarence Darrow, by David term—the vision of Henry Fonda is a clarion which often gave his performances an edge 7 emancipator? He’s a young jack-legged lawyer W. Rintels. A one-man play directed by John call captured on celluloid. that belied any idea he was just a run-of-the- Houseman,8 it presented the actor with the Fonda was a fictional attorney, a make-be- from Springfield, for God’s sake!” mill all-American boy. daunting challenge of holding an audience’s lieve judge, a play-acting juror. Yet his perfor- —John Ford After World War II, the advent of televi- attention all by himself. The production was mances shaped the way Americans see the law sion altered the Hollywood landscape as stu- recorded for airing on television, providing and contributed to the American people’s con- Fonda’s first dio glamour gave way to kitchen-sink realism. us with the consummate example of Fonda’s ception of what is fair and just. That’s a great screen role as a Television provided Fonda with the source work on the stage. deal more than many members of the bar have lawyer was as material for the only film he would ever A passionate champion of social reform managed to do during their careers. That is Lincoln in 1939’s produce: Reginald Rose’s Twelve Angry Men. who defended unpopular people, the real-life why he is worth remembering and celebrating. Made for just $340,000 over a twenty-day Young Mr. Lincoln. Darrow was a courtroom litigator and a civil Rudy Carmenaty is a Deputy County Fonda revered the shooting schedule, the film was an indepen- libertarian of epic dimensions. The ultimate 6 Attorney and the Director of Legal Services sixteenth presi- dent production directed by Sidney Lumet. ”country lawyer,” who behind the public facade for the Nassau County Department of dent, noting that “Lincoln is a god to me.”2 Twelve Angry Men denotes the pain-stak- is really a clever sophisticate, Darrow was a Social Services. One of his earliest professional acting stints ing deliberations of a New York jury. The man of conviction laboring magnificently to was touring with George Billings, a renowned drama concerns Fonda (Juror #8) methodi- keep his clients from being convicted. 1. Peter B. Flint, Henry Fonda Dies on Coast at 77; Played 3 100 Stage and Screen Roles, New York Times (Aug. 13, Lincoln impersonator. When initially offered cally convincing his fellows that there is suf- Clarence Darrow was a tour-de-force for 1982). the part in the film, Fonda turned it down flat. ficient reasonable doubt in a capital murder Henry Fonda. It was a perfect match of role 2. Gerald Peary, American Hero, American Movie Classics Director John Ford had to literally brow-beat case to garner an acquittal. Juror #8 is more and actor. Both men were mid-Westerners, Magazine (July 1995). 3. John Springer, The Fondas, 7, (1st ed. 1970). him into taking the role. than just the catalyst for the step-by-step both were committed liberals, and both spoke 4. Henry Fonda as told to Howard Teichmann, Fonda My This film presents not the Lincoln of leg- conversion of the others. He is the moral con- eloquently for causes they believed in. The Life, 24, (1st ed. 1981). end but rather the Lincoln of frontier court science of the film. cases depicted in the play actually happened, 5. J.Y. Smith, Actor Henry Fonda Dies at 77, Washington Applying his keen intelligence to the facts Post (Aug. 13, 1982). houses. This is a nascent Lincoln, grasping for with much of the dialog being taken from 6. Springer, supra note 3, at 165. learning, then establishing himself at the bar raised at trial, Fonda prods each juror to court transcripts. 7. The play is based on Clarence Darrow for the Defense by in Springfield. He is man with a modest edu- reevaluate the evidence and themselves. The The performance opens with Darrow Irving Stone. cation whose innate brilliance is masked by success of the film rests in the bravura per- recalling his long life and his many trials. 8. Houseman would win an Academy Award for the role of Professor Charles W. Kingsfield, Jr. in the film The Paper his home-spun wisdom. Fonda’s performance formances of Fonda and the ensemble around The avuncular Darrow speaks frankly and Chase (1973). beautifully brings “Honest Abe” to life during him: Martin Balsam, John Fielder, Lee J. wryly about the law, both its promises and its 9. Pablo Picasso, “Statement to Marius De Zayas” 1923, Lincoln’s formative years. Cobb, E.G. Marshall, Jack Klugman, Edward deficiencies. Issues of individual conscience https://bit.ly/37BLmGC . The film’s courtroom scenes revolve around Binns, Jack Warden, Joseph Sweeney, Ed and free expression, of economic justice, of Lincoln’s defense of two brothers falsely accused Begley, George Voskovec, and Robert Webber. racial equality and the protections afforded For Information on of murder. He is everything an innocent man The tension among the jurors is palpa- the accused are touched upon with grace and should have on his side as he cunningly expos- ble. Some of them have less-than-honorable biting wit. LAWYERS’ es the actual killer on cross examination. More motives in voting to convict. Apathy, bore- Fonda vividly brings to life the Scopes telling is when, through sheer force of person- dom, bigotry, condescension, even self-loath- Monkey trial, the Leopold and Loeb murder AA MEETINGS ality, Abe prevents a lynch mob from storming ing all come to the fore. What was seemingly case, numerous efforts on behalf of organized the jail to string up his clients. Fonda, as a boy, an open-and-shut case turns out to be much labor, and, most movingly, the defense of Call had witnessed a lynching; it was a memory that more ambiguous than originally thought. Dr. Ossian Sweet. Sweet was an African- never left him.4 The irony that gives the film its under- American charged with the murder of a white (516) 512-2618 16 February 2020 Nassau Lawyer

WE CARE 32nd Annual Children's Festival hosted by the WE CARE Fund of the We Acknowledge, with Thanks, Nassau Bar Foundation Contributions to the WE CARE Fund Donor In Honor of Meltzer, Lippe, Goldstein & Breitstone, LLP WE CARE Hon. Denise Sher Hon. Linda K. Mejias and Dorian Glover, WEDNESDAY, FEBRUARY 19, 2020 Congratulations on your upcoming Nuptials AT THE NASSAU COUNTY BAR ASSOCIATION Donor Wishes For A Speedy Recovery Caryle Katz Ira Slavit This spectacular event treats deserving children to a fun-filled afternoon, including hot dogs, ice cream, DJ, clowns, games, gifts, and other Donor In Memory of Emily F. Franchina Patricia Giorgio, wife of Frank Giorgio, Jr., entertainment—all made possible by your generous contribution. Past President of the NCBA Marilyn K. Genoa Donald Fox, father of Roberta Fox Please open your heart for WE CARE Frank Giorgio, Jr. Patricia Giorgio, wife of Frank Giorgio, Jr., Past President of the NCBA Greg Lisi Linda Puccio Hon. Andrea Phoenix Frances M. Speziale, Platinum Heart $350 Silver Heart $100 mother of Thomas A. Speziale Hon. Denise Sher Frances M. Speziale, Gold Heart $200 Caring Heart $50 mother of Thomas A. Speziale (suggested minimum donation) Hon. Denise Sher Joni Grimaldi, wife of Carmelo Grimaldi ...... Hon. Denise Sher Donald Fox, father of Roberta Fox WE CARE HEARTS Jill C. Stone Domingo L. Diaz, husband of Inez Diaz Make check payable to: Nassau Bar Foundation—WE CARE Mail to: IN MEMORY OF EILEEN BANKS, Nassau County Bar Association MOTHER OF SCOTT BANKS WE CARE HEARTS Dana Finkelstein Kenneth L. Marten 15th & West Streets, Mineola, NY 11501 Joanne and Frank Gulotta, Jr. Hon. Andrea Phoenix Roger and Adrienne Hausch Hon. Denise Sher To pay with a credit card, contact Bridget Ryan at (516) 747-4070 ext. 1226 or [email protected]. IN MEMORY OF RITA GREENBERG, MOTHER OF HON. ELLEN R. GREENBERG Hon. Stacy D. Bennett Hon. Danielle M. Peterson Pat Latzman Jill C. Stone

IN MEMORY OF SIDNEY SCHAFFER, the we care fund of the nassau bar foundation and nassau FATHER OF LAWRENCE SCHAFFER county women's bar association invites you to Samuel J. Ferrara Pat Latzman Dana Finkelstein Hon. Andrea Phoenix Stephen Gassman Candice and Michael Ratner dressed to a tea: Marilyn K. Genoa Hon. Denise Sher Joanne and Frank Gulotta, Jr. Hon. Elaine Jackson Stack Roger and Adrienne Hausch Sandra Stines There's magic in the air Warren S. Hoffman Jill C. Stone

annual fashion show and buffet dinner Checks made payable to Nassau Bar Foundation — WE CARE Contributions may be made by mail: thursday, march 26, 2020 NCBA Attn: WE CARE, 15th & West Streets Mineola, NY 11501

$50 per person SAVE THE DATE Celebrating its 25th Anniversary

For tickets and information, contact Bridget Ryan at (516) 747-4070 ext. 1226 or [email protected]. MONDAY, JULY 27, 2020

*The WE CARE Golf and Tennis Classic was Founded by Stephen W. Schlissel in 1996. www.wecaregolf.com Nassau Lawyer February 2020 17 PRO BONO ATTORNEY OF THE MONTH Divins emphasizes that the greatest reward associated with providing pro bono service is the unique opportunity to help marginalized members of the community gain access to justice. “My commitment to assisting at least one marginal- ized member of the community at all times allows me to do my part to increase access to justice for low-income Nassau County residents,” states Divins. “After all, the secret to living is giving.” According to Susan Biller, Pro Bono Coordinator of the BY SUSAN BILLER Byron Divins, Jr. VLP, Divins “is one of those rare volunteers who can be counted on to take on the most challenged clients and con- tentiously contested matters. He brings his enthusiasm and It is with great pleasure that Nassau/Suffolk Law Services’ During his active duty career, Divins prosecuted and passion for achieving justice to every case he handles. We are Volunteer Lawyers Project (VLP) and the Nassau County defended sailors and marines accused of crimes against the incredibly fortunate to be able to rely on him to assist our Bar Association (NCBA) recognize Byron Divins, Jr. as our Uniformed Code of Military Justice. During his years of most needy clients.” most recent Pro Bono Attorney of the Month. This month’s service as a Legal Assistance Officer, he gained significant Divins lives with his wife and two sons in Roslyn. In his award honors an attorney who has demonstrated tremendous experience dealing with issues of divorce, custody, orders of free time, he enjoys coaching Little League, and volunteers dedication assisting low-income Nassau County residents protection, child support and visitation. He is admitted to the teaching karate. For his inspirational efforts and dedication in matrimonial matters, especially those with complex child New York and New Jersey State Bars. Additionally, Mr. Divins to helping needy Long Island residents obtain access to legal support and custody issues. also earned an MBA from Florida State University in 2006. services, we are proud to honor Byron Divins, Jr. as Pro Bono Since first joining the VLP panel in 2012, Divins and his Understandably, Divins takes great pride in his deeply Attorney of the Month. firm has represented twenty-three clients, including nine rooted belief in service to his community. In fact, it was the contested divorce proceedings. He is a member of the Garden concept of service to his fellow citizens that initially inspired The Volunteer Lawyers Project is a joint effort of Nassau City firm of Divins & Divins, P.C., which he founded in him to seek out pro bono work. When he first joined the Suffolk Law Services and the Nassau County Bar Association, 2010 with his wife and partner, Phyllis. He concentrates his VLP in 2012, Divins volunteered with the Landlord Tenant who, for many years, have joined resources toward the goal of providing free legal assistance to Nassau County residents practice on family and criminal law, representing clients in Attorney of the Day Program, which he found to be an excel- who are dealing with economic hardship. Nassau Suffolk Law Nassau, Suffolk, New York, Kings, and Queens Counties on lent training experience. When he learned of the great need Services is a nonprofit civil legal services agency, receiving issues varying from orders of protection, divorce, custody, for matrimonial pro bono attorneys, he committed to using federal, state and local funding to provide free legal assis- visitation, child support, and modification. His firm-wide his expertise in that area. tance to Long Islanders, primarily in the areas of benefits commitment to pro bono means that each attorney there has One particularly rewarding matrimonial matter involved advocacy, homelessness prevention (foreclosure and evic- graciously agreed to represent at least one matrimonial VLP a defendant wife, a recent immigrant who was brought to this tion defense), access to health care, and services to special client at any given time. country by her husband. She and her children lived with her populations such as domestic violence victims, disabled, Divins graduated from SUNY Albany in 1993 and Touro spouse in his parents’ house, where she was subjected to verbal and adult home resident. The provision of free services is Law School in 1996. Upon earning his J.D., he joined the U.S. prioritized based on financial need and funding is often inad- abuse and treated like an indentured servant. When she resist- equate in these areas. Furthermore, there is no funding for Navy, where he spent thirteen years on active duty serving as a ed this treatment, her husband served her with divorce papers. the general provision of matrimonial guardianship or bank- prosecutor, defense counsel, and advisor to commanding offi- Divins helped her to secure a satisfactory settlement, child sup- ruptcy representation, therefore the demand for pro bono cers throughout the world. He served in Japan on board the air- port, and custody arrangements. Due to his assistance, she was assistance is the greatest in these areas. If you would like to craft carriers USS Kitty Hawk and USS Theodore Roosevelt, with able to secure sufficient resources to move out and forward in volunteer, please contact Susan Biller at (516) 292-8100, ext. shore tours in Bahrain, Florida, Connecticut, and Virginia. her life, establish a career, and care for her children. 3136, or [email protected].

NCBA 2019-2020 SAVE THE DATE! Corporate Partners LAW DAY 2020

Wednesday, April 29, 2020 5:30 PM at the Nassau County Bar Association 18 February 2020 Nassau Lawyer Thank You to Our 2019 Pro Bono Volunteers The NCBA would like to recognize those individuals who have given of their time to the Mortgage Foreclosure Project. Last month, we recognized those who donated to this worthy project, which at the time of its inception in 2009 we thought would not last this long. Nevertheless, we have been kept busy helping those in need and keeping Nassau County Residents from losing their homes. This month, we wanted to thank those individuals who during 2019 constantly gave of their time at either clinics or in court, or both. In past years, volunteers have been recognized at our Recognition Cocktail Reception which this year will be held on July 22, 2020. With funding yet again in jeopardy, we want our volunteers to know how appreciated and needed they are to this program. If anyone is interested in joining these wonderful caring volunteers, please contact Gale Berg at (516) 747-4070 ext.1202 or [email protected]. Volunteering not only helps those in need but gives instant gratification to those who are able to volunteer. Donate your time for a couple of hours per month, it will definitely be rewarding!

Bernadette M. Arnold Joseph A. Lauri Nathalie Thomas Michael Jay Aronowsky David Lazer Jonatan I. Ullman Matthew Baldassano Genevieve LoPresti Daniel Vanvorst Michael A. Barcham Kathleen Maher Eric S. Vogel John P. Bermingham Maryjo Marchisello Robert N. Zausmer Steven Bernstein Audrey Mars Patrick Binakis Andrew Meaney Lisa A. Biondo Oscar Michelen LAW GRADUATES Adam L. Browser Douglas D. Moyal Kelly Bogart Dennis Buchanan Stacey Ramis Nigro Ralph Catalano Jr. Terese A. Cavanaugh Chandra Mary Ortiz Anthony Chiverton Sheryl A. Channer Nirav Patel Krystle Estes Patrick T. Collins Maryanne Pedersen Raidah Islam Janet Connolly Robert Plosky Adam D’Antonio Jonathan S. Press Charles Pipitone Alexander DeMarchena Jon Michael Probstein Dillon Santopietro Janet Nina Esagoff Edmund G. Rakowski Garychka Sylvain Michael Fishman Anne Rosenbach Eric J. Khorshad George P. Frooks Seth M. Rosner Alashan Anas Alzarari Stuart P. Gelberg Anthony W. Russo Nana Ankamah Gerald Goldstein Thomas A. Schweitzer Amanda Rose Green Heather Siegelman Robert Jacovetti Michael J. Siris LAW STUDENTS Stanford Kaplan Harold M. Somer Danielle Izzo Nelson Kong William J.A. Sparks Lillian Mosley Nassau Lawyer February 2020 19

prehearing conference statement,12 and at and exclusive remedy of an employee against filled out completely will be denied.”23 APPELLATE DECISIONS ... the subsequent hearing raised only the issue an employer or co-employee for injuries sus- The Third Department reached a similar 17 Continued From Page 3 of causation. Two WCLJ decisions held that tained in the course of employment.” They holding last year in Perry v. Main Bros Oil the carrier was precluded from offering any were denied summary judgment, however, Co.,24 which suggests that some counsel are that the opinion of the surgeon who found defenses because it failed to file the prehear- as to the cross-claims. WCL § 11 does allow either not getting the message or are unwilling surgery not necessary was consistent with ing conference statement. The carrier applied indemnification claims where the employee to constrain their arguments to the cramped that of a third surgeon, who performed an for review, for the first time accusing the suffered a “grave injury” or the parties con- confines of Form RB–89. A condensed argu- “independent medical examination” while the claimant of fraud. The Board affirmed both tractually agreed to indemnification, but the ment, however, is better than none at all. request for authorization was pending. The decisions, declining to consider the fraud court held that the contractor and member court conceded that there was a conflict among defense but noting that “[t]he carrier remains failed to prove either fact prima facie. Conclusion the physicians’ opinions, but recognized that free to request litigation of this issue and pro- But how could the contractor and member These cases illustrate the broad authority vide good cause as to why it failed to produce have failed to meet their burden of proof as “the Board is vested with authority to resolve 13 the Board has to resolve worker’s compen- conflicting medical evidence.”8 this allegation in a timely manner.” to the cross-claims? It appears that they never sation claims, but also the limits on that At a later hearing, the carrier raised the tried. Though their notice of motion sought to authority. Where the Board has authority to Matthews: Board Records Raise fraud issue again, which the employee object- dismiss “the Complaint and any and all asso- set rules, the courts will not excuse failure Question of Fact on Employer ed to as an attempt to relitigate issues of acci- ciated claims,”18 the contractor and member 19 to follow those rules. Where the Board has Status dent and notice. This time, however, a WCLJ argued exclusively on the plaintiff’s claims, discretion to resolve fact issues, the courts judge found that the employee had made false and in reply to the homeowners’ opposition will not intervene absent abuse of discretion. statements in violation of WCL § 114–a(1) In Matthews v. Bright Star Messenger merely asserted that “where a court directs Counsel should litigate before WCLJ’s and the and disqualified him from future benefits. Center, the Second Department held that dismissal of the complaint in favor of a defen- Board with the expectation that the outcome the defendant failed to make a prima facie The Board reversed on review, finding that dant, any and all associated claims, including there will be the final determination. case for summary judgment on the grounds its previous decision had finally determined cross-claims, should also be dismissed.”20 To that it was the employer of the plaintiff, an accident and notice, and that the carrier obtain summary judgment, however, defen- Christopher J. DelliCarpini is a Co-Chair of injured worker.9 offered no excuse for not timely raising the dants cannot rely on the transitive property, the NCBA Publications Committee and an fraud defense. attorney with Sullivan Papain Block McGrath The plaintiff alleged that he had been and must affirmatively meet their burden as & Cannavo P.C. in Garden City, representing hired by Bright Star and then assigned to The appellate court affirmed, noting that to each claim. plaintiffs in personal injury actions. He can work for another defendant, and was injured WCL § 25(2–a)(d) requires a prehearing con- be reached at [email protected]. on the premises of that other defendant’s ference statement that lists the specific issues Presida: Form RB–89 Must Be client. Worker’s Compensation Law § 11 pre- in dispute, as well as “an offer of proof for “Filled Out Completely” 1. 173 A.D.2d 1592 (3d Dept. 2019). cludes suits against employers for work-relat- each defense raised.”14 Furthermore, “Failure In Presida v. Health Quest Systems, the 2. Id. at 1594 (quoting Employer, Queens Medallion Leasing, ed injuries, so Bright Star moved for summary by the insurance carrier to timely serve upon Third Department held that a Worker’s Inc., Case No. G025 6616, Carrier ID No. W106884, 2015 judgment. However, Bright Star’s evidence in all other parties and file with the Board the WL 1388387 (N.Y.Work.Comp.Bd. Mar. 19, 2015)). Compensation Board decision to deny an support of its motion showed that the plain- pre-hearing conference statement . . . shall 3. Id. (quoting Employer: Medhal Salam Architert, Case No. employer and carrier’s application for review tiff’s claim for benefits listed her employer result in a waiver of defenses to the claim.”15 0072 8502, Carrier ID No. 022 CB CBW0482 E W194005, was neither arbitrary nor capricious.21 2017 WL 3208729 (N.Y.Work.Comp.Bd. July 19, 2017). as “Bright Star Courier.” In reply, Bright Star Since the carrier never filed a prehearing con- 4. ___ A.D.3d ___, 2019 NY Slip Op 08899 (3d Dept. Dec. ference statement, or explained why it could The claimant had an established claim for submitted an affidavit explaining that it had an injury to her right knee, and a Worker’s 12, 2019). not have offered earlier the evidence that it 5. Id. at *2 (quoting Matter of Coscia v. Association for the changed its name from “Bright Star Courier” Compensation Law Judge (WCLJ) then to “Bright Star Messenger.” The court noted, offered at the later hearing, it was precluded Advancement of Blind & Retarded, 273 A.D.2d 719 (3d from asserting the fraud claim. Furthermore, amended the claim to include injuries to Dept. 2000)). however, “a party cannot sustain its prima 6. 175 A.D.3d 1759 (3d Dept. 2019). The Guidelines are the issues of accident and notice were settled the claimant’s lower back and to authorize a facie burden by relying on evidence submitted total knee replacement. The employer and available at https://on.ny.gov/2ZS5WzS. for the first time in its reply papers.”10 under the doctrine of collateral estoppel. 7. Id. at 1760 (quoting Matter of Gasparro v. Hospice of carrier filed an application for Board review Dutchess Co., 166 A.D.3d 1271, 1272 (3d Dep’t 2018)). The inadmissibility of evidence submitted of the WCLJ’s decision, using Form RB–89. in reply is universally applicable. Counsel Eshonkulov: Summary Judgment 8. Id. at 1761. Requires Prima Facie Proof, Where the form requests a list of the primary 9. 173 A.D.3d 732 (2d Dept. 2019). in workers’ compensation claims, however, documents on which the application is based, 10. Id. at 734. should bear in mind that the records submit- Even on Cross-Claims however, the carrier merely referred to the 11. 168 A.D.3d 1249 (3d Dept. 2019). ted to the Board are evidence of the claimant’s 12. See 12 NYCRR § 300.38(f)(4). In Eshonkulov v. Rafiqul, the Second electronic case file and documents attached to employer, and any discrepancies must be 13. Id. at 1249. Department denied an employer summary the form. The Board denied the application, accounted for. 14. See 12 NYCRR § 300.38(f)(2)(iii). judgment on an indemnification claim for finding it defective because it was not prop- 15. See 12 NYCRR § 300.38(f)(4). Cerobski: Defenses Untimely failure to prove “grave injury.”16 erly completed. 16. 176 A.D.3d 780 (2d Dept. 2019). The plaintiff was injured while working The Third Department held that the Board 17. Id. at 679. Raised Are Waived 18. Eshonkulov v. Rafiqul, Index No. 505688/2016 (Sup. Ct., on a home renovation, and sued the con- did not abuse its discretion. The Board has Kings Co.), NYSCEF Doc No. 13. In Cerobksi v. Structural Preservation tractor who employed him, a member of the advised that RB–89 must be “filled out com- 19. Id. at NYSCEF Doc. No. 14. Systems, the Third Department held an contractor, and the homeowners, who cross- pletely,” meaning that “each section or item… 20. Id. at NYSCEF Doc. No. 30 (citing Hoenig v. Royal Park employer was precluded from raising any claimed against the contractor and mem- is completed in its entirety pursuant to the Owners, 260 A.D.2d 250 (1st Dept. 1999)). 22 21. 174 A.D.3d 1196 (3d Dept. 2019). defenses that it did not raise before the pre- ber. The defendants all moved for summary instructions on each form.” Merely referring 22. Id. at 1197 (quoting WCB Release Subject No. 11 hearing conference. judgment, and the contractor and member to the case file and whatever was attached to 046–940). The employee filed a claim, but his employ- prevailed against the plaintiff: “In general, the form did not suffice. The Board has also 23. Id. er and the carrier failed to file the required workers’ compensation benefits are the sole made clear that “any application … that is not 24. 174 A.D.3d 1257 (3d Dept. 2019)

formed to arrive at that conclusion.” Linton instead reiterating the standard that “objec- advises insurers on coverage matters involv- v. Nawaz.11 Such examples of “objective tests” tive” testing is required without reaching ing commercial general liability, professional GONIOMETER ... liability, environmental liability, builder’s risk Continued From Page 5 may include orthopedic diagnostic tests, such the issue of whether a specific instrument is 16 insurance policies, fine art and specie, and as palpation, impingement sign, and straight necessary. Those appellate courts may be jeweler’s block. 12 measurements with an instrument. Without leg raising tests. awaiting further guidance from the Court of citing Perl, the court held: Rather, as the subsequent trial court Appeals, in terms of whether objective testing 1. Insurance Law §§ 5102, et seq. holdings make clear, the law in the First is necessary to defeat a “threshold” motion. 2. Toure v. Avis Rent A Car Systems, Inc 98 N.Y.2d 345, 350 Defendants made a prima facie show- (2002). Department is simply that doctors need not Unless and until the Court of Appeals 3. 176 A.D.3d 544 (1st Dept. 2019). ing of their entitlement to judgment utilize a particular instrument in measuring rectifies this split in authority, the outcome 4. 175 A.D.3d 1235 (2d Dept. 2019). as a matter of law by submitting the the plaintiff’s range of motion.13 for litigants in “serious injury” threshold cases 5. Id at 1236. affirmed reports of an orthopedic may turn on what venue plaintiff opts for, in 6. Id. at 1237; see also Fiorucci-Melosevich v. Harris 166 surgeon who examined the alleged The Future of A.D.3d 581, 581-82 (2d Dept. 2018) (holding that plain- filing suit. To that end, Albany is therefore tiff’s opposition failed to raise triable issue of fact where injured body parts, listed the tests “Threshold” Motion Practice presented with Catch-22, in terms of reduc- defendants’ expert measured range of motion using a he performed and recorded range goniometer but plaintiff’s physician “did not specify the When recommending whether to move ing trial court backlogs: either (a) limit the of motion measurements, expressed grounds to move for summary judgment objective test he used to measure the plaintiff’s range of in numerical degrees and the corre- for summary judgment on “threshold” motion”). on “threshold” grounds, thereby increasing 7. 18 N.Y.3d 208 (2011). sponding normal values, and found no grounds, based on the likelihood of success of the motion, we view Pomelis v. Perez,14 the number of cases on the trial calendars 8. Id. at 217. limitations. The surgeon’s examination throughout the state, or (b) expand “thresh- 9. 107 A.D.3d 589 (1st Dept. 2013). was sufficient, even though he did as the guiding case. There, the Court of 10. Id. at 590. Appeals recognized that “even where there old” summary judgment motion practice, 11. 62 A.D.3d 434 (1st Dept. 2009). not use an instrument to measure the is objective medical proof, when additional which would likely reduce trial calendars, but 12. See, e.g., Lopez v. Abdul–Wahab, 67 A.D.3d 598 (1st ranges of motion.10 contributory factors interrupt the chain of in the process, would increase the volume Dept. 2009). of “threshold” motions to be decided at the 13. See Munoz v. JBM Trucking, LLC, No. 0027715/2016, Notably, Frias and its progeny do not causation between the accident and claimed 2019 WL 3252860, at *2 (Sup. Ct. N.Y. Co. May 17, 2019) stand for the proposition that no objective injury—such as a gap in treatment, an inter- Supreme Court level. Time will tell. (“Contrary to Defendants’ contention, Dr. Cabatu was testing whatsoever is required in the First vening medical problem or a preexisting con- Brian Gibbons is a partner at Wade Clark not required to use an instrument to measure range of Department. Indeed, the First Department dition—summary judgment of the complaint Mulcahy LLP’s New York City and Long motion.”); Celestin v. Jean, No. 305204/2015, 2019 WL 2395358, at 2 (Sup. Ct., N.Y. Co. Apr. 2, 2019) (“Contrary has consistently found that “the defendant may be appropriate.”15 But, absent a gap in Island offices. Brian tries cases and argues appeals in New York State and Federal to Defendants’ contention, Dr. Reyfman did not need to cannot satisfy [its summary judgment] bur- treatment, intervening injury, or pre-existing specify which instrument he used to measure Plaintiffs Courts, including claims involving the Labor lumbar spine range of motion limitations.”). den if it presents the affirmation of a doctor medical condition, the “threshold” waters Law, premises liability, automobile claims, which recites that the plaintiff has normal 14. 4 N.Y. 3d 566, 572 (2005). remain murky. and other areas of property and casualty 15. Id. ranges of motion in the affected body parts To date, the Third and Fourth Departments defense. Doug Giombarrese is an associate 16. See Cohen v. Bayer, 167 A.D.3d 1397 (3d Dept. 2018); but does not specify the objective tests per- have not weighed in on this specific issue, in the WCM New York City office, where he Goodwin v. Walter, 165 A.D.3d 1596 (4th Dept. 2018). 20 February 2020 Nassau Lawyer

MATRIMONIAL LAW WOMEN IN THE LAW/BUSINESS LAW, Thursday, February 13 TAX AND ACCOUNTING 5:0 p.m. Wednseday, February 26 Samuel J. Ferrara 1:0 p.m. Jennifer L. Koo/Christie R. Jacobson- ANIMAL LAW Women in the Law, NCBA Committee Tuesday, February 18 Jennifer L. Koo/Scott L. Kestenbaum- 6:00 p.m. Business Law, Tax and Accounting Meeting Calendar Matthew A. Miller/Kristi L. DiPaolo COMMERCIAL LITIGATION March 5, 2020 DIVERSITY & INCLUSION Wednesday, February 26 Feb. 3, 2020— Tuesday, February 18 1:0 p.m. Questions? Contact Stephanie Pagano at 6:00 p.m. Matthew F. Didora Hon. Maxine S. Broderick (516) 747-4070 or [email protected]. VETERANS & MILITARY LAW NEW LAWYERS Thursday, February 27 Please Note: Committee meetings are for Tuesday, February 18 1:0 p.m. NCBA Members. 6:0 p.m. Gary Port Glenn R. Jersey, III/Steven V. Dalton Dates and times are subject to change. REAL PROPERTY LAW Check www.nassaubar.org for DIVERSITY & INCLUSION Thursday, February 27 Wednesday, February 19 5:0 p.m. updated information. 6:00 p.m. Mark S. Borten/ Hon. Maxine S. Broderick Bonnie Link/Anthony W. Russo

ALTERNATIVE DISPUTE RESOLUTION ETHICS Thursday, February 20 Monday, March 2 5:0 p.m. 6:00 p.m. Marilyn K. Genoa/Jess Bunshaft Matthew K. Flanagan

ETHICS COMMUNITY RELATIONS & DISTRICT COURT GENERAL, SOLO AND SMALL Monday, February 3 PUBLIC EDUCATION Friday, February 21 LAW PRACTICE MANAGEMENT 6:00 p.m. Thursday, February 6 1:0 p.m. Wednesday, March 4 Matthew K. Flanagan 1:45 p.m. Roberta D. Scoll/S. Robert Kroll 1:0 p.m. Joshua D. Brookstein Scott J. Limmer PARALEGAL MEDICAL-LEGAL Tuesday, February 4 WORKER’S COMPENSATION Monday, February 24 HOSPITAL & HEALTH LAW 5:0 p.m. Tuesday, February 11 1:0 p.m. Thursday, March 5 Maureen Dougherty/Cheryl Cardona :00 a.m. Susan W. Darlington/Mary Anne :0 a.m. Adam L. Rosen Walling Leonard M. Rosenberg GENERAL, SOLO AND SMALL LAW PRACTICE MANAGEMENT PLAINTIFF’S PERSONAL INJURY DEFENDANT’S PERSONAL INJURY CIVIL RIGHTS Wednesday, February 5 Tuesday, February 11 Monday, February 24 Thursday, March 5 1:0 p.m. 1:0 p.m. 6:00 p.m. 1:0 p.m. Scott J. Limmer Ira S. Slavit Matthew A. Lampert Robert L. Schonfeld

HOSPITAL & HEALTH LAW LABOR & EMPLOYMENT DIVERSITY & INCLUSION PUBLICATIONS Thursday, February 6 Tuesday, February 11 Monday, February 24 Thursday, March 5 :0 a.m. 1:0 p.m 6:00 p.m. 1:45 p.m. Leonard M. Rosenberg Paul F. Millus Hon. Maxine S. Broderick Christopher J. DelliCarpini/ Andrea M. DiGregorio PUBLICATIONS CRIMINAL COURT LAW & LGBTQ Thursday, February 6 PROCEDURE Tuesday, February 25 COMMUNITY RELATIONS & 1:45 p.m. Thursday, February 13 :0 a.m. PUBLIC EDUCATION Christopher J. DelliCarpini/ 1:0 p.m. Joseph G. Milizio/Barrie E. Bazarsky Thursday, March 5 Andrea M. DiGregorio Dennis P. O’Brien 1:45 p.m. ELDER LAW, SOCIAL SERVICES, Joshua D. Brookstein FAMILY COURT LAW & PROCEDURE HEALTH ADVOCACY Thursday, February 13 Tuesday, February 25 1:00 p.m. 1:0 p.m. Ellen Pollack Katie A. Barbieri/Patricia A. Craig

CoMMiTTee rePorTs

Medical Legal Committee The next meeting is sched- are so many questions, that On January 29, 2020, the first meeting Meeting Date: 12/13/19 uled for Tuesday, February the District Court Committee of the Legal Administrators Committee Chairs: Mary Anne Walling and Susan 11, 2020 at 12:30 PM at which decided to have a three part was held. The meeting was well attended Darlington time Nassau County Supreme discussion over a three month by administrators representing law firms of Speaker W. Russell Corker delivered a Court Justice Randy Sue Marber period of time in order to various sizes. Topics discussed included ben- presentation on the practical application of and her Principal Law Clerk, review the many statutes relat- efits of membership and the mission of the electronic medical records in medical mal- Mili Makhijani will deliver a ing to landlord/tenant changes. committee, which is to allow free exchange of CLE optional lecture regarding practice litigation. Future meeting topics were The presentation on January ideas and sharing of information, in addition important pre-trial practice 24 and the next two sessions will discussed for consideration, which included to encouraging greater understanding of the issues and tips that all attorneys be interactive, with attendees role of administrators within the legal com- nursing home litigation, hospitalists care in should know. Members of the requested to air their thoughts munity. Topics of upcoming meetings include the hospital setting, and authorizations. NCBA Defendant’s Personal and ask their questions. our first committee-sponsored CLE program The next meeting is scheduled for Injury, Medical Legal, and Michael J. Langer Hon. Scott Fairgrieve was on March 3, “Practicing Law in the Cloud.” February 24, 2020, at which time a presenta- Supreme Court Committees are the first speaker and the subject We welcome new administrator members. tion will be made on social media issues and invited and encouraged to attend. was what notices are required relevant case law. in order to begin a summary proceeding. In the next two sessions, the The Committee Reports column is compiled Plaintiff’s Personal Injury District Court Committee by Michael J. Langer, a partner in the Law Meeting Date: 1/14/20 Committee will delve into other relevant Meeting Date: 1/24/20 landlord-tenant issues. Offices of Michael J. Langer, P.C. Mr. Langer Chair: Ira Slavit Co-Chairs: S. Robert Kroll and Roberta is a former law clerk in the United States Guest presenter Kyle Schiedo delivered a D. Scoll Court of Appeals for the Second Circuit, presentation about how attorneys can use event and a former Deputy County Attorney in the With the introduction of the HSTPA of Legal Administrators Committee Office of the Nassau County Attorney. Mr. data recorders (commonly known as “black 2019 (landlord-tenant law revisions), there Meeting Date: 1/29/20 Langer’s practice focuses on matrimonial boxes”) to track information about collisions are far too many questions and interpre- Chairs: Dede S. Unger and Virginia A. and family law, estate and commercial liti- for use in motor vehicle accident litigation. tations surrounding the Act. Since there Kawochka gation, and criminal defense. Nassau Lawyer February 2020 21 to a woman who later developed a rare lung THEORETICAL ... condition and died. The Court of Appeals Continued From Page 10 reaffirmed the lower courts decision holding The Amistad Case: A Reenactment that while the defendant’s negligence may not be established as the “but for” cause, under a of the Landmark Case regardless of where it develops. Even when preponderance standard the differential diag- cancer appears to be gone, victims remain in nosis from an expert witness was sufficient.23 fear of a possible recurrence. The endometrial cancer issue at hand is a A Theoretical Solution fitting circumstance where “differential diag- nosis” should be applied. Under this method, There is however a theoretical solution a medical expert testifying as an appeal wit- to the problem. Yes, theoretical in the sense ness on behalf of a denied claimant would that this theory has not yet been fully tested have the burden of proving the following with favorable results in the VCF arena but indicia to support a reliable differential diag- has the potential for working nonetheless. nosis: (a) a thorough physical examination; Many courts of appeals have held that “that (b) review of patient’s complete medical his- a medical opinion on causation based upon tory; (c) review of the results of any clinical or a reliable differential diagnosis is sufficiently laboratory testing; (d) did the doctor consider valid to satisfy the first prong of the Rule 702 17 other facts regarding exposure, duration, etc.; inquiry.” “Differential diagnosis, or differen- (e) did the doctor consider all other causes; tial etiology, is a standard scientific technique (f) did the doctor sufficiently explain why of identifying the cause of a medical problem each of the other causes should be ruled out.24 by eliminating the likely causes until the most 18 In the situation where a claimant were probable one is isolated.” able to establish that they were in good health Generally, the reliability of the differen- prior to 9/11, with no genetic predisposition tial diagnosis stems from the due diligence The Diversity & Inclusion Committee of the Nassau County Bar Association and the to cancer, no signs of developing cancer in demonstrated by a testifying expert in elim- Nassau County Office of Youth Services joined forces to support the youth of Jack & their medical history, then it stands to reason Jill Nassau County in their presentation of The Amistad Case: A Reenactment of the inating the alternative causes of a condi- that cancer would not ordinarily develop Landmark Case. This is the second time that DOMUS has hosted a reenactment of tion. The diagnosis must be “conducted with in such an individual absent a major insult a civil rights case with Jack & Jill in honor of Dr. Martin Luther King, Jr. on the King intellectual vigor.”19 “Its underlying integrity to their health. If endometrial cancer has National Holiday. Photo by Hector Herrera requires professional thoroughness, and it developed and there is no other major toxic must at least take serious account of other exposure that can be identified other than Jaquay B. Felix is an associate in the 8. International Agency for Research on Cancer [1976], potential causes.”20 “A medical expert’s opin- 9/11 toxic dust exposure, then that differen- Mass Tort Litigation Department at Napoli IARC Monographs on the Evaluation of Carcinogenic ion based upon differential diagnosis normal- Shkolnik, PLLC and specializes in maximiz- Risk of Chemicals to Man: Cadmium, Nickel, Some tial diagnosis should be regarded as sufficient ly should not be excluded because the expert ing the recovery of those who have been Epoxides, Miscellaneous Industrial Chemicals and General Considerations on Volatile Anesthetics, Volume 11; Lyon, has failed to rule out every possible alternative proof of causation that 9/11 was the likely devastated by the aftermath of the World cause of that cancer. Trade Center disaster. France. cause of a plaintiff’s illness. In such cases, 9. 28 C.F.R §104.61(a). the alternative causes suggested by a defen- 10. Air Transp. Safety and System Stab. Act, Pub.L. 112–10 Conclusion 1. September 11th Victim Compensation Fund: About the (Apr. 15, 2011) § 403; 49 U.S.C. § 40101. dant normally affect the weight that the jury Fund, available at https://bit.ly/35QoEJm. 11. September 11th VCF: Policies and Procedures, 7, avail- should give the expert’s testimony and not the Any claimant that has had their claim 2. September 11th Victim Compensation Fund: Policies able at https://bit.ly/360W3Bn. admissibility of that testimony. Furthermore, denied should be advised to retain a medical and Procedures, 7, available at https://bit.ly/2u69m5V. 12. In re “Agent Orange” Prod. Liab. Litig., 597 F. Supp. 3. World Trade Center Health Program; Petition 023 – depending on the circumstances, a temporal expert to help them at their appeal hearing 740. (1984). Uterine Cancer, Including Endometrial Cancer; Finding of 13. Id. at 746. relationship between exposure to a substance and do their best to argue differential diagno- Insufficient Evidence, 84 Fed. Reg. 185, 49954-9 (Sept. 24, 14. Id. at 747. and the onset of a disease or a worsening of sis. It cannot be emphasized enough that this 2019). 15. Id. is purely a theoretical solution to the problem, 4. Lioy PJ et al., Characterization of the Dust/Smoke Aerosol 16. Id. at 861. symptoms can provide compelling evidence that Settled East of the WTC in Lower Manhattan after the 21 17. Kennedy v. Collagen Corp., 161 F.3d 1226 (9th Cir. of causation.” and it is still possible that the VCF will main- Collapse of the WTC11 September 2001, Environ. Health 1998). The Second Circuit, in Zuchowicz v. tain their denial. The VCF has demonstrated Perspect. 110(7), 703–14. 18. Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262–63 United States, reasoned that “causation may be a clear preference to enforce bright line rules. 5. McElroy JA, Kruse RL, Guthrie J, Gangnon RE, (4th Cir. 1999). However, it has been demonstrated to work Robertson JD [2017], Cadmium Exposure and Endometrial 19. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). proved by circumstantial evidence, and that Cancer Risk: A Large Midwestern U.S. Population-Based 20. Fitzgerald v. Smith & Nephew, 11 Fed. Appx. 335, 340 the causal relation between an injury and its in the courtroom. The call to action here is to Case Control Study, PLoS ONE 12(7): e0179360. (4th Cir. 2001)(citing Westberry, 178 F.3d at 265). later physical effects may be established by a argue differential diagnosis at the VCF appeal 6. World Trade Center Program; Petition 023, 84 Fed. Reg. 21. Doe v. Northwestern Mut. Life Ins. Co., 2012 U.S. Dist. physician’s opinion.”22 In that case, the United hearings using the same format that was used 185, 49954-9 (Sept. 24, 2019). LEXIS 60441, *1, 2012 WL 1533104. 7. National Toxicology Program, HHS (2016), Report 22. Zuchowicz v. United States, 140 F.3d 381, 383 (1998). States appealed from a decision where they in these court cases. This is the best argument on Carcinogens, 14th Ed. (Research Triangle Park, NC), 23. Id. at 392. were held liable for overprescribing danocrine that can be made under the circumstances. https://ntp.niehs.nih.gov/go/roc14. 24. Westberry, 178 F.3d at 262.

of prejudice to the defendant,”16 the Second when it denied Castro’s motion for a unified A deeper current also runs through the BIFURCATED TRIALS ... Department, citing the Court of Appeals’ trial due to its rigid insistence that “a bifur- decision. Castro serves as a clarion call to Continued From Page 6 decision in Bennetti v. New York City Transit cated trial was strictly required by the Second trial courts that knee-jerk rulings based on a Authority,17 declared that a limiting instruc- Department’s rules.”24 county’s past customary practice rather than tion to the jury suffices to dispel this potential Here, the issues of liability and Castro’s on careful adherence to the specific dictates of it. The statewide rule also expanded the catego- 18 ries of cases that fell within its compass; while prejudice. injuries were intertwined, and by prohibit- CPLR and the Uniform Rules can constitute the Second Department rule only applied to In fact, the Castro Court noted that bifur- ing Castro’s treating neurologist from testi- reversible error. Both aspects will significantly negligence actions, the statewide rule applies cation can serve to prejudice the plaintiff ’s fying about the results of diagnostic testing affect the landscape of personal injury trial to “any action for personal injury.” case. Since a verdict in favor of the defendant of his brain, the trial court prevented the practice in the years ahead. One of the critical differences between the on liability means that jury service will end expert from explaining how the nature and Ameer Benno is an attorney with the law firm old rule and the new one is that under the earlier, the court recognized that knowledge extent of Castro’s brain injuries supported of Block, O’Toole & Murphy, LLP, where he new rule, bifurcation is no longer the default of that fact “might improperly incentivize at the opinion that Castro had sustained his represents plaintiffs in personal injury and least some jurors” to find for the defense on injuries from a fall and not by lifting wooden civil rights matters. He can be contacted at position. Nevertheless, despite the fact that 19 25 [email protected]. the statewide rule did not contain the pre- the issue of liability. planks. Bifurcation in this instance did not The Second Department also emphasized bring about “a fair resolution of the action,” sumption in favor of bifurcation that was the 1. 177 A.D.3d 58 (2d Dept. 2019). that its trial courts’ “strict[ ] and inflexibl[e]” as required by Section 202.42, but instead 2. Id. at 61. hallmark of the former Second Department 20 rule, courts within the Second Department rule in favor of bifurcation contrasts with deprived Castro of a fair trial. 3. Id. the approach adopted by the other depart- Accordingly, the Castro Court reversed 4. Id. at 62. have continued to apply that presumption 5. Id. ments and with the standard set forth in the judgment of the lower court, set aside the 6. CPLR 603. and have “inflexibly” required bifurcation in 21 nearly all cases.13 Section 202.42. verdict, granted Castro’s motion for a unified 7. CPLR 4011. In light of this, the Castro Court directed trial, and remanded the case for a new trial. 8. 22 NYCRR § 699.14(a) (repealed and superseded by 22 that the trial courts must abandon their prior NYCRR § 202.42). Overturning Precedent 9. Id. rigid approach, and, guided by the standard Conclusion The Castro Court recognized that the 10. Curry v. Moser, 89 A.D.2d 1, 9 (2d Dept. 1982). set forth in the statewide rule, exercise discre- 11. Schwartz v. Binder, 91 A.D.2d 660, 660 (2d Dept. 1980). advantage of bifurcation “is that if the liability Castro eliminates any question as to tion in determining whether a trial should be whether the presumption of bifurcation con- 12. 22 NYCRR § 202.42. issue is determined in the defendant’s favor, unified or bifurcated.22 13. Castro, 177 A.D.3d at 65. there is no need to try damages, which can tained in the former Second Department 14. Id. at 64 (citing Siegel & Connors, New York Practice § Bifurcation, said the Court, is “not an abso- rule still exists. It does not, and a bifurcated 130 (6th ed. 2019 Update)). involve expensive expert witnesses and other 15. Id. 14 lute given,” and “it is the responsibility of the trial in personal injury actions in the Second proof.” However, the court noted that if the trial judge to exercise discretion in determin- 16. Id. (citing Patino v. County of Nassau, 124 A.D.3d 738, same experts would have to give testimony on Department is no longer the “default” posi- 740 (2d Dept. 2015)). ing whether bifurcation is appropriate in light tion. Trial courts in the Second Department 17. 22 N.Y.2d 743 (1968). both liability and damages, bifurcation would 23 of all [the] relevant facts and circumstances.” 18. Castro, 177 A.D.3d at 64. result in expensive experts having to testify now must consider all of the relevant facts and circumstances to determine whether bifurca- 19. Id. twice, thereby undercutting the cost-savings Applying the New Rule 20. Id. at 60. that bifurcation is supposed to encourage.15 tion will (1) clarify or simplify the issues, and 21. Id. at 65. And, even though “evidence of the gravity Applying this standard, the Second (2) achieve a fair and more expeditious reso- 22. Id. Department held that the trial court had lution of the action. Only if both prongs are 23. Id. at 66. of the plaintiff’s injuries may engender sym- 24. Id. (internal quotation marks omitted). pathy for the plaintiff and thereby pose a risk failed to “exercise its available discretion” established will bifurcation be appropriate. 25. Id. 22 February 2020 Nassau Lawyer NCBA New Members

NCBA We welcome the following new members Sustaining Members Attorneys Students Robert A. Ayes Benjamin Harris Berman 2 0 1 9 - 2 0 2 0 Gibbons P.C. Ashley M. Cuadrado Maura A. McLoughlin Jamie Nicole Johnson Andrew J. Saladino The NCBA is grateful for these individuals who Jordan David Weiss strongly value the NCBA's mission and its Meyer, Suozzi, English & contributions to the legal profession. Klein, P.C.

Mary Ann Aiello Martha Krisel Jamie P. Alpern Donald F. Leistman in Brief Mark E. Alter Peter H. Levy Lee Rosenberg, managing with the creation of an insurance Leon Applewhaite Gregory S. Lisi partner of Saltzman Chetkof & & insurance litigation practice Rosalia Baiamonte Robert G. Lucas Rosenberg LLP, was sworn in to group, which will be chaired by Ernest T. Bartol Hon. Roy S. Mahon serve a three year-term as a sec- Partner Michael D. Brown, a nat- ond Vice President of the pres- ural expansion since bringing on Howard Benjamin Peter J. Mancuso tigious American Academy of the insurance practice group of Jack A. Bennardo Michael A. Markowitz Matrimonial Lawyers. Partner Ohrenstein & Brown, LLP. Under Allyson D. Burger now serves as Brown’s leadership, the prac- Allan S. Botter John P. McEntee Treasurer of the Nassau County tice group consists of Adam. L. Howard R. Brill Christopher T. McGrath Women’s Bar Association. The Browser, Matthew Bryant, Nicole Hon. Maxine S. Broderick Maura A. McLoughlin firm has also been selected again E. Della Ragione, Neil P. Diskin, for inclusion in Best Lawyers Ross J. Kartez, Brian Passarelle, Neil R. Cahn Anthony J. Montiglio in America in Family Law and Marian C. Rice Michael A.H. Schoenberg and Hon. Gregory W. Carman Hon. Michael L. Orenstein is proud to have I’Asia Scarlett- Elizabeth Sy. Jeffrey L. Catterson Milan Rada Jones as its Senior Associate. Ms. Scarlett-Jones was formerly Principal Law Karen Tenenbaum, tax attorney, Hana Morton L. Certilman Michael E. Ratner Assistant to Hon. Ayesha K. Brantley in Nassau Boruchov, and Leo Gabovich will host an Alan W. Clark Robert J. Reed County Family Court. IRS & NYS Tax Collection webinar for the American Academy of Attorney-CPAs. Ms. Hon. Leonard S. Clark Marc W. Roberts The law firm of Moritt Hock & Hamroff has Tenenbaum will also be interviewed for Richard D. Collins Jamie A. Rosen announced that Theresa A. Driscoll, Rachel the Small Business Spotlight of WCBS News Michael DiFalco Anne Rosenbach A. Fernbach and Dylan Saperman, formerly Radio 880. John P. DiMascio Jr. Leonard M. Rosenberg counsel of the firm, have been elevated to partner, and that Julia Gavrilov, Jacquelyn J. Markotsis & Lieberman, P.C., a general Paul B. Edelman Joseph W. Ryan Moran, and Kelly D. Schneid, formerly asso- practice firm located in Hicksville, has hired Hon. Dorothy T. Eisenberg Hon. Marie G. Santagata ciates at the firm, have been each elevated to Vassilios F. Proussalis as an associate who will be handling litigation and landlord/tenant mat- Jordan S. Fensterman Stephen W. Schlissel counsel. Marc L. Hamroff, the firm’s managing partner, has been appointed to a three-year ters, real estate transactions, and wills, trusts, Samuel J. Ferrara Hon. Denise L. Sher term on the Equipment Leasing & Finance and estates for the firm. Association Legal Committee. Ellen L. Flowers Andrew J. Simons Lisa R. Valente, a Law Clerk at Makofsky Lawrence Gaissert Hon. Peter B. Skelos Law Group, P.C. awaiting admission to the bar, Forchelli Deegan Terrana LLP is pleased to Marc C. Gann Ira S. Slavit was selected as the winner of the 2019 Elder and welcome Anthony P. DeCapua to its construc- Special Needs Law Journal Writing Competition Eugene S. Ginsberg Hon. Arthur D. Spatt tion and litigation practice groups as a Partner. and her article titled “Constitutional Challenges John J. Giuffre Hon. Joseph J. Sperber to Article 17-A Guardianships” was published Ronald Fatoullah of Ronald Fatoullah & Douglas J. Good Michael F. Sperendi in the most recent edition of the New York State Associates participated in a legal panel pre- Bar Association’s Elder and Special Needs Law Hon. Frank A. Gulotta, Jr. Jill C. Stone sentation for the New York City Chapter of Journal. Lisa intends to practice in the areas of Alan B. Hodish Joseph B. Strassman Orion Resource Group, discussing different elder law, estate and disability planning, guard- scenarios and the advantages of both revoca- ianships, probate, and estate administration. Warren S. Hoffman Sanford Strenger ble and irrevocable trusts in long-term care Carol M. Hoffman Terrence L. Tarver planning and asset preservation. In addition, Feather Law Firm, P.C., a Garden City bou- Mr. Fatoullah and additional attorneys from James P. Joseph Hon. James J. Tini tique law firm focused exclusively in the areas the firm presented a CLE event at the New of employment and labor law, as well as com- Elena Karabatos Danielle M. Visvader York City Bar Association on January 27. In mercial litigation, is proud to announce that Hon. Susan T. Kluewer Hon. Joy M. Watson partnership with the New York Chapter of the David S. Feather has been selected to the 2019 Aging Life Care Association, the firm provided New York Metro Super Lawyer’s List. Lawrence P. Krasin attorneys, case managers, and social workers with 2020 updates on Medicaid and chang- The In Brief column is compiled by Marian es with Managed Long-Term Care. The firm C. Rice, a partner at the Garden City law also sponsored the fall Alzheimer’s Association firm L’Abbate Balkan Colavita & Contini, LLP Long Island Chapter Caregivers Conference. where she chairs the Attorney Professional Liability Practice Group. In addition to repre- senting attorneys for 35 years, Ms. Rice is a Edward J. LoBello, Chair of the Bankruptcy Past President of NCBA. To become a Sustaining & Business Reorganization Law practice at Meyer, Suozzi, English & Klein, P.C., has Please email your submissions to announced that Jordan D. Weiss has joined [email protected] with subject Member, please contact the firm as an Associate in the Bankruptcy & line: IN BRIEF Business Reorganization Law group located in Garden City, focuses on advising clients in the The Nassau Lawyer welcomes submis- area of bankruptcy and creditors’ rights, with sions to the IN BRIEF column announc- the Membership Office at significant experience in representing debtors, ing news, events, and recent accom- creditors and trustees in chapter 7 and chapter plishments of its current members. Due 11 bankruptcy cases. to space limitations, submissions may (516) 747-4070. be edited for length and content. PLEASE NOTE: All submissions to the Adam Silvers, managing partner of Ruskin IN BRIEF column must be made as Moscou Faltischek P.C., announced the firm WORD DOCUMENTS. has expanded its commercial legal services Nassau Lawyer February 2020 23 LAWYER TO LAWYER APPELLATE COUNSEL DIVORCE MEDIATION LABOR & EMPLOYMENT LAW MEDIATION Appeals and Complex Litigation Shery-Anne Sastow, Esq. Accredited Divorce Mediator (NYSCDM) Employment Law Mediation Martin Gringer, Esq., one of the founders of Franklin, Gringer & Cohen, P.C., is pleased to announce his ~CHARLES HOLSTER~ ► 22+ Years Experience - Mediation - Arbitration availability to serve as a mediator in employment discrimination cases and wage and hour disputes. 30 years experience ∙ Free consultation ► 10 Best Attorneys - American Institute of Graduate of New York University School of Law, Field Attorney with the National Labor Relations Family Law Attorneys Board, Region 29. 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