The Only New York Governor Ever Impeached by Matthew L

Home , Goodbye (Shelter), William Sulzer

June 2013 Vol. 85 | No. 5 JournalNEW YORK STATE BAR ASSOCIATION

The Only New York Also in this Issue 2012 – 2013 Report to the Governor Ever Membership DSM-V and the Law Impeached Governmental Immunity By Matthew L. Lifflander Defense Ademption in New York Art by renowned illustrator Chris Silas Neal.

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EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961–1998 Contents June 2013

The Only New York Governor Ever Impeached by Matthew L. Lifflander 10

2012 – 2013 Report to the Membership Special Pull-out Section

Departments 20 The DSM-V and the Law: When Hard Science Meets 5 President’s Message Soft Science in Psychology 8 CLE Seminar Schedule by Dr. Gordon Cochrane 16 Burden of Proof by David Paul Horowitz 37 The “Governmental Function Immunity” 48 Meet Your New Officers Defense in Personal Injury Cases in the 50 Attorney Professionalism Forum Post-McLean World 53 New Members Welcomed by Michael G. Bersani 60 Classified Notices 43 Ademption in New York: Legislative and 60 Index to Advertisers Judicial Recaps and Recommendations 61 Language Tips by Jim D. Sarlis by Gertrude Block 63 2013–2014 Officers 64 The Legal Writer by Gerald Lebovits

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rom its beginning in 1876, the of the Association to members and and to amend the Not-for-Profit Cor- New York State Bar Association prospective members; to use technol- poration Law as recommended by our Fhas had two main objectives: to ogy to communicate more effective- Business Law Section. We have pro- serve the profession and to serve the ly; to deliver products and services vided training and support for local public. more efficiently; and to increase the bar associations and lawyers dealing In the words of our 1877 Enabling overall value of membership in the with legal problems in the wake of Act, the Association was “formed to Association. In a time when we hear Superstorm Sandy and for legal ser- cultivate the science of jurisprudence, that everyone must do more with less, vices providers throughout the state. to promote reform in the law, to facili- our goal is to help you do more with We have formed Task Forces on Gun tate the administration of justice, to more – more of the best CLE through Violence and Criminal Discovery and elevate the standard of integrity, honor our CLE Department and our 26 sec- Special Committees on Human Traf- and courtesy in the legal profession, tions; more up-to-date, accurate infor- ficking, Prisoner Re-entry and Voter and to cherish the spirit of brotherhood mation through our publications in Participation. among the members thereof.” These print form and electronic searchable The New York State Bar Association words have stood the test of time, formats; more networking opportuni- exists because more than 135 years ago although today we would substitute ties through our sections, committees New York lawyers decided that they “spirit of collegiality” for “spirit of and programs; and more web-based could do more together to advance the brotherhood” to mark the welcome resources for your practices. legal profession and the interests of gender diversity of our 21st-century We continue to engage in various lawyers and to serve the public interest legal profession. activities to serve the public interest. than they could accomplish separately. The first president of the State Bar, The leadership of the State Bar has That remains true today. Together we John K. Porter, said in 1877, again traveled to Albany and Washington, truly can make a difference. in the terms of the day, “Ours is an D.C., to advocate for adequate funding We invite your ideas and active undertaking by practical men, and it of state and federal courts and to urge participation as we continue to serve is designed to be of practical benefit to our congressional delegation to resist the profession and the public. Please the profession and to the community further reductions in funding of the send your comments and suggestions at large.” Legal Services Corporation. We have to me at the email address below. Part of serving the profession is lobbied at the state level for reforms I look forward to working with you providing “practical benefit” to our in the criminal justice and juvenile and serving as president of your members, helping them to be success- justice systems to avoid wrongful con- association in the coming year. n ful in their practices, to have the tools victions and ensure the fair treatment to serve their clients competently, and of young people. We have lobbied to to conduct themselves professionally provide access to justice for indigent David M. Schraver can be reached as lawyers. The priorities of our stra- defendants and indigent parties to civil at [email protected]. tegic plan are to increase the value actions involving the necessities of life,

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† Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. NYSBACLE Tentative Schedule of Upcoming Programs (Subject to Change) 10 | June 2013 | NYSBA Journal The Only New York Governor Ever Impeached By Matthew L. Lifflander

illiam Sulzer was elected governor of was so notoriously corrupt that the organization New York in November of 1912; inau- could not back him for re-election. Wgurated on January 1, 1913; impeached During his gubernatorial campaign, Sulzer, out by the state assembly on August 13; and removed of necessity, distinguished himself from Dix by from office on October 17 – all in less than one year. repeatedly saying that he had no boss but himself. Years earlier Sulzer, an especially successful, Sophisticated voters considered his rhetoric good attractive, and ambitious young lawyer in New election propaganda, but unrealistic. York City, had joined the lower east side Tammany In November 1912, Democrats carried the state Democratic club to help develop his law practice. for Woodrow Wilson as president, elected Sulzer In 1889, the local organization backed Sulzer’s first governor, and won all the other statewide offices. campaign for public office, and he won the former- Tammany won solid Democratic majorities in both ly Republican assembly seat. Three years later, with houses of the Legislature. And Sulzer had won a the help of Tammany Hall, the 30-year-old Sulzer three-way election with a plurality of 205,000 votes, was elected Speaker of the Assembly, the youngest then the largest in New York’s history. Speaker ever. The 1913 Democratic-controlled Legislature In 1894 Sulzer was elected to Congress. He was led by two of the most impressive men that served with distinction for 18 years, winning re- the Tammany organization had to offer: Senate election in good times and bad – an effective Majority Leader Robert Wagner (who would later representative, a Tammany stalwart, respected become a highly respected U.S. Senator during orator, and, eventually, Chairman of the House FDR’s New Deal) and Al Smith, Speaker of the Committee on Foreign Affairs.

Sulzer’s Election Matthew L. Lifflander, author of The Impeachment of Governor Tammany gave Sulzer its support in 1912 to suc- Sulzer (SUNY Press, Albany 2012), is a partner in Lifflander & ceed incumbent Democratic Governor John Dix, an Reich LLP and Counsel to Dentons US LLP. upstate Tammany man whose first two-year term Photos courtesy of the Library of Congress. Assembly. (Smith went on to win five elections as gov- responded to calls from reporters (who guaranteed ernor of New York and, in 1928, his party’s presidential anonymity) predicted that the “Chief” would make the nomination.) challenge to his leadership the fight of his life. Although highly regarded by the public, Wagner Then the governor rejected some of Murphy’s most and Smith were devoted to Charles F. Murphy who had reliable allies for key positions regulating railroads and achieved legendary control of the Tammany Hall orga- distributing highway construction contracts, although nization. And by 1912, Murphy, the Chief of Tammany some Murphy-sponsored supreme court judges and local Hall in New York City, had accumulated unprecedented New York City nominees were approved. Murphy soon power as the statewide leader of the Democratic Party by realized he was being thwarted on important cabinet absorbing the local Democratic machines in the largest positions he expected to control. A governor whom he upstate cities. had supported was leaving the Tammany reservation Most, but not all, of the Democratic legislators were and doing it publicly. In a confrontation sometime in Tammany men, enthusiastic about the new governor’s March, Murphy called the governor an “ingrate” and let program, with one exception: the governor’s proposal for him know that his refusal to designate James E. Gaffney, a a direct primary to nominate the candidates for governor, Murphy business partner, as the State Highway Commis lieutenant governor, attorney general, and state comptrol- sioner, meant “war.” ler, thus bypassing the influence of the party leadership A second front in Sulzer’s war against “the invisible in selecting statewide candidates. In the spring of 1913, government” had opened in Sulzer’s first week in office, Governor Sulzer led a dynamic statewide campaign when he announced creation of a Committee of Inquiry for his direct primary bill but failed to get it enacted. with broad powers to investigate all the state’s depart- However, his problems with Tammany Hall had started ments. The committee, whose mission was to promote months earlier – on inauguration day. honesty and efficiency for the taxpayers’ benefit, had the power to subpoena, take testimony, and adminis- This Means War ter oaths. The governor’s committee quickly initiated On day one, Sulzer initiated unprecedented turmoil. He investigations of state officials involved with the award announced that he “belonged to no man,” re-named the of lucrative prison, highway, and canal contracts, most of Executive Mansion “The People’s House,” abolished the which were run profitably by Tammany’s close friends traditional inaugural military parade and 21-gun salute, from the previous administration. Every few weeks the wore his battered campaign fedora instead of a top hat committee revealed additional shocking evidence of cor- like the well-dressed dignitaries, rejected the customary ruption and incompetence. ride in a horse-drawn carriage, and walked to the Capitol from the Executive Mansion and then up the long steps Mr. Murphy’s Revenge to the second floor. He gave his inaugural address in the On June 16, the public learned that legislators were form- overcrowded Assembly Chamber and then went outside ing a new joint legislative committee, comprising senators to repeat it from the Capitol steps to those who could not and assemblymen, intending to examine the governor’s get into the Chamber. Sulzer immediately began to ingra- use of his veto power and promises of patronage to tiate himself to the state’s political reporters by making secure votes for his bill to eliminate party conventions himself easily available, thus enhancing his own brand for selecting statewide candidates. The investigation of populism. would be headed by Senator James J. Frawley, a reliable In the afternoon of his second day as governor, Sulzer Tammany warrior, who was chairman of the powerful met with the newspaper correspondents. A reporter senate Finance Committee. Speaker Al Smith and Senator asked, “Have you received the O.K. of Charles F. Murphy, Robert Wagner expressed concern about the impact of this Tammany leader, on your plans?” Sulzer asked that they public battle on Tammany’s prospects for the city mayor- go on the record: al election in the fall. They saw the value of compromise. I am the Democratic leader of the State of New York. Mr. Murphy was not The people decreed it at the polls, and I stand on their interested. verdict. I cannot succeed in doing what I want to do as Governor unless I am the leader. If any Democrat wants to challenge that, let him come out in the open and the people will decide. . . . I am not afraid of Murphy, I am afraid of no man. No political boss can make me do anything I don’t think I ought to do. This was a declaration of war. The press was unable to get any reaction from Mr. Murphy (as he preferred to be called); he was well known for his silence and dignity. Several Tammany District Leaders who

12 | June 2013 | NYSBA Journal The Frawley Committee promised to reveal some- other private uses”; his engagement in stock speculation, thing detrimental to Sulzer nearly every day in July. At while as governor he was vigorously pressing for legisla- first, the committee’s revelations were all of a personal tion that would affect the business and prices of the New nature having little to do with Sulzer’s activities in his York Stock Exchange; his use of the governor’s office office. They included an apparently contrived report of to “suppress the truth” and “prevent the production of a breach of promise lawsuit during the governor’s long evidence in relation to the investigation” while directing bachelorhood. Another reported his alleged perjury as a witnesses, including state employees, to act in contempt lawyer in a Vermont case. And there were other stories, of the investigating committee; and his “punish[ing of] designed to grab headlines, demeaning the governor, legislators who disagreed or differed with him.” including attacks on his integrity as a congressional After a long debate, on August 13 at 3 o’clock in committee chair. Sulzer called them all “rot,” unworthy the morning, the actual Articles of Impeachment were of response. adopted by the Assembly. These articles constituted

A governor whom Murphy had supported was leaving the Tammany reservation and doing it publicly.

On the eve of the committee’s first public meeting in the specific charges that the governor would have to July, committee staff leaked some examples of the sub- respond to at the trial before the Court of Impeachment, jects of the forthcoming hearing. The worst were that the scheduled for noon at the Capitol on September 18, governor had received large contributions from individu- 1913. The court, created by the Constitution of the State als and corporations that he failed to report as required of New York, would consist of all the senators and the by law, and that the governor was using campaign con- judges of the Court of Appeals, the chief judge to be tributions to invest in the stock market for his personal the presiding officer. Each member of the court would account. Some of the Frawley Committee’s testimony have one vote. The decision would require a two-thirds challenged aspects of the investigations by the governor’s majority. Committee of Inquiry; and legislators testified they had The impeachment articles were adopted by a vote of been threatened and intimidated by the governor to get 79 to 29. their support for his direct primary bill. Article I accused Sulzer of “willfully, knowingly, and The impact of the Frawley Committee’s revelations corruptly ‘making and filing with the Secretary of State was dramatic. While an ordinary man might have been a false statement of campaign receipts and expenditures forgiven, the man who had so publicly espoused his own in connection with his campaign for Governor.’” (Eleven integrity was caught red-handed violating the laws he contributions, aggregating $8,500, were specified as hav- was sworn to enforce. ing been omitted.) The leaders of Tammany Hall had met and decided Article II accused him of “willful and corrupt perjury” that if they did not get rid of Governor Sulzer, they might in swearing that the statement of campaign receipts he all end up in jail. The stage was set for impeachment. filed was correct. Article III accused him of “bribing witnesses” and Impeachment “fraudulently” inducing Louis A. Sarecky, Frederick L. That August, the Frawley Committee recommended that Colwell, and Melville B. Fuller “to withhold true testi- the governor be impeached. At a Special Session called mony” from the legislative investigating committee. by the governor to consider his direct primary bill, the Article IV accused him of suppressing evidence by Assembly voted to impeach. The all-night session was “practicing deceit and fraud and using threats and led by Speaker Al Smith in Albany and orchestrated by menaces” to prevent the investigating committee from Mr. Murphy by telephone from his Long Island retreat. procuring the attendance and testimony of those same The resolution detailed Sulzer’s offenses and called witnesses. for his impeachment “for willful and corrupt conduct Article V accused him of “preventing and dissuading” in office and for high crimes and misdemeanors.” The a witness, Frederick L. Colwell, from answering the sub- resolution summarized the important charges emanating poena of the same committee. from the Frawley Committee: the fake campaign finance Article VI accused him of larceny by converting and report Sulzer had signed under oath; his conversion of appropriating to his own use and to stock speculation 11 campaign contributions to “purchase of securities or

NYSBA Journal | June 2013 | 13 checks totaling $8,500 and $32,850 in cash contributed to former senate Republican leader; Eugene Lamb Richards, his campaign fund. a Tammany state committeeman who had served as the Article VII accused him of improperly using his aggressive counsel to the Frawley Committee; and Isodor Executive authority and influence “for the purpose of J. Kresel, a former assistant district attorney in Manhattan affecting the vote or political action” of certain members and also a veteran lawyer for the Frawley Committee. of the Legislature by promising to sign or threatening to The witness list included prominent real estate devel- veto bills in which they were interested Assemblymen opers, industrialists and financiers, who described their Prime and Sweet were specified as persons to whom such contributions as personal gifts to Sulzer – for whatever promises or threats were made. purpose he wanted to use them. Some very large sums in Article VIII accused Sulzer of corruptly using the cash proved embarrassing to the people’s governor, who influence of his office to affect the prices of securities sell- clearly distinguished such personal gifts from campaign ing on the New York Stock Exchange, in some of which contributions. he was at the time speculating. The Arguments The Trial Lawyers The Defense The impeachment trial involved some of the state’s finest At the inception of the trial, the defense’s constitutional lawyers. Sulzer’s team was headed by D. Cady Herrick, expert Louis Marshall asked the court to dismiss the a 67-year-old retired justice of the New York State proceedings on the ground that the Assembly’s impeach-

Tammany lost every office in New York City, including mayor. Credit for Tammany’s trouncing went to Sulzer and his people.

Supreme Court. Herrick, who had been the unsuccessful ment was null and void and of no effect. He argued that Democratic candidate for governor in 1904, was a for- this impeachment resolution was adopted during an mer district attorney, as well the political boss of Albany extraordinary session of the Legislature called by the County who, to the chagrin of some, had kept that job governor after the Legislature had adjourned sine die; even after he was elected to the supreme court. therefore, it could consider only the items put on the Among those assisting Judge Herrick on Governor agenda by the governor’s call. He argued that Sulzer Sulzer’s team were Irving G. Vann, a former associ- was deprived of due process of law in violation of the ate justice of the state Court of Appeals; Harry D. constitution of the state and the Fourteenth Amendment Hinman, once an influential Republican state senator to the United States Constitution. Therefore, the court of from Binghamton, N.Y., who had been associated with impeachment was without jurisdiction. former Governor Charles Evans Hughes and was highly Marshall further introduced an appendix to his brief, a respected for his advocacy; and Louis Marshall, a well- compilation of the law of every state in the union related known constitutional law expert from Syracuse who was to extraordinary sessions of state legislatures, most of a long-time advisor to Governor Sulzer. Marshall, who which contained provisions similar to New York’s about became a founder of the American Jewish Committee, limiting the action to the specific issues for which the had distinguished himself as an early civil rights lawyer chief executive called the session. as well. The court voted 51 to 1 against Marshall’s eloquent The managers’ team, that is, the prosecutors, was led argument seeking dismissal of the proceedings. by 61-year-old Alton B. Parker as chief counsel. Also Defense counsel D. Cady Herrick arguing anoth- an unsuccessful candidate in 1904, Parker had resigned er important basic legal issue, said that Articles of as Chief Judge of the Court of Appeals to run as the Impeachment I, II, and VI should be quashed because Democratic Party candidate for president of the United they were all entirely related to matters that had actually States against Theodore Roosevelt. Parker had been the occurred prior to Governor Sulzer’s inauguration and state’s chief judge for six years, preceded by 12 years as a therefore could not be considered “willful and corrupt justice of the state supreme court. misconduct in office.” Judge Herrick additionally argued Parker was assisted by John B. Stanchfield, a promi- that the court should set aside these specific articles and nent corporate lawyer and litigator who had been the take no further cognizance of them. Democratic candidate for governor in 1900. The man- As to the second article, charging the governor with agers’ lawyers also included Edgar Truman Brackett, a filing a false statement under oath, Herrick additionally

14 | June 2013 | NYSBA Journal argued that the law did not actually require him to file a pretty good about their legal argument that a man could statement under oath and, therefore, that statement could not be convicted of perjury for voluntarily filing a sworn not be proper grounds for an accusation of perjury. statement when he was not required to do so by law. And, Herrick again noted that the impeachment charged except for the evidence of the governor’s attempt to sup- that the governor’s offenses constituted willful and press testimony, the prosecutors had not provided much corrupt misconduct “in office,” and high crimes and evidentiary support for any of the other articles. misdemeanors, but none of the accusations contained The managers’ attorneys also had good reason to be in articles I, II, or VI actually accused the governor of optimistic about the portrait they painted of Sulzer’s any misconduct while in office, and should, therefore, character and integrity through the testimony of their be dismissed. Defense counsel included an extensive witnesses. The evidence of Sulzer’s success at raising brief showing numerous examples of impeachments in money for himself and his aggressive approach to it were New York and elsewhere, in which all of the impeach- truly damaging. Clearly the court could create new prece- able offenses occurred while the accused was actually in dent and find him unfit for office based on his conduct in office. “After reviewing every known case of impeach- preparing for office. Whether there would be a two-thirds ment in the United States[,] no case of impeachment has majority for removal was not crystal clear in light of the been found where a public official has been impeached number of the members of the court who came from the for offenses prior to his assumption of office. All are cases judiciary or the upstate independent democracy or the of misconduct in office.” Republican side of the state Senate.

The Prosecution The Decision The prosecution responded, creatively, that the report- Finally, at 3 o’clock on the afternoon of October 16, the ing requirements of the New York law were “in the galleries filled with spectators seeking to be witnesses to nature of a condition precedent to his taking office as history, the court began a public vote on each of the eight governor.” Richards pointed out that the purpose of impeachment articles, where one after the other, each of reporting campaign contributions and expenditures the judges would stand and vote. was to implement a progressive policy to let the people The governor was found guilty on articles I, II, and IV know “whether there are any strings on a candidate and by a very close two-thirds of the votes. Then, the court who his backers are.” In other words, if money is paid arrived at the moment when it had to decide if Sulzer to a candidate to influence his future action, when that should be removed from office. The roll call went quickly: candidate takes office “his official acts can be scruti- 43 to 12 in favor of removal. The final action of the court nized, weighed, and judged in the light of the interests, was to vote on whether Sulzer should be barred from political or financial.” seeking public office. Fifty-six voted no. Over four days of testimony, one witness after another introduced by the managers, including Jacob Schiff and Aftermath Henry Morganthau, was forced to admit on cross-exam- It required a few more days in the Executive Mansion ination by Marshall that he had made his contribution to before ex-governor Sulzer and his wife entrained to candidate Sulzer for his personal use as he saw fit. Several New York City. Thousands of enthusiastic supporters prominent contributors made the point that they were greeted them at Grand Central Station and took them aware of the candidate’s poor financial circumstances by motorcade to his old lower east side Assembly and understood that he needed money personally. In that District, where he accepted the Progressive Party’s sense, the prosecution’s parade of people whose contri- nomination for his old Assembly seat. A month later, in butions were not reported by Sulzer backfired. One way November 1913, after constantly enthusiastic receptions or another, most in the long line of prosecution witnesses by huge crowds demanding Tammany’s punishment, presented over more than a two-day period testified that Sulzer was re-elected to the Assembly he had once they knew of Sulzer’s “impecunious condition” and were presided over. He was elected by the biggest majority quite willing to have the candidate use the money at his ever recorded in that district. In the same election, the own discretion. statewide Democratic Assembly majority was lost to the Governor Sulzer’s people believed they had estab- Republicans, and several of the Tammany senators who lished that no man had ever been impeached for something voted to remove Sulzer lost their seats. Most important, he had done before taking office. They also had good rea- Tammany lost every office in New York City, including son to believe that precedent would make it difficult to mayor. Credit for Tammany’s trouncing went to Sulzer convict on the basis of articles I, II, or VI. Although they and his people. realized that the prosecution had made the governor look Sulzer made an ineffective independent campaign to bad because of his incomplete financial report, witness regain the governorship in 1914 and an unsuccessful effort Louis Sarecky, Sulzer’s key campaign staff assistant, had to gain the Prohibition Party nomination for president in done a good job of taking full responsibility. They also felt 1916. He never again sought public office. n

NYSBA Journal | June 2013 | 15 Burden of Proof By David Paul Horowitz

David Paul Horowitz ([email protected]) has represented plaintiffs in personal injury cases for over 25 years and is of counsel to Ressler & Ressler in New York City. He is the author of New York Civil Disclosure and Bender’s New York Evidence (both by LexisNexis), as well as the 2008 and 2013 Supplements (to be issued June 2013) to Fisch on New York Evidence (Lond Publications). Mr. Horowitz teaches New York Practice at Columbia Law School, and Professional Responsibility and Electronic Evidence & Disclosure at Brooklyn Law School. In addition to presenting NYSBA’s Annual CPLR Update Program statewide, he serves on the Office of Court Administration’s CPLR Advisory Committee, as Associate Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee, and is a frequent lecturer and writer on these subjects. “You Gotta Have Faith”

pecifically, “good faith.” In litiga- vit applies to motions seeking bills ing “material factual statements that tion, the concept of possessing of particulars and to motions seeking are false.”11 Sa “good faith basis” for, inter disclosure. alia, commencing an action, seeking The failure to confer with coun- Pleadings disclosure, and posing questions to sel cannot constitute good faith and In Palmieri v. The Piano Exchange, Inc.,12 a witness, is an essential, albeit often requires denial of the motion: the plaintiff’s counsel moved for a neglected, requirement. In two recent Furthermore, the court did not err sanction pursuant to CPLR 3126, based decisions, trial court judges have in summarily denying the appel- upon the defendant’s failure to appear reminded the particular attorneys lant’s motion to strike the com- for examination before trial. The court’s appearing before them, as well as the plaint since counsel for the appel- decision must have come as a bit of a bar as a whole, of this fundamental lant failed to confer with counsel surprise to the plaintiff’s counsel. The foundation requirement. for the plaintiffs in a good faith court first summarized the transaction Before reviewing these and other effort to resolve the issues raised at issue and the plaintiff’s claims in the 3 cases, an examination of a “good faith by the motion. complaint: basis” familiar to most litigators, con- Similarly, the failure to set forth the Palmieri purchased a rebuilt and tained in Uniform Rule 202.7, provides good faith efforts requires denial of the refinished piano for the sum of a useful backdrop for the requirement motion: Nine Thousand Dollars ($9,000.00). in other situations. The affirmation submitted by the * * * plaintiff’s attorney was deficient in Uniform Rule 202.7 that it did not set forth any good In connection with this transac- Uniform Rule 202.7 of the Uniform faith effort to resolve the issue of tion of March 1996, involving Nine Rules for the New York State Trial the defendants’ failure to appear Thousand Dollars ($9,000.00) in Courts, which has several procedural for examinations before trial.4 exchange for a piano, on or about rules regarding motions, contains a March 21, 2011, Plaintiff filed a Ver- good faith requirement An early trial-level decision, Eaton ified Complaint alleging a breach 5 with respect to a motion relating v. Chahal, held “a ‘good faith’ effort of contract seeking damages in to disclosure or to a bill of particu- to mean more than an exchange of the sum Two Hundred Fifty Thou- lars, an affirmation that counsel computer generated letters or cursory sand Dollars ($250,000.00); alleg- 6 has conferred with counsel for the telephone conversations.” Eaton has ing deceit claiming damages of 7 8 opposing party in a good faith been cited by the First, Second, and Five Hundred Thousand Dollars 9 effort to resolve the issues raised Third Departments. Denial of a motion ($500,000.00); alleging breach of by the motion.1 for disclosure was required where the the covenant of good faith and fair trial court improperly considered an dealing and seeking damages of The First Department has held that affirmation of good faith “since it failed Three Hundred and Fifty Thou- a motion relating to disclosure must to discuss the notice for discovery and sand Dollars ($350,000.00); alleging contain an affidavit of good faith, and inspection which was the subject of the tortious interference with a con- that the failure to furnish such an affi- plaintiff’s motion to compel.”10 tract seeking damages of One Hun- davit requires denial of the motion.2 Of course, when drafting an affir- dred and Fifty Thousand Dollars The same rule, of course, applies to mation of good faith, counsel must ($150,000.00) and lastly, alleging motions directed to bills of particulars, bear in mind one of the mandates unjust enrichment seeking Nine inasmuch as 22 N.Y.C.R.R. § 202.7(c)’s of Rule 130-1.1(c)(3), which defines Thousand Dollars ($9,000.00). In requirement of a good faith affida- “frivolous conduct” to include assert- short, Plaintiff alleges One Million

16 | June 2013 | NYSBA Journal Two Hundred Fifty Nine Thousand The court then made the follow- And, what about the defendant’s Dollars ($1,259.000.00) as damages ing direction concerning the plaintiff’s examinations before trial? The court stemming from a contract made pleading: denied the plaintiff’s motion pursuant seventeen (17) years ago involving The Court is mindful of CPLR to CPLR 3126, provided the defendant a used piano in exchange for Nine §3017(a) which includes that appeared for the examination on or 13 Thousand Dollars ($9,000.00). a complaint, “shall contain a before a date set by the court in its 16 demand for the relief to which the order. After citing Rule 130-1.1, the court pleader deems himself entitled.” both posed and answered two ques- As the above captioned matter will Disclosure 17 tions: appear on the court’s compliance In Fawcett v. Altieri, defense coun- Is it a reasonable application of calendar on March 27, 2013, the sel moved to compel the disclosure the privilege to practice law to Court expects Plaintiff’s counsel of social media matter posted by the serve a complaint upon a person, to articulate some good faith basis plaintiff. After an overview of this hot- in these circumstances, and stun supporting prayers for relief in button topic, the court zeroed in on the recipient-defendant with dam- excess of One Million Two Hun- the foundation requirement for obtain- age claims beyond the universe of dred Fifty Nine Thousand Dol- ing non-public social media matter those which logically follow the lars ($1,259,000.00) (not including protected by an individual’s privacy alleged breach? The Court thinks setting: not . . . a prayer for relief seeking puni- tive damages) in an action involv- In order to obtain a closed or pri- Does the administration of Justice ing the sale of a used piano some vate social media account by a include a responsibility to shield seventeen years ago at a cost of court order for the subscriber to litigants from conduct that may Nine Thousand Dollars ($9,000.00). execute an authorization for their cause stress, anxiety and fear of release, the adversary must show Additionally, counsel shall offer argu- pecuniary ruination far beyond the with some credible facts that the ment as to why such conduct, in the bounds of reasonable foreseeabil- adversary subscriber has posted 14 ity? The Court thinks it does. absence of good faith, is not sanction- information or photographs that 15 able. are relevant to the facts of the case

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NYSBA Journal | June 2013 | 17 at hand. The courts should not a jeweler in New York City?” It is immoral, vicious or criminal acts accommodate blanket searches for well established that a defendant having a direct bearing on the wit- any kind of information or photos who testifies may be cross-exam- to impeach a person’s character, ness’s credibility, inasmuch as “it ined concerning any immoral, which may be embarrassing, but demonstrates an untruthful bent vicious, or criminal acts which have are irrelevant to the facts of the or significantly reveals a willing- a bearing on his credibility as a wit- case at hand. ness or disposition . . . voluntarily ness. “The offenses inquired into The party requesting the discovery of to place the advancement of his on cross-examination to impeach an adversary’s restricted social media individual self-interest ahead of credibility need not be similar to accounts should first demonstrate a principle or of the interests of soci- the crime charged, and questions good faith basis to make the request.18 ety.” Moreover, appellants sought are not rendered improper * * * to question plaintiff about this provided they have some basis in fact The requirement that a founda- matter in good faith, and with a and are asked in good faith.” Here, tion be established in order to obtain reasonable basis in fact.23 non-public social media matter has the inquiry into defendant’s misap- received uniform appellate approval.19 propriation of the diamonds is rel- Conclusion evant to his credibility as a witness. A good faith basis is a necessary foun- Questioning a Witness The question was proper, therefore, if dation requirement, and counsel must Although no recent decision stands made by the prosecutor in good faith be prepared to explain the good faith out for the proposition, a long line of and had some basis in fact.21 basis if put to the task. So, before draft- cases make clear that counsel must People v. Kass applies in civil cases. ing a pleading, serving a disclosure have a good faith basis for posing a In McNeill v. LaSalle Partners,22 the request, or posing a question to a wit- question to a witness. A leading Court trial court properly permitted defense ness, “you gotta have faith.” n of Appeals case, People v. Kass,20 con- counsel to question the plaintiff in fronted the requirement where a prose- a personal injury case, where the 1. 22 N.Y.C.R.R. § 202.7(a)(2). 2. Molyneaux v. City of N.Y., 64 A.D.3d 406, 406–407 cutor sought to question the defendant plaintiff was the only witness to the (1st Dep’t 2009). about a prior act of misappropriation: accident, concerning the reason the 3. Gonzalez v. I.B.M., 236 A.D.2d 363 (1st Dep’t Defendant argues that the Trial plaintiff had been terminated from a 1997) (citations omitted). Judge improperly permitted the prior job: 4. Tine v. Courtview Owners Court, 40 A.D.3d 966 (1st Dep’t 2007). prosecutor to ask defendant if he Such dishonest conduct (assum- 5. Eaton v. Chahal, 146 Misc. 2d 977 (Sup. Ct., had “misappropriated two dia- ing plaintiff engaged in it) plainly Rensselaer Co. 1990). monds worth about $4,000 from falls within the category of prior 6. Id. at 983. 7. Barber v. Ford Motor Co., 250 A.D.2d 552 (1st NEW YORK STATE BAR ASSOCIATION Dep’t 1998). 8. Romero v. Korn, 236 A.D.2d 65 (2d Dep’t 1997). 9. Koelbl v. Harvey, 176 A.D.2d 1040 (3d Dep’t 1991). 10. Barnes v. NYNEX, Inc., 274 A.D.2d 368 (1st In The Arena: Dep’t 2000). 11. 22 N.Y.C.R.R. § 130-1.1(c)(3). A Sports Law Handbook 12. N.Y.L.J., Mar. 12, 2013 (Sup. Ct. Suffolk Co.) Co-sponsored by the New York State Bar Association (Jerry Garguilo, J.S.C.). and the Entertainment, Arts and Sports Law Section 13. Id. 14. Id. Discusses all aspects of sports law, including 15. Id. (emphasis added). intellectual property and trademark rights, collective 16. Id. bargaining, Title IX, concussions, NCAA, and more. 17. 38 Misc. 3d 1022 (Sup. Ct., Richmond Co. 2013) (Joseph J. Maltese, J.S.C.). PN: 4002 / Member $60 /List $75 / 574 pages 18. Id. at 1027–28 (emphasis added). 19. See, e.g., Tapp v. N.Y. State Urban Dev. Corp., Order multiple titles to take advantage of our low flat rate shipping 102 A.D.3d 620 (1st Dep’t 2013); Abrams v. Pecile, charge of $5.95 per order, regardless of the number of items shipped. 83 A.D.3d 527 (1st Dep’t 2011); McCann v. $5.95 shipping and handling offer applies to orders shipped within the continental U.S. Shipping and handling charges for orders shipped Harleysville Ins. Co. of N.Y., 78 A.D.3d 1524 (4th outside the continental U.S. will be based on destination and added to Dep’t 2010). your total. 20. 25 N.Y.2d 123 (1969). 21. Id. at 125–26 (citation omitted; emphasis Get the Information Edge added). 22. 52 A.D.3d 407 (1st Dep’t 2008). 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB2006 23. Id. (citations and parenthetical omitted).

18 | June 2013 | NYSBA Journal NAM is pleased to announce that HoN. IRA B. WARSHAWSKY former Supreme Court Justice of the state of New York, Nassau County, has joined its panel

Judge Warshawsky has been a distinguished member of the New York judiciary for the past 25 years. He was a New York Supreme Court Justice in Nassau County’s Commercial Division from 2002 until his retirement in 2011. He presided over all manners of business claims and disputes, including business valuation proceedings, corporate and partnership disputes, class actions and complex commercial cases. Immediately prior to this appointment, Judge Warshawsky handled general litigation, including products liability, from 1998 to 2002. Prior to that, he sat in the Nassau County District Court for ten years, from 1987 to 1997, presiding over a wide variety of matters.

According to the 2009/2010 New York Judge Reviews, Judge Warshawsky has been praised for keeping a “calm” demeanor, even during highly charged, high-profile cases. Lawyers interviewed described him as “one of the hardest working, intelligent, even-handed judges, who has a very good sense of Hon. Ira B. Warshawsky justice.” He has been described as a “top-notch judge” who is Former Justice of the Commercial Division known for encouraging settlement negotiations without being of the Supreme Court, Nassau County overly aggressive. One attorney stated, “Judge Warshawsky is one of the best judges I have ever appeared before in the nation.”

Judge Warshawsky is available to hear cases in any of NAM’s offices throughout the New York Metropolitan area.

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Call us to see our entire roster of highly qualified neutrals. Conference facilities and exceptional panel members available nationwide. The DSM-V and the Law: When Hard Science Meets Soft Science in Psychology By Dr. Gordon Cochrane

he Diagnostic and Statistical Manual of Mental The DSM-V can be compared to the hub of a wheel. Disorders V (DSM-V) is the latest edition of the The spokes emanating from the hub include items such Tdiagnostic manual of mental disorders. As such, it as research design, the validity of psychological assess- outlines the symptom criteria for the diagnosis of the dis- ments, construct validity, treatment efficacy, correlation orders included in the manual, which provide the frame- versus causation, human memory, truth assessment, work for most psychological assessments and for most meaning attribution, selective attending, and their roles forms of psychotherapy. The DSM-V is actually a meld in the courts. The rim of the wheel represents the subjec- of science, theory and opinion. Rather than just identify- tive human beings who give meaning and purpose to the ing the law-related changes in the DSM-V, we begin by hub and spokes of the wheel. The DSM-V is best under- presenting the research principles and the subjective stood when viewed as part of the whole. realities that underlie this manual. This contextual Judges, as gatekeepers, must evaluate the scientific sta- approach will allow you to understand – and to legiti- tus of the prospective evidence proposed by attorneys to mately question – the research behind the various diag- determine if it is admissible in court. The Daubert1 case of nostic symptom criteria rather than just looking at the 1993, the National Research Council (NAS) report of 2009 symptoms lists themselves. on Strengthening Forensic Science in the United States,

Gordon Cochrane, R. Psych. ([email protected]) is certified by the State and Provincial Boards of Psychology in the United States and Canada. He is on the Board of Directors of the Medical Legal Society of British Columbia. Dr. Cochrane’s CLE seminar, Psychol- ogy and the Law: What We Know and What We Know That Isn’t So, is accredited for six professional hours by the New York State Continuing Legal Education Board. Dr. Cochrane has presented seminars for health professionals, law organizations and corporate groups for many years. He provides psychologicala assessments, consultations, reports and expert testimony for law firms in Canada and the U.S. He has provided expert testimony in a number of court cases, including two murder trials. He has published six books and his work has been published in psychology, medical and law journals in the U.S. and Canada.

20 | June 2013 | NYSBA Journal the Canadian Goudge report of 2008 and the UK Law judges and attorneys have the information needed to dis- Commission report of 2009 have all contributed to chang- tinguish research from theory and theory from opinion es in the guidelines that regulate scientific admissibility. in law-related psychology. The first piece of information Whereas admissibility guidelines have been strengthened is simple, reliable and powerful: When assessing reports, in forensics generally, the field of psychology/psychiatry conducting cross-examinations or when interacting with remains comparatively clouded by misinformation, over- opposing counsel, insist on the use of everyday English. simplification and ambiguity. However, as judges gain Like other professions, psychology and psychiatry increasing knowledge of the DSM-V and of key concepts have a vocabulary of their own, and if you attempt to in the psychology/psychiatry field, attorneys too will communicate in the specialized language of these profes- need to become better informed about what will and will sions, you place yourself at a significant and unnecessary not meet the evolving admissibility criteria in this field. disadvantage. Be comfortable requesting that verbal and Because attorneys and psychologists have human written statements, which will initially be expressed beings as clients, the practice of law, like that of psychol- in the terms of the profession, be restated in everyday ogy, is usually conducted in shades of gray rather than English. Listen carefully and be comfortable requesting black and white. Psychology often involves the applica- further clarification if you are uncertain about ambiguous tion of hard science principles to soft science phenomena. aspects of the translation. If a disorder or psychological This unavoidable situation creates fertile ground for bio- concept cannot be clearly expressed in everyday English, logical oversimplification and the attribution of factual you can justifiably question its validity and, consequent- information to that which is really psychological meta- ly, its scientific status. phor. Much of this meaning attribution and misinforma- You may feel that the use of this simple strategy will tion goes unchallenged because most people, including be viewed as disrespectful, unnecessarily antagonistic attorneys, witnesses, judges and jury members, do not and potentially counterproductive. This is certainly pos- have the information necessary to easily recognize and sible but, as indicated, psychology and psychiatry are effectively challenge the aspects of law-related psychol- not hard sciences because the subjects are themselves ogy that fall into the category of “what we know that subjective. At present, we simply do not have sufficient isn’t so.” knowledge of how the human mind works for our pro- When attorneys are clear about how the science of fessions to qualify as hard sciences. This is not a fault or psychology differs from other forms of science, they will an inadequacy. There is no hard scientific solution to this gain a new perspective on the law-related changes in the situation; it is simply the nature of the beast. DSM-V. This informed perspective will enable them to Out of necessity then, much of the professional vocab- more effectively represent their clients in cases where a ulary in psychology and psychiatry is metaphor, and psychological assessment, a DSM-V diagnosis, a psycho- in these professions the metaphor is often an implied therapy recommendation, a prognosis and/or opposing comparison between that which is soft science and that expert testimony could have significant impact on the which is hard science. A metaphor is a metaphor; it is lives of their clients. not alchemy. Therefore, when you ask that a professional Psychology is a science, but it is unlike other sciences term or concept be expressed in everyday English, you in that the subjects studied and assessed are not objective are often asking for clarification of a metaphor. And if a entities. The subjects are human beings, and we human psychology or psychiatry concept cannot be expressed in beings are subjective in many ways. We creatively con- everyday English, you may want to question its validity. struct our sense of self and we give meaning to the world around us. We imagine; we assume; we generalize; we Research Limitations and the DSM-V attribute meaning to ambiguities; we remember cre- To help you understand the law-related aspects of the atively; we formulate our values and our beliefs through DSM-V we will discuss the research designs used in psy- the screen of our culture; we selectively attend to that chology and psychiatry. One might assume that, because which confirms our biases and attitudes; we mind-read human beings are the subjects of psychology research, the with excessive confidence; we project our perceived reali- designs used are quite different from those used in other ties onto other people and situations; we are sometimes sciences. This is not the case. The research designs used in honest and sometimes deceptive; we are rational and psychology are unavoidably imperfect adaptations of the sometimes irrational; we are consciously motivated and designs used in other sciences such as chemistry, physics sometimes unconsciously motivated and, yet, we believe and agriculture where the subjects are constants. People, that our perceptions are reality.2 however, are not constants, and they are not passive. Do not be intimidated by the irrefutability that is Everyday English implied by the term “scientific research.” The research Judges and juries are charged with finding truth and real- designs used in psychology must accommodate human ity from within this labyrinth of human complexity. This subjectivity and, therefore, the conclusions derived from search for truth can be made a little less daunting when this research are usually qualified in some important

NYSBA Journal | June 2013 | 21 way. The results are expressed as probabilities rather than ment groups, a control group for each treatment group, certainties. and statistical control for selected variables such as Sometimes, too, the media, when reporting on studies gender, age, education, socio-economic status, religion, such as brain imaging or the search for a genetic explana- rural-urban location and any other variables that could tion for disorders such as obesity and depression, misrep- influence the outcome. In addition, it is necessary to have resent correlation as causation, oversimplify the research a means of establishing a valid benchmark measure of the and speculate about what the studies might be showing. DSM disorder of the groups studied and a valid means of For example, Dr. Michael Gazzaniga at the University of assessing any change that occurred following treatment. California, Santa Barbara, and a primary researcher in The analysis of variance (ANOVA) is then applied to human brain functioning, warned in the New York Times3 the outcome data to determine if, following treatment, that brain images are snapshots that vary widely among there was an average positive change and, if so, whether people and trying to define social constructs like good it was greater than chance. If the design included valid judgment, free will and response to stress in terms of bio- measures of individual differences, some of the charac- logical processes is a fool’s game. Additionally, a recent teristics common to those who made positive changes can study on the human genome,4 derived from an immense also be identified. decade-long project involving 440 researchers from 32 In these studies it is very difficult to maintain treat- universities, concludes that the human genome with ment consistency across therapists and across groups. its millions of newly identified gene switches definitely Therapists and the group members are not absolutes. holds great potential for the enhancement of our under- Nor is the disorder being studied an absolute. The nature standing and treatment of many diseases and disorders. and severity of depression, for example, are not the same At the present time, however, these new discoveries have for each person who suffers from depression. The Global moved an already incredibly complex field of research Assessment of Functioning Scale (GAF) in the DSM-IV is into the realm of the stunningly complex; practical con- used to estimate an individual’s overall level of function- clusions about causes and treatments are clearly prema- ing following an assessment. The scores range from zero ture. to 100 but they are not absolute; they are, as the name Therefore, when assessing a report, conducting a states, assessments of functioning made by the assessing cross-examination or interacting with opposing counsel, psychologist or psychiatrist. Again, this does not suggest remember that research in psychology generates prob- a flaw or inadequacy in the measures or their creators. abilities rather than certainties; correlation is not causa- There simply is no valid and reliable way to objectively tion. Genetic explanations for psychological disorders assess perceived severity the way a thermometer assesses such as depression are oversimplified and are primar- temperature or a ruler assesses dimensions. The authors ily theory-based rather than research-based. Heritability, of the DSM-V have also developed scales in an effort to which is consistently found to be well below 50%, refers address the important variable of disorder severity. Their to the underlying risk of depression and not to depression scales too are “soft science” assessments. itself. Multiple variables, including the uniqueness of the Employing random selection of the treatment and individual, are involved in the causation of depression.5 control groups that best represent the population being Indignant bluster and adamantly expressed hard science studied is ideal from a statistical perspective but is simply terminology do not convert complexity and probability not possible in the real world. Approximate randomness into certainty. is as good as it gets. Larger samples are best. People drop Like its predecessors, the DSM-V is a manual of out in every study, further diluting the theoretical ran- symptoms – it does not offer psychotherapy guidelines domness of the sample. for the disorders it lists. There is, however, a relationship A key variable that is rarely included in psychology between the symptom descriptions in the DSM-V, the research is the self-efficacy of the individuals being stud- research conducted to develop assessment instruments ied. Research design for treatment effectiveness is based and the psychotherapies intended to address the various on the unspoken premise that each person in the study symptom clusters. has the same ability to utilize the cognitive, behavioral and emotional tools provided in the treatment model. DSM-V – Related Outcome Research This fallacy can be illustrated thus: An experienced Much of psychology research is devoted to treatment jockey who is well versed in the efficacy-based handbook effectiveness. That is, can it be shown that a particular of competitive riding should be able to achieve positive treatment model for a particular psychological problem results on any horse. However, it is obvious that the horse actually results in positive change? This type of research matters. A 2012 study by A.A. Goldsmith, et al.,6 found is necessary, but it is far from perfect. Outcome research that the client’s self-efficacy was a significant predictor requires a design that includes one or more clearly of outcome. The authors noted that self-efficacy is an described treatment models, therapists who are trained understudied variable in addiction treatment research. in the treatment being studied, randomly selected treat-

22 | June 2013 | NYSBA Journal Treatment effectiveness is determined by comparing shows that recovery times vary greatly and close to 30% the average score of the treatment group to the average of PTSD sufferers never fully recover.9 score of the control group, whose members, as far as the The committees in charge of creating the DSM-V have, researchers can determine, received no treatment. If a without doubt, been as thorough and professional as pos- treatment is found to be effective, its effectiveness can sible with such a daunting endeavor. If you go to DSM-V range from very beneficial to simply better than no treat- online, you will see a link titled “Research Development,” ment. which includes the field trials conducted on DSM-V The validity of treatment effectiveness is also influ- symptom criteria and 223 peer-reviewed publications enced by the validity and reliability of the instruments arising from the work conducted on the DSM-V. This is used to measure change. Self-reports, which are often truly a wealth of information, yet, as with all psychol- used in outcome research, are the least reliable measures. ogy research, the subjectivity of human beings and the Change is usually measured immediately following treat- subsequent research limitations also apply to this body ment and sometimes again, with those subjects who of work.

Sometimes the media, when reporting on studies, misrepresent correlation as causation, oversimplify the research and speculate about what the studies might be showing. make themselves available, six months or more after This brief summary of research design in psychology treatment. For example, recent research7 shows that the illustrates that because people are subjective beings, we benefits of cognitive behavioral therapy (CBT) for depres- do not fit well in the research designs traditionally used sion are much greater initially than they are at a two-year in scientific research. Consequently, there is no certainty follow-up. in psychology research; there is only probability. In addition to the research limitations discussed, the The DSM-V is a manual of human disorders, rest- medical or disease model often influences expectations of ing on a foundation of research, theory and opinion. It treatment effectiveness and recovery rates in psychology certainly warrants our respect but not our blind respect. research: for example, the medical model consists of a When aspects of the DSM-V factor into your cases, client-reported problem followed by a diagnosis followed request clarifications in everyday English and request by a prescribed treatment and an expected recovery time. evidence to show whether the case-relevant DSM-V dis- Even the term treatment, which is now part of the psy- orders and their symptom clusters are research-based, chology lexicon, is derived from the medical model. The theory-based or opinion-based. medical model can also complicate some aspects of the DSM-V, and it invites direct-to-consumer advertising of Law-Related Changes in the DSM pharmaceuticals for problems of living. The Personality Disorders The medical model leads many physicians to endorse Major changes have taken place in the category of the CBT as the treatment of choice for most psychological Personality Disorders (PDs). The DSM-IV lists 10 specific problems. Cognitive behavioral therapy sounds like personality disorders whereas the DSM-V lists six. These hard science – solid, specific, reliable and even unique. changes, as thoroughly considered as they have been, will Emotional Focused couple therapy sounds like soft sci- further complicate an already complex situation when ence while CBT couple therapy sounds “hard,” yet both the diagnosis of a Personality Disorder intersects with models are research-validated, though neither model the legal process. Existing case law involving Personality helps all couples and neither has been found to be supe- Disorders is based on the DSM-IV model. Therefore, until rior to the other. In reality, the term cognitive refers to the a new body of case law has been established, opinion client’s problematic thinking patterns, beliefs and biases. evidence and often, conflicting opinion evidence, will be Behavior refers to the client’s decisions and the actions the norm. that follow his or her cognitions. Therapy refers to appro- Widiger10 points out in Personality Disorders: Theory, priate changes in the client’s cognitions, behavior and, Research and Treatment (a journal of the American Psycho- consequently, his or her emotional well-being. logical Association), that there is insufficient research to CBT is an important feature in all research-validated legitimize the new condensed version of the Personality therapy models but it is not medicine to be taken for a Disorders. A theory is a theory because there is insuf- specific period of time to treat a disease. CBT plus con- ficient research evidence to make it factual. The DSM-V trolled exposure has repeatedly been shown to be effec- Personality Disorders must, as was the case for their tive for treating PTSD,8 but the outcome literature also DSM-IV predecessors, be viewed as theory. PD assess-

NYSBA Journal | June 2013 | 23 ments and expert testimony then, will involve a great When engaging an expert in this realm, you will want deal of individual interpretation and professional opin- the person doing the evaluation and report to be a psy- ion. chologist or psychiatrist who is trained in psychological Construct validity is an agreed-upon meaning of assessment procedures, knows the current literature on the constructs being assessed. Without construct valid- the Personality Disorders, appreciates the subjective limi- ity, the content validity of an assessment instrument or tations in this realm and respects the fact that legal prec- procedure is of little significance and the establishment edent does not yet exist for assessments of the DSM-V of a meaningful standardized base is equally difficult. Personality Disorders. The malleability that exists in the constructs defining Personality Disorders will, for a few years at least, elevate The DSM-V Personality Disorders the roles of theory interpretation and differing expert To qualify as a Personality Disorder, the criteria described opinions in the cases involving Personality Disorders.11 below must be relatively stable over time, not be norma- From a psychology/psychiatry perspective, the tive culturally or developmentally, and not be solely DSM-V changes to the Personality Disorders are interest- caused by drug use or a general medical condition. ing and debatable. From a legal perspective, only time will tell how these changes will affect the proceedings in Antisocial PD cases where one or more of the new Personality Disorders The person’s self-esteem is derived from power, personal plays a role. gain or pleasure. He or she fails to conform to lawful or The decision to make changes to the DSM-IV Person- culturally normative ethical behavior; he or she lacks ality Disorders arose from an experiential recognition that empathy and remorse, and lacks the capacity for inti- severity differs from individual to individual, that nor- macy. The person’s relationships are based on exploita- mality and pathology reside on a continuum where one tion, deceit and domination. The person is antagonistic, slowly fades into the other, making assessment, diagnosis manipulative and angers easily. He or she is irrespon- or a reliable prognosis quite difficult. The complexity of sible, impulsive and takes excessive risks. Personality Disordered people tend to practice the same strategies repeatedly with only minor variations – they are adaptively inflexible. these disorders, the possibility of overlapping disorders, Avoidant PD the functioning of the individual when in crisis versus The person has low self-worth and excessive feelings of when not in crisis, the questionable reliability of self- shame or inadequacy. He or she is reluctant to pursue reports, the frequent uncooperativeness of the individual goals, take personal risks or engage in new interpersonal being assessed and the considerable amount of time and activities. He or she is extremely sensitive to perceived money required to conduct a thorough assessment, made and anticipated criticism or rejection and is therefore this a challenging task. This task was further complicated reluctant to trust others. Withdrawal, intimacy-avoidance by professional disagreements concerning the nature and anxiety about interpersonal situations are hallmarks of the Personality Disorders themselves, disagreements of this disorder. about the appropriate assessment tools and disagreements about interview strategies. Unfortunately, this Borderline PD situation may not change much with the DSM-V changes. The person is excessively self-critical, feels empty and can The Minnesota Multiphasic Personality Inventory-2 experience dissociative states under stress. He or she has (MMPI-2) or the Personality Assessment Inventory (PAI) difficulty maintaining personal goals, values or career has been used in conjunction with structured interviews plans. The person is prone to feeling slighted or insulted designed to assess the DSM-IV-TR, Axis II PD criteria. and has a diminished capacity for empathy. His or her The Millon Clinical Multiaxial Inventory (MCMI), which relationships are intense, unstable and conflicted, and was developed exclusively for the assessment of Person- are marked by mistrust, neediness and fear of abandon- ality Disorders, was frequently used but its sample base ment. The person’s emotions are easily aroused and are pales in comparison to the MMPI-2. No single instrument out of proportion to the situation. He or she is frequently or interview session was sufficient for a reliable assess- angry in response to minor real or perceived slights and ment of the DSM-IV Personality Disorders and that will insults and can react impulsively without regard for the be equally true, at least initially, for assessments of the consequences. The person is usually anxious about inter- DSM-V Personality Disorders. Professional disagreement personal situations and fears both closeness and aban- was and will remain common. donment. These states can lead to depression, pessimism

24 | June 2013 | NYSBA Journal and even thoughts of suicide. As the case has been for all interpersonal capacity for empathy and intimacy. Five Personality Disorders, no reliable evidence demonstrates theoretical personality traits are used to determine where that Borderline PD symptoms significantly change into an individual falls on the PDTS continuum. These broad middle age and beyond. traits are negative affectivity, detachment, antagonism, disinhibition versus compulsivity, and psychoticism. Narcissistic PD The level of severity derived from this new and non- The individual excessively makes reference to esteemed standardized scale will be used to make clinical recom- others implying grandiose self-association. The person mendations, and it will serve as a basis for expert opinion feels entitled, better than others and is condescending. He in legal proceedings. It should be noted that those whose or she constantly seeks the admiration of others yet has severity is greatest are also the ones least likely to benefit impaired empathy, because his or her interest in others is even minimally from treatment.12 limited to whether they are relevant to self. The person’s Whereas it is important, from a construct validity per- relationships are generally superficial and exist primarily spective, to define as accurately as possible, the constructs to serve his or her sense of worth. His or her exaggerated that constitute each Personality Disorder, it is at least as sense of self is easily deflated, leading to indignation, important to have the tools to accurately assess the sever- anger and severe distress. ity of a disorder. As you can see from the description of the PDTS and the Levels of Personality Functioning Scale, Obsessive-Compulsive PD much remains subjective. This scale is influenced by the The individual gains a sense of self from work or pro- perceptions of the person administering the scale; hence, ductivity but has difficulty completing tasks because of there will be professional disagreements and arguments rigid and excessively high standards. He or she is overly about expertise. As an attorney, keep your eye on the ball. conscientious and moralistic with a limited capacity for The ball, in this case, is the subjectivity and malleable empathy. His or her relationships are secondary to work construct validity that is woven into the definition and or productivity, causing ongoing relationship problems. assessment of the Personality Disorders. The person displays a rigid perfectionism and believes The coping strategies of most individuals are diverse that there is only one way to do things. Consequently, and flexible. When one strategy or behavior isn’t work- the person is preoccupied with details, organization and ing, normal persons shift to something else. Personality order. He or she often persists with tasks long after the Disordered people tend to practice the same strategies efforts show results. repeatedly with only minor variations – they are adaptively inflexible. Consequently, their stress level keeps Schizotypal PD rising, creating crisis situations. Because they cannot be The individual has a distorted sense of self with con- flexible, other people and situations must become ever fused boundaries between self and others and emotional more adaptive. However, there are limits to how adap- expression that is not congruent with the context. He tive people can be. When the situation is not arranged to or she has unrealistic or incoherent goals and a limited suit the Personality Disordered person, a crisis ensues. In capacity for empathy, frequently misinterpreting oth- effect, a Personality Disordered person’s life is like a bad ers’ motivations and behaviors. The person is prone to one-act play that repeats over and over again.13 mistrust and suspiciousness about the loyalty of others; When reviewing summaries of the disorders described the consequent related anxiety makes it very difficult to above, most people, including attorneys, self-consciously develop close relationships. The person often behaves notice traits that seem more personally familiar than they bizarrely, saying unusual or inappropriate things, putting would like. Relax – there is a very real difference between forth views that others consider unusual or strange. He or a periodic display of a particular personality trait and she has little emotional reaction and appears indifferent, actually qualifying for a diagnosis of a longstanding Per- with the result that socialization is minimal. sonality Disorder.

Personality Disorder Trait Specified (PDTS) Addiction Therapy Models A diagnosis of PDTS is defined by significant impairment The new Substance Use and Addictive Disorders segment as measured by the Levels of Personality Functioning of the DSM-V makes some changes from the DSM-IV. It Scale and one or more of five pathological personality should be noted that Gambling Disorder, which in the trait domains or facets. DSM-IV was listed under Impulse Control Disorders Not Otherwise Specified, is now included in the Substance The Levels of Personality Functioning Scale Use and Addictive Disorders section of the DSM-V. The This scale replaces the DSM-IV category Personality disorders have been organized as the following Substance Disorder Not Otherwise Specified. On the PDTS, the lev- Induced Disorders: SI Psychotic Disorder; SI Bipolar Dis- els of functioning are based on the assessed severity of order; SI Depressive Disorder; SI Anxiety Disorder; SI OC disturbances in one’s identity or sense of self and in the Disorder; SI Sleep-Wake Disorder; SI Sexual Dysfunction;

NYSBA Journal | June 2013 | 25 SI Delirium; SI Neurocognitive Disorder and according individual is unable to break his or her addiction. Conse- to each addictive substance such as alcohol, caffeine and quently, the argument is that he, she or they, if it’s a class opiates. action suit, cannot be held responsible for the negative The diagnostic criteria for these disorders are described consequences arising from their powerlessness in the in terms of failure to fulfill obligations at work, school or face of their addiction disease. These consequences can home and in situations involving driving or operating include cancer, heart disease, liver disease, indebtedness equipment while intoxicated. Additional criteria include from out-of-control gambling, DUI charges and loss of continued use of a substance in spite of pressures not to; employment. If you are defending clients in this realm, the intake of ever-increasing amounts of the substance to it is important to remember that the disease model is a obtain the desired result; a struggle between an expressed theoretical and, in some circles, an opinion model, rather desire to cut down intake and continued excessive con- than a research-validated model. sumption; increasing time spent on acquiring, using and recovering from intake of the substance; continuing intake despite obvious physical and psychological harm; The research evidence distinct symptoms of distress when intake is suspended for a period of time; and cravings for the substance. does not definitively confirm The DSM-V does not distinguish, as did the DSM-IV, between the concepts of abuse and dependence. Abuse the popular disease model was seen as hazardous behavior and dependence as psy- of addiction. chobiological in nature. The DSM-V committee concluded that current research14 supports the decision to combine abuse and dependence into a single disorder with a grad- Harvard psychologist Gene Heyman21 found in his ing scale for severity. A rating of 2-3 on this scale suggests work that 60% to 80% of young problem drinkers are a moderate problem, whereas a rating of 4 and above sug- no longer problem drinkers by the age of 30, leaving the gests a severe problem. However, these severity measures hard-core users to enter the treatment programs. This are not reliable for short assessment periods such as days, core group with a DSM-V severity score of 4 or above weeks or even a few months. Also, the designated place- also has, according to Heyman, a high incidence of DSM ment on the severity scale is derived from consumption disorders with damaged self-worth, anxiety and depres- self-reports; co-worker, family and friend reports; and sion being the most common. from urine, blood or saliva tests. Only the latter measures The research evidence does not definitively confirm have acceptable validity and reliability. the popular disease model of addiction and it does not It is important to remember that change to the diag- support the related hypothesis that, as a disease, addic- nostic criteria for a disorder does not mean there are tion afflicts all people equally. Sullum22 found that young consequent changes in the treatment outcomes. Diagnosis people who develop addiction problems are not like is about the description of a disorder, whereas treatment those who never develop them and, as Heyman23 report- is about the degree of measurable and lasting change ed, adults whose problems persist for decades manifest achieved by an individual following treatment for the different traits from those who break their pattern of specified disorder. problem substance abuse. According to Marica Ferri and her colleagues,15 in The only generally agreed-upon position about the their review of outcome literature involving eight addic- genetics of drug addiction is that genetics and envi- tion treatment models, with 3,417 men and women, a ronmental factors both play significant roles. The argu- number of addiction therapy models, primarily Alcohol- ments center on the degree of influence each has and ics Anonymous, Narcotics Anonymous and variations the estimates of these influences are wide-ranging. It of the CBT model, have been shown to have efficacy, seems obvious that when ingested, a substance such as but no addiction therapy model has been shown to be alcohol, nicotine or cocaine has a chemical effect on the more effective than any other model. Additionally, recent human brain. What is neither obvious nor confirmed by research16 identifies a significant role of self-efficacy in a research is that used long-term these substances alter the successful outcome, and this role is independent of the decision-making abilities of the users. Again, correlation treatment model. is not causation. Numerous lawsuits have been launched in the past There is no best therapy model for addictions, and few years against tobacco companies17 and by tobac- the success rates across models are not great – but many co companies,18 against gambling organizations19 and individuals do in fact succeed in their quest for freedom against alcohol outlets.20 The most common issue in from their addictions. Therapy however, is an interactive these cases is that of the disease model of addiction. The undertaking. The therapy model must be efficacy-based, case for the plaintiff rests on the premise that addiction is a disease, and this disease is such that the addicted Continued on Page 28

26 | June 2013 | NYSBA Journal

Continued from Page 26 a clear distinction between traumatic events and events but the input of the persons who participate in the thera- that are distressing but do not exceed the traumatic py is at least as important as the therapy model. threshold.25 The DSM-V Criterion A, upon which many future Posttraumatic Stress Disorder legal decisions will be made, is as follows: The changes to the section on Posttraumatic Stress Disor- The person was exposed to one or more of the fol- der are moderate but still significant. Years ago PTSD, or lowing events: death or threatened death, actual or shell shock, was perceived to be an extreme anxiety reac- threatened serious injury, or actual or threatened sexual tion in an often stigmatized minority of active-duty mili- violation, in one or more of the following ways: tary personnel. The DSM-IV diagnostic criteria broad- 1. Experiencing the event or events himself or herself. ened this narrow focus to some degree and the DSM-V 2. Witnessing, in person, the event or events as they further broadens the circumstances wherein a person occurred to others. may suffer identifiable PTSD symptoms. The DSM-V also 3. Learning that the event or events occurred to a close expands and clarifies the nature of some of the key PTSD relative or friend; in such cases, the actual or threat- symptoms. ened death must have been violent or accidental. For these reasons, personal injury attorneys are no 4. Experiencing repeated or extreme exposure to aver- longer the only members of the legal profession who sive details of the event or events, such as in the have a professional interest in PTSD. The nature of the case of first responders collecting body parts; police diagnostic changes is supplemented by the recognition officers repeatedly exposed to details of sexual that the diminished functioning of people suffering from abuse. Such exposure does not include exposure PTSD affects their personal, family and professional lives through electronic media, television, movies, or pic- as well as their ability to participate fully in life generally. tures, unless this exposure is work related.

The diagnosis and treatment of PTSD is an issue that often comes up during the process of determining damages in personal injury law.

Therefore, the DSM-V changes to PTSD will also be of It is evident that, in spite of the considerable efforts interest to attorneys in specialties such as employment that have been made to establish a more valid and reli- law, family law, health law and criminal law. able distinction between that which is traumatic and that The first noticeable change from the DSM-IV categori- which is merely distressing, the perceptions of the person zation of PTSD is the creation of a new DSM-V category directly involved can neither be ignored nor underesti- for PTSD and related disorders such as Acute Stress Dis- mated. order and Adjustment Disorders. In the DSM-IV, PTSD The terms that best illustrate the unavoidable subjec- was listed as one of the Anxiety Disorders. Based on the tive aspect of Criterion A are threatened and serious. A considerable research on PTSD that has been published threat combines circumstances with anticipation. Some- over the past decade, it was determined by the committee times the perception of a threat of death or serious injury responsible for this section of the DSM-V that PTSD and is objective, leaving little room for argument about its other types of traumas warranted a separate category. validity. On other occasions, however, the threat level of a The designations for this section range from G-00 to G-08 potentially traumatizing situation is much more difficult with the designation for PTSD going from 309.81 in the to ascertain. DSM-IV-TR to G-03 in the DSM-V. When a person perceives a threat, he or she does so The aftermaths of 9/11 and Hurricane Katrina gener- in terms of the anticipated outcome rather than in terms ated a significant portion of this new research. Conse- of the actual outcome. It can be difficult for a court to quently, in the DSM-V, PTSD is now found in the category reliably determine, in hindsight, whether an individual’s of Trauma and Stressor-Related Disorders. The American perception that he or she faced a serious threat was a Psychologist, the flagship journal of the American Psycho- misperception of the circumstances, was influenced by logical Association, devoted the September 2011 edition24 pre-existing situations or a pre-existing condition or was exclusively to the lessons learned about PTSD since the a purposeful attempt to deceive. 9/11 disaster. It might seem easier to base a PTSD assessment on In case law involving the DSM-IV-TR criteria for the actual and identifiable outcome of the event itself, PTSD, Criterion A was the source of debate and argument but that hard science approach requires us to ignore the in courts and tribunals because it was difficult to make human capacity for anticipatory creative thought. And, if

28 | June 2013 | NYSBA Journal the event were to be the determining factor in the assess- situations. It can be a factor in employment law when the ment of PTSD, to be a valid approach, all the people issue of short- and long-term disability is in question; it involved would have to have perceived the event in the can also be a factor in family law as a contributor to fam- same way. ily breakdown. In its general statement and third item, Criterion A We are often more familiar with the diagnosis and states that the “actual or threatened death” must have treatment of the physical injuries suffered by our clients been violent or accidental, with the exception of a sexual in motor vehicle accidents, personal assaults or other violation. If you have clients with children or other loved injury-causing events than we are with the diagnosis ones who have faced death from clearly life-threatening and treatment of PTSD. The primary difficulty in PTSD situations such as a heart attack, untreatable cancer or a assessment and prognosis resides in the fear-laden, sub- potentially deadly anaphylactic reaction, you may want jective images that flood the individual’s mind during to explore the boundaries of the term accidental and you and after a potentially traumatizing event. The victim may want to cite the exception made for sexual viola- does not know the outcome before the event is complete. tions. Marshall and colleagues in their 2010 papers,26 as He or she anticipates the nature of the potential harm to well as Robinson and Larson in their 2010 paper,27 point self or others during the event and then, following the to a number of PTSD definition and diagnostic challenges event, the victim often imagines the worst that could similar to those identified here. have happened. Item four of Criterion A represents a significant The symptoms of PTSD are well documented; but change from the DSM-IV-TR, because it recognizes that the severity and duration of these symptoms vary from first responders such as police, firefighters and ambu- person to person because of their subjective reactions; lance attendants are at risk from the cumulative effects therefore, each case must be carefully assessed. Law- of exposure to very distressing situations. Item four con- yers, psychologists and family physicians are familiar tains the caveat that exposure that is not work-related, with the symptom cluster that constitutes PTSD and we that comes via television, movies or other electronic understand that an accurate determination of whether means, is not sufficient to cause PTSD. But, as clarified in a client suffers from PTSD cannot be made on the basis item four of Criterion A, if a person is already suffering of the event alone. People react differently to potentially from PTSD, electronic exposure can create cues that can traumatizing events. In fact, many individuals who are significantly amplify a person’s PTSD symptoms. exposed to trauma do not develop PTSD. In a meta-study Though change is increasingly evident, acknowledge- of 77 studies on PTSD,28 Brewin found that the prob- ment of and seeking treatment for PTSD still carries a ability of an individual developing PTSD was increased whiff of alleged malingering for the military and first slightly by a previous psychiatric history and by various responders. Such clients will still face resistance from forms of prior adverse experience. The most influential third parties; but instead of the often-denied appeal to predictive variables that Brewin identified were concur- reason when the DSM-IV was in use, their case is sup- rent life stresses, the degree of family and social support ported by the DSM-V, Criterion A, item four. and the nature of the trauma. As might be expected, The majority of PTSD-related cases involve workers’ combat was the most likely situation to result in PTSD for compensation claims and personal injury claims that some, but not all, participants. involve insurance companies. There can be little doubt Individual circumstances clearly play a role in PTSD that insurance companies have a vested interest in the onset. In their 2009 paper,29 Andrews and colleagues establishment of a limited criterion for PTSD. It must be found that immediate-onset and delayed-onset PTSD noted, however, that the PTSD symptoms identified and were similar in the number and type of symptoms report- described in the DSM-V are symptoms actually experi- ed at onset, but the delayed-onset group differed in show- enced and expressed by large samples of real people who, ing a gradual accumulation of symptoms that were quite as their symptom clusters confirm, suffer from PTSD. persistent. Those with delayed onset had greater stress The causes of PTSD, however, are deemed. These causes sensitivity and were less able to adapt to continued expo- certainly rest on theoretical and practical grounds but as sure to stress than immediate-onset subjects. Exposure is the case with third-party coverage for addiction treat- to continuous stress may well be part of the individual’s ments, they also rest on economic grounds. type of work. People in the military, police force or fire department are more likely than most to be exposed to The PTSD Context continuous stress. In other careers, such as the practice The diagnosis and treatment of PTSD is an issue that of litigation law, there isn’t a comparable threat of physi- often comes up during the process of determining dam- cal harm but there certainly is a continuous exposure to ages in personal injury law. However, PTSD is also an stress. In a related study,30 Olatunji and Wolitzky-Taylor issue in criminal cases such as assault, home invasion reported in their meta-analysis that elevated anxiety and other violent events. Increasingly it is being sug- sensitivity was associated with panic disorder and with gested that PTSD can arise from life-threatening health PTSD. In the same vein, Pineles and colleagues31 reported

NYSBA Journal | June 2013 | 29 in 2011 that people who are highly reliant on avoidance as Criterion B. Intrusion symptoms that are associated a coping tool are also highly reactive to trauma remind- with the traumatic event(s) and that began after the trau- ers, and therefore, are at the greatest risk for prolonging matic event(s) that are evidenced by one or more of the or even elevating their PTSD symptoms. following: The victim’s subjectivity is the floating variable that 1. Spontaneous or cued recurrent, involuntary and complicates the diagnosis and treatment of PTSD. Insur- intrusive distressing memories of the traumatic ance companies want to avoid excessive payouts for event(s). In children the traumatic themes may be overly zealous PTSD assessments and pessimistic treat- expressed in repetitive play. ment prognosis. Consequently, lawyers often need to 2. Recurrent distressing dreams in which the con- warn their clients against an understandable but unwise tent and/or the affect of the dream is related to self-declaration of a full recovery. Accident and assault the event(s). In children there may be frightening victims sometimes minimize their symptoms because dreams without recognizable content. they want to get back to normal life as quickly as possible. 3. Dissociative reactions or flashbacks in which the They often find, however, that denial simply prolongs individual feels or acts as if the traumatic event(s) the problem and a year or two later they are no longer were recurring. able to function effectively. Recent research shows that 4. Intense or prolonged psychological distress at expo- approximately 20% of PTSD sufferers never fully recover sure to internal or external cues that symbolize or from their symptoms.32 resemble an aspect of the traumatic event(s). 5. Marked physiological reactions to reminders of the PTSD Symptom Criteria: DSM-V traumatic event(s). The conditions that must be present for a DSM-V diag- You may notice that the descriptions of Criterion nosis of PTSD are as follows. Criterion A was discussed B generally narrow the range of reactive symptoms to previously, but it bears repeating so the PTSD Symptom the specific traumatic event(s). This is understandable Criteria are listed in one place. and could be seen as insurance company friendly as it Criterion A. The person was exposed to one or more of selectively minimizes the human capacity for metaphoric the following events: death or threatened death, actual or creative thought. threatened serious injury, or actual or threatened sexual When you are representing a client who sincerely violation, in one or more of the following ways: claims to suffer from PTSD, you may want to explore 1. Experiencing the event or events himself or herself. the Criterion B terms: associated, affect, related, psycho- 2. Witnessing, in person, the event or events as they logical distress and internal cues. These terms suggest occurred to others. potential ambiguity and flexibility. This is not a flaw in 3. Learning that the event or events occurred to a close the DSM-V; quite the contrary, it is a controlled nod to the relative or friend; in such cases, the actual or threat- subjectivity of the persons being assessed. ened death must have been violent or accidental. Criterion C. Persistent avoidance of stimuli associated 4. Experiencing repeated or extreme exposure to aver- with the traumatic event(s), evidenced by efforts to avoid sive details of the event or events, such as in the one or more of the following: case of first responders collecting body parts; police 1. Avoids internal reminders (thoughts, feelings, officers repeatedly exposed to details of sexual physical sensations) that arouse recollections of the abuse. Such exposure does not include exposure traumatic event(s). through electronic media, television, movies, or pic- 2. Avoids external reminders (people, places, conversa- tures, unless this exposure is work related. tions, activities, objects, situations) that arouse recol- As was pointed out earlier, this deemed causal crite- lections of the traumatic event(s). rion does not acknowledge the potential for PTSD when It is evident that the avoidance identified in Criterion the exposure to death or threatened death was health C is based on anticipation and perception. As you will related. The New York Times reported on a Columbia learn from your clients, some of their reminders will be University Medical Center study showing that 2,383 of objective and easily identified while others will be unique their patients reported PTSD symptoms after suffering a to the individual. heart attack.33 The patients reported that subjective fear Criterion D. Negative alterations in cognitions and of death rather than the severity of the attack was the mood that are associated with the traumatic event(s) that primary contributor to their symptoms. If you have a began or worsened after the event(s), as evidenced by client with a health problem that was life-threatening to three or more of the following: self or a loved one, and your client meets the symptom 1. Inability to remember an important aspect of the criterion for PTSD but not the causal criterion, you may traumatic event(s) not due to head injury, alcohol or want to point out that Criterion A consists of deemed drugs. items whereas the symptom criteria consists of experi- 2. Persistent and exaggerated negative expectations of enced items. the future for one’s self, others or the world.

30 | June 2013 | NYSBA Journal 3. Persistent distorted blame of self or others about the cult, with or without professional help, to set that knowl- cause or consequences of the traumatic event(s). edge aside and return to a healthy level of comfort. Also, 4. Pervasive negative and helpless emotional state. your client’s symptoms, as described in Criterion D, will 5. Markedly diminished interest or participation in quite probably include depression, which will require significant activities. treatment. If so, the efficacy of treatment for depression, 6. Feelings of detachment or estrangement from oth- including cognitive behavioral treatment, either in short- ers. term or long-term effectiveness, will not be the same for 7. Persistent inability to experience positive emotions. each person with depression. Anything that is negative and chronic can become Additionally, recent research36 has shown that drugs depressing.34 Criterion D outlines the pessimism and the that have been widely used to treat severe PTSD symp- feelings of being at risk in the world described by the toms in veterans are no more effective than placebos and, author in his earlier papers on PTSD.35 We all want to in many cases, have serious side effects. On the other Recent research has shown that drugs that have been widely used to treat severe PTSD symptoms in veterans are no more effective than placebos. feel safe in the world and to do so we maintain a healthy hand, a study by de Roon-Cassini and colleagues37 shows myth that we can always take care of ourselves and our that most of their 330 PTSD subjects showed considerable loved ones. Then an event occurs that irrefutably demon- resilience. Effective coping skills, healthy self-efficacy, strates that our safety is a myth. higher education and severity of the PTSD and related Victims of a motor vehicle accident, an assault and depression were the key predictors of recovery. other trauma-inducing situations often comment on their The point is, no one can tell ahead of time whether realization of how quickly life can change. Healthy denial your PTSD clients will recover quickly, eventually or not makes it possible for most people to live with a sense of at all. Therefore, when seeking damages, consider the general safety, personal control and an expectation of a extent of assistance that your clients may need rather predictable future. When this imagined reality is shaken than accepting an arbitrary number. by a serious accident, an assault, or life-threatening Criterion E. Alterations in arousal and reactivity asso- health issue, victims are faced with a new reality that ciated with the traumatic event(s) as evidenced by three makes it difficult for them to sustain their day-to-day faith or more in adults, or two or more in children, of the fol- that all is well. They often feel vulnerable to real and imag- lowing: ined threats that seem much more evident following their 1. Irritable or aggressive behavior. traumatizing experience than prior to that experience. 2. Reckless or self-destructive behavior. When they are told by well-meaning professionals, caring 3. Hyper vigilance. friends and concerned family members that there is a low 4. Exaggerated startle response. statistical probability that they will suffer additional harm, 5. Problems with concentration. they are not convinced. Experience trumps statistics. 6. Sleep disturbances. These individuals feel that they have looked into the The concentration difficulties experienced by some abyss, and they now appreciate the precariousness of PTSD sufferers can be quite severe and unsettling. The our existence. Some seek security by avoiding situations avoidance and emotional distancing identified in Cri- they perceive to be threatening. Their quest for security terion C reduces capacity for absorption of details, diminishes their quality of life and, for some, results in which contributes to the person’s difficulty concentrat- a near reclusive lifestyle. In cases where PTSD co-exists ing. Too much stimuli, such as in business meetings, with chronic pain or mobility-limiting physical injuries, home dynamics, social events or other multifaceted situ- the pain and/or injuries are a constant reminder of the ations can overload the person’s diminished capacity to trauma-inducing event and can make recovery from the concentrate and can bring on a panic attack. PTSD more daunting. The combination of physical and Criterion F states that a person’s PTSD symptoms emotional injuries can reinforce the victim’s uncertainty must persist for more than one month, while Criterion G about the nature of his or her future. states that they must cause impairment in social or occu- When considering damages for your PTSD clients, pational functioning. If the symptoms remain evident keep in mind that it can often take considerable time and for fewer than four weeks, a diagnosis of Acute Stress effort for your client to restore a sense of safety in the Disorder (G-04) is likely appropriate. If the stressor is world. Because of the traumatizing event or events, your not sufficiently extreme to warrant a PTSD diagnosis, an client knows that safety is a myth, and it can be very diffi-

NYSBA Journal | June 2013 | 31 initial diagnosis of Adjustment Disorder (G-06) may be with a psychological disorder prior to the traumatizing appropriate. event. Cause and effect can be difficult to determine. As mentioned in Criterion D, some of those who suffer Brewin43 and colleagues found in their meta-analysis from PTSD also experience survivor guilt or guilt arising of 77 studies of PTSD that the likelihood of developing from their belief that other people have more worthy rea- PTSD was somewhat increased by a previous psychiatric sons for suffering from PTSD than they do. Many of these history and other adverse experiences. Perkonigg44 found individuals have a long-standing sense of personal initia- that panic disorder, depression and substance abuse are tive coupled with a strong work ethic, and they are prone most likely to emerge after the onset of PTSD. to a counterproductive insistence that they can return to People with PTSD often report a sense that their life work when, in fact, they are not yet ready to do so. Their is divided between life before the event and life after the inability to carry out their responsibilities soon becomes event. Some feel depressed when they compare the qual- evident; and, in some work situations, it also is evident ity of life that they had before the event with the dimin- that these individuals create a safety risk to themselves ished quality of life that they now have and the quality of and others. life they imagine for themselves in the foreseeable future. Another factor, most prevalent among male victims, is PTSD victims often have the sense that they are no the denial of psychological symptoms. These individuals longer in control of their own life. Some feel unfairly declare that they are emotionally fine and then attempt to accused of malingering and many feel distressed at the function as if their declaration of wellness actually makes impersonal, policy-bound, plodding pace of the bureau- them well. They subsequently grow more emotion- cracies that now control so much of their lives. Their time ally distant from their family and friends, have difficulty is governed by appointments with health professionals, sleeping, become irritable and are prone to aggressive lawyers and rehabilitation providers. They feel that they are expected to wait by the phone for the next directive. They cannot plan ahead with confidence because they have very little control over their schedule. This loss of People with PTSD control would be difficult for most people but it is par- often suffer from other, ticularly difficult for someone with a diminished ability to concentrate, high anxiety, chronic irritability, sleep- comorbid disorders. deprived fatigue and other PTSD symptoms.

Diagnostic Methods outbursts. They may also begin to abuse alcohol or other The presence or absence of PTSD and the severity of chemicals. They often report, when they do seek help, the disorder, if it is present, are derived by gathering that they did not want to appear weak and vulnerable; information about an individual’s symptoms, family some acknowledge that they were ashamed of having history, social context, beliefs, strengths, vulnerabilities, PTSD symptoms.38 immediate support system and his or her coping tools. It is extremely difficult to predict individual vulner- The experienced interviewer invites situation and symp- ability to PTSD. A study by Breslau and Anthony39 found tom descriptions from the client rather than providing that women who have been assaulted are sensitized to a checklist of PTSD symptoms from the DSM-V for the the PTSD effects of subsequent traumatic events of lesser client to consider. If there is evidence that the client lost magnitude. Bonanno and colleagues40 reported that pre- consciousness at the time of the accident or assault, a dicting who will and who won’t suffer PTSD following a physician, rather than a psychologist, should check for potentially traumatizing event is very difficult because a Mild Traumatic Brain Injury (MTBI). number of factors, including the creative imaginations of The National Stressful Events Survey PTSD Short the persons involved, come into play. Bryant and Guth- Scale (NSESSS) has been developed to help assess the rie41 added that an individual’s pre-trauma self-appraisal severity of an individual’s stress following a poten- and self-efficacy are significant predictors of PTSD onset, tially traumatizing experience. Nine questions, based on severity and recovery. DSM-V criterion, are asked. In answer to the questions, the individual is asked to mark one of five categories that Comorbidity best describes his or her thoughts, feelings and post-event People with PTSD often suffer from other, comorbid dis- experiences: not at all; a little bit; moderately; quite a bit; orders. Kessler and colleagues,42 in their study of 5,877 extremely. individuals with PTSD, found that nearly 50% had addi- Whereas the words used in this survey do avoid tional diagnoses, most commonly depression and sub- obvious DSM-V terminology, the NSESSS, like similar stance abuse. The task, then, is to determine the primacy surveys, is still a self-report document with no reliable of diagnosis. Comorbid disorders often develop subse- means of assessing inadvertent or purposefully mislead- quent to PTSD but some individuals were diagnosed ing responses.

32 | June 2013 | NYSBA Journal A diagnosis based on a review of the available medi- The September 2011 special issue of the American cal and police reports, plus a detailed interview by a Psychologist reports on the lessons learned about treat- psychologist or psychiatrist, is the most common format ing PTSD since the 9/11 attacks. The lesson is to focus used to assess potential psychological damage to an indi- on the needs of the person with PTSD and less on the vidual following a motor vehicle accident or an assault. enthusiasm and theoretical perspectives of the provid- However, clinical assessments of this type are sometimes ers. Individuals progress at the rate that their resources challenged because, with or without the NSESSS, they and anxiety will permit. People are unique beings, and rely heavily on self-reports and the interpretive expertise therapy models need to be adapted to the individuals of the person doing the assessment. Most people provide rather than the other way around. honest, though subjective, self-reports of their post-event symptoms, but some provide descriptions that are inten- Prognosis tionally inaccurate. Psychologists and psychiatrists, like The prognosis for recovery is of concern, for different all other people, perform no better than chance when reasons, to the person suffering from PTSD, to his or it comes to assessing the intent and truthfulness of self- her insurance company, to the person’s employer, to the reports.45 Therefore, the reliability of these assessments individual’s family, and to the lawyers representing the can be greatly enhanced by adding the MMPI-2 to the PTSD sufferer. Understandably, everyone wants to know assessment process. This is the most valid and reliable if this person will fully recover and, if so, when. measure of the mental disorders, and the F scale on the A prognosis for recovery from PTSD is a statement of MMPI-2 is a very reliable measure of exaggerated or probability. When all of the diagnostic variables and the feigned responses. literature on outcome patterns have been considered, the attending psychologist or psychiatrist can provide a PTSD Treatments probable date of recovery with a clearly stated provision Considerable research has been conducted in recent that, as that date approaches, the actual rate of recovery years on the most effective treatment models for will be assessed. If it is determined, in consultation with PTSD. It clearly shows that quick fixes for PTSD have the recovering individual, that he or she is ready to failed to gain support from the evidence. Variations return to work, arrangements can be made to facilitate of cognitive behavioral therapy have repeatedly been the return in the manner that best meets the needs of the found to be the most effective treatments for PTSD. In employee and the employer. If, however, it is evident their 2009 meta-analysis, Stewart and Chambles46 found to the attending psychologist or psychiatrist that the that CBT, which includes identification and alteration PTSD sufferer has not recovered sufficiently, a second of problematic thought processes, including selective probability-based prognosis is necessary. If this occurs attending, meaning attribution, negative future expecta- and second opinions are sought, the standardized mea- tions and the related emotions and behaviors, is effective sure provided by the MMPI-2 in the original assessment for treating anxieties in the real world clinical setting. will become invaluable. The CBT model for treatment of PTSD consists of PTSD is discussed extensively in this article because exposure, reframing of problematic conclusions and it is now more fully recognized that PTSD is not a rare anxiety containment. When a trusting client-therapist disorder and it is not a disorder that exclusively impacts relationship has been established, the client is invited, the life of the immediate victim. The victim’s irritable or at a pace he or she can tolerate, to talk about the details aggressive behavior can erode the quality and nature of of the trauma. Research such as that by Moore and his or her work and family relationships which, in turn, Krakow47 has confirmed that a positive outcome is can often involve family, employment and criminal attor- related to the client’s absorption in these details, and neys. Untreated or undertreated PTSD can also contrib- the client’s absorption can be enhanced through the ute, through a reduced capacity for concentration and/ use of focused imagery. This exposure to the details of or greater recklessness, to an increase in risk factors and the trauma initially amplifies the client’s anxiety but, consequent liability issues in a variety of settings. subsequently, the therapy becomes a shifting but focused activity wherein the therapist gently pushes the client The Somatic Symptom Disorders into the details, listens for problematic trauma-induced No section of the DSM-V better illustrates that psychol- conclusions and backs off when the client’s anxiety ogy is a soft science than does Somatic Symptom Disor- becomes too intense. The therapist teaches the client to ders (SSDs). This newly named section melds the DSM-IV use anxiety-containment skills. The goal is to help the categories Somatoform Disorders, Hypochondriasis, client regain the ability to confidently function in life. As Undifferentiated Somatoform Disorder and Pain Disor- Criterion C in the DSM-V implies, the pace of the ther- der into the single SSD category. Fundamentally, SSD apy is primarily determined by the severity of a client’s concerns the body-mind issues of psychological factors PTSD and his or her psychological resilience. influencing medical conditions.

NYSBA Journal | June 2013 | 33 The somatoform disorders are described in the DSM-V ferentiating honest responses from malingering or down- as follows: right deception. 1. Somatic Symptom Disorder – J 00: The person Because SSDs are fundamentally distresses and anxi- has, typically for six months or more, one or more eties about real, imagined or anticipated medical condi- somatic symptoms that are distressing and create tions, it is the frontline physician who often makes the a significant disruption in daily living. The person initial diagnosis and a subjective assessment of the sever- has time-consuming excessive thoughts, feelings ity of the disorder. Even when a formal MMPI-2 psy- and behaviors related to these health concerns; he chological assessment is conducted, there is a very real or she is persistently concerned about the perceived possibility that the person undergoing the assessment seriousness of these symptoms. The severity of the will answer the questions honestly, but his or her anxiety- disorder is subjectively determined by the treating fuelled responses will suggest malingering, which of physician. course, can sometimes be viewed as a euphemism for 2. Illness Anxiety Disorder – J 01: The person has, for purposeful deception. at least six months, no symptoms but has high and Again, nobody, expert or novice, in spite of confidence easily activated anxiety arising from his or her pre- in his or her detection skills, performs significantly better occupation with having or getting a serious illness. than chance when it comes to determining if a person

Psychology and psychiatry are more soft science than hard science, so there are few if any absolutes.

One type seeks continuous checkups while the other is telling the truth.48 The most common error involved avoids medical care because it is anxiety evoking. in our efforts to assess truth is the principle of meaning The preoccupations are not better accounted for by attribution. Human beings fill in gaps of uncertainty another DSM Disorder. with attributed meaning and do so with surprising con- 3. Conversion Disorder (Functional Neurological Dis- fidence. We have all met people who say, “I read people order) – J 02: The individual has one or more neu- really well” or “I’m really intuitive” or “I’m a really good rological symptoms such as altered motor, sensory, judge of character,” and they seem to have complete faith cognitive or seizure-like experiences with or without in these self-appraisals. Kahneman and Klein49 found impairment of consciousness. After an assessment it that people who make decisions based on their self- is determined that these symptoms are not due to a determined elevated intuitiveness are wrong more often medical condition and they are not congruent with a than chance because they make two fundamental errors: recognized neurological disorder. The person expe- (1) their assumption that they are extraordinarily intui- riences anxiety and impairment of his or her social tive and (2) their tendency to prematurely trust their bias and occupational life. rather than considering all the available evidence. 4. Psychological Factors Affecting a Medical Condition Attorneys are aware of the realities of deception detec- – J 03: The person does have a medical condition tion, while many members of the general public, from but his or her psychological and behavioral factors which comes our juries, are not. Keep in mind that, when adversely affect the course of the medical condition. representing clients, it may be helpful bring this research Generally, these psychological factors worsen the to the jury’s awareness. medical condition and interfere with its treatment. Personal injury lawyers and insurance carriers are 5. Factitious Disorder – J 04: The person falsifies physi- concerned about the possibility of malingering in claims cal or psychological symptoms and presents himself that include PTSD. In cases involving SSD, employment or herself as ill, impaired or injured. The decep- lawyers, health lawyers and to a lesser degree personal tion is maintained even in the absence of obvious injury lawyers and insurance carriers in the health ben- reward; is not better explained by another DSM-V efits field are most concerned. Disorder. The most common issues are how the honesty or dis- 6. Somatic Symptom Disorder Not Elsewhere Classi- honesty of your client is to be determined and whether fied – J 05: The person struggles with Pseudocyesis your client’s health problem is primarily one of anxiety or what is commonly known as false pregnancy. and secondarily one of physical illness or the other way What has not significantly changed in this DSM-V around. From the insurance companies’ perspective this realignment is the unreliability of assessments, the deter- issue could be expressed as: “Does this person have a mination of disorder severity and the difficulty in dif- medical problem that we are contractually obligated to

34 | June 2013 | NYSBA Journal cover or, does this person have SSD which we may or ask for clarification of the type of evidence that supports may not be contractually obligated to cover?” the psychology or psychiatry evidence being proposed. The somatic disorders are difficult to reliably assess The DSM-V is a valuable and necessary document but and, because of their chronic nature, many insurance when its contents become a potentially influential factor in companies employ special investigators. Sometimes, your cases, its limitations need to be identified and, when however, claims assessors function from the bias that necessary, respectfully but rigorously challenged. n anyone who has been diagnosed with one of the somatic disorders is probably malingering. The book Clinical 1. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Assessment of Malingering and Deception by Richard Rog- 2. G. J. Cochrane, Psychology and the Law: Understanding and Presenting Your Clients, N.Y. St. B.J. (Nov.-Dec. 2010), p. 10. ers, now in its third edition, has often been given greater 3. Benedict Carey, Profiles in Science: Michael S. Gazzaniga, Decoding the credibility than is warranted. With the exception of Brain’s Cacophony, N.Y. Times, Oct. 31, 2011. standardized measures such as the MMPI-2, most of the 4. Gina Kolata, Bits of Mystery DNA, Far From “Junk,” Play Crucial Role, N.Y. assessment techniques do not have validity derived from Times, Sept. 5, 2012. a standardized base. 5. Daphne Merkin, Is Depression Inherited?, N.Y. Times, July 28, 2012 (dis- One or more of your clients may have been caught up cussing the work of Dr. Robert Klitzman of Columbia University and Dr. Andres San Martin). in this net of alleged malingering. Unless direct and veri- 6. A.A. Goldsmith, et al., Drinking Refusal Self Efficacy and Tension-Reduction fiable evidence of malingering on the part of your client Alcohol Expectancies Moderating the Relationship Between Generalized Anxiety is brought to light, you should stand and fight on behalf and Drinking Behaviors in Young Adult Drinkers, Psychol. Addictive Behaviors, of your client. This is a subjective realm but its subjective 2012, 26, 1, 59–67. nature does not mean that your client is faking his or her 7. J.R. Vittengl, et al., Reducing Relapse and Recurrence in Unipolar Depres- sion: A Comparative Meta-Analysis of Cognitive Behavioural Therapy’s Effects, J. 50 symptoms. Consulting & Clinical Psychol., Vol. 75, No. 3, 475–88 (2007); M.T. Sammons, R. Newman, Effects of an Uncertain Literature on All Facets of Clinical Decision- Conclusions Making, Am. Psychologist (2010), Vol. 65, No. 2, 137–38. Other changes have been made in a number of DSM-V 8. R.E. Stewart; D.L. Chambless, Cognitive-Behavioural Therapy for Adult Anxiety Disorders in Clinical Practice: A Meta-Analysis of Effectiveness Studies, J. Disorders. For example, the Major Depressive Disorders Consulting & Clinical Psychol. (2009), 77, 4, 595–606. have undergone some minor changes including the 9. R.C. Kessler, et al., Post-Traumatic Stress Disorder in the National Comorbid- exclusion of normal bereavement from the symptom list; ity Survey, Archives Gen. Psychiatry (1995), 52, 1048–60; L. Morgan, J. Scourf- Mixed Anxiety/Depression has, as it was in the DSM-IV, ield, D. Williams, A. Jasper & G. Lewis, The Aberfan Disaster: 33-Year Follow-Up of Survivors, British J. Psychiatry (2003), 182, 532–36. been relegated to the Appendix (Section 111) for further 10. T. A. Widiger, A Shaky Future for Personality Disorders, Personality Disor- study; and the Neurodevelopmental Disorders, formerly ders: Theory, Res. & Treatment, Vol. 2, 1, 54–67 (2011). listed in the DSM-IV as Disorders Usually Diagnosed 11. Id.; J.L. Skeem, D.J. Cooke, Is Criminal Behaviour a Central Component of in Infancy, Childhood or Adolescence, have undergone Psychopathy? Conceptual Directions for Resolving the Debate, Psychol. Assess- reorganization. Whereas all the changes in the DSM-V ments (2010) Vol. 22, 2, 433–45; J.L. Skeem, D.J. Cooke, One Measure Does Not a Construct Make: Directions Toward Reinvigorating Psychopathy Research – Reply could at some time play a role in the legal context, the to Hare and Neumann, Psychol. Assessments (2010), Vol. 22, 2, 455–59; A. E. scope of this article limits coverage to those changes that Skodol, D.S. Bender, The Future of Personality Disorders in the DSM-V, Am. J. tend to be relevant to the legal system. Psychiatry, 166, 388–91. 12. M.E. Olver, K.C. Stockdale, J.S. Wormith, A Meta-analysis of Predictions of The primary intent of this article, however, has been to Offender Treatment Attrition and Its Relationship to Recidivism, J. Consulting & point out the human element in the psychology research Clinical Psychol. (2011), Vol. 79, 1, 6–21. supporting the changes in the DSM-V. The fact that 13. Personality Disorders in Modern Life (T. Millon, S. Grossman, C. Millon, human beings are creative, active, information-process- S. Meagher & R. Ramnath, eds. 2d ed. 2004 John Wiley & Sons, Inc.). ing beings and, as such, we often confuse perception with 14. American Psychiatric Association, Diagnostic Manual of Mental Disor- verified or verifiable reality, is a pervasive variable that ders (DSM-V), Proposed Revision (May, 2013). greatly influences research in psychology. Consequently, 15. Marica Ferri, et al., Alcoholics Anonymous and Other 12-Step Programmes for Alcohol Dependence, The Cochrane Library, July 2006. attorneys will best serve their clients when they view the 16. R. Van Zundert, et al., Dynamic Effects of Self-Efficacy on Smoking Lapses DSM-V disorders and their symptom clusters through a and Relapse Among Adolescents, Health Psychol. (2010), Vol. 29, 3, 246–54. lens of respectful skepticism. Psychology and psychia- 17. Tatum v. R.J. Reynolds Tobacco Co., 392 F.3d 636 (4th Cir. 2004). try are more soft science than hard science, so there are 18. Philip Morris, Inc., et al. v. Thomas F. Reilly, Attorney General of Mass., 312 few if any absolutes. Whereas much in psychology and F.3d 24 (1st Cir. 2002). psychiatry is acceptably validated by research, much is 19. Tatum, 392 F.3d 636. theory based and much is opinion based. Therefore, insist 20. Philip Morris, Inc., et al., 312 F.3d 24. on the use of everyday English to explain psychological 21. G. Heyman, Addiction: A Disorder of Choice (Harvard Univ. Press 2009). terminology that may not rest on the solid research- 22. J. Sullum, Saying Yes: In Defense of Drug Use (Tarcher/Putnam 2003). validated foundation that the specialized terms imply. It 23. G. Heyman, Addiction: A Disorder of Choice. is appropriate, and usually beneficial to your client, that, 24. American Psychologist (Sept. 2011). Special edition. when reviewing a medical-legal report, in interacting 25. Lawson v. Le, 2008. ABQB 275; 24. WCAT – 2010 – 01206; Richard v. Canada with opposing counsel or during cross-examination, you Revenue Agency, 568-34-4. PSLRB 180, 2005.

NYSBA Journal | June 2013 | 35 26. G.N. Marshall, T.L. Schell, J.N.V. Miles, All PTSD Symptoms Are Highly 39. N. Breslau, J. C. Anthony, Gender Differences in the Sensitivity to Posttrau- Associated With General Distress: Ramifications for the Dysphoria Symptom Clus- matic Stress Disorder: An Epidemiological Study of Urban Young Adults, J. Abnor- ter, J. Abnormal Psychol. (2010), Vol. 119, No. 1, 126-35; G.N. Marshall, J.N.V. mal Psychol. (2007), Vol. 116, 3, 607–611. Miles, S.H. Stewart, Anxiety Sensitivity and PTSD Symptom Severity Are Recip- 40. G.A. Bonanno, Loss, Trauma, and Human Resilience: Have We Underestimat- rocally Related: Evidence From a Longitudinal Study of Physical Trauma Survivors, ed the Human Capacity to Thrive After Extremely Aversive Events? Am. Psycholo- J. Abnormal Psychol. (2010), Vol. 119, No. 1, 143–50. gist (2004), Vol. 59, 1, 20–28. 27. J.S. Robinson, C. Larson, Are Traumatic Events Necessary to Elicit Symptoms 41. R.A. Bryant, R.M. Gutherie, Maladaptive Self Appraisals Before Trauma of Posttraumatic Stress? Psychol. Trauma (2010), Vol. 2, 2, 71–76. Exposure Predict Posttraumatic Stress Disorder, J. Consulting & Clinical Psychol. 28. C.R. Brewin, B. Andrews & J.D. Valentine, Meta-analysis of Risk Factors for (2007), Vol. 75, 5, 812–15. Posttraumatic Stress Disorder in Trauma-Exposed Adults, J. Consulting & Clinical 42. R.C. Kessler, et al., Posttraumatic Stress Disorder in the National Comorbidity Psychol. (2000), 68, 748–66. Survey, Archives Gen. Psychiatry (1995), 52, 1048–60. 29. B. Andrews, et al., Comparison of Immediate-Onset and Delayed-Onset Post- 43. C.R. Brewin, A Cognitive Neuroscience Account of Posttraumatic Stress Disor- traumatic Stress Disorder in Military Veterans, J. Abnormal Psychol. (2009), 118, der and Its Treatment, Behavior Res. & Therapy (2001), 39(4), 373–93. 4, 767–77. 44. A. Perkonigg, et al., Traumatic Events and Post-Traumatic Stress Disorder in 30. B.O. Olatunji, K.B. Wolitzky-Taylor, Anxiety Sensitivity and the Anxiety the Community: Prevalence, Risk Factors and Comorbidity, Acta Psychiatr. Scand. Disorders: A Meta-analytic Review and Synthesis, Psychol. Bulletin (2009), 135, 6, (2000), 101(1), 46–59. 974–99. 45. T.M. Achenbach, et al., Assessment of Adult Psychopathology: Meta-Analyses 31. S.L. Pineles, et al., Trauma Reactivity, Avoidant Coping and PTSD Symptoms: and Implications of Cross-Informant Correlations, Psychol. Bull. (2005), Vol. 31, A Moderating Relationship?, J. Abnormal Psychol. (2011), Vol. 120, 1, 240–46. No 3, 87–94. 32. L. Morgan, et al., The Aberfan Disaster: 33-Year Follow-Up of Survivors, Brit- 46. R.E. Stewart, D.L. Chambless, Cognitive-Behavioral Therapy for Adult ish J. Psychiatry (2003), 182, 532–36. Anxiety Disorders in Clinical Practice: A Meta-Analysis of Effectiveness Studies, J. 33. Tara Parker-Pope, Heart Attack Survivors May Develop P.T.S.D., N.Y. Times, Consult. & Clin. Psychol. (2009), 77, 4, 595–606. June 20, 2012. 47. B.A. Moore, B. Krakow, Imagery Rehearsal Therapy: An Emerging Treatment 34. A.A. Uliaszek, et al., A Longitudinal Examination of Stress Generation in for Posttraumatic Nightmares in Veterans, Psychol. Trauma: Theory, Res., Pract. Depressive and Anxiety Disorders, J. Abnormal Psychol. (2012), Vol. 121, 1, 4–15. & Pol’y (2010), Vol. 2, 3, 232–38. 35. G. J. Cochrane, Psychology and the Law: Understanding and Presenting Your 48. K.L. Nysse-Carris, B.L. Bottoms, J.M. Salerno, Experts’ and Novices’ Abili- Clients, N.Y. St. B.J. (Nov.-Dec. 2010), p. 10. ties to Detect Children’s High Stakes Lies of Omission, Psychol., Pub. Pol’y & L. (2011), Vol. 17, 1, 76–98. 36. J.H. Krystal, et al., Adjunctive Risperidone Treatment for Antidepressant- Resistant Symptoms of Chronic Military Service-Related PTSD: A Randomized 49. D. Kahneman, G. Klein, Conditions for Intuitive Expertise: A Failure to Dis- Trial, J. Am. Med. Ass’n (2011), 306(5): 493–502. agree, Am. Psychol. (2009), 64, 6, 515–26. 37. T.A. de Roon-Cassini, A.D. Mancini, M.D. Rusch, Psychopathology and 50. For more on the research and case law illustrations demonstrating the Resilience Following Traumatic Injury: A Latent Growth Mixture Model Analysis, serious limitations of deception detection and the related theme, the fallacy Rehabilitation Psychol. (2010), Vol. 55, No. 1, 1-11. of reliable unsubstantiated memory, see Dr. Cochrane’s 2011 book, Psychol- ogy and the Law: What We Know and What We Know That Isn’t So at www. 38. G. J. Cochrane, Psychology and the Law: Understanding and Presenting Your cochranexpertestimony.com and his New York State Continuing Legal Educa- Client, N.Y. St. B.J. (Nov.-Dec. 2010), p. 10. tion Board accredited seminar of the same name.

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36 | June 2013 | NYSBA Journal Michael Bersani (Bersani@ michaels-smolak.com) represents personal injury and medical malprac- tice plaintiffs in Auburn, New York, at the law firm of Michaels & Smo- lak, P.C., where he is a member. For the past five years he has written and presented throughout New York State his yearly “Municipal Liability Update” under the auspices of the New York State Academy of Trial Lawyers. He authored the chapter on municipal liability for NYSBA’s The Plaintiff’s Personal Injury Action in New York State. Mr. Bersani graduated magna cum laude from Syracuse University College of Law.

The “Governmental Function Immunity” Defense in Personal Injury Cases in the Post-McLean World By Michael G. Bersani

he Court of Appeals has, within the last few years, decisions of a quasi-judicial nature that implicate, at published a series of cases, starting with McLean v. least to some extent, discretionary decisions on how to New York City, which have troubled the waters of best allocate limited public resources for the provision T 1 the “Governmental Function Immunity” defense. This of public services owed to the public at large, and that, article is intended to help attorneys navigate the post- if disallowed, may hamstring decision making for fear McLean seas. of lawsuits.3

What Is the Governmental Function Immunity The Pre-McLean World Defense? Before McLean, most practitioners and judges were com- Despite the state’s general waiver of sovereign immunity fortable believing that the governmental function immu- (Court of Claims Act § 8), our courts have applied the nity defense, though somewhat muddled in the case court-made doctrine of governmental function immu- law, could be described generally as follows: If a govern- nity to most policy-imbued governmental actions.2 ment’s agent (e.g., police officer, clerk, housing inspector) Generally, the government, and its various agencies negligently caused harm to a plaintiff, and the agent’s and employees, benefit from immunity (either qualified harm-causing action or inaction was deemed ministerial, or absolute) when they are legislating, adjudging, and then the government employer could be held liable even making governmental or quasi-governmental discre- absent a “special duty” to the individual plaintiff. On the tionary decisions. The rationale for the survival of this other hand, if the harm-producing action or inaction was vestige of sovereign immunity in personal injury actions deemed discretionary, the government could be held liable is the courts’ reluctance to second-guess governmental only if the plaintiff proved the agent had a “special duty”

NYSBA Journal | June 2013 | 37 to the plaintiff, beyond the general duty the government One of the main defenses to the case was that, has to the public at large. although the agency may have acted negligently in fail- The “special duty” could be formed in three ways: (1) ing to do what it should have done, the plaintiff could by a statute that was enacted for the benefit of a particular not establish a “special relationship” with the offending class of persons of which the plaintiff is a member;4 (2) agency. Thus, the case should fail for lack of “duty.” The by the government official’s voluntary assumption of a plaintiff’s lawyer, however, was no fool; he tried to cir- duty toward a private party who then justifiably relies on cumvent the special relationship requirement by arguing proper performance of that duty;5 or (3) by a government that the agency’s negligence in renewing the daycare’s official assuming positive direction and control in the face registration in contradiction of its own rules was a “min- of a known, blatant and dangerous safety violation.6 isterial” not a “discretionary” act. Under the governmen- The second method – of establishing a “special rela- tal immunity doctrine, as the plaintiff then understood it, tionship” with a governmental actor – is the most com- she was not required to show that the agency owed her monly litigated. To succeed, the plaintiff must meet all of a “special duty” or that she had established a “special four requirements: (1) an assumption by the public entity relationship” with the city agency if the negligent act through promises or action of an affirmative duty to act complained of was “ministerial” rather than “discretion- on behalf of the injured or deceased party; (2) knowledge ary.” The plaintiff was able to rely on precedent, includ- by the public entity’s agents that inaction could lead to ing dictum from the Court of Appeals cases of Kovit14 and harm; (3) some form of direct contact between the public Pelaez,15 to support this argument. entity’s agents and the injured or deceased party; and (4) But, to the disappointment of the plaintiff, and the the injured or deceased party’s justifiable reliance on the surprise of the bar, the McLean court disavowed this public entity’s affirmative promise.7 understanding of the governmental function immunity Several Appellate Division cases and two Court of defense.16 The Court distilled the rule to a simple sen- Appeals cases, Pelaez v. Seide8 and Kovit v. Estate of Hal- tence: “Discretionary municipal acts may never be a basis lums,9 lent support to this general understanding that for liability; whereas, ministerial municipal acts may ministerial governmental actions could create liability even support liability only if a special duty is found to exist.”17 when no special duty was established, while a prerequisite This newly enunciated rule caused the McLean plain- for liability for discretionary governmental actions was a tiff to lose her case. The Court found that, even if the city special duty toward the plaintiff. The rule as enunciated agency’s negligence in wrongfully renewing the day- in Kovit, for example, was “municipalities generally enjoy care’s registration in violation of its own rules could be immunity from liability for discretionary activities they qualified as “ministerial,” the plaintiff failed to show a duty. undertake through their agents, except when plaintiffs The government’s daycare registration requirements and establish a special relationship with the municipality.”10 rules for renewing them were intended to protect the In Pelaez, the Court said, “[M]unicipalities generally enjoy public at large, not just the plaintiff, and she had failed immunity from liability for discretionary activities they to show that the agency had made some special com- undertake through their agents, except when plaintiffs mitment to her, in that casual telephone call, or else had establish a ‘special relationship’ with the municipality.”11 otherwise established a special duty to her in at least one of the three permissible ways.18 McLean v. City of New York McLean imparts two lessons to the bar: (1) governmen- The post-McLean world starts, obviously, with McLean tal functions that are discretionary can never be the basis v. City of New York.12 In that case, the mother of a child of liability; and (2) even if the act is ministerial, the plain- who was injured at a city-registered home daycare center tiff must still show a special duty. This second principle, brought a negligence action against the city. Before send- though harsh for plaintiffs, is not, in fact, surprising. ing her child to that daycare center, the mother had called Every first-year law student knows that, in order for a the city agency responsible for “registering” privately negligence claim to prevail, a plaintiff must first estab- owned home daycare centers. The agent on the telephone lish that the defendant owed the plaintiff a duty of care. sent her a list of registered home daycare centers, and the Since our courts determine “duty” based on public policy mother picked a daycare from that list, assuming that concerns, often with an eye toward hemming in bound- registration indicated some kind of city supervision or less liability, it is not surprising that Court of Appeals inspection. As it turned out, the daycare center had a jurisprudence determined long ago that a plaintiff must history of negligence-related child injuries, and the city show a “special” duty was owed to the individual plain- agency had improperly, in contra of its own regulations, tiff, beyond the general duty owed to the public at large. renewed the center’s registration. In other words, if the agency had done what it should have done – that is, keep Dinardo v. City of New York track of offending daycares and deny registration to them Duty is paramount. It trumps everything else. The Court – the mother would never have selected that particular of Appeals made this perfectly clear in its first post- daycare.13 McLean case, Dinardo v. City of New York.19

38 | June 2013 | NYSBA Journal In Dinardo, a special education teacher was injured relationship, specifically the justifiable part. The Court when she tried to restrain one student from attack- reasoned that she should have called to confirm that the ing another. She alleged the school administrators had ex-boyfriend had been arrested, and she was not justified promised her, sometime beforehand, that “something” in relying solely on the verbal promise. In conducting was going to be done about the assailant student, whose its analysis, the Court articulated the principle that duty behavior had made the teacher fear for her safety. The should be analyzed separately from the governmental Court rejected her claim, because the teacher-plaintiff immunity defense itself. The “duty” requirement and could not show that she “justifiably relied” on the vague the “governmental function immunity” defense are two promises made by the school to “do something” about separate creatures. The Court recognized that the two the troublesome student. Without justifiable reliance, issues had been conflated in the case law, including Court there could be no “special duty” under the four-prong of Appeals case law, over the years.23 Cuffy test.20 Because there was no duty, the Court refused Having determined that the duty element was lacking to decide the issue of governmental immunity, that is, in Valdez (i.e., no special relationship), the Court noted whether the school’s failure to remove the student was that it had “no occasion to address whether . . . [the city]

Duty is paramount. It trumps everything else. The Court of Appeals made this perfectly clear in its first post-McLean case.

“discretionary” or “ministerial.” The distinction-drawing could have avoided liability under such a [governmental between ministerial and discretionary actions was of immunity] defense on the rationale that the alleged negli- no matter because, post-McLean, a “duty” is always gence involved the exercise of discretionary authority.”24 required. In other words, a plaintiff must first show “duty” before a In Justice Lippman’s Dinardo dissent, he summarizes court will engage in the governmental immunity defense the McLean rule (with which he disagrees) as follows: analysis.25 “According to McLean, the special relationship exception Because “lack of duty” and “governmental immunity” only applies where the challenged municipal action is are in fact two separate defenses, the McLean rule (“dis- ministerial.” A more accurate restatement of the McLean cretionary municipal acts may never be a basis for liability; rule, as clarified in Dinardo, is that the special relation- whereas, ministerial municipal acts may support liability ship exception – the special duty – becomes relevant only only if a special duty is found to exist”26) can be viewed if the action is ministerial. Even if there is a special duty, as a shorthand manner of describing, in one breath, the the plaintiff cannot prevail if the act was discretionary. tandem effect of both defenses. The “discretionary” and Governmental discretionary actions are always insulated “ministerial” language pertains to the governmental from liability, even when there is a duty. immunity defense, while the “special duty” language pertains to the “lack of duty” defense. Since there must Valdez v. City of New York always be “duty” for liability to attach, and since discre- The next Court of Appeals pronouncement on the gov- tionary actions are always immune under the govern- ernmental immunity defense was Valdez v. City of New mental immunity doctrine whether or not there is a duty, York.21 In Valdez, a city police officer promised a fright- it follows that “duty” becomes a relevant inquiry only ened woman by telephone that the police would arrest if the action is deemed “ministerial.” Stated otherwise, her estranged boyfriend who had threatened to do her the issue of duty is moot when the action is discretionary harm. The officer told her she could go home because because the government immunity doctrine has already the ex-boyfriend was going to be arrested. She returned annihilated any liability. Nevertheless, as the Court indi- to her apartment, feeling safe with the knowledge that cated in Valdez v. City of New York27 and later in Metz v. her ex-boyfriend would not be there to stalk her. But the State of New York,28 discussed below, the Court prefers police failed to arrest the ex-boyfriend, and a few days to first dispose of the “duty” issue and, only if it finds later, when she opened her door to take out some trash, a duty, to then proceed to the governmental immunity she was met with bullets.22 defense analysis. The Court of Appeals decided that the plaintiff could not prevail because she could not show that a special Metz v. State of New York relationship had been formed, which would have cre- Metz v. State of New York concerned a boating accident ated a special duty toward her. Specifically, she could on Lake George.29 A privately owned tourist vessel, the not show the “justifiable reliance” element of a special Ethan Allen, was certified for many years, by the state

NYSBA Journal | June 2013 | 39 agency charged with conducting tour boat safety inspec- The Metz plaintiff won the battle but however, lost the tions, to hold a maximum of 48 passengers. The owner war. When Metz reached the Court of Appeals, the Court modified the vessel, equipping it with a new, heavier refused to address the governmental immunity defense “canopy,” which made it somewhat top heavy. Mean- analysis until it had first disposed of the issue of duty. while, the average American’s weight was climbing. The The Court noted that the duty the state agency had to state agency nevertheless continued year after year to inspect passenger vessels, and ensure that the passenger “rubber stamp” the 48-passenger capacity rating without capacity was safe, was to the public at large, and not to re-testing the vessel. On a beautiful day, a small wave the particular plaintiffs in the lawsuit. No “special duty” struck the vessel, and it capsized, killing and injuring had been established.34

The complete rule can be stated like this: For liability to attach, a duty is first in all instances required. many of its 48 elderly passengers. After-the-fact studies The Court cautioned that the plaintiffs must first showed that the actual capacity rating of the top-heavy establish duty before the Court would tackle the govern- ship should have been only 18. The plaintiff claimed that mental immunity defense proper. The Court stated: “As the state’s failure to conduct stability tests to determine we recently made clear in Valdez v. City of New York . . . safe maximum passenger limits in light of the ship’s top- claimants must first establish the existence of a special heavy remodeling, and the supersizing of Americans, duty owed to them by the State before it becomes nec- amounted to negligence.30 essary to address whether the State can rely upon the At deposition, the state’s employees readily admitted defense of governmental immunity.”35 that they had discretion to conduct, or not to conduct, fresh stability tests to determine the vessel’s correct passenger The Complete Post-McLean Governmental Immunity capacity. This might have seemed to them an unassailable Defense Rule defense, since McLean had declared that “discretionary The rule as pronounced in McLean (“discretionary munici- municipal acts may never be a basis for liability.”31 The pal acts may never be a basis for liability; whereas, ministe- defendant here, however, learned the hard way that the rial municipal acts may support liability only if a special rule as articulated in McLean was incomplete. The Third duty is found to exist”36) falls short of enunciating the Department granted summary judgment to the plaintiff, complete rule encompassing the tandem workings of the dismissing the governmental immunity defense because, “duty” requirement and the “government immunity” although the state had discretion to test the passenger defense. The Court of Appeals cases that followed in the capacity of the vessel, it failed to exercise this discretion. It wake of McLean (Dinardo, Valdez and Metz) exposed the engaged in no decision-making process as to whether to complete rule. keep the old passenger capacity rating of 48 or conduct The complete rule can be stated like this: For liability new testing. Rather, it simply rubber stamped the old to attach, a duty is first in all instances required. Since rating with no thought whatsoever of changed circum- the government’s duty to the public at large will not do, stances.32 a special duty toward the particular plaintiff is generally At the Third Department level, this was fatal to the required. Only if such a duty is found will the actions or state’s governmental immunity defense because the court omissions of the government officer then be examined. If said that the state had not “exercised” the discretion it those actions or omissions are deemed discretionary, and clearly had. Long before McLean, it was well settled that, that discretion was actually exercised, then the govern- where a government actor is entrusted with discretionary ment is always immune. But if the action is discretionary authority, but fails to exercise any discretion in carrying out and no discretion was exercised, or if the action was minis- that authority, the governmental defendant will not be terial, the governmental immunity defense will fail. entitled to governmental immunity from liability.33 This Even this might not be complete statement of the rule, makes sense, because the sole purpose of the governmen- however, as the following discussion will show. tal function immunity defense is to allow the government to exercise its governmental, policy and quasi-judicial dis- Does the Nonfeasance/Misfeasance Distinction cretion without fear of lawsuits. If the government actor Survive McLean? fails to exercise any discretion at all, there is no policy A pre-McLean line of cases, including Court of Appeals reason to enforce the governmental immunity defense. cases, drew a distinction between governmental mis- In simple terms, we might call this the “don’t-use-it-you- feasance and nonfeasance. If a government’s agent (e.g., lose-it” rule. police officer, clerk, housing inspector) caused harm to

40 | June 2013 | NYSBA Journal a plaintiff through his or her misfeasance (such as, for large will not do, a special duty toward the particular example, a police officer shooting his gun into a crowd), plaintiff is required in cases of nonfeasance. In some the government could be held liable for the officer’s cases of misfeasance, however, the misfeasance may cre- negligence regardless of whether a “special” duty was ate the duty. If any duty is found, then the actions of the established. If, on the other hand, the alleged negligent government officer will be examined. If those actions are act amounted to nonfeasance, in the sense of negligently deemed discretionary, and that discretion was actually failing to provide governmental services or to enforce exercised, then the government is always immune. If the a statute or regulation (for example, failing to provide action is discretionary but no discretion was exercised, or police protection or firefighting services or to enforce if the action was ministerial, the governmental immunity housing regulations), then the plaintiff must show a spe- defense must fail. n cial duty. In other words, if the negligence complained of amounted to active misfeasance rather than passive 1. McLean v. City of N.Y., 12 N.Y.3d 194 (2009). nonfeasance, the duty followed the act. Put another way, 2. In re World Trade Ctr. Bombing Litig., 17 N.Y.3d 428 (2011). where the government official actively caused harm, 3. Riss v. City of N.Y., 22 N.Y.2d 579 (1968); Cuffy v. City of N.Y., 69 N.Y.2d 255, 260 (1987). rather than simply, passively permitted harm from some 4. In Pelaez v. Seide, 2 N.Y.3d 186, 202 (2002), the Court of Appeals enunci- other quarter to befall the plaintiff by failing to provide ated a three-prong test to determine whether the Legislature, in passing the governmental services or by negligently providing them, law in question, intended to create a private right of action for a plaintiff. The the act of causing the harm itself was sometimes deemed plaintiff must show that he or she is (1) one of a class of persons for whose 37 particular benefit that statute was created; (2) that recognition of a private to create the duty. right of action would promote the legislative purpose of the governing stat- One post-McLean court has questioned whether the ute; and (3) that to do so would be consistent with the legislative scheme. misfeasance exception to the general requirement that 5. Id. at 195. 38 a “special duty” must be shown survives McLean. In 6. The third way of establishing a “special duty” between the public Applewhite v. Accuhealth, Inc.,39 in a footnote, the First corporation and the injured person or class of persons is exceedingly rare. Department noted that “in McLean, the Court of Appeals Examples of instances where it was established are: where a town knew of blatant, dangerous violations on a motel’s premises, but the town affirma- did not discuss the doctrine of a special duty or relation- tively certified the premises as safe by issuing a certificate of occupancy, ship in terms of misfeasance and nonfeasance, but clearly upon which representation plaintiffs justifiably relied in their dealings with intended to apply the special relationship doctrine to all the premises, then a proper basis for imposing liability on the town may well have been demonstrated. See Garrett v. Holiday Inns, Inc., 58 N.Y.2d 253 acts that constitute a government function.” The court (1983). And where a city sewer inspector observed that private sewer system thus refused to “evaluate this case using a distinction trench violated rules and code since it had been excavated to a depth of over between nonfeasance and misfeasance.”40 11 feet without bracing or shoring and inspector stated to decedent, before he descended therein, that the walls looked pretty solid and that the inspector Nevertheless, an argument might be made that the did not think they needed bracing, city was liable for death of decedent killed misfeasance/nonfeasance distinction survives McLean. The in cave-in of trench, by reason of the inspector’s positive action in assuming only post-McLean Court of Appeals case that addressed direction and control at jobsite in absence of decedent’s supervisor. See Smul- len v. City of N.Y., 28 N.Y.2d 66 (1971). an unambiguous case of misfeasance (the line between 7. Cuffy, 69 N.Y.2d 255. misfeasance and nonfeasance is often nebulous) was 8. 2 N.Y.3d at 195. Johnson v. City of New York.41 In that case, a police officer’s decision to shoot at armed robbers (thus causing injury 9. 4 N.Y.3d 499, 505 (2005). to a bystander) was deemed “discretionary,” and thus 10. Id. the governmental immunity defense prevailed. Recall 11. Pelaez, 2 N.Y.3d at 195. that the post-McLean Court of Appeals has announced it 12. McLean v. City of N.Y., 12 N.Y.3d 194 (2009). will not reach the issue of the governmental immunity 13. Id. defense until it first finds a duty. Since the Johnson court 14. Kovit, 4 N.Y.3d at 505. found the officer’s actions were discretionary, we must 15. Pelaez, 2 N.Y.3d at 195. assume the court first found the officer had a duty toward 16. See McLean, 12 N.Y.3d 194. the injured plaintiff. This duty could not be a special duty 17. Id. because the facts of the case do not lend themselves to 18. As discussed above, Court of Appeals case law allows a special duty to establishing a special duty in any of the three ways per- be formed in three ways: (1) by a statute that was enacted for the benefit of a particular class of persons of which plaintiff is a member; (2) by the govern- 42 mitted by Court of Appeals case law. The duty had to ment official’s voluntary assumption of a duty toward a private party who be there by virtue of the misfeasance itself. Thus, Johnson then justifiably relies on proper performance of that duty; or (3) by a govern- lends support to the argument that the misfeasance/non- ment official assuming positive direction and control in the face of a known, blatant and dangerous safety violation. feasance distinction survives McLean. If so, the full post-McLean rule encompassing the tan- 19. 13 N.Y.3d 872 (2009). dem workings of the duty requirement and the govern- 20. Cuffy v. City of N.Y., 69 N.Y.2d 255 (1987). ment immunity defense must be restated yet again as fol- 21. 18 N.Y.3d 69 (2011). lows: For liability to attach, a duty is first in all instances 22. Id. required. Since the government’s duty to the public at 23. Id.

NYSBA Journal | June 2013 | 41 24. Id. of the public as a whole” . . . and “the rule has no application to plaintiff’s theory of negligence in the officer firing across the crowded street and hit- 25. Id. ting plaintiff”). The rationale for finding a duty where misfeasance is involved 26. McLean, 12 N.Y.3d 194. is that “even when no original duty is owed to the plaintiff to undertake 27. Valdez, 18 N.Y.3d at 80. affirmative action, once it is voluntarily undertaken, it must be performed with due care.” Parvi v. City of Kingston, 41 N.Y.2d 553 (1977) (police officers’ 28. Metz v. State, 20 N.Y.3d 175 (2012). taking intoxicated men into custody created a duty on the part of the police 29. Id. officers to exercise reasonable care to secure their safety and police could be held liable for leaving the intoxicated men near the Thruway where they 30. Id. were later hit by a passing car); Walsh v. Town of Cheektowaga, 237 A.D.2d 947 31. McLean, 12 N.Y.3d 194. (4th Dep’t 1997) (police officers who affirmatively prevented a drunk driver 32. Metz v. State of N.Y., 86 A.D.3d 748 (3d Dep’t 2011), rev’d, 20 N.Y.3d 175 from driving his car, and then let him go on foot across a railroad track, could (2012). be held liable for his being hit by a train, despite absence of a “special duty”). See also Schuster v. City of N.Y., 5 N.Y.2d 75, 81–82 (1958). 33. Mon v. City of N.Y., 78 N.Y.2d 309, 313 (1991); Haddock v. City of N.Y., 75 N.Y.2d 478, 485 (1990). 38. McLean v. City of N.Y., 12 N.Y.3d 194 (2009). 34. Metz, 20 N.Y.3d 175. 39. 90 A.D.3d 501 (1st Dep’t 2011). 35. Id. (citing Valdez, 18 N.Y.3d 69). 40. Id. 36. McLean, 12 N.Y.3d 194. 41. 15 N.Y.3d 676 (2010). 37. See Perez v. City of N.Y., 298 A.D.2d 265 (1st Dep’t 2002) (police could be 42. As discussed above, Court of Appeals case law allows a special duty to held liable for accidental shooting of a bystander); Wilkes v. City of N.Y., 308 be formed in three ways: (1) by a statute that was enacted for the benefit of a N.Y. 726 (1954) (same); Flamer v. City of Yonkers, 309 N.Y. 114 (1955) (same); particular class of persons of which plaintiff is a member; (2) by the govern- Rodriguez v. City of N.Y., 189 A.D. 2d 166 (1st Dep’t 1993) (same, and Court ment official’s voluntary assumption of a duty toward a private party who explained that “the special duty rule is limited to cases involving nonfea- then justifiably relies on proper performance of that duty; or (3) by a govern- sance, where the municipality is alleged to have failed to take action in breach ment official assuming positive direction and control in the face of a known, of some general duty imposed by law or voluntarily assumed for the benefit blatant and dangerous safety violation.

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42 | June 2013 | NYSBA Journal Ademption in New York: Legislative and Judicial Recaps and Recommendations By Jim D. Sarlis

our uncle leaves you his house in his will. recommends legislative and judicial action, including Unfortunately, between the time he signs his enactment of a comprehensive anti-ademption statute.1 Ywill and the time of his death, he suffers a severe stroke and needs extensive care. The house is sold and the A Brief Review of Dispositive Will Provisions money resulting from the sale is used to pay for his care The generic term for a will provision that leaves some- and living expenses at an assisted living facility. Shortly thing to a person is called a bequest. If the property thereafter, your uncle dies. What happens now? Do you bequeathed is personalty, it is called a legacy and the per- get what remains of the proceeds of the sale of the house? son receiving it is a legatee. If the property is real estate, Or does the bequest lapse and you get nothing? Does it it is called a devise and the person receiving it is a devisee. matter whether it was your uncle’s agent under a power of attorney or a court-appointed property guardian who Jim D. Sarlis ([email protected]) practices law in Rosedale, N.Y. He sold the house? is a graduate of Columbia University and received his law degree from The relevant legal doctrine is called ademption. The Fordham University School of Law, where he was a member of the Urban question is whether your uncle’s bequest of the house to Law Journal. He also studied taxation in the Master of Laws (LL.M.) pro- you adeems – or lapses – under these circumstances. gram at New York University School of Law. Mr. Sarlis has been a guest Unlike some states, New York lacks comprehensive lecturer at New York Law School on the subject of Will Drafting, and has ademption legislation. This needlessly creates uncer- taught Real Estate Law and Legal Writing in the ABA-governed paralegal tainty and gaps in many relatively common situations. program of the City University of New York. This article reviews the current status of the law and

NYSBA Journal | June 2013 | 43 If a will provision leaves a specific item of property ond, “ademption by satisfaction” means that the property that can readily be identified and distinguished from is not in the testator’s estate because it was already inten- the other property in the decedent’s estate, it is called a tionally transferred by the testator to the beneficiary.7 In specific bequest.2 Examples would be, “I leave my Jaguar our example, if your father gifted you his comic book automobile to X” or “I leave 123 Main Street to Y.” collection during his life, that bequest would adeem by By contrast, a will provision that can be paid out of satisfaction. Ademption need not totally eliminate the the general assets of the estate is called a general bequest. bequest – there can even be partial ademption under cer- An example of such a provision would be “I leave $100 tain circumstances.8 to X.”3 The test for ademption depends upon the physi- If the will says that a bequest must be paid out of cal existence of the property in the estate, not upon the a specific fund, it is called a demonstrative bequest. An testator’s intent.9 The testator’s intent would, however, example of such a provision would be “I give $100 to X, be considered relevant in a will construction proceeding to be paid from my account at Queens Federal Savings.” to determine whether an alternate gift was intended or If the will provision at issue says, “I leave the rest, whether a bequest was meant to be a general disposition residue, and remainder of my estate to X,” it is called a rather than a specific or a demonstrative bequest. residuary bequest.

Ademption occurs when the property that the will leaves to someone is not in the testator’s estate when the testator dies.

Here’s where it can get tricky: If the will says, “I leave Traditional Common Law Ademption 100 shares of ABC Corp. stock to X,” it is considered a Under traditional common law ademption, a specific general bequest and the beneficiary would receive the bequest lapses if the property is not part of the estate date of death value of 100 shares of that particular stock. at the testator’s death. Thus, if real property that is spe- However, if the possessive “my” is added and the will cifically devised is sold before death by a testator with says, “I leave my 100 shares of ABC Corp. stock,” it is capacity, the specific devise would lapse. Moreover, the considered a specific bequest, and the beneficiary would specific devisee would not be entitled to the proceeds receive the testator’s 100 shares of that particular stock if of sale either, even if the proceeds could be traced or the testator owned it at the time of death. otherwise ended up being part of the estate. Such situations involve a straightforward application of ademption. Ademption Defined Ademption would occur even if the sale were incomplete Ademption occurs when the property that the will leaves at the death of the testator, because a valid executory con- to someone is not in the testator’s estate when the testator tract or other transaction to transfer property is sufficient dies.4 By its nature, therefore, ademption applies only to to remove it from the estate and extinguish any bequest specific bequests (i.e., specific legacies of personal proper- of the property. ty or specific devises of real property) where identifying Of course, in many cases testators have lost capacity, the specific asset intended is important (i.e., not general, and the sale is conducted by someone other than the testa- residuary or demonstrative bequests).5 This makes sense tor. In those cases, the testators themselves may not have, because an ademption would be relevant if “the 1964 red strictly speaking, consented to, or even be aware of, the Corvette I inherited from my grandfather,” or “123 Main sale. According to the traditional view of ademption this Street,” is no longer owned by the testator at the time of would not matter; the testator’s knowledge or intention his death, while ademption would not be relevant to a would be irrelevant. The only relevant question would bequest of $1,000 or “the residue of my estate.” be whether the property was part of the estate when the There are two kinds of ademption. The first, “ademp- testator died. Under traditional common law ademption, tion by extinction,” means the property is not in the therefore, a sale of the specifically bequeathed property testator’s estate at the time of death because it was sold, by a conservator, committee, guardian, or an agent under transferred, substantially changed, or destroyed before a power of attorney would cause the specific bequest to the testator’s death.6 Let’s say your father leaves you his adeem. comic book collection in this will, but after he signs his will he sells the collection and invests the proceeds in an Anti-Ademption Statutes emu ranch. Upon his death, you get neither the comic Some states have enacted anti-ademption statutes which book collection nor the emu ranch nor the value of these prevent a bequest from adeeming.10 In New York, a hand- assets. The bequest would adeem by extinction. The sec- ful of Estates, Powers and Trusts Law (EPTL) statutes

44 | June 2013 | NYSBA Journal influence the analysis of a possible ademption situation. Accordingly, the court holds that this case is not Section 3-4.2 provides that, in those situations where the within the purview of EPTL 3-4.4 and that the [specific testator has agreed to a sale or disposition of specifically devisee] is not entitled [to use EPTL 3-4.4 to claim the bequeathed property, the bequest does not adeem but the proceeds of the asset’s sale].20 beneficiary takes “subject to whatever rights were created by such agreement.”11 Section 3-4.3 provides for partial Because of this detailed and specific reasoning, the ademption, meaning that whatever is left of a bequeathed question arises whether a court would be willing to asset may pass to the intended beneficiary.12 Section 3-4.4 extend the statute’s reach to those situations involving provides that a conveyance of property made by a com- a testator who either had been declared incapacitated mittee or conservator during the lifetime of the incompe- or was obviously so, whose property was sold by an tent or conservatee,13 which property had been specifi- attorney-in-fact. cally bequeathed in that individual’s will, does not cause A nuanced analysis was, in fact, provided by the the bequest to adeem, and the specific beneficiaries may Kings County Surrogate’s Court in Estate of Crowell.21 claim what exists of the traceable proceeds.14 EPTL 3-4.5 There, the attorney-in-fact sold shares of the testator’s provides that insurance proceeds paid after the testator’s stock. Upon the testator’s death, the specific legatees death on property that had been specifically bequeathed of the stock sought the proceeds of the sale. The parties are to pass to the intended beneficiary of the property entered into a settlement agreement, thus preventing the – note that this applies solely to proceeds paid after the court from determining the ultimate ademption issue; testator’s death.15 however, the court did note two interesting points: first, that some courts are able to implement the testator’s Uncertainty When It Comes to Powers of Attorney intent by manipulating the classification of bequests While EPTL 3-4.4 may answer the question of what hap- as specific or general, thus bypassing EPTL 3-4.4 and, pens if a court-appointed guardian sells the property, it is second, that durable powers of attorney have become not so clear what happens if the person selling the prop- a popular substitute for the Article 81 guardianship erty is the testator’s agent under a power of attorney.16 proceedings that are a condition precedent to the appli- In LaBella v. Goodman,17 the Appellate Division, Second cability of EPTL 3-4.4. One can view these statements as Department, made short work of dismissing the specific favoring expansion of the statute to provide an excep- beneficiaries’ claim to proceeds of property sold under a tion where “the sale is made by the attorney-in-fact of a power of attorney before the testator’s death, holding that now-incapacitated testator, and the other criteria of the 22 [t]he Surrogate’s Court properly determined that the statute are met.” doctrine of ademption extinguished any claim the plaintiffs may have had regarding the devised prop- Analysis of Our Hypothetical Scenario erty . . . once the devise is found to be adeemed, the Returning to the scenario postulated in the opening para- court is not permitted to substitute something else for graph: If your uncle left you his house in his will and, it . . . . This includes tracing the proceeds from the sale after his stroke, it was sold before his death, the outcome of real property.18 could depend on a few factors.23 If the house was sold by a property guardian24 This classic view was presented by the Niagara appointed for your uncle, then EPTL 3-4.4 would be County Surrogate’s Court in In re Kramp.19 There, the triggered. Based on that, the bequest to you would not agent under a power of attorney sold the specifically adeem, and you would be entitled to the balance of the bequeathed real property before the testatrix’s death, and proceeds after your uncle’s death. the devisee sought to recover the proceeds of the sale. If the house was sold by your uncle’s agent under The court held that the conveyance did not fall within the a power of attorney, the result would be less certain. exception of EPTL 3-4.4, and thus the bequest adeemed, It could even depend on which court had jurisdiction emphasizing: (for example, where the real property was situated It is clear that this case does not fall within the express and/or where your uncle was domiciled). The Second terms of EPTL 3-4.4. There was no adjudication of Department has as its primary precedent LaBella v. incompetency as to this testatrix, she was never “judi- Goodman, which adheres to the traditional ademption cially declared to be incapable” in any respect, and no analysis and would not apply EPTL 3-4.4’s anti-ademp- committee was ever appointed for her . . . . tion provisions. Niagara County has Kramp as its local The language of EPTL 3-4.4 evinces to this court the precedent. While that court determined that the bequest clear legislative intent to restrict its application to cases at issue adeemed, determinative to its analysis was in which incompetency has been judicially determined the fact that the testatrix in that case was never found and established under the restraints and safeguards of incompetent. Therefore, the outcome of our hypothetical due process . . . . That limitation is not only sound in scenario could depend on whether your uncle was adju- principle but is set forth in unambiguous terms . . . . dicated incompetent or was obviously so. Meanwhile, if

NYSBA Journal | June 2013 | 45 jurisdiction were in Brooklyn, Kings County has Estate and any mortgage, bond, deposit, surety, interest or of Crowell as its local precedent. Because the parties in license that accrues by reason of the sale and invest- that case settled, the actual issue of ademption was not ment of the proceeds of the property.” reached by the court, but its dicta and analysis create a The language could even expressly state what hap- hopeful foundation allowing for extension of EPTL 3-4.4 pens in the event of fire, theft, act of a third party, and – or at least its anti-ademption concepts – to your uncle’s whether the bequest extends to insurance on the property. power of attorney situation, assuming he had become Expressing the intent of the testator in detail would incapacitated. provide clear guidelines to the executor and any court Determination of the hypothetical scenario’s outcome called upon to interpret the will, and would avoid ambi- could ultimately depend on future legislation directly guity regarding whether ademption would occur under a addressing this issue, or a decision being rendered by the variety of circumstances. New York Court of Appeals putting this uncertainty to rest. Obviously, there is a need for legislative or judicial Conclusion clarification of this issue. At the very least, our hypo- Appropriate action by the legislature or judiciary could thetical underscores the need to align the outcomes for greatly reduce the uncertainty we have. There is no attorneys-in-fact and guardians. need for New York to have gaps and ambiguity when completeness and certainty are possible. Comprehensive Legislative or Judicial Action Needed to Clarify the anti-ademption legislation could provide explicit guide- Issues and Fill the Gaps lines. As always, however, while legislative and judicial Research of the law on the subject has uncovered neither frameworks and default provisions can help – or even save a Court of Appeals decision nor a statute that provides the day – nothing beats well-planned and carefully crafted comprehensive guidance regarding the issue of ademp- document drafting to achieve our clients’ goals. n tion. In addition, as of this writing, no bills on the subject are pending, either.25 As explained above, legislative or 1. The New York State Bar Association has not adopted a position on the issues discussed within this article and does not have a position on any of the judicial clarification is needed regarding whether sale regulations or legislation discussed. The views expressed in this article are or disposition of specifically bequeathed property by an those of the author only. agent under a power of attorney adeems. One approach Author’s Disclaimer: The foregoing is meant as a starting point to foster would be to clarify whether this falls under an anti- discussion. The key is that the ability to have most common scenarios summarized in one statute would undoubtedly be valuable. ademption statute (either by expansion of EPTL 3-4.4 or 2. In re Flynn, 36 Misc. 2d 97 (Sur. Ct., Cattaraugus Co. 1962); see also enactment of another statute). Another approach would Crawford v. McCarthy, 159 N.Y. 514 (1899). be for the Court of Appeals to expressly address this issue 3. Typically, a general bequest is for a stated sum of money; however, a and, for example, hold that EPTL 3-4.4 extends to power bequest of stock or securities may also be classified as a general bequest. See, of attorney situations. In addition, currently there are no e.g., In re Malone, 143 Misc. 657 (Sur. Ct., Queens Co. 1931). statutes addressing ademption from the loss of specific 4. Considered legally tantamount to a revocation of the bequest. In re property due to fire, theft, or act of a third party. Dittrich, 53 Misc. 2d 782 (Sur. Ct., Queens Co. 1967). By contrast, other states have extensive and compre- 5. In re Wallace, 86 Misc. 2d 175 (Sur. Ct., Cattaraugus Co. 1976) (citing In re Roth, 183 Misc. 834, 839, modified on other grounds, 271 A.D. 972, aff’d, 297 N.Y. hensive anti-ademption laws – often addressing various 757 (1944)). permutations of sales, transfers, condemnation, changes 6. See In re Brann, 219 N.Y. 263 (1916); In re Wright, 7 N.Y.2d 365 (1960). in form, and other common situations – and these could 7. This can also include delivery of proceeds, money, or property in satisfac- serve as templates for New York to follow.26 By enacting tion of the bequest. See 39 N.Y. Jur. Decedent’s Estates § 934 (2009). such legislation, New York could codify much of its rich 8. See discussion at note 12, below. body of case law on the subject, fill the existing voids, and 9. In re Wright, 7 N.Y.2d at 367–69: improve the areas of uncertainty. Although, in the early days . . . , ademption was based on the intention of the testator, today in New York, as well as in many Avoiding Ambiguity and Uncertainty With Proper other jurisdictions, intention has nothing to do with the matter; the bequest fails and the legatee takes nothing if the article specifically Planning bequeathed has been given away, lost or destroyed during the Needless to say, the possibility of ademption can be testator’s lifetime . . . . [I]t matters not whether this came to pass anticipated when a will is drafted and appropriate because of an intentional and voluntary act on the part of the testator, such as abandonment, sale or gift, or because of an occurrence, wording is used to avoid ambiguities. Consider these involuntary and unintended, such as condemnation, fire or theft. examples: (citations omitted). • “I bequeath my blue 2010 Chevrolet Corvette to X This is the so-called “identity” theory as opposed to the “intent” theory of if it is owned by me at the time of my death; if not, ademption. See also In re Brann, 219 N.Y. 263; In re Baker, 106 Misc. 2d 649, 652 (Sur. Ct., Westchester Co. 1980); Estate of Spanos, N.Y.L.J., May 3, 1994, p. this bequest will adeem.” 29, col. 6 (Sur. Ct., Nassau Co.). Cf. In re Ellsworth, 189 A.D.2d 977 (3d Dep’t • “. . . this bequest shall be deemed to include any 1993). proceeds of its sale or other disposition.” 10. E.g., Wisconsin Statutes §§ 854.08 et seq. (which is the template for the • “. . . this bequest includes the proceeds of its sale, statutory language that this article proposes for New York, below at note 26,

46 | June 2013 | NYSBA Journal and which addresses situations involving a guardian or attorney-in-fact); disposition becomes entitled to receive any remaining money or see also Alabama Code §§ 43-8-225 et seq. (recently interpreted in Bolte v. other property into which the proceeds from such sale or transfer Robertson, 941 So. 2d 920 (Ala. 2006) to give the specific devisee of real prop- may be traced. erty the outstanding balance on the mortgage after sale); California Probate 15. EPTL 3-4.5 provides: Code §§ 21133–21134; Tennessee Code Annotated § 32-3-111 (expanded by Stewart v. Sewell, 215 S.W.3d 815 (Tenn. 2007)); Utah Uniform Probate Code § Where insurance proceeds from property which was the subject 75-2-606. of a specific disposition are paid after the testator’s death, such proceeds, to the extent received by the personal representative, are 11. EPTL 3-4.2 provides: payable by him to the beneficiary of such disposition . . . . An agreement made by a testator to convey any property does See also In re Baker, 106 Misc. 2d 649, 652 (Sur. Ct., Westchester Co. 1980). not revoke a prior testamentary disposition of such property; but such property passes under the will to the beneficiaries, subject to 16. Courts have treated differently those situations where agents under a whatever rights were created by such agreement. power of attorney have transferred the principal’s property to themselves. They generally deem such an inter vivos transfer a breach of the agent’s 12. EPTL 3-4.3 provides: fiduciary duty, reverse the transfer, and return the property to the principal’s A conveyance, settlement or other act of a testator by which an estate. See, e.g., Musacchio v. Romagnoli, N.Y.L.J., June 16, 2006, p. 25, col. 3 estate in his property, previously disposed of by will, is altered (Sur. Ct., Westchester Co.); Estate of Berry, N.Y.L.J., Apr. 2, 1997, p. 31, col. 1 but not wholly divested does not revoke such disposition, but the (Sur. Ct., Suffolk Co.). estate in the property that remains in the testator passes to the ben- 17. 198 A.D.2d 332 (2d Dep’t 1993). eficiaries pursuant to the disposition. However, any such conveyance, settlement or other act of the testator which is wholly incon- 18. Id. at 333. sistent with such previous testamentary disposition revokes it. 19. 100 Misc. 2d 724 (Sur. Ct., Niagara Co. 1979). In the oft-cited case that illustrates this concept, the testatrix made a specific 20. Id. at 726. bequest of her mink coat, but prior to her death had it cut down to a mink stole. The court reasoned that, because the stole was not “wholly inconsis- 21. N.Y.L.J., Dec. 3, 2002, p. 27, col. 3 (Sur. Ct., Kings Co.). tent” with the bequest of the coat, the legatee would receive the stole, as what 22. Id. remained of the bequeathed coat. In re Winfield, 11 Misc. 2d 149 (Sur. Ct., N.Y. 23. This discussion is based on New York law. Co. 1958). 24. As explained above at note 13, this analysis extends to a conservator or 13. The statute still uses the older terms, but is deemed to include guard- committee as well. ians and incapacitated persons since April 1, 1993, when Mental Hygiene Law Article 81 superseded Articles 77 and 78. See In re Buckner, N.Y.L.J., Feb. 26, 25. As of February 15, 2013. 1993, p. 26, col. 2 (Sur. Ct., N.Y. Co.); Estate of Oppenheim, N.Y.L.J., Jan. 29, 2007, 26. A suitable template for New York to follow would be along the lines of p. 39, col. 3 (Sur. Ct., Suffolk Co.); In re P.V., N.Y.L.J., June 5, 2009, p. 27, n. 3, col. Wisconsin Statutes §§ 854.08 et seq.: It should include provisions like § 854.08 1 (Sup. Ct., N.Y. Co.). Furthermore, the implementing legislation of Article 81 covering ademption by extinction, as well as § 854.08(5) encompassing sales, provides that when a statute uses the terms conservator or committee, “such mortgages, insurance, and condemnation, in situations involving guardians statute shall be construed to include the term guardian . . . unless the context and agents under a power of attorney. That portion should include wording otherwise requires.” N.Y. Session Laws: 1992 N.Y. Laws ch. 698, § 4. to the effect that “[t]he term guardian shall be deemed to include a conser- 14. EPTL 3-4.4 provides: vator or committee.” It should include provisions like § 854.11 regarding bequests of securities, to cover stock splits and dividends, and changes in cor- In the case of a sale or other transfer by a committee or conserva- porate name or form. It should also include provisions like § 854.09 covering tor, during the lifetime of its incompetent or conservatee, of any ademption by satisfaction. There should be wording akin to the following, property which such incompetent or conservatee had previously based on § 854.08(6)(c): “To the extent that a pecuniary amount is substituted disposed of specifically by will when he was competent or able for the asset bequeathed, the total is reduced by any expenses of the sale, by to manage his own affairs, and no order had been entered set- the expenses of collection of the proceeds of insurance, sale, or condemna- ting aside the adjudication of incompetency at the time of such tion award and by any amount by which the income tax of the decedent or incompetent’s death, or the conservatorship continued through the decedent’s estate is increased because of items covered by this section. the date of the conservatee’s death, the beneficiary of such specific Expenses include legal fees paid or incurred.”

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NYSBA Journal | June 2013 | 47 meet your new officers

President egates. He is a member of the Committee on Standards David M. Schraver for Attorney Conduct and the Commercial and Federal David M. Schraver of Litigation Section. Rochester, New York, At Nixon Peabody, Schraver’s work encompasses took office June 1 as the complex business and commercial litigation in state and 116th president of the federal courts. He is a founding member of the firm’s 77,000-member New York Indian law and gaming team. His practice also focuses on State Bar Association. energy/utility litigation, contract litigation, and fiduciary The House of Del- and professional liability. He has served as managing egates, the Association’s partner of the firm’s Rochester office. decision and policy-mak- He is member of the ABA House of Delegates and ing body, elected Schraver member of its Litigation Section. He also is a past presi- at the organization’s 136th dent of the Monroe County Bar Association and the Met- annual meeting, held this ropolitan Bar Caucus of the National Conference of Bar past January in Manhattan. Presidents. He has served on the boards of a number of Schraver is a partner of Nixon Peabody LLP, where community organizations in the Rochester area. he practices business and commercial litigation, with a A native of Albany, Schraver graduated cum laude particular expertise in Indian law. from Harvard University and magna cum laude from the A member of the State Bar for more than 40 years, University of Michigan Law School, where he was note Schraver has served on the Finance Committee since 2003 and comment editor for the Michigan Law Review. After and as its chairman since 2007. He also served on the law school, Schraver was on active duty in the United Executive Committee for seven years, including as vice States Navy Judge Advocate General’s Corps (JAG). president for the Seventh Judicial District and a member- Schraver will serve a one-year term as State Bar presi- at-large; and has served for 14 years on House of Del- dent.

Secretary to the protection and commercialization of intellectual David P. Miranda property. David P. Miranda, a part- A 23-year member of the State Bar Association, Miran- ner of the Albany intel- da chairs the Committee on Resolutions. He also served lectual property law firm as chair of the Electronic Communications Committee Heslin Rothenberg Farley and the Young Lawyers Section. He co-chaired the Special & Mesiti P.C., has been re- Committee on Strategic Planning. elected to a fourth term as Miranda is a member of the Commercial and Federal secretary of the New York Litigation Section, Committee on Annual Award, Com- State Bar Association. mittee on Continuing Legal Education and Membership Miranda is an expe- Committee. He is a past member of the Task Force on rienced trial attorney E-Filing and the Special Committee on Cyberspace Law. whose intellectual prop- Miranda is a past president of the Albany County Bar erty law practice includes Association and has served on the Independent Judicial trademark, copyright, trade secret, false advertising, Election Qualification Commission for the Third Judicial patent infringement and Internet-related issues. He is District. an arbitrator of Intellectual Property disputes for the A resident of Voorheesville, Miranda graduated from National Arbitration Forum and the American Arbitra- the State University of New York at Buffalo and Albany tion Association. Law School. Heslin Rothenberg Farley & Mesiti P.C. is the largest law firm in upstate New York dedicated exclusively

48 | June 2013 | NYSBA Journal President-elect tive Committee and co-chair of the Membership Com- Glenn Lau-Kee mittee. Lau-Kee is a member of the Business Law, Health Glenn Lau-Kee, of New Law and Real Property Law Sections; in 2010 he received York City, took office June the Commercial and Federal Litigation Section’s George 1 as president-elect of the Bundy Smith Pioneer Award. 77,000-member New York In addition, Lau-Kee has served as a member of the State Bar Association. Task Force on the State of Our Courthouses and the Spe- The House of Del- cial Committees on Legal Specialization, Multijurisdic- egates, the Association’s tional Practice and Sarbanes-Oxley Issues. decision and policy-mak- He is a vice-chair of the board of the Greater New York ing body, elected Lau-Kee City YMCA and a board member of the Fund for Mod- at the organization’s 136th ern Courts, The New York Bar Foundation and US-Asia annual meeting, held this Institute. He served as president of the Asian American past January in Manhattan. Bar Association of New York from 1997–1999 and was In accordance with NYSBA bylaws, Lau-Kee will become appointed by former Chief Judge Judith S. Kaye to serve the Bar Association’s 117th president on June 1, 2014. on the Commission to Examine Solo and Small Firm Lau-Kee is a partner of Kee & Lau-Kee, where he Practice, and the Committee to Promote Public Trust and concentrates his practice in real estate and business law. Confidence in the Legal System. A 13-year member of the State Bar Association, Lau- A resident of Westport, Connecticut, Lau-Kee gradu- Kee is co-chair of the President’s Committee on Access to ated from Yale College and Boston University School of Justice. He has served as a member-at-large of the Execu- Law.

Treasurer House of Delegates, Finance Committee, Dispute Resolu- Sharon Stern Gerstman tion Section, and Torts, Insurance and Compensation Law Sharon Stern Gerstman of Section’s Executive Committee. Buffalo has been elected She was chair of the Committee on Civil Practice Law treasurer of the New York and Rules and the Special Committee on Lawyer Adver- State Bar Association. tising and Lawyer Referral Services. She previously Gerstman is of counsel co-chaired the Task Force on E-Filing and the Special to Magavern Magavern Committees on Lawyer Advertising and Strategic Plan- Grimm in Buffalo, where ning. She also served on the American Bar Association’s she concentrates her prac- Board of Governors for three years and is a member of the tice in the areas of media- ABA’s House of Delegates. tion and arbitration, and A resident of Amherst, Gerstman graduated from appellate practice. Brown University and earned her law degree from the A 32-year member of University of Pittsburgh School of Law. She received a the State Bar, Gerstman master’s degree from Yale Law School. has served on the Executive Committee as an Eighth Judicial District vice-president. She is a member of the

NYSBA Journal | June 2013 | 49 Attorney Professionalism Forum

To the Forum: and other bar associations provide ‘friending’ of unrepresented parties, I have found that accessing various guidance to our profession. In N.Y. or by using formal discovery devices forms of social media has become State Bar Op. 843 (2010), NYSBA’s such as subpoenas directed to non- a highly useful tool in my practice. Committee on Professional Ethics (the parties in possession of information However, I want to know if there are Committee) found that “[a] lawyer maintained on an individual’s social limits as to how Facebook, Twitter, representing a client in a pending liti- networking page.” Id. Furthermore, LinkedIn and the like can be used in gation may access the public pages NYCBA suggested that “an attorney connection with handling my various of another party’s social networking or her agent may use her real name client matters. For example, what are website for the purpose of obtaining and profile to send a friend request” the recommended methods for con- possible impeachment material for to obtain information from an unrep- ducting research on adverse witnesses use in the litigation.” The Committee resented person’s social networking or potential jurors through the use of additionally found that “accessing the website without also disclosing the social media? What other electronic social network pages of the [oppos- reasons for making the request. Id. In means can be utilized to conduct such ing] party will not violate Rule 8.4 concluding its opinion, NYCBA stated research? Most important, what ethi- (prohibiting deceptive or misleading that “a lawyer may not use deception cal obligations come into play when conduct), Rule 4.1 (prohibiting false to access information from a social one uses social media in these con- statements of fact or law), or Rule networking page” since such acts vio- texts? 5.3(b)(1) (imposing responsibility on late both Rule 4.1 (“a lawyer shall not Sincerely, lawyers for unethical conduct by non- knowingly make a false statement or I. Tweet lawyers acting at their direction)” so fact or law to a third person”) and long as the attorney does not friend Rule 8.4(c) (“a lawyer or law firm shall Dear I. Tweet: the other party or direct another per- not . . . engage in conduct involving In recent years, the social media explo- son to do so. Id. The Committee was dishonesty, fraud, deceit or misrepre- sion in the legal profession has raised careful to distinguish between public sentation”). Id. So for example, if an numerous ethical considerations. social networking pages and private attorney or another person acting at Although the New York Rules of Pro- pages where attempts to access such the attorney’s direction sets up a Face- fessional Conduct (RPC) provide some private information would ordinarily book page or Twitter feed as a ruse for guidance for attorneys when using be impermissible. In the view of the social media (and we will review the Committee, accessing publicly avail- applicable provisions of the RPC here), able social media data “is similar to The Attorney Professionalism Committee the reality is that we all practice law obtaining information that is avail- invites our readers to send in comments in a rapidly evolving environment in able in publicly accessible online or or alternate views to the responses which the rules have yet to be fully print media, or through a subscription printed below, as well as additional articulated. That said, lawyers need research service.” Id. Therefore, public- hypothetical fact patterns or scenarios to to be fully competent in social media ly available social media information be considered for future columns. Send usage and the ethical provisions aris- would be very useful for conducting your comments or questions to: NYSBA, ing from such usage. research on adverse witnesses or even One Elk Street, Albany, NY 12207, Attn: As noted in the May Forum (which potential jurors. Attorney Professionalism Forum, or by discussed the use of mobile technol- In the same month that the NYSBA e-mail to [email protected]. ogy in 21st century legal practice), Committee released Opinion 843, the Rule 1.1 of the RPC states our ethi- Committee on Professional Ethics for This column is made possible through cal obligation to provide competent the New York City Bar Association the efforts of the NYSBA’s Committee on representation. Like it or not, this (NYCBA), in Formal Opinion 2010- Attorney Professionalism. Fact patterns, means that we must understand how 2, addressed the question whether a names, characters and locations presented technologies are utilized and become lawyer, acting either alone or through in this column are fictitious, and any resem- familiar with them. The use of social an agent such as a private investiga- blance to actual events or to actual persons, media by attorneys falls within this tor, may “resort to trickery via the living or dead, is entirely coincidental. These obligation. It is imperative that attor- internet to gain access to an otherwise columns are intended to stimulate thought neys utilizing social media educate secure social networking page and and discussion on the subject of attorney themselves as to the functionality of the potentially helpful information it professionalism. The views expressed are the social media sites which they wish holds.” Id. NYCBA found that an attor- those of the authors, and not those of the to access, whether for research or ney who seeks to obtain information Attorney Professionalism Committee or other purposes. maintained on a social networking site the NYSBA. They are not official opinions Multiple ethics opinions of the New should utilize “informal discovery” on ethical or professional matters, nor York State Bar Association (NYSBA) practices, which may include “truthful should they be cited as such.

50 | June 2013 | NYSBA Journal the purpose of drawing in the oppos- lawyer (or agent) conducting online the attorney seeking to learn about ing party in an attempt to access that searches of social media pages is potential jurors should use all rea- party’s private information, such con- precluded from having “contact or sonable means to conduct his or her duct (often called “pretexting”) would communication with the prospective research but should always use cau- almost certainly run afoul of Rules 8.4, juror and the lawyer does not seek tion when conducting such research. 4.1 and 5.3(b). to ‘friend’ jurors, subscribe to their NYCBA Formal Opinion 2012-2 also In May 2011, the New York County Twitter accounts, send juror tweets dealt with the question of what consti- Lawyers’ Association (NYCLA) Com- or otherwise contact them.” Id. Those tutes a “communication” for purposes mittee on Professional Ethics published familiar with Internet research under- of Rule 3.5, noting that attorneys may Opinion 743, which focused on the use stand that getting information about not research jurors if the result of the of social media for juror research and a particular person is often as simple research is that the juror will receive the application of Rule 3.5. as plugging the name of a person into the communication. For example, a Rule 3.5(a)(4) states that a lawyer an Internet search engine (such as communication which may be prohib- shall not Google). Often, the search may yield ited will depend on the mechanics and communicate or cause another to the various social media accounts privacy settings of each service. Some communicate with a member of associated with that person, and the services (such as LinkedIn) will notify the jury venire from which the information posted to such accounts a party if his or her profile has been jury will be selected for the trial could be easily accessible. Depending viewed, while others provide notifica- of a case or, during the trial of a on security settings, this may include tion only if another user initiates an case, with any member of the jury biographical information, status interaction (which is one of the integral unless authorized to do so by law updates on Facebook or LinkedIn, as parts of the experience of using social or court order. well as tweets on Twitter. As with all media sites such as Facebook and things relating to social media usage, Twitter). Such communications may Furthermore, Rule 3.5(a)(5) states attorney professionalism – not to men- be prohibited even when inadvertent that a lawyer shall not tion common sense – suggests that or unintended. Id. What this means is communicate with a juror or pro- the prudent practitioner exercise both that attorneys who use social media spective juror after discharge of caution and discretion when conduct- must become fully familiar with the the jury if: (i) the communication ing such searches in order to avoid a functionality of various social media is prohibited by law or court order; potential ethical minefield. Last, the sites (as per the requirements of Rule (ii) the juror has made known to NYCLA opinion reminded us that, 1.1) before utilizing them for research the lawyer a desire not to com- under Rule 3.5(d), if the lawyer learns purposes. One click of the mouse on municate; (iii) the communication of improper conduct by a juror, or by the wrong part of a social media page involves misrepresentation, coer- another toward a juror or a member of can mean a world of trouble. Saying cion, duress or harassment; or (iv) the juror’s family, the lawyer then has that you “accidentally” clicked on the the communication is an attempt an obligation to reveal the misconduct part of a social media page that seeks to influence the juror’s actions in to the court. access to a potential juror’s private site future jury service. The use of social media for juror may not get you off the hook. research was also addressed by Although the ethics opinions dis- As stated in the NYCLA opinion, NYCBA in Formal Opinion 2012-2. cussed here explore issues which may lawyers do not escape the reach of Although the opinion states that a arise from usage of the more popu- Rule 8.4(a) by using third parties; law- lawyer can use social media websites lar social media sites (i.e., Facebook, yers are prohibited from doing indi- for juror research, it stressed that there Twitter, YouTube and LinkedIn), social rectly what they cannot do themselves. must be no communication occurring media sites primarily geared towards Id. This should come as no surprise as between lawyer and juror as a result of sharing visual content (such as Insta- most of us know that a lawyer may the research. Unlike others who have gram, Vine and Pinterest, respectively) not direct a nonattorney employee of weighed in on this subject, NYCBA also should be noted. The publicly his or her firm or a retained private may have slightly pushed the prover- available information on these sites investigator to make contact in any bial envelope by suggesting that there may contain a treasure trove of infor- way with prospective jurors to learn is possibly another side of this coin. mation since users oftentimes post more about them. Notwithstanding the prohibitions pre- everything they do on a given day. The NYCLA opinion concluded scribed by Rule 3.5(a)(4) and (5), “stan- These sites also carry with them the that the passive monitoring of jurors dards of competence and diligence same cautions applicable when access- (which would include viewing pub- may require doing everything reasoning the more popular social media licly available social media pages) ably possible to learn about jurors who sites. Like Twitter, Instagram and Vine may be permissible. Id. However, the will sit in judgment on the case.” Id. In allow you to “follow” users so that NYCLA opinion cautioned that the other words, NYCBA suggested that you can both observe and comment

NYSBA Journal | June 2013 | 51 on various user postings. Both sites QUESTION FOR THE NEXT was argued a few days before the dam- also contain privacy control features ATTORNEY PROFESSIONALISM ages hearing and was granted in part by which prevent public viewing. User FORUM: the trial court. The following morning, I postings which have not been made was informed by Delayer that his client private can be readily accessible by I am always conscious about run- had posted the undertaking directed way of an Internet search engine (such ning up unnecessary legal fees in liti- by the appellate court which it had as Google). However, as the opinions gation matters and I am acutely aware required in order to stay the damages discussed here demonstrate, attorneys that, in this current economic climate, hearing. That afternoon, counsel for the (or someone acting at their direction) clients scrutinize legal bills more care- insurance company (which issued the should not attempt to contact a party fully than ever. I recently succeeded in undertaking) informed me that Delayer or adverse witness who has engaged winning summary judgment on liabil- had applied for the bond “weeks ear- privacy settings in order to gain access ity for my client in a breach of contract lier.” This is the first I had heard about to that user’s privately posted content, matter and the trial court subsequently the timing of the application for the unless they clearly state the purpose directed a hearing on damages in which bond, and from past experience I know for making such contact. my adversary, David Delayer (Delayer), that a bond is usually issued in a mat- Social media is a rapidly evolv- moved for a stay in the appellate court. ter of days (if not the same day). Had I ing area of technology which provides The stay was granted, however, on the known that Delayer had applied for the countless benefits for all those who condition that Delayer’s client post an bond weeks ago (and assuming it was use it. Attorneys are strongly advised undertaking. The day after the stay was issued shortly after he applied for it), to be knowledgeable of how these sites granted, I emailed Delayer asking if his then I would not have been forced to operate and the ethical concerns which client would be posting the undertak- spend unnecessary time opposing his arise from the usage of social media in ing directed by the appellate court. motion to quash since he likely knew their practices. We believe that com- His response was, “We have not made weeks prior that the bond was issued, mon sense usage of social media will that determination as of yet.” A few thereby staying the damages hearing. help you avoid many ethical pitfalls days later, at a conference before the I believe that Delayer’s actions are both known and unknown. trial court, Delayer said that his clients unprofessional. At a minimum, Delay- Sincerely, “were not seeking to obtain an under- er’s behavior is a clear example of un- The Forum by taking.” Since Delayer represented that civil (perhaps unethical) conduct moti- Vincent J. Syracuse, Esq., and he was not going to seek an undertak- vated solely for the purpose of increas- Matthew R. Maron, Esq., ing, the trial court scheduled a damages ing my client’s litigation expenses. Tannenbaum Helpern Syracuse & hearing at the conference to occur in 30 My questions for the Forum: Did Hirschtritt LLP days. The day after the conference and my adversary act unprofessionally? Is in preparation for the hearing, I served Delayer’s conduct sanctionable? a document subpoena upon Delayer, Sincerely, which he moved to quash. That motion A. Barrister

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FIRST DISTRICT Adam Paul Cohen Michael Walter Gramer Ryan Thomas Kearney Timothy Patrick McKernan John Russell Ablan Justin Andrew Cohen Jaclyn Diana Granet Andrew Rosenthal Keats Michelle A. McLeod Elisheva Ackerman Tess Margaret Cohen Ashley Grant Sarah Thorndike Kelly Margaret Davenport Sky Christopher Adams Victoria Anne Cole Harold Michael Greenberg Aileen J. Kim McPherson Melissa Susan Ader Sarah Meade Colombo Olivia J. Greer Elizabeth Jun Kim John Joseph Meehan Lee Adlerstein Chelsea Jean Corey Yana Victorovna Grishkan Jonathan Michael King Laura Katherine Mehalko Michael Matthew Agosta Sarah Whitton Corstange Joshua Maxwell Grossman Spencer Kartchner Kirton Aylana Meisel Medora Mayne Akers Abigail Marie Coyle Scott B. Group Musisi Eddin Kiwanuka Andrew Patrick Meiser Deepa Alagesan Elizabeth Ungrich Cukor Andrew Michael Grous Ryan Samuel Klarberg Doha Gamal Mekki Stephen Paul Alicanti Richard W. 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DeAtley Victoria Yin-wai Ha Evan Ross Kreiner Marc Andrew Miller Brent Lloyd Andrus Wyatt James Delfino Joseph Daniel Hadacek Matthew Patrick Kremer Michael Robert Miller Allison Noel Angel Jennifer Tembeck Demetriou Gael Yannick Hagan Jason Reid Krochak Lindsey Ann Mills Steven Roderick Aquino Michael Matthew Denci Tanya Hajjar Stacia Christine Kroetz Joelle Anne Milov Jacquelyn Nicole Arcati Geoffrey James Derrick Tara E. Halsch Siew Kai Kwok Jennifer Freda Mindlin Myla Gounder Arumugam Joseph C. Devine Daniel Hanan Monica Kwong Lauren A. Mintz Sarah Ruby Babka Jessica Anne Diab Eric Mark Hansen Rachel Elizabeth Labes Hayley Beth Miskiewicz Salvatore Charles Badala Brett Mary Dignam Stephen Gregory Harper Rachel Elizabeth Landy Katherine Leigh Mitchell Jae Joon Bang Jennifer Lauren Dinicola Patrick Shane Harrington Kaylan Elizabeth Lasky Shira A. Mizrahi Jacqueline Barbera Dominick Paul Disabatino Elizabeth Marie Caroline Blaise J. Latella Tenley Mochizuki Laura Paulino Barker Amanda Sue Disanto Harris Kelly April Latta Alison Gainfort Moe Francesca Lynne Bartolomey Kimberly Ann Donnelly Tessa Brianne Harvey Tyler Nathaniel Layne Jeffrey Chuang-wei Mok Amy Jane Beaux Katherine Moira Dubyak Athar Haseebullah Jennifer Lynn Lee William Jin Moon William David Becker Nemanja Dundjerovic Kirsten Rowena Heenan Lauren Teresa Lee Rosemary Cobb Morgan Kevin Christopher Begley Rebecca Rakatansky Dunnan Elena Heim Soeun Lee Candace Lynne Moss Jessica Lindsay Benach Jaclyn Kim Elfland Alex David Heller Cory Robert Lefkowitz Kevin Douglas Moss Jennifer Ashley Bender Matthew Gregory Ellias Julia Fyrwald Heming Alexander Browning Lemann Ryan Michael Mott Eric Steven Berelovich Andrew Maxwell Endicott Peter Hering Elizabeth Ann Lentini Leo Muchnik Markus Bergauer John Frederic Escherich Taylor Katherine Herman Joseph Isidore Leone Daragh John Murphy Tobias Charles Berkman Michael S. 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Liao George Alfonso Naya Lisa Marie Bonanni Laurel Sage Fensterstock Erin Kathleen Hoben Frederick Wei Xin Lien Jaclyn Nayar Jacob Morris Boyars Emily Jane Feuerman Caitlin Patricia Hogan Willa Wei Lin Marie Ndiaye Cory Ruth Brader Brian Patrick Fitzgerald Margaret Barringer Hoppin Marissa Baine Litwin Joshua Arthur Nemser Frederick Andrew Braunstein Edward William Ford Satoshi Hosokawa Erchan Liu Evan Wolfe Neu Alexander Martin Bregman Scott I. Forman Nabilah Akhtar Hossain Tianren Liu Jack Lee Newhouse Nathalie Braha Bressler Michael Jon Frantel Rebecca Elizabeth Houck Stuart Roth Lombardi Alanna B. Newman Victor Joseph Brienza Brittany Kaye Frassetto Gregory Dennis Howling Ashley Ann Lostritto Joyce Yan Yan Ng Ryan Kenneth Brissette Jennifer Margaret Freeman Ju Huang Seth B. Lubin Aileen Ann Nielsen Daniel Richard Bromwich Amanda Helena Freyre Leonie Wei Shi Huang Matthew M. Lucas Anthony Michael Niescier Mariel Rebecca Bronen Bari N. Friedman Christian Edward Hudson Dane Alexander Lund Jean Pierre Nogues Alesha Shanta Brown Jonathan Noah Frodella Lauren Elizabeth Hume Tal Rachel Machnes Ryan Evan Norman Angelica Elizabeth Fentress Jamal Fulton Jeremy Edward Hutcher Sharon Elizabeth Mack Victor Noskov Campanaro Toby Edward Futter Brian James Igoe Anil R. Makhijani Molly Anne Novero Jeremy Daniel Campbell Matthew Thomas Gabbard Ataru Iizuka Caitlin McGill Rochford Megan Rebecca O’Flynn Robin Jeanne Campbell- Salvatore Anthony Gambino Steven Mark Israel Mandel Rashidat M. Ogbara Urban Stephanie K. Gamiz Brittany Christa Jackson Robert Andrew Mantel Stephen Timothy Olson Jennifer Carmen Narciso Garcia Steven Benjamin Jacobs Jessica Lee Marczyszak Erica Welch Onsager Brooke Mackenzie Mark Steven Geiger Andrew Shahon Jacobson Dimitrios Theofanis Markos Natalie Kay Orpett Cartwright Samara Lauren Geller Brandon Jang Andrew Peter Marks Chelsea Leigh Osborne Ekaterina A. Casali Blake Hugh Gilson Karin Scholz Jenson Susannah Rose Marsh Katharine Lee Ostrow Ashleigh Stuart Casey Allyn Marie Ginns Laura Jereski Christen Marie Martosella Milton Eugene Otto Mark William Catanese Maya Ginsburg Sigrid Ursula Jernudd Jeffrey Andrew Mason Enes Ovcina Andrew Chang Samuel Evan Goldberg Jacob Keith Johnson Joslyn Ann Massengale Jessica Jenning Pai Alice Zao Chen Benjamin Aryeh Goldburd Maria Lianos Johnson Keisuke Masuda Laura Rose Paliani Jeff Chen Jessica Lauren Goldenberg Andrew Scott Joseph Scott Aaron Mathias Samantha Jillian Palmer Lu Chen David Lichtenstein Goldin Hina A. Joshi Sarah Michal Matz Amy Michelle Palumbo Ping-chun Chen Andrew Mark Goldsmith Lina Jun Katherine Eliza Mayall Elena Panagiotou Candice Chi Yeun Cho Adam Goldstein Steven Juskowicz Janet Sadler McCrae Jennifer Elyse Paone Hannah Carol Choate Jason Zachary Goldstein Samantha Maxwell Kagan Andrew Lawrence McElroy Francisco Alejandro Pardo Moon Choi Ryan Mitchell Goldstein Shilpa Kalra Matthew Bensen McFeely Brendan Sidney Parent Ashley Aeri Chung Stella Goldstein Jennifer Yince Kan Joseph David McGeehin Brian Anthony Park Yang-kun Chung Sarah Gruber Gordon Jee-eun Kang David Grey McGuiness Alison Ley Parker Shawn Matthew Clark Russell Todd Gorkin Daniel B. Kaplan Gina F. McGuire Leslie Ann Pasqualone Samuel Scherer Coe David Averil Gottfried Olga Albertovna Kariyawasam Patrick Donovan McKegney Deena J. Patel

NYSBA Journal | June 2013 | 53 Daniel Pearlstein Adam Laurence Shpeen Joanna Karolina Wasik Yevgeniy Lerner Nathan T. Assel Michael Jacob Pemstein Brian Anthony Shue Eric Michael Wasserstrum Michael Libuser Danielle Marie Baran David Louis Perechocky Elina Shulman Kunihiro Watanabe Eitan Zwi Magendzo Rufina Beem Antonia Freire Pereira Samuel Aaron Shusterhoff Kevin James Weber Joseph I. Mancino Eliot Berger Michael Jordan Pergler Ashley Elizabeth Siegel Thomas Lawrence Wechsler Ian Andrew Massar Andrew David Bochner Theresa Angelica Perkins Jonathan Eric Siegelaub Marc Joshua Wegh Hannah Eryl McCrea Benjamin Oberon Brown Yuliya Perlina David Sienko Wei Wei Mani Mostofi Keith Joseph Clarke Valerie Isabelle Petein Graham Marc Lawrance Jessica Anne Weidmann Sarah Nadeau Ashley T. DeVito Michelle Pham Silnicki Cheryl Lynn Weinheim Lauren Midori Nakamura Siobhainin S. Funchion Gary Chung-yu Pong Lee Silver Vincent Shane Weisband Renee Lynn Neier Faziah Gafur Lee Maia Popkin Ashley Margaret Simonsen Sean Brandon Weisberg Erik Max Nilsson Jessica Blair Goldstein Madison Porzio Cindy Arlana Singh Craig Allen Wenner Kathryn Victoria Ramey Sean Andrew Gradowitz Ilona Celia Potiha Joseph John Skrokov Kathryn Werner Susan Marie Reilly Reynaldo Guzman Samuel Walker Powers Liesse-Marie Slemon Ellen R. Werther Owain Huw Robertson Jared Arden Hand Derrick Mark Preston Bradley David Small John Bierce Wetmore Nicole Rossini Courtney Renee Hogue Marie Louise Priolo Dana Leigh Smith Stephanie Wiegand Jean-Baptiste Rudatsikira Afshan Jabeen Khan Simon Nicholas Pulman Natalie Ellen Smith Justin P.d. Wilcox Emma Solangel Salas Daniel Latella Mingran Qu Valerie E. Smith Kahlil Charles Williams Genna Kinsler Saltzman Ashley Megan Lebow Phong Quan Eugene Alexis Sokoloff Jane Elizabeth Wilson Avraham Reuven Schachter Troy David Lipp Sabrina Schaffer Rabinowitz James Sottile Jennette Elizabeth Wiser Maria Elizabeth Schiavone Rachel Amy Malina Nicole Alyse Rang Christin Margaret Spradley Matthew Robert Wisnieff Alison Angela Schill Brooke Ann Mendelson Benjamin John Rankin Kristina Nicole Violet Srica Amy Ilana Wolf Karen Schnur Brandon Mohr Patrick Kelly Reisinger Noam C. Srolovitz Owen Richard Wolfe Chase Scolnick John William Osborne Aaron D. Resetarits Rebecca Stanger Benjamin Joseph Wolfert Jessica B. Smith Taylor M. Palmer Evan Edward Richards Ryan Vincent Stearns Alex Jeremy Yastrow Andrew M. Stengel Melissa Ann Peace Laura Ann Richenderfer Alexander Joseph Steinberg Aparna Venkata Yenamandra Owen A. Sucoff Kathleen M. Prystowsky Spencer Barlow Ricks Sara Elizabeth Stinson Michael Y. Yiin Ruth Sharon Talansky Jaclyn Reilly Sheena Michelle Rinkle Alison Juliana Stoffregen Brittani Nicole Yriarte Dimitri Teresh Michael Andrew Rubin Herbert Joshua Rivera Molly Elizabeth Storey Daina Amaryllis Zhang Anna Tse Eli Russell Shindelman Kamil Robakiewicz Robert Lowell Stratford Wenqi Zhao Imoh S. Udofia Christopher Richard Rafael Andre Roberti Brendan James Stuart Minyu Zhou Sierra Katherine Van Borst Skrypack Stephanie Mae Roberts Katherine Maureen Sullivan Yi Parker Zhou Thomas W. Vanasse Kaylan Sobel Andrew Patrick Rocks Catherine Ella Sum Shenggang Zhu Joanna Denise Wine Kevin Eugene Staudt Nicholas Ferreira Rodriguez Bradford Jay Sussman Joanna Zieba Lauren J. Zimmerman Anna L. Susarina Kristen Tessa Rohr Abe S. Sutton Marc Andrew Zimmerman Kunal Tewani THIRD DISTRICT Alissa Marie Roland Kaitlyn E. Suydam Nico G. Zimmerman Stephen A. Veneruso Rosa Cohen-Cruz Nadia Raquel Rollins Erini Rose Svokos Aaron Louis Zises John Joseph Ventosa Joy A. David Victoria Melissa Rosales Emily L. Sy Jonathan S. Zucker Kadeen Lissandra Wong Dennis F. DiBari Alexander Robert Rosegren Eric Lewis Taffet Mitchell G. Zuckerman Kristen L. Woodford Adam C. Eggleston Matthew Jacob Rosenbaum Alice Tam Peter Brian Zuckerman Krista Elizabeth Yacovone James Michael McGahan Jeffrey Benjamin Rosenbrough Xiyi Tang SECOND DISTRICT Ryan D. Smith TENTH DISTRICT Peter Simpson Ross Xiyin Tang Nikki Adame Winningham David Joseph Alamia Ariel Gail Roth Chandler Hinkins Tanner FOURTH DISTRICT Marybeth Catherine Allen Eric R. Amidon Daniel Todd Rothberg Sanjiv Jayant Tata Justin M. Grassi Amanda Renee Barrera Stephanie Aris Andrew John Rowe Justin Paul Tatham Swarnapradha Shreenivas Daniel Berman Samantha Robyn Aster Zachary Lance Rowen Samara Renee Thomas Whitney Zuckerman Sheila Marie Ballato Lana Marie Rowenko Patrick Ryan Tierney FIFTH DISTRICT Bernstein Paraskevas Binakis Elon Rubin Brent Reed Tomlinson Kyle W. Crandall Kimberly Bolte Daniel Michael Brown Michelle Mora Rueda-Roberti Amanda Grace Tomney Ariel Ling Lin John Michael Boulos Matthew Todd Burrows Linsey Alaine Ruhl Daniel Tracer Derek T. Shepard Mehtab Kaur Brar Andrew Joseph Cabasso Amelia Jane Russell Benjamin Fox Tracy Marina Braverman SIXTH DISTRICT Natalie Marie Campo Gina V. Santino Leonid Traps Chaim E. Bryski Randa Adra Joseph B. Caraccio Dahlia Sattar Christopher Michael Trueax Barbara Burke Jeffrey Paul Catalano Hilary Faye Casper Nawreen Sattar Joanna C. Tsoumpas Iskuhi Chakarian Amy Hsu Ritesh Chatterjee Dylan Grace Savage Brent Michael Tunis Bayti Chen Jian Hu Conrad Aloysius Chayes Rana Sawaya Jennifer Kimberly Tytel Christina Marie Corcoran Robert Andrew Jerry Brian Douglas Conboy David M. Sborz Sarah Margaret Vacchiano Daniel Vincent Derby Christopher Francis Nenno Melissa Anne Danowski Kara Michelle Scheiden Rachele Michele Van Arsdale Jennifer Helen Feeley James Christopher Paci Michael Philip DeRosa Joseph Michael Scherban Andrew Lawrence Van Max Kinsler Fidler Edmond R. Parhami Bernadette Theresa Diprisco Keri Elizabeth Schick Houter Nicholas Martin Ford Jason Matthew Pierce Patrick Andrew Dolan Whitney Grace Schlimbach William Russell Vanderveer James Monroe French Amanda Rios Nicholas John Fink Lee Daniel Schneider Molly Caitlin Vaughan Nicholas John Fribourg Boris Ryvkin Josh Mathew Friedman Jonathan Barry Schreier Victoria Lorraine Velasquez Romy Colleen Ganschow Edan Shertzer Sean Robert Gajewski Suzanne Elizabeth Sciarra Shara Christine Venezia- Margaret Louise Garrett Alexander J. Stone-Tharp Michael John Ganci Erica M. Segal Walerstein Sara M. Gronningsater Benjamin J. Warach Samantha Rose Gellman Katherine Stacey Seid Laura Verlangieri Jaime Dara Hecht-Cosloy Christopher Craig Haner Talia Seidel Ana Angelica Viciana SEVENTH DISTRICT Javier O. Hidalgo Jeremy Scott Hankin Kahini Camille Selmouni Andrew Villacastin Mollie A. Dapolito Jonathan Jeremy Hill Elana Tori Jacobs Amanda Sue Sen Gerard Virga Kelly Ochs James F. Horton Albina Kataeva Stephen R. Severo Mary Grace Vitale Sarah Alexandra Kaufmann EIGHTH DISTRICT Tara Kellner Matthew Richard Shapiro Gregory Stephen Volkmar Deborah Ruth Kerzhner Joel Peter Feroleto Terence John Kemp Steven Daniel Shapiro Kimberly Alexis Wade Elizabeth Ann Kowell Kerry McGrath Nina Khaimova Kai David Nicholas Sheffield Jessica Leslie Wald Amy Caroline Kurtich Peter McGrath Megan Marie Landy Peter Andrew Sheppard Benjamin Jesse Arnold Olga Kuzmina Oriana Robin Montani Jared Ross Levy Brian K. Sheridan Walker Magda Laszlo Sara Ashley Myers Cooper J. Macco Hiroko Shibuya Xin Wang Rebecca Lebowitz Brittany Caitlin Mangan Genavieve Casey Shingle Michael Christopher Ward NINTH DISTRICT Jenny Lee Kaitlyn Rose McKenna Andrew Gregory Shoals Cody Matthew Warner Elizabeth J. Ambron

54 | June 2013 | NYSBA Journal Brian Patrick McLaughlin Allison M. Holubis Laura Domenica Damiano Bryana Theresa McGillycuddy Nathaniel Mark Richman Michael George Melchione Maeve Eileen Huggins Vanessa De Aguiar Danley Monika Bipin Mehta Gabriel L. Riggle Yasmine G. Meyer Sabrina Nilofar Jiwani Meetu Dhar Alexander Scott Meiseles Paul James Rinefierd Jared David Newman Alexander Lawrence Judka Nicholas Salvatore Dilorenzo Susan Verda Metcalfe Fabrice Robert-tissot Michael Sean Newman Kathryn Lynn Kliff Sheng Dong Angela Meyster Grace Elizabeth Rodden Katharine Emily O’Dette Courtney Faith Mose Libon Cathleen Michele Doyel Mark Elsas Miller Fernando Rodriguez-Cortina Richard A. Paladino Patrick Joseph McCadden Patrick Ryan Featherston Meredith Kelly Mommers Mieun Roh Thomas Theodore Papain Jonathan Max McCann Ilya Feldsherov Gerard Francis Mooney Barry Rona Sabiha Parvin Katherine Loraine Moore Troy Benjamin Felver Gemma Mootoo Rajah Kaihli Micole Ross Jennifer Prusiecki Mary Alissa Schindler Celina Kitzie Fletcher Ellen Louise Mossman Nicholas Andrew Rowe Karen Simone Rawlins Amy Marie Schneider Kimberly Ann Franko Carey Patricia Mulherin Steven Andrew Rowings Robert Luigi Renda Amalea Christina Wenqiong Fu Parker Todd Wayne Rubin Rebecca Richards Smirniotopoulos Ilyssa S. Fuchs Martin Musinguzi Taketo Sakurai Daniel Paul Richford Melissa Robyn Weiner Kazuyo Fujimura Katheryn Noelle Nadbielny Daniel Joseph Saposnik Kenneth Rosenblum Kyla Jade Wells Toshiya Furusho Togo Nakamura Steven Anthony Jon H. Ruiss Edmund R. Witter Melissa Ann Gardner Sumito Nakano Sciancalepore Nicole Caren Rynston Allison W. Gaul Tomoyasu Nakata Benjamin Elliot Sedrish THIRTEENTH DISTRICT Shawn Nunzio Sandler Michael Wallace Gibaldi Tatsuya Nakayama Jake Harris Seligman Artem Djukic Matthew Schlesinger James Gifford Richard Phillip Nedlin Debodhonyaa Sengupta Alexander James Fumelli David L. Schwed Brandon Marqui Gillard Mika Brooks Nelson Amy Jean Sennett Regina G. Gennari Jason Stephen Selmont Benjamin Burnett Glerum Brian Nguyen Randal Scott Seriguchi Vartges William Saroyan Rajat Shankar Alexandra Goldstein Rachael Elizabeth Nole Daniel Henry Serlin Catherine F. Schiavone Henry Scott Shapiro Trudy Anne Golobic Margaux Nollet Mira Rose Serrill-Robins Sarah L. Stoudemire Jason Mark Simensky Adriana Gomez Buritica Lawrence Howard Norton Gregory Theodus Shannon Ilyssa M. Spergel OUT OF STATE Laurie-anne Eliane Marie Niall Michael O’Sullivan David Aaron Shapiro Alexandra B. Stevens Jasmine Lilly Abraham Grelier Anna Crindell Offit James Timothy Shearin Dennis Christopher Valet Jennifer Marie Adams Eugene Michael Grossman Oleksandr Olshanskyy Sirine Shebaya Mario Andrea Veneroso Ryan John Adams Nikki Ann Galutira Guevarra Sin Yee Ong Youngho Shim Jeremy M. Weg Nicolas V. Aeschlimann Brian R. Gutman Diane Elisabeth Pallez Daniel Shlomi Gregory Edward Wenz Zarina Ajwani Daniel George Habib Yian Pan Nicholas Henry Sikon Hilary Madeline Wissemann Machaille Hassan Al-naimi Michael R. Herman Oleksandr Pankiv Jacob Louis Silberberg Justin Zaroovabeli Hannah Kennedy Albertson Craig Herskowitz Alexandra Chloe Papalia Ethan Tsvi Siller Kenneth Thomas Zawistowski Mark Eldridge Anderson Henrik Humrich Brendan Ross Parets Ezra Isaac Siller David Nelson Apfelbaum Kathleen Theresa Hunker Joshua M. Parker Sharen Sher Ling Sim ELEVENTH DISTRICT Vikram Singh Arneja Allison N. Johns Matthew Kenneth John William Joseph Simmons David Akerman Ian S. Augarten Carolina Taunay Joop Parker Michael David Sinai James Asquith Seong Ryeol Bae David Michael Kaden Andrew Henry Pastwick Pavini Emiko Singh Rimma Ayzen Lindsay Ann Barovick James Byron Kelly Kimberly Leehaug Michael Alan Sisitzky Lili Alexandre Biesemeyer Adam Morgan Beasley Fawad Khan Patwardhan Mary Christine Slavik Lawrence Brown John Richard Berkley Hankyu Kim Scott Topiel Paul Aisling Slevin Hera Javed Chand Gary Charles Berkson Hyungsoo Kim Sheena Paul Kaylan Erin Sliney Anna Demidchik Douglas Jerome Blacker Kara L. Kohlenberg Eric Mark Pelz Ryan David Smith Justin David Dickinson Melissa Ann Blue Sky Anastasia Kovalevskaya Martha Perez Jose Alberto Socorro Mandy F. Estinville Clare E. Bogdanowicz Andrew Ryan Kravis Breanna Leigh Peterson Whitney J. Stein Ye Feng William Nicolas Bonnin Adam J. Levitt Andrew John Petrie Jessica Jane Stringer Adam Justin Heckler Sarah Jane Braasch Marc Abraham Levitt Stefanie Andrea Pfisterer Erica Lynne Swainson Elizabeth Marie Kenney Sarah Laine Brodie Philip Joseph Levitz Andreas Johannes Piepers Edward B.M. Terchunian Laura Marie Kitchen Klaus Markus Buhlmann Miaoran Li Danielle Pistola Danielle-Ann Thomas Scott Adam Kutcher Jessica Ann Burt Melina Lito Laure Pistre Michael John Von Klemperer Sujeon Lee Daniella Casseres Vivian Y. Liu Frank B. Poe David Weinstein Margaret M. Lin Sitong Chen Wei Liu Margot Julia Pollans Dennis Ira Wilenchik Maria Elena Malvar Xia Chen Yueling Liu Ashley Nicole Prather Zachary Alexander Withers Theodore Mavromihalis George Constantinov Chipev Rui Luo Greta Aileen Proctor David Carl Wohlstadter Michele McGuinness Sonali Priyamvada Chitre Mark Leo Mahan Amanda Beth Protess Sidney Bing Wong Kenny Minaya Doo Young Choi Jennifer Brooke Maisel Alexandra Jennifer Pryor Yun Wu Tiffany Moseley Rizwan Afzal Chowdhry Lauren Brooke Major Bridget Earley Psarianos Ayako Yamada Jessica Ann O’Grady Celia Ruth Choy George Justin Mallone Roger Gregorio Pujols Masayuki Yamada Alexander B. Rubin Lindita Valentina Ciko Andrea Lynn Manafort Rodriguez Chiharu Yamamoto Thais Maria Pascho Saad Keith Joseph Clarke Anna Mandel Stephen Joseph Putnoki- Hai-ching Yang Rory Edward Sheridan Giovanni Colantuono Rajvinder Kaur Mann Higgins Liu Yang Mordecai Simha James Peter Conlan Da Mao Wenxiong Qiu Xiaohong Yao Alexander B. Turbin Laura Faye Corbin Lauren Jill Marcus Corilee Kahealani As Racela Nathnael Tesfamichael Kaliopi Vasiliou Sean Warren Coughlin Renata Ribeiro Marques Nadia Rahman Yohannes Aiysha Wasi Jacqueline Danielle Crowley Leon Matthias Martin Paul Joseph Ray Jiayi Yu Andre Williams Lisa Lyne Cunningham Vicki Martin-Odette Jaime S. Reichardt Keju Zheng Damias A. Wilson Gabriela Da Cunha Lima Andrea Louisa Martinez Courtney Retter Le Zhou TWELFTH DISTRICT Britto Molly Egan McBurney Brian Thomas Rice Michael Charles Zogby Ufuoma Barbara Akpotaire Leeor S. Baskin Patrick Thomas Clark Cassidy Hope Crough In Memoriam Shannon Cumberbatch Adam Fischman Michael J. Brown Benjamin Franklin Jacob W. Heller Sylvia Frenkel Kennebunkport, ME Ithaca, NY New York, NY Conor Gleason Katherine Anne Gregory Donald E. Deegan Joseph W. Kiefer Latoya Dee Herring Garden City, NY Orlando, FL Kari Alexandra Heyison

NYSBA Journal | June 2013 | 55 The Legal Writer Continued from Page 64 Admit” or “Defendant’s Second Notice dent, had the authority to purchase to Admit.” Nothing but motions pro- the camera lenses from plain- you may move for sanctions for your hibiting harassment limits the number tiff, Lens For You, Inc., and sign adversary’s unreasonable denials in a of notices to admit you may serve your plaintiff’s invoice acknowledging notice to admit. adversary. receipt of the camera lenses. No prohibition exists to using both Include an introductory paragraph an EBT and a notice to admit in pend- stating who’s seeking admissions from Break down the compound request ing litigation. Use an EBT to discover whom and the date that responses are one fact at a time. Example: 25 facts, and use a notice to admit to due. Example: “Plaintiff requests that Request No. 1 “establish that certain facts are not in defendant admit by [date 20 days after dispute and to eliminate the need for service] the following facts.”26 If your On May 12, 2008, Annette Barnes proof of that fact at trial.”19 lawsuit has multiple plaintiffs or mul- was president of Memorable Pho- tiple defendants, specify clearly which tographs Company. The Earliest and the Latest party is seeking the admissions and Request No. 2 You may serve a notice to admit after which party must respond to the notice On May 12, 2008, Barnes had the the defendant has served its answer or to admit. If you’re serving a notice to authority to purchase the camera after 20 days from receiving the plain- admit on more than one party, tailor lenses from plaintiff, Lens For You, tiff’s summons, whichever is sooner.20 the notice to admit to each respective Inc.

If you don’t respond to a notice to admit, all the items in the notice will automatically be deemed admitted.

A party may serve a notice to admit, party. CPLR 2103(e) provides that you Request No. 3 unlike true disclosure devices, up to serve copies of the notice to admit on On May 12, 2008, Barnes had the 21 20 days before trial. Thus, as long as all other parties who have appeared in authority to sign plaintiff’s invoice your notice to admit isn’t a subterfuge the litigation. acknowledging receipt of the cam- to get disclosure, you may serve a If you need to define special terms era lenses. notice to admit after filing a note of in your notice to admit, include a defi- issue (or notice of trial in the lower nition section. But don’t over-define or Create each request so that your adver- courts) certifying that you’re ready for use boilerplate definitions.27 sary can respond with a clear answer. trial.22 Your note of issue (or notice of Number each request in the notice Avoid requests that have subparts. trial) informs the court that pretrial to admit in numerical order. Example: Attach as an exhibit any document proceedings and disclosure is com- “Request No. 1,” “Request No. 2,” or photograph you refer to in your plete. Even though disclosure is com- “Request No. 3.” Nothing limits the notice to admit.32 Plaintiffs should plete, you may still serve your adver- number of requests in your notice to mark their exhibit tabs using numbers, sary with a notice to admit. The reason admit;28 just don’t impose an undue from 1 onward. Defendants should is that a “notice [to admit] is not truly a burden on your adversary.29 mark their exhibit tabs using letters, disclosure device but just a procedure If you send more than one notice to from A onward. CPLR 3123(a) pro- designed to ‘crystallize issues.’”23 admit, keep your requests sequential. vides that you need not serve a copy of If you ended your first notice to admit a document or photograph with your Format and Style with request number 20, start your notice to admit if you’ve previously Like other legal documents, your second notice to admit with request furnished a copy to your adversary. notice to admit should have a cap- number 21.30 The better practice is to include the tion. Include the name of the court, the Request one fact at a time. Avoid document or photograph as an exhibit county, the title of the action, the index compound requests.31 Create clear and in your notice to admit.33 You’ll avoid number, the names of the parties, and simple requests. Example of compound confusion and save time that way. the title of the document.24 The title of request: No need to file your notice to admit the document, for example, might be Request No. 1 with the court. “Plaintiff’s First Notice to Admit” or Notices to admit must comply with “Defendant’s First Notice to Admit.” On May 12, 2008, Annette Barnes CPLR 2101(d). The notice to admit If you send a second notice to admit, was president of Memorable Pho- must have the attorney’s name, sig- label it “Plaintiff’s Second Notice to tographs Company and, as presi- nature, address, and telephone num-

56 | June 2013 | NYSBA Journal ber. Pro ses must include their names, sidewalk located in front of 321 you’re suing a manufacturer of freez- signatures, addresses, and telephone White Street. ers, Really Cold Freezer Company, and numbers. the delivery company, Large Appli- You can’t use a notice to admit to ance Delivery Company. You can’t Improper Ways to Use a Notice to seek interpretations of the law39 or send a notice to admit to Really Cold Admit legal conclusions.40 Example: Freezer Company seeking information If you use a notice to admit improperly Request No. 7 about Large Appliance Delivery Com- — and even if your adversary never pany. Example: Plaintiff’s notice of claim against responds to your notice to admit — Request No. 9 the admissions won’t automatically the City of New York was proper under the General Municipal Law. be deemed admitted.34 Make sure you Large Appliance Delivery Com- properly use a notice to admit and for You can’t use a notice to admit to pany failed properly to secure the the right reasons. seek technical or scientific information freezer in its delivery truck before You can’t seek in a notice to admit as would “ordinarily [be] elicited from transporting it to plaintiff. a fact that’s the “very dispute” of the an expert.”41 Assume that your client action.35 Notices to admit are “intend- performed a brain MRI on Anderson ed only to eliminate from the issues Pitt. Also assume that your client in a You can’t seek in in litigation matters which will not no-fault action is suing Pitt’s insurance a notice to admit a really be in dispute at the trial. Thus company, seeking reimbursement for . . . requests for admissions are not the unpaid MRI bill. Example: fact that’s the very intended to cover ultimate conclu- Request No. 8 sions which can only be made after a Anderson Pitt’s MRI of the brain dispute of the action. full and complete trial.”36 In a negli- was medically necessary. gence case, the defendant’s negligence You can’t use a notice to admit to You can’t use a notice to admit is the “gravamen of the dispute.”37 seek admissions that your adversary to seek answers to “clearly irrelevant Therefore, you can’t ask the defen- has already admitted in responsive questions.”50 Assume you’re suing dant to admit that the defendant was pleadings.42 If your adversary has defendant Austin Stark for breach of negligent, because you can’t ask the already admitted a fact in its answer, contract. Example: defendant to admit facts that prove for example, no reason would exist to Request No. 10 the defendant’s negligence. Assume send a notice to admit for your adver- you’ve sued Pierson Sewage Compa- sary to admit the same fact.43 Your On May 5, 2009, Austin Stark was ny for negligence because your client, adversary doesn’t need to admit the wearing brown cowboy boots Sophia Andrews, fell on a pipe left on same fact twice. If your adversary’s when he signed the contract. the street after workers fixed a sewage response at an EBT or in a bill of par- You can’t use a notice to admit pipe. Examples: ticular, however, was ambiguous or to obtain additional disclosure right 51 Request No. 4 equivocal — and thus not an admis- before trial. You can’t, for example, sion — it’s appropriate to send a notice send the defendant a 50-page notice Pierson Sewage Company was to admit that fact.44 to admit seeking what you should negligent when it failed to remove You can’t use a notice to admit to have sought during disclosure.52 It’s a pipe from the intersection of obtain information if other disclosure improper to do so, and it creates an Canal and Lafayette Streets. devices are available45 and relevant to unreasonable burden on your adver- Request No. 5 what you’re seeking. Notices to admit sary.53 Pierson Sewage Company’s neg- aren’t substitutes for EBTs or bills of ligence caused Sophia Andrew’s particulars.46 Proper Ways to Use a Notice to injuries. You can’t use a notice to admit Admit to “uncover, define, or narrow [the] Use a notice to admit to get your Likewise, you can’t seek in a notice responder’s contentions.”47 If that’s adversary to admit that a specific doc- to admit an admission that goes to the what you’re seeking to do, use a bill ument is authentic. Example: 38 “heart of the matter at issue.” Assume of particulars instead of a notice to Request No. 11 you’re suing the City of New York for admit.48 damages your client sustained in a slip You can’t use a notice to admit to The original document, a copy of and fall on a sidewalk. Example: seek admissions from a party that only which is attached as Exhibit 1, is a genuine and authentic Priceless another party knows about.49 If you’re Request No. 6 Antiques bill, dated November 12, the plaintiff and you’ve sued multiple 2009. The City of New York had con- defendants, for each notice to admit structive notice of the defective write one for each defendant. Assume Continued on Page 58

NYSBA Journal | June 2013 | 57 The Legal Writer Continued from Page 57 Request No. 17 However, . . . defendant . . . did not . . . concede the admissibility of the provider’s claim form as a On June 21, 2011, Paula Ohms business record . . . .”)). Use a notice to admit to get your owned the car depicted in the pho- 13. Siegel, supra note 4, at § 364, at 623. adversary to admit the accuracy of a tograph, attached as Exhibit 2. 14. Barr et al., supra note 1, § 30:02, at 30-5. photocopy. Example: 15. Id. Request No. 12 In the upcoming issue of the Jour- nal, the Legal Writer will continue with 16. Id. § 30:30, at 30-7. The document, attached as Exhibit techniques on writing and responding 17. Id. § 30:05, at 30-5. A, is an accurate copy of Zoe Mat- to a notice to admit. n 18. Id. § 30:202, at 30-20. thew’s Bags Inc.’s commercial lease 19. Byer’s Civil Motions, supra note 2, at § 24:47 with the landlord for premises 111 (quoting Groeger v. Col-Es Orthopedic Assocs. PC, Pope Street, store #2. Gerald Lebovits ([email protected]), a New 136 A.D.2d 952, 952, 524 N.Y.S.2d 950, 951 (4th York City Civil Court judge, teaches part time at Dep’t 1988) and citing Johantgen v. Hobart Mfg. Co., Use a notice to admit to establish 64 A.D.2d 858, 859–60, 407 N.Y.S.2d 355, 357 (4th Columbia, Fordham, and NYU law schools. He Dep’t 1978)). facts that aren’t in dispute. Example: thanks court attorney Alexandra Standish for 20. CPLR 3123(a). researching this column. Request No. 13 21. CPLR 3123(a); Siegel, supra note 4, at § 364, at On February 21, 2011, defendant 624. 22. Siegel, supra note 4, at § 364, at 624 (citing Lee Markowitz drove a 1990 black 1. 1 Michael Barr, Myriam J. Altman, Burton N. Hodes v. City of N.Y., 165 A.D.2d 168, 171, 566 convertible Corvette. Lipshie & Sharon S. Gerstman, New York Civil N.Y.S.2d 611, 612 (1st Dep’t 1991) (“An examina- Practice Before Trial § 30:05, at 30-5 (2006; Dec. tion of plaintiff’s fifty page purported notice to 2009 Supp.) (citing Falkowitz v. Kings Highway Use a notice to admit to authenti- admit demonstrates that it scarcely constitutes a Hosp., 43 A.D.2d 696, 696, 349 N.Y.S.2d 790, 791-92 cate signatures on documents. Example: request for admission of the sort of narrow, limited (2d Dep’t 1973)). matters contemplated by the statute but, instead, Request No. 14 2. 1 Byer’s Civil Motions § 24:47 (Howard G. appears to be merely a subterfuge for obtaining Leventhal 2d rev. ed. 2006; 2012 Supp.). further discovery.”)). The signature appearing on the last page of the 25-page contract, 3. 6 Jack Weinstein, Harold Korn & Arthur Miller, 23. Id. (quoting Hodes, 165 A.D.2d at 170, 566 N.Y. Civ. Prac.: CPLR ¶ 3123.01, at 31-534 (2d ed. N.Y.S.2d at 612). attached as Exhibit 1, is defen- 2012; Mar. 2013 Supp.); Barr et al., supra note 1, § 24. Barr et al., supra note 1, § 30:61, at 30-10. dant’s signature. 30:01, at 30-5 (citing CPLR 3102(a), 3123(a)). 25. Id. § 30:62, at 30-10. 4. David D. Siegel, New York Practice § 364, at Even though you can’t use a notice Id. 624 (5th ed. 2011). 26. to admit to seek legal conclusions or to 27. Id. § 30:63, at 30-10. 5. Byer’s Civil Motions, supra note 2, at § 24:47 interpret the law, you may use a notice (citing Lewis v. Hertz Corp., 193 A.D.2d 470, 470, 597 28. CPLR 3123. to admit to seek the “responder’s sub- N.Y.S.2d 368, 368 (1st Dep’t 1993)). 29. Barr et al., supra note 1, § 30:68, at 30-11 (citing jective understanding of its own legal 6. Siegel, supra note 4, at § 364, at 623 (quoting Nader v. Gen. Motors Corp., 53 Misc. 2d 515, 515–16, 54 CPLR 3123(a)). 279 N.Y.S.2d 111, 112 (Sup. Ct. N.Y. County) (“The duty.” Assume you’ve sued Hope subject notice consists of more than three hundred 7. Barr et al., supra note 1, § 30:10, at 30-6. Avenue LLC, defendant-landlord, (300) separate items, subdivided in forty-four para- after your client’s child was injured 8. Id. § 30:03, at 30-5. graphs of a twenty-nine page, single-spaced type- written document. Even a cursory examination of 9. Weinstein et al., supra note 3, ¶ 3123.02, at when the child fell out of an unsecured these papers establishes that, as a whole, the notice 31-534. building window. Example: in question is patently burdensome, unnecessarily 10. CPLR 3123(a); Byer’s Civil Motions, supra note prolix, and unduly protracted.”), aff’d, 29 A.D.2d Request No. 15 2, at § 24:47. 632, 286 N.Y.S.2d 209 (1st Dep’t 1967)). Hope Avenue LLC was aware of 11. Barr et al., supra note 1, § 30:32, at 30-8. 30. Id. § 30:67, at 30-11. its duty to install window safety 12. Id. § 30:32, at 30-8 (citing Great Am. Ins. Co. 31. Id. § 30:64, at 30-11. v. Matzen Constr., Inc., 114 A.D.2d 625, 626, 494 guards on the building. 32. CPLR 3123(a); Siegel, supra note 4, at § 364, at N.Y.S.2d 464, 465–66 (3d Dep’t 1985); Cent. Nas- 623. Use a notice to admit to get your sau Diagnostic Imaging, P.C. v. GEICO, 28 Misc. 3d 34, 37, 905 N.Y.S.2d 431, 433 (App. Term 1st Dep’t 33. Barr et al., supra note 1, § 30:69, at 30-11. adversary to admit that a specific pho- 2010) (“[P]laintiff’s requests for admissions were 34. Id. § 30:13, at 30-6. tograph is accurate, “correct or fair.”55 appropriate and defendant, by failing to respond to the notice to admit or seek other appropriate relief, 35. Byer’s Civil Motions, supra note 2, at § 24:47; Assume you’re suing Paula Ohms for is deemed to have admitted the facts on which Siegel, supra note 4, at § 364, at 623 (quoting Spaw- damages your client sustained in a car plaintiff sought admissions. Because defendant ton v. James E. Strates Shows, Inc., 75 Misc. 2d 813, accident. Examples: admitted that the two bills attached to the notice 814, 349 N.Y.S.2d 295, 297 (Sup. Ct. Erie County were ‘true and accurate’ copies of the bills received 1973)); Barr et al., supra note 1, § 30:13, at 30-6 (cit- Request No. 16 by defendant and that defendant has not paid ing DeSilva v. Rosenberg, 236 A.D.2d 508, 508, 654 those bills, plaintiff established its entitlement to N.Y.S.2d 30, 31 (2d Dep’t 1997)). The photograph, attached as Exhib- recover the overdue assigned first-party no-fault 36. Byer’s Civil Motions, supra note 2, at § 24:47 benefits.”); but see Bajaj v. Gen. Assurance, 18 Misc. it 1, fairly and accurately repre- (quoting Servidori v. Mahoney, 129 A.D.2d 944, 945- 3d 25, 28, 852 N.Y.S.2d 576, 578 (App. Term 2d sents the intersection of Broadway 46, 515 N.Y.S.2d 328, 330 (3d Dep’t 1987); Falkowitz, Dep’t 2nd & 11th Jud. Dists. 2007) (“[T]he admis- 43 A.D.2d at 696, 349 N.Y.S.2d at 792; Nader, 52 and Franklin Street as it appeared sions sought by plaintiff in the notice to admit Misc. 2d at 516, 279 N.Y.S.2d at 113. on the day of the incident, June were proper and, in the absence of a response, the 21, 2011. court below correctly deemed the genuineness 37. Id. (citing Spawton, 75 Misc. 2d at 814, 349 of the claim denial form to have been admitted. N.Y.S.2d at 297).

58 | June 2013 | NYSBA Journal 38. Weinstein et al., supra note 3, ¶ 3123.06, at 2011); Drafting New York Civil-Litigation Documents: expert witness or witnesses familiar with the sales, 31-539 (citing Glasser v. City of N.Y., 265 A.D.2d 526, Part VIII — The Answer, 83 N.Y. St. B.J. 96 (July/ marketing, manufacturing and chemobiological 526, 697 N.Y.S.2d 167, 168 (2d Dep’t 1999)). Aug. 2011); Drafting New York Civil-Litigation Docu- backgrounds of the product in question. Informa- ments: Part IX — The Answer, 83 N.Y. St. B.J. 64 tion such as that is not the proper subject of a 39. Byer’s Civil Motions, supra note 2, at § 24:47. (Sept. 2011). notice to admit.”). 40. Id. (citing Gomez v. Long Island R.R., 201 A.D.2d 44. Barr et al., supra note 1, § 30:52, at 30-10; 47. Barr et al., supra note 1, § 30:17, at 30-7 (citing 455, 456, 607 N.Y.S.2d 388, 389 (2d Dep’t 1994) Groeger, 136 A.D.2d at 952, 524 N.Y.S.2d at 951 Rosario v. Gen. Motors Corp., 148 A.D.2d 108, 114, (noting that defendant improperly sought plain- (“[A]n admission made during a deposition is not 543 N.Y.S.2d 974, 977 (1st Dep’t 1989)). tiff’s status in this country under immigration laws conclusive and may be explained away, but an and whether plaintiff was trespassing at time of 48. Id. § 30:17, at 30-7. admission in response to a notice to admit, unless accident)); Barr et al., supra note 1, § 30:15, at 30-7 amended or withdrawn by court order, is conclu- 49. Siegel, supra note 4, at § 364, at 623 (citing Taylor (citing Villa v. N.Y. City Hous. Auth., 107 A.D.2d sive.”). v. Blair, 116 A.D.2d 204, 207, 500 N.Y.S.2d 133, 134 619, 620-21, 484 N.Y.S.2d 4, 5 (1st Dep’t 1985) (find- (1st Dep’t 1986) (“Many items [improperly] seek ing plaintiff’s notice to admit improper because it 45. Byer’s Civil Motions, supra note 2, at § 24:47 admissions either as to facts within the unique sought defendant to admit that plaintiff’s notice of (citing Nader, 53 Misc. 2d at 516, 279 N.Y.S.2d at 113 knowledge of other parties to the action . . .”)). claim was proper under General Municipal Law)); (“[I]n the instant matter, the number, the detailed Oscar G. Chase & Robert A. Barker, Civil Litigation complexity, the minutia and, in many instances, 50. Byer’s Civil Motions, supra note 2, at § 24:47. in New York § 15.04, at 707–08 (5th ed. 2007). the repetitiousness of the substance of the requests 51. Id. made by plaintiff clearly demonstrate that, in real- 41. Siegel, supra note 4, at § 364, at 623 (citing ity, he seeks information which may be properly 52. Siegel, supra note 4, at § 364, at 624 (citing Falkowitz, 43 A.D.2d at 696, 349 N.Y.S.2d at 792); obtained, if at all, by way of deposition rather than Hodes, 165 A.D.2d at 171, 566 N.Y.S.2d at 612) (find- Barr et al., supra note 1, § 30:14, at 30-7 (citing by requested admissions. The practice of employing that plaintiff’s 50-page notice to admit was Haroche v. Haroche, 38 A.D.2d 957, 957, 331 N.Y.S.2d ing the notice to admit in connection with detailed mere subterfuge to obtain more disclosure by try- 466, 467 (2d Dep’t 1972) (finding improper wife’s and disputed items of evidence has frequently ing to circumvent the readiness requirement). notice to admit seeking husband’s admission that been the subject of serious judicial criticism, which 53. Byer’s Civil Motions, supra note 2, at § 24:47; dental treatment for child was necessary and rea- is particularly applicable here.”)). Chase et al., supra note 40, §15.04 [e], at 707. sonable)). 46. Barr et al., supra note 1, § 30:51, at 30-9; § 54. Barr et al., supra note 1, § 30:15, at 30-7 (citing 42. Byer’s Civil Motions, supra note 2, at § 24:47. 30:16 at 30-7 (citing DeSilva, 236 A.D.2d at 509, 654 Villa, 107 A.D.2d at 620, 484 N.Y.S.2d at 5 (finding 43. The Legal Writer explained in Parts VI-IX of N.Y.S.2d at 31; Berg v. Flower Fifth Ave. Hosp., 102 proper plaintiff’s notice to admit that defendant this series the techniques to drafting an answer. A.D.2d 760, 760–61, 476 N.Y.S.2d 895, 897 (1st Dep’t was aware of its legal duty to install window See Drafting New York Civil-Litigation Documents: 1984)); Falkowitz, 43 A.D.2d at 696, 349 N.Y.S.2d at safety guards on a building)). Part VI — The Answer, 83 N.Y. St. B.J. 64 (Mar./Apr. 792 (“The notice in this case concerns a great deal 55. Id. § 30:44, at 30-9. 2011); Drafting New York Civil-Litigation Documents: of highly technical, detailed and scientific informa- Part VII — The Answer, 83 N.Y. St. B.J. 64 (June tion, which is itself a subject for examination by an

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NYSBA Journal | June 2013 | 59 Classified Notices Index to Advertisers

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60 | June 2013 | NYSBA Journal Language Tips By Gertrude Block

uestion: Please write a column Florida recently announced: “Less than Non-count nouns are rapidly disap- on the frequent misuse of the 300,000 private sector jobs have been pearing in both England and the United Qwords alternate and alternative, created since December 2010.” (The States. Not too long ago, the word con- and explain that they are not syn- word less should be fewer.) science was a non-count noun, as in onyms. Each word is not the “alterna- The reason is that English nouns “People’s conscience guides their behav- tive” and certainly not “the alternate” are of two kinds: “count nouns” like ior.” Now it has become a count noun: of the other. “marbles, apples, programs, and jobs”; consciences. Recently we used behavior as Answer: This email from a Pennsyl- and “non-count nouns” like “informa- a non-count noun, but since psycholo- vania correspondent makes a pertinent tion, wealth, happiness, and laziness.” gists refer to patients’ behaviors that noun request, but the distinction in meaning Modern English contains many more has moved into the count category. that he believes exists between alter- count nouns than non-count nouns, and “Humidity” was formerly a non- nate and alternative is not quite as pro- the number of count nouns grows as the count noun, but weather forecasters nounced as he thinks. Both alternate and number of non-count nouns shrinks. now talk about “humidities.” A recent alternative are widely used as nouns, Count nouns are divisible; thus they law review article describes “emotional and they rarely cause any confusion. have a plural form. You can have one intelligences,” and journalists discuss See, for example, The American Heritage marble or two marbles, one job or sev- the “insights” of diplomats – all for- Dictionary, 1986: A person acting in eral jobs. Non-count nouns have no merly non-count nouns. Mental health place of another is an alternate. plural forms, for they are non-divisible: professionals have come to use depres- If the nouns compared are not per- you cannot pluralize “information,” by sion (a former non-count noun) as a sons, alternative is usually chosen, as in, saying “two informations.” Nor can count noun. “There is no alternative.” In a compari- you speak of “two lazinesses.” This long explanation may clarify son of non-person adjectives, “alterna- Non-count nouns can occur in the Attorney Burke’s question. Use fewer tive” is also widely used, as in: “Tuesday singular without either a definite or with count nouns, less with non-count is the alternative choice for the meeting.” indefinite article – “the” or “a/an.” You nouns. Talk about much happiness, or However, usage is mixed when can say, “Information is necessary.” But fewer joys; much help, but many helpers, adjectives are involved. Although some you must add either “the” or “a/an” to less company, but fewer visitors; little dif- Americans insist (like the correspon- singular count nouns. Thus you must ficulty, but fewer problems (or few diffi- dent) that only the adjective is correct say, “An apple is good for you,” not culties, for difficulty can be either a non- (“an alternative route”), a substantial “Apple is good for you.” You can talk count or a count noun). Correspondent minority of Americans consider alter- about half an apple, but not half a sad- Burke mentioned that his father used to nate also acceptable. Thus, phrases like ness, a non-count noun. talk about “fewer opportunities” and “alternate routes” or “alternate ideas” But a complicating problem is that “fewer taxes”; his father was right! are proper. So it is probably better to some nouns can be either count or non- From this long answer, it is also avoid the word “correct” or “incorrect” count nouns. Both air and honor are apparent why readers regularly have to characterize that usage. in this category. In the statement, “In difficulty deciding which category a Two reliable sources on usage, The industry honor is important,” honor is a certain noun belongs in. Their dilem- Oxford English Dictionary and the legal non-count noun. In “He received many ma is increasing because the categories Words and Phrases (Volume 3, 2007), honors at graduation,” honor is a count may change as they ponder. agree on that point. The correspondent noun. To make the situation even more will probably eventually become cor- complicated, different nations make dif- Potpourri rect in his opinion, but the decision is ferent decisions about which nouns are A Massachusetts reader notes that there currently in flux. count and which nouns are non-count. is now a third category to answer the Question: The time might be ripe for In British English, for example, you question, Married or single? It is “in a a discussion of the difference between enter university (non-count). In the U.S. relationship,” which indicates neither less and fewer. On TV, speakers talk you attend a university (count noun). married nor single, but “committed.”n about “less opportunities,” politicians The British go to hospital; Americans go talk about “less taxes.” But I believe cor- to a hospital. Even more confusing, some Gertrude Block ([email protected]) is lecturer rect usage requires “fewer” taxes and words are non-count nouns in certain emerita at the University of Florida College of “fewer” opportunities. contexts and count nouns in others. Law. She is the author of Effective Legal Writing Answer: You are right! My thanks to You can buy sugar and coffee by the (Foundation Press) and co-author of Judicial Rochester, New York attorney Philip L. pound (as non-count nouns) or order Opinion Writing (American Bar Association). Burke for his suggestion that we discuss “a coffee” (in a cup) or “a sugar” in an Her most recent book is Legal Writing Advice: this question again, for it always seems individual packet. Questions and Answers (W. S. Hein & Co.). timely. For example, the governor of

NYSBA Journal | June 2013 | 61 Headquarters Staff Email Addresses 2013-2014 Officers

Executive CLE Publications David M. Schraver Patricia K. Bucklin Daniel J. McMahon, Director President Executive Director [email protected] Rochester [email protected] Kirsten Downer, Research Attorney Glenn Lau-Kee Teresa Schiller [email protected] President-Elect Associate Executive Director Patricia B. Stockli, Research Attorney Rochester [email protected] [email protected] David P. Miranda Richard J. Martin Joan Fucillo, Publication Manager [email protected] Secretary Assistant Executive Director Albany [email protected] Law Practice Management Katherine Suchocki, Director Sharon Stern Gerstman Executive Services [email protected] Treasurer Andria Bentley, Executive Services Counsel Buffalo [email protected] Finance Kevin Getnick, Executive Services Counsel Kristin M. O’Brien, Senior Director Seymour W. James, Jr. [email protected] [email protected] Immediate Past President Mark Wilson, Manager, Bar Services Cynthia Gaynor, Associate Director of Finance New York [email protected] [email protected] Vice-Presidents Media Services and General Counsel Services First District Public Affairs Kathleen R. Mulligan-Baxter, General Counsel Lise Bang-Jensen, Director [email protected] Catherine A. Christian, New York [email protected] Law, Youth and Citizenship Program Jay G. Safer, New York Mark Mahoney, Associate Director Eileen Gerrish, Director Second District [email protected] [email protected] Manuel A. Romero, Brooklyn Patricia Sears Doherty, Editor, State Bar News Lawyer Referral and Third District [email protected] Information Service Lillian M. Moy, Albany Brandon Vogel, Media Writer Eva Valentin-Espinal, Coordinator [email protected] [email protected] Fourth District Lawyer Assistance Program Pro Bono Affairs Rebecca A. Slezak, Amsterdam Patricia F. Spataro, Director Gloria Herron Arthur, Director Fifth District [email protected] [email protected] Thomas E. Myers, Syracuse Meetings Human Resources and Kathleen M. Heider, Director Sixth District Customer Service [email protected] Mark S. Gorgos, Binghamton Paula M. Doyle, Senior Director MIS [email protected] Seventh District David Adkins, Chief Technology Officer Sonja Tompkins, Manager June M. Castellano, Rochester [email protected] [email protected] Jeffrey Ordon, Network Support Specialist Eighth District [email protected] Member Services Division Cheryl Smith Fisher, Buffalo Richard J. Martin, Assistant Executive Director Lucian Uveges, Database Administrator Ninth District [email protected] [email protected] Hon. Arlene Gordon-Oliver, White Plains Paul Wos, Data Systems and Marketing Telecommunications Manager Membership Services Tenth District [email protected] Patricia K. Wood, Senior Director Scott M. Karson, Melville Web Site [email protected] Eleventh District Barbara Beauchamp, Manager of Internet Services Megan O’Toole, Membership Services Manager Richard M. Gutierrez, Forest Hills [email protected] [email protected] Section Services Twelfth District overnmental elations G R Lisa J. Bataille, Chief Section Liaison Steven E. Millon, Bronx Richard Rifkin, Senior Director [email protected] [email protected] Thirteenth District Ronald F. Kennedy, Director Print and Facilities Operations Michael J. Gaffney, Staten Island [email protected] Roger E. Buchanan, Senior Director Kevin M. Kerwin, Associate Director [email protected] Members-at-Large of the [email protected] Building Maintenance Executive Committee Design Services Samuel F. Abernethy Continuing Legal Education H. Douglas Guevara, Senior Director Graphics James B. Ayers [email protected] Print Shop James R. Barnes Gordon H. Ryan, Director of Design, Printing T. Andrew Brown CLE Programs and Fulfillment Services Jean E. Nelson II, Associate Director [email protected] David Louis Cohen [email protected] Hon. Margaret J. Finerty Carl Copps, CLE Program Attorney [email protected] The New York Bar Foundation Evan M. Goldberg Deborah Auspelmyer, Foundation Administrator Kimberly Francis, CLE Program Coordinator Ira S. Goldenberg [email protected] [email protected] Edwina Frances Martin Cindy O’Brien, Program Manager Sherry Levin Wallach [email protected] Oliver C. Young

62 | June 2013 | NYSBA Journal Members of the HOuse of Delegates

First District † * Leber, Bernice K. Klass, Richard A. Fifth District Eighth District Cooper, Ilene S. Aaron, Stewart D. Lesk, Ann B. Longo, Mark A. DeMartino, Nicholas Brown, Joseph Scott DeHaven, George K. Abdelhamid, Reema Salah Lessard, Stephen Charles Lonuzzi, John A. Fennell, Timothy J. Cassata, Hon. Joseph J. England, Donna Abella, Zachary J. Levy, M. Barry Lugo, Betty Fish, Marion Hancock Convissar, Robert N. Ferris, William Taber, III Abernethy, Samuel F. Lieberman, Ellen McKay, Hon. Joseph Kevin Foley, Timothy D. † * Doyle, Vincent E., III Fishberg, Gerard Abramowitz, Alton L. Lindenauer, Susan B. Napoletano, Domenick Gall, Hon. Erin P. Edmunds, David L., Jr. Franchina, Emily F. Adler, Roger B. Ling-Cohan, Hon. Doris Richman, Steven H. Gensini, Gioia A. Effman, Norman P. Gann, Marc Alcott, Mark H. Lupkin, Jonathan D. Romero, Manuel A. Gerace, Donald Richard Fisher, Cheryl Smith Genoa, Marilyn Alden, Steven M. * MacCrate, Robert Seddio, Hon. 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Brown, Terryl Morales, Rosevelie Marquez Bauman, Hon. Harold J. Larose, Stuart J. O’Donnell, Thomas M. Krisel, Martha Burns, Howard W., Jr. Morril, Mark C. Baynes, Brendan Francis McArdle, Kevin M. Ogden, Hon. E. Jeannette Lapp, Charles E., III Chakansky, Michael I. Moses, Barbara Carol Beckford, Marie B. Myers, Thomas E. Russ, Arthur A., Jr. Leventhal, Steven G. Chambers, Hon. Cheryl E. Moxley, Charles J., Jr. Burke, Walter T. Oliver, Donald D. Ryan, Michael J. † * Levin, A. Thomas Chang, Vincent Ted Nathanson, Malvina Cahill, Richard T., Jr. Pellow, David M. Schwartz, Scott M. Levy, Peter H. Cheng, Pui Chi Needham, Andrew W. Collura, Thomas J. Pontius, Nancy L. Seitz, Raymond H. Luskin, Andrew J. Christian, Catherine A. Nelson, Lester Costello, Bartley J., III Radick, Courtney S. Smith, Sheldon Keith Makofsky, Ellen G. Clark, Jason Myles Nijenhuis, Erika W. Crummey, Hon. Peter G. * Richardson, M. Catherine Sweet, Kathleen Marie McCarthy, Robert F. Cohen, Carrie H. Otis, Andrew D. D’Agostino, Carolyn A. Stanislaus, Karen Young, Oliver C. McEntee, John P. Collazo, Ernest J. Parker, Bret I. Davidoff, Michael Tsan, Clifford Gee-Tong Ninth District * Pruzansky, Joshua M. * Cometa, Angelo T. * Patterson, Hon. Robert P., Jr. DeFio Kean, Elena Virkler, Timothy L. Abraham, Merry L. Randazzo, Sheryl L. Conley, Sylvia Jeanine Perez, Jose Luis Doherty, Glen P. Westlake, Jean Marie Amoruso, Michael J. * Rice, Thomas O. Crespo, Louis Prager, Bruce J. Fernandez, Hermes Woronov, Howard J. Barrett, Maura A. Schoenfeld, Lisa R. Davino, Margaret J. Prowda, Judith B. Glasheen, Kevin P. Sixth District Brown, Craig S. Shulman, Arthur E. Davis, Megan P. Radding, Rory J. Gold, Sarah E. Barreiro, Alyssa M. Burke, Patrick T. Tollin, Howard M. Davis, Tracee E. Reed, Thomas A. Greenthal, John L. Denton, Christopher Burns, Stephanie L. Tully, Rosemarie Dean, Robert S. Reitzfeld, Alan D. Griesemer, Matthew J. Fortino, Philip G. Byrne, Robert Lantry Warshawsky, Hon. Ira B. DeGrasse, Hon. Leland G. Richter, Hon. Rosalyn Hacker, James E. Gorgos, Mark S. Cohen, Mitchell Y. Weinblatt, Richard A. DeMarco, Joseph V. Robb, Kathy Ellen Bouton Hanna, John, Jr. Grayson, Gary J. Curley, Julie Cvek Zuckerman, Richard K. Di Pietro, Sylvia E. Robertson, Edwin David Higgins, John Eric Grossman, Peter G. Cusano, Gary A. Eleventh District Donaldson, Xavier Robert Rosner, Seth Hines, Erica M. Gutenberger, Kristin E. Dohn, Robert P. Alomar, Karina E. Draper, Thomas G., Jr. Rothstein, Alan Hurteau, Daniel Joseph Johnson, Timothy R. Dorf, Jon A. Cohen, David Louis Drayton, Joseph Michael Russell, William T., Jr. Hutter, Prof. Michael J., Jr. Kiley, Lauren Ann Enea, Anthony J. DeFelice, Joseph F. Dunne, Carey R. Safer, Jay G. Kaplan, Edward Ian Lanouette, Ronald Joseph, Jr. Epps, Jerrice Duckette Gutierrez, Richard M. Ellerin, Hon. Betty Weinberg Scanlon, Kathleen Marie Kretser, Hon. Rachel Lewis, Richard C. Fay, Jody Kerson, Paul E. Eng, Gordon Schindel, Ronnie Kruse, Rachael E. † * Madigan, Kathryn Grant Fedorchak, James Mark Lee, Chanwoo Eppler, Klaus Schwartz, Jodi J. Liebman, Bennett M. Mayer, Rosanne Fontana, Lucille A. Risi, Joseph J. Fahey, Stacey O’Haire Sen, Diana Sagorika Meacham, Norma G. McKeegan, Bruce J. † Fox, Michael L. Taylor, Zenith T. Feinberg, Ira M. Serbaroli, Francis J. Meislahn, Harry P. Orband, James W. Goldenberg, Ira S. Terranova, Arthur N. Feinman, Hon. Paul G. Seymour, Samuel W. Meyers, David W. Pogson, Christopher A. Gordon-Oliver, Hon. Arlene Vitacco, Guy R., Jr. Finerty, Hon. Margaret J. * Seymour, Whitney North, Jr. Miranda, David P. Rich, Richard W., Jr. Hilowitz-DaSilva, Lynne S. Wimpfheimer, Steven Fink, Rosalind S. Shamoon, Rona G. Moy, Lillian M. Sienko, Leonard E., Jr. Hollis, P. Daniel, III Twelfth District Fontaine, R. Nadine Siegel, Charles J. Pechenik, Stephen A. Seventh District Kirby, Dawn Bailey, Lawrence R., Jr. * Forger, Alexander D. Sigmond, Carol Ann Pettit, Stacy L. Baker, Bruce J. Klein, David M. Calderon, Carlos M. Freedman, Hon. Helen E. Silkenat, James R. Privitera, John J. Bleakley, Paul Wendell Markenson, Ari J. DiLorenzo, Christopher M. Friedman, Richard B. Silverman, Paul H. Rivera, Sandra Brown, T. Andrew Marwell, John S. Friedberg, Alan B. Gallagher, Patrick C. Smith, Asha Saran Rosiny, Frank R. Buholtz, Eileen E. McCarron, John R., Jr. Marinaccio, Michael A. Galligan, Michael W. Smith, Hon. George Bundy Ryan, Rachel Burke, Philip L. Miklitsch, Catherine M. Masley, Hon. Andrea Gesinsky, Loren Sonberg, Hon. Michael R. Ryba, Christina L. † * Buzard, A. Vincent * Miller, Henry G. Millon, Steven E. Glanstein, Joel C. Spiro, Edward M. Salkin, Dean Patricia E. Castellano, June M. Nachimson, Steven G. * Pfeifer, Maxwell S. Goldberg, Evan M. † * Standard, Kenneth G. Schneer, Hon. Deborah S. Cecero, Diane M. * Ostertag, Robert L. Price, Hon. Richard Lee Grays, Taa R. Stenson Desamours, Lisa M. Schofield, Robert T., IV Chapman, Richard N. Pantaleo, Frances M. Sands, Jonathan D. Green, Prof. Bruce A. Stern, Mindy H. Schopf, Jonathan G. Giordano, Laurie A. Preston, Kevin Francis Weinberger, Richard Gutekunst, Claire P. Swanson, Richard P. Silver, Janet Gould, Wendy Lee Protter, Howard Thirteenth District Gutheil, Karen Fisher Syracuse, Vincent J. * Yanas, John J. Harren, Michael T. Ranni, Joseph J. Behrins, Jonathan B. Haig, Robert L. Tesser, Lewis F. Fourth District Hetherington, Bryan D. Rauer, Brian Daniel Cohen, Orin J. Hayes, Vilia B. Ugurlayan, Anahid M. Baker, Carl T. Jackson, LaMarr J. Riley, James K. Dollard, James A. Ho, John Si Valet, Thomas P. Canary, Kyle Kingsley, Linda S. Ruderman, Jerold R. Gaffney, Michael J. Hoffman, Stephen D. Walsh, Jean T. Coffey, Peter V. Kurland, Harold A. Sachs, Joel H. Hall, Thomas J. Hollyer, A. Rene Walsh, Susan J. Coseo, Matthew R. Laluk, Susan Schultz Sanchala, Tejash V. Marangos, Denise Honig, Jonathan Wang, Annie Jen Hanson, Kristie Halloran Lawrence, C. Bruce Sapir, Donald L. Marangos, John Z. Hoskins, Sharon T. Wiig, Daniel K. Healey, Andrew J. McCafferty, Keith Selinger, John Martin, Edwina Frances Jaglom, Andre R. Wilkey, Alison Herrmann, Diane M. McDonald, Elizabeth J. Singer, Rhonda K. Mattei, Grace V. James, Hon. Debra A. Wolff, Adam John Hoag, Rosemary T. Modica, Steven V. Starkman, Mark T. Mulhall, Robert A. † * James, Seymour W., Jr. Wolk, Lawrence J. Ladouceur, Michelle H. * Moore, James C. Stone, Robert S. Sieghardt, George A. Kahn, Michele Yates, Hon. James A. Lais, Kara I. Moretti, Mark J. Strauss, Barbara J. Out-of-State Kaplan, Matthew E. † * Younger, Stephen P. Martin, Trinidad Murray, Jessica R. Strauss, Hon. Forrest Bouveng, Carl-Olof E. Kennedy, Henry J. Zuchlewski, Pearl McAuliffe, J. Gerard, Jr. * Palermo, Anthony Robert Valk, Rebecca Ann Keschenat, Dr. Heidi Kenney, John J. Zulack, John F. McMorris, Jeffrey E. Quinlan, Christopher G. Van Scoyoc, Carol L. Kurs, Michael A. Kera, Martin S. Second District McNamara, Matthew † Schraver, David M. Wallach, Sherry Levin Millett, Eileen D. Kiernan, Peter J. Ajaiyeoba, Abayomi O. Hawthorne Stankus, Amanda Weis, Robert A. Perlman, David B. * King, Henry L. Bonina, Andrea E. Nowotny, Maria G. Marcella Welch, Kelly M. Ravin, Richard L. Kobak, James B., Jr. Cohn, Steven D. Onderdonk, Marne L. Stapleton, T. David, Jr. Tenth District Sheehan, John B. Kornfeld, John A. Doyaga, David J., Sr. Rodriguez, Patricia L. R. Tennant, David H. Block, Justin M. Torrey, Claudia O. Kornreich, Edward S. Fallek, Andrew M. Russell, Andrew J. Tilton, Samuel O. * Bracken, John P. * Walsh, Lawrence E. Larson, Wallace L., Jr. Gerber, Ethan B. Slezak, Rebecca A. * Vigdor, Justin L. Chase, Dennis R. Weinstock, David S. † Lau-Kee, Glenn Hernandez, David J. Stanclift, Tucker C. Walker, Connie O. Collins, Richard D. Lawton-Thames, Lynnore Kamins, Hon. Barry Watkins, Patricia E. * Witmer, G. Robert, Jr. Sharise † Delegate to American Bar Association House of Delegates * Past President The New York Bar Foundation 2013-2014 Officers Directors Ex officIO Cristine Cioffi, President James R. Barnes, Albany Stephen D. Hoffman, New York James B. Ayers, Albany 2310 Nott Street East, Niskayuna, NY 12309 Honorable Ralph A. Boniello, III, John R. Horan, New York Chair of The Fellows Niagara Falls William J. Keniry, Albany Lesley Friedman Rosenthal, Vice President Emily F. Franchina, Garden City Earamichia Brown, New York Susan B. Lindenauer, New York 70 Lincoln Center Plaza, 9th Floor Vice Chair of The Fellows New York, NY 10023 Marion Hancock Fish, Syracuse Edwina Frances Martin, New York Joseph V. McCarthy, Buffalo Patricia K. Bucklin, Secretary Sheila A. Gaddis, Rochester Elizabeth J. McDonald, Pittsford One Elk Street, Albany, NY 12207 Sharon Stern Gerstman, Buffalo Michael E. Getnick, Utica Martin Minkowitz, New York Lucia B. Whisenand, Assistant Secretary John H. Gross, Hauppauge Patrick C. O’Reilly, Buffalo 1 Nursery Lane, Syracuse, NY 13210 Robert L. Haig, New York Richard Raysman, Treasurer 31 West 52nd Street, New York, NY 10019

NYSBA Journal | June 2013 | 63 The Legal Writer By Gerald Lebovits

Drafting New York Civil-Litigation Documents: Part XXV — Notices to Admit

n the last issue, the Legal Writer The seeking party should use a notice notice to admit will decrease the num- concluded its overview of summa- to admit when it “‘reasonably believes ber of facts you’ll have to prove at trial. Iry-judgment motions. there can be no substantial dispute’ The trial will be faster and cheaper.14 In this issue and upcoming issues of about the matter and when it is within It will alleviate your burden of produc- the Journal, we continue our series on the knowledge of the other party or ing a witness or securing evidence to civil-litigation documents with notices ascertainable by [the party] ‘upon rea- prove a fact if you use, at trial, admis- to admit. sonable inquiry.’”6 sions from a notice to admit.15 CPLR 3123 explains notices to CPLR 3101 governs the scope of admit. Although notices to admit are notices to admit: The information discussed in Article 31 — the disclo- sought must be “material and neces- Notices to admit sure article — of the CPLR, notices to sary.”7 aren’t true admit aren’t true disclosure devices.1 Any party may serve a notice to Practitioners don’t use notices to admit admit on any other party. Co-parties disclosure devices. to obtain and disclose facts. Practi- may serve notices to admit on each tioners use notices to admit to get other.8 Use a notice to admit to get your their adversary to admit matters not in Use a notice to admit in any action adversary to admit substantive facts. dispute: “the genuineness of writings, or proceeding, including a special pro- Also, use a notice to admit to get your or correctness or fairness of any photo- ceeding.9 adversary to admit to foundational graphs or of the truth of any matters of facts, including establishing chain fact.”2 For this column, “adversary” is Advantages and Disadvantages to of custody for physical evidence,16 used to distinguish the party seeking Notices to Admit authenticating a document, and estab- a notice to admit (the seeking party) If you don’t respond to a notice to lishing that a document is a business from the party responding to a notice admit, all the items in the notice will record. to admit (the responding party). automatically be deemed admitted.10 Although notices to admit aren’t Notices to admit are also known as No court involvement is needed. true disclosure devices, “all of the pro- “requests for admission.”3 But prac- The admissions you get from a cedural devices relating to disclosure titioners rarely use notices to admit notice to admit might foreclose the are applicable”17 if any disputes arise, to get admissions from adversaries. possibility of trial. Use the admis- including serving and responding Some admissions are made during the sions against your adversary to “set to a notice to admit. You may move pleadings, examinations before trial the stage for a motion for summary for a protective order; the court may (EBTs), or conferences with the court. judgment.”11 If you succeed at the strike or modify an item, condition Often, practitioners will easily prove at summary-judgment phase, you won’t a response, or correct an improper trial many of the items they could have need a trial. Also, use the admissions to request.18 You may move to compel sought in a notice to admit. Notices to move for partial summary judgment if your adversary to respond to the admit are underutilized.4 your adversary admits part of a claim notice to admit. You may also move to Notices to admit are useful litiga- or defense. If a court determines that challenge your adversary’s responses tion devices. Think of a notice to admit your notice to admit is proper, you to a notice to admit and have the court as a stipulation between you and your might also win your summary-judg- determine whether the responses are adversary about facts that neither of ment motion using your adversary’s sufficient. You may move to extend you will contest at trial. Use a notice deemed admissions.12 your time to respond to a notice to to admit to elicit an admission from Save yourself and your client “the admit. You may move to amend or your adversary on something about trouble and expense of proving a read- withdraw an admission. After trial, which you and your adversary agree.5 ily admittable fact” at trial.13 Using a Continued on Page 56

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