Follow us on Facebook Stephen Gassman, Esq. · 2019-02-15 · The Journal of The nassau CounTy Bar assoCiaTion FEBRUARY 2019 Vol. 68, No. 6 Follow us on Facebook CONFIDENTIAL HELP

The Journal of The nassau CounTy Bar assoCiaTion

FEBRUARY 2019 www.nassaubar.org Vol. 68, No. 6

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NCBA COMMITTEE MEETING CALENDARPage 22

SAVE thE DAtESWE CAREChildren’s FestivalWednesday, February 20, 2019At DomusSee pg 18

NASSAU ACADEMY OF LAWHon. Elaine Jackson StackMoot Court CompetitionMarch 26 and 27, 2019 at Domus

WE CAREDressed to a TeaThursday, March 29, 2019At DomusSee Insert

LAW DAYFree Speech, Free Press, Free SocietyWednesday, May 1, 20195:30 p.m.

120th ANNUAL NCBA DINNER DANCESaturday, May 11, 2019See pg 6 and Insert

WhAt’S INSIDEPersonal Injury/ Workers’ Compensation Law3 Common Types of Fraud Uncovered During An EUO Page 3

Focus on FOIL: Informal and Integral Fact Finding Page 5

Nassau County Expedited Jury Trial Page 6

No-Fault Regulation 68 - A Balancing Act Page 7

Terranova v. Lehr Construction and the Evolution of the Compensation Lien Page 8

Wearable Technologies: The New Discovery Tool Page 9

The Electronic Health Record, How To Get It And What To Pay Page 10

Uber Issues: Insurance Coverage for Rideshare Drivers Page 11

More Than a Year After the U.S. Supreme Court’s Decision in Endrew F., Little Has Changed for Parents of Children in Special Education in New York Page 12

View From the BenchExpert Opinion and the Personal Injury Trial Page 13

Movie ReviewJazz, Jimmy & Jurisprudence: Anatomy of a Murder Page 16

OF NOtENCBA Member Benefit - I.D. Card Photo

Obtain your photo for Secure Pass Court ID cards at NCBA Tech Center Only For New Applicants

Cost $10 • March 5, 6 and 7, 20199 a.m.- 4 p.m.

UPCOMING PUBLICATIONS COMMITTEE MEETINGS AT THE BAR ASSOCIATION

Thursday, March 7, 2019 12:45 p.m.

Thursday, April 4, 2019 12:45 p.m.

Stephen Gassman will be honored as the seventy-sixth recipient of the Association’s Distinguished Service Medallion, to be presented at the one hundred and twentieth Annual Dinner Dance on Saturday, May 11, 2019. The Distinguished Service Medallion, the Nassau County Bar Association’s high-est honor, is awarded to an individual, either attorney or non-attorney, for service that has enhanced the reputa-tion and dignity of the legal profession.

Gassman is a past president of the Nassau County Bar Association (1988-89) and has served in numerous other capacities for the NCBA, including as a member of the Board of Directors, Vice Chair of the Judiciary Committee, Chair of the Budget Committee, and Chair of the Matrimonial and Family Law Committee.

His presidency brought many inno-vations to the NCBA, the most notable being the establishment of the We

Care Fund, part of the Nassau Bar Foundation, the charitable arm of the NCBA. The We Care Fund has raised millions of dollars to help those in need, principally in Nassau County, and has served as a model for similar

bar association charitable programs throughout the country.

Gassman has also served as chair of the Family Law Section of the New York State Bar Association (1992–1994) and as a member of the office of Court Administration’s Matrimo-nial Practice and Rules Committee, the Judicial Hearing Officers’ Screen-ing Committee (1991–2010), the 10th Judicial District’s Law Guardian Advi-sory Committee, and the New York State Bar Association’s Task Force on Family Law. He has also served as an adjunct professor of law at Touro Law School, and as a member of the Board of Editors of Fairshare Journal.

Stephen Gassman has been award-ed the Distinguished Past President Award by the NCBA, been lauded as 2014 Lawyer of the Year in NY Family Law by Best Lawyers in America, and

See RECIPIENT, Page 26

Stephen Gassman, Esq.2019 NCBA

Distinguished Service Medallion Recipient

Martin Luther King Jr. Day Celebration at the Bar

Adults in back row (L-R): David Gugerty, Frank Schellace, Oscar Michelen, NCBA Immediate Past President Steven Leventhal, NCBA Vice President Dorian Glover, Nassau County Executive Laura Curran, Deputy County Attorney Rudy Carmenaty, Jack and Jill Chapter President Melissa Desravines, Jack and Jill Legislative Chair Dana Boylan, Hon. Maxine Broderick, and Hon. Linda Mejias. Photo by Hector Herrera

On January 21, 2019, the Nassau County Bar Association Diversity & Inclusion Committee paid tribute to Dr. Martin Luther King, Jr. by pre-senting Meredith v. Fair: A Reen-actment of the Landmark Decision, performed by the youth of the Nas-sau Chapter of Jack and Jill. Nassau County Executive Laura Curran wel-comed the young performers who recreated the legal campaign waged by Constance Baker Motley on behalf of James Meredith to integrate the University of Mississippi in 1961. The event was supported by the Nassau County Office of Youth Services.

Jack and Jill is a nation-wide membership organization of Afri-

See KING, Page 21

Nassau Lawyer n February 2019 n 3

Personal Injury/ Workers’ Compensation Law

3 Common Types of Fraud Uncovered During an EUO

An examination under oath (EUO) is an essential tool for insurers to identify possible fraudulent claims. Under sec-tion § 65-1.1(d) of the New York Codes, Rules and Regulations for Insurance Law, “[u]pon request by the Company, the eligible injured person (EIP) or that person’s assignee or representative shall: …(b) as may reasonably be required to submit to examinations under oath by any person named by the Company and subscribe the same.”1 If properly con-ducted, an EUO can give a solid founda-tion for an insurer’s denial of a no-fault benefits claim. The focus of this article will be three of the most common types of fraud discovered through an EUO, which include: false statements regard-ing prior injuries, staged accidents, and excessive or unnecessary treatment.

Before discussing insurance fraud as a basis of a denial, it is imperative to understand that the no-fault regulations allow only for a denial based on: (1) no coverage on the date of the accident; (2) circumstances of the accident not cov-ered by no-fault; or (3) statutory exclu-sions pursuant to § 5103(b) of the Insur-

ance Law.2 In the context of fraud, an insurer would issue a denial based on 11 NYCRR 65-3.8(e)(2), and would have to prove that the accident is not covered by no-fault. Therefore, in this discussion, insurance fraud is not the same as common law fraud.

In order to substantiate a denial based on a false state-ment, it must be established that the insured “willfully made a false and material statement under oath with the intention to defraud the insurer.”3 The U.S. Court of Appeals for the Second Circuit defined a material statement in Fine v. Bellefonte Underwriters Ins. Co. as “relevant and germane to the insur-er’s investigation as it was then proceed-ing.”4 This means that only a statement that directly effects the outcome of the investigation is considered to be materi-al. Harmless omissions or unintentional errors do not rise to the level of fraud.5

Another common type of fraud is the staged accident. To prove that a staged

accident has occurred, it must be established that the alleged injury did not arise out of an insured incident.6 In Jamaica Wellness Med., P.C. v. Her-eford Ins. Co., the defendant had submitted an EUO tran-script of its insured driver, in which he testified that he had picked up three passengers and had been driving them to their destination when they repeatedly asked him to give them money. After refusing to do so, he was pulled over by

the police, who advised him that the pas-sengers had reported that the vehicle had been in an accident with another vehi-cle, which had fled from the scene. The insured driver testified in his EUO that the vehicle had not been in an accident while the passengers had been in the car. The court found that the EUO testimo-ny by defendant’s insured was sufficient to demonstrate, prima facie, that ‘the alleged injury [did] not arise out of an insured incident’.7 This case, however, is interesting in that it touches on two

types of fraud. The first, of course is the staged accident aspect of the claim. The second leads to the third type of fraud—unnecessary or excessive treatment with medical providers.

Unlike the previous two types of fraud, this third type implicates the medical provider rather than the EIP. To combat this, many insurers have employed Spe-cial Investigation Units (SIU). In fact, it is mandated that insurance companies must have SIUs in place for the express purpose of detecting and investigating insurance fraud.8 The National Insur-ance Crime Bureau has compiled the following list of factors used by these SIU’s in detecting medical fraud:

1. Three or more occupants in the claimant’s vehicle, all of whom report similar injuries;

2. All injuries are subjectively diag-nosed, such as headaches, muscle spasms, traumas, and inability to sleep;

3. Minor accident produces major

Naela Hasan

See FRAUD, Page 21

Appellate Counsel

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The firm’s appellate team is highly equipped to navigate, or help you navigate, the complexities and nuances of appellate practice, including all aspects of matrimonial and family law in all Departments in New York State and the Court of Appeals, as well as civil and commercial matters in the Federal Courts.

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4 n February 2019 n Nassau Lawyer

Nassau Lawyer welcomes articles written by members of the Nassau County Bar Association that are of substantive and procedural legal interest to our membership. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to Nassau Lawyer, its editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations.

Published by Long Island Business News

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Nassau Lawyer (USPS No. 007-505) is published monthly, except combined issue of July and August, by Long Island Commercial Review, 2150 Smithtown Ave., Suite 7, Ronkonkoma, NY 11779-7348, under the auspices of the Nassau County Bar Association. Periodicals postage paid at Mineola, NY 11501 and at additional entries. Contents copyright ©2018. Postmaster: Send address changes to the Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501.

The Official Publication of the Nassau County Bar Association

15th & West Streets, Mineola, N.Y. 11501Phone (516)747-4070 • Fax (516)747-4147

www.nassaubar.orgE-mail: [email protected]

Nassau LawyerNassau

Lawyer

NCBA OfficersPresidentElena Karabatos, Esq.President-ElectRichard D. Collins, Esq.Vice PresidentDorian R. Glover, Esq.TreasurerGregory S. Lisi, Esq.SecretaryRosalia Baiamonte, Esq.Executive DirectorElizabeth Post

Editors-in-ChiefRhoda Y. Andors, Esq. Anthony J. Fasano, Esq.Copy EditorAllison C. Shields, Esq.Editor/Production ManagerSheryl Palley-EngelPhotographerHector Herrera

February 2019Personal Injury/Workers’ Compensation LawKenneth Landau, Esq.Naela Hasan, Esq. Focus EditorsRhoda Y. Andors, Esq.Rudolph Carmenaty, Esq.Christopher J. DelliCarpini, Esq.Andrea M. DiGregorio, Esq.Anthony J. Fasano, Esq. Douglas M. Lieberman, Esq.Thomas McKevitt, Esq.Jeff H. Morgenstern, Esq.

Upcoming Focus IssuesMarch 2019Elder Law/Trusts & EstatesApril 2019General/OCAMay 2019Matrimonial/Family/Adoption Law

Committee MembersRhoda Y. Andors, Esq., Co-ChairAnthony J. Fasano, Esq., Co-ChairCynthia A. Augello, Esq.Deborah S. Barcham, Esq.Gale D. Berg, Esq. Wahida Bhuyan, Esq.Deanne Marie Caputo, Esq.Rudolph Carmenaty, Esq.Danielle J. Corbisiero Ellin Regis Cowie, Esq.Christopher J. DelliCarpini, Esq.Andrea M. DiGregorio, Esq.Nancy E. Gianakos, Esq.Naela Hasan, Esq.Adrienne Flipse Hausch, Esq.George M. Kaplan, Esq.Kenneth J. Landau, Esq.Michael J. Langer, Esq.Douglas M. Lieberman, Esq.Thomas McKevitt, Esq. Jeff H. Morgenstern, Esq.Marian C. Rice, Esq.Allison C. Shields, Esq.Tammy Smiley, Esq.

Winter is in full swing and it is cold outside. What better way to stay warm than to come to the Nassau County Bar Association to fulfill your CLE requirements? The Nassau Academy of Law (NAL), the educational arm of the Bar, is doing great things. Recently, the NAL held its annual Bridge-the-Gap weekend, where both newly admitted and

experienced attorneys can fulfill their required CLE credits during full-day live programs at the Bar Association.

One common misconception about the Bridge-the-Gap program is that it is intended solely for newly admitted attorneys. Not so! Our pro-gram attracts as many experienced attorneys as we do newly admitted attorneys. It is a great opportunity for even the most seasoned practi-tioner to catch up on CLE credits, learn something new and reconnect and network with colleagues.

This year’s Bridge-the-Gap week-end was particularly special, as it honored the late Honorable Joseph Goldstein, a respected jurist in

Nassau County for 20 years. Justice Goldstein began his law career in 1956 as an attorney in private practice. He then dedicated himself over the next few decades to public service. Beginning in 1963, Justice Goldstein worked as a chief law assistant to the Board of Judges of Nassau County Court, and in 1972, he began serving as chief clerk of the County Court.

Justice Goldstein was elected to the Nassau County District Court in 1979, and then to the State Supreme Court in 1986. Upon his retirement from the bench in 1999, he worked at the firm of Dollinger, Gonski & Grossman.

Among his other affiliations and accomplishments, Justice Goldstein was the first jurist dean of the Nassau Academy of Law and had served as chair of the NCBA’s Continuing Legal Education and Technology Task Force committees. He was also a past president of the Jewish Lawyers Association and had been an adjunct associate professor of criminal justice at Long Island University’s C.W. Post campus. Justice Goldstein was a recipient of the NCBA President’s Award.

In his memory, Judge Goldstein’s family has generously offered to sponsor our annual Bridge-the-Gap weekend. It is their hope that future generations of attorneys will benefit from the educational opportunities that this event provides. We are grateful for this generous gift, which will help sup-port the annual program for years to come.

Each year, the Nassau Academy of Law organizes and presents more than 180 substantive legal seminars in dozens of practice areas to educate attorneys on the newest develop-ments in the law and to provide the practical skills to enable attorneys to most effectively represent their clients.

The Academy offers frequent and varied programs. For example, you could attend a presentation on Medicaid by the Real Property Committee in the afternoon, and then come back the same evening for a program on Animal Law. The centerpiece of this year’s dues structure enables all NCBA members to take advantage of free unlimited live CLE, whether presented at a committee meeting, an Academy lunchtime Dean’s Hour, or an evening program.

Can’t come to the Bar? Up to 12 CLE credits through CD/DVD rental are also included for free in the new dues pack-age. Even the Bridge-the-Gap weekend is free! Free CLE is a true member benefit that we offer to our attorney members, and it is also extended to our new paralegal and law firm administrator members. There has never been a better or more exciting time to be an NCBA member.

I do encourage you to please pre-register for programs so the Academy can ensure seating for all who wish to attend. Give Jen or Patti a call at (516) 747-4464 and they will be happy to help you. Even if you don’t need the credit, come to learn or to network.

Have a meal while you are here. Our dining room is open daily from 12:00 noon to 2:00 p.m. Our in-house caterer, Esquire Fine Dining, offers a wonderful buffet and a la carte menu. Not only is their food tasty but they are so accommo-dating to our members.

I would also like to extend warm congratulations to our newly installed judges, who were sworn in on January 25, 2019: Honorable Norman St. George, Justice of the Supreme Court, who we are excited to have as our new Administrative Judge; Honorable Helen Voutsinas, Justice of the Supreme Court; and Honorable Catherine Rizzo, Judge of the County Court.

Justice St. George is well equipped to take over as the Administrative Judge for Nassau County, as he has served as the supervising judge of the Nassau County District Court since 2013, and prior to that he served as a County Court judge. Justice St. George was a prosecutor in Nassau County and also spent many years in private practice before joining the bench in 2004. He is a graduate of Hofstra Law School.

Justice Voutsinas joins the Supreme Court bench after having served as a District Court judge for seven years. Prior to her judicial career, she was a principal law clerk to Judge Steven Jaeger from 2005 to 2010, the deputy majority counsel for the Nassau County Legislature in 2004, and an assistant town attorney for the Town of North Hempstead from 2002 to 2003. From 1999 to 2001, she worked in private practice. Justice Voutsinas is a graduate of St. John’s Law School.

Judge Rizzo embarks on her judicial career after hav-ing been the principal law clerk for Supreme Court Justice Thomas Feinman for 14 years. Prior to joining the court system, she worked in private practice for 10 years, litigating in both the state and federal courts. Judge Rizzo is a graduate of Quinnipiac School of Law.

Finally, I would like to thank Justice Thomas A. Adams for his leadership and dedicated service as Administrative Judge for Nassau County, and congratulate him on his new appoint-ment as Presiding Justice of the Appellate Term, Ninth and Tenth Judicial Districts.

The Nassau County Bar Association is off to a great start in 2019. Stay warm in the cold weather!

Make the Most of the Nassau Academy of Law

From the PresidentElena Karabatos

This year’s Nassau Academy of Law Bridge-the-Gap weekend was particularly special, as it honored the late Honorable Joseph Goldstein. In his memory, Judge Goldstein’s family has generously offered to sponsor the NCBA annual Bridge-the-Gap weekend. (l-r) NAL Dean Daniel W. Russo, NCBA President Elena Karabatos, son-in-law Seth Levine, daughter Risa Goldstein, wife of Justice Goldstein Elinor Goldstein, daughter Judy Goldstein, son-in-law Scott Landman, NCBA Executive Director Elizabeth Post and NAL Associate Dean Jaime D. Ezratty. (Photo by Hector Herrara)



Focus on FOIL: Informal and Integral Fact FindingNew York’s Freedom of Informa-

tion Law (FOIL), codified in the Public Officers Law, should become a device in one’s litigation toolbelt. A FOIL request can be made to an agency before any litigation is commenced. Similar to the utility of the Federal HITECH Act, FOIL provides negli-gence attorneys, as well as any member of the public, standing to request agen-cy records, whether it be records relat-ing to police body cameras, sidewalks, wrongful convictions, traffic cameras or municipal violations, and, the attor-ney who represents a spurned FOIL petitioner in an Article 78 proceeding is allowed to request reasonable attor-ney’s fees.

Negligence firms should create and utilize FOIL forms to expedite this informal discovery process. Forty years ago, the Court of Appeals set forth the simple rationale behind FOIL: “the public is vested with an inher-ent right to know and that official secrecy is anathematic to our form of government.”1 Now, FOIL contains a provision for the mandatory award of attorney’s fees when a government agency is uncooperative.2 The enor-mous expansion of local government agencies encourages the use of FOIL as an integral discovery device, a tool for personal injury practitioners where no

alternative discovery device exists, or prior to a more for-mal filing.

Negligence/personal inju-ry practitioners should mod-ify their retainer agreements, allowing for the assignment of reasonable attorney’s fees obtained in an Article 78 proceeding, and create situ-ation-specific forms and flow charts for the use of FOIL as a discovery tool in certain scenarios, including but not limited to:

• Public School Matters;3

• Police Matters;4 • Public Transit Matters;5 • Traffic Agency Matters;6

• Emergency Medical Services and Fire Services; and

• Building Department Matters. The New York Public Officers Law

mandates that within five business days of receiving a request for a record, an agency shall either (1) make the record available to the requestor; (2) deny the request in writing; or (3) furnish a written acknowledgment of the receipt of the request with a statement setting forth the approximate date when the request will be granted or denied.7 “The New York State Legislature enacted FOIL to promote an open government

and public accountability.”8 FOIL rests on the premise that the “public is vested with an inherent right to know and that official secre-cy is anathematic to our form of government.”9 The statute “imposes a broad duty on government to make its records available to the public.”10 Significant remedies now exist for this tool that, usually without the need to litigate, provides

the personal injury practitioner ample records and discovery.

The Public Officers Law generally mandates all agencies to make records available to the public, unless the mate-rial being sought falls within a statutory exemption. The agency bears the bur-den of withholding material respon-sive to a FOIL request. As such, “[a]ll government records are presumptively open for public inspection and copying unless they fall within one of the enu-merated exemptions of Public Officers Law § 87(2).”11 To ensure maximum access to government records, courts are to narrowly construe the exemp-tions, and the agency retains the bur-den to demonstrate that the requested materials are actually exempt. Disclo-sure may be withheld “[o]nly where

the material requested falls squarely within the ambit of one of these stat-utory exemptions.”12 This incredible tool operates at all levels of agencies as defined by Public Officers Law § 86(3) and, especially on Long Island, can serve as a prelitigation discovery device when the lawsuit is not against the municipality.

Even when your personal injury lawsuit does not involve a municipal entity, novel uses of FOIL can result in discovery of otherwise privileged or protected material. Agency photo-graphs and video may be obtained even if it was provided by private actors who wish to remain confidential or are not a party to the litigation. A police or municipal entity may obtain private surveillance video that can be the sub-ject of a FOIL request and then certi-fied by that entity. In some cases, one agency may be willing to provide agen-cy records that would not otherwise be subject to disclosure under FOIL due to a statutory exemption. For example, if you are denied school video in a federal litigation/state litigation13 over injuries related to a physical altercation within a school, you may be able to avoid the FERPA issue by simply demanding the records from the police department

Cory H. Morris

See FOIL, Page 22

Save the Date

Wednesday, May 1, 20195:30 p.m.

Keynote Speaker

Stone Grissom, Esq.Attorney, Journalist,

Anchor News 12 Long Island

Personal Injury/ Workers’ Compensation Law6 n February 2019 n Nassau Lawyer

Nassau County Expedited Jury Trial

By Hon. R. Bruce Cozzens and Hon. Sharon M.J. Gianelli

The Nassau County Expe-dited Jury Trial (EJT) is an alternative way to provide par-ties with a jury trial in an accel-erated time frame and without the expense of expert witnesses. The trials in a vast majority of cases are completed from jury selection until verdict in one day. Motor vehicle seri-ous injury cases make up the primary source for these trials, although other tort cases have gone to trial. The process to proceed to an EJT begins with an agreement between plaintiff’s counsel, defendant’s counsel, and the insurance carrier. The parties will agree to a high-low contract. The defendant may also agree to a concession of liability in the appropriate case.

The trial proceeds in the normal man-ner: jury selection, opening statements, evidence, summations and jury charge. The parties are allocuted on the record prior to the commencement of the trial as to the parameters of the trial. This pro-cess is not an arbitration and the rules of evidence apply. There are no motions for a directed verdict. Only the parties testify. Counsel shall submit their requests to charge at least two (2) days before trial. If requested, a settlement conference can be held before the commencement of trial. The parties shall provide six (6) packets consisting of their documentary evidence for the jury. They shall also provide a copy to their adversary prior to trial.

Upon scheduling of the EJT, counsel shall sign a stipulation stating the date for the trial (there are no adjournments), the param-eters of the trial (concession of liability, high- low amounts), agreeing to waive medical testimony, and that the verdict is final.

The Rules for the Expedited Jury Trial are as follows:

1. There are no appeals or motions to set aside the verdict nor any other trial proceedings. All verdicts are final.

2. The plaintiff(s) will be allocuted before trial to assure that the plain-tiff(s) understands that he/she is entitled to a full trial but waives the right to present medical or any other expert witnesses and wishes to pro-ceed in an expedited jury trial.

3. If the verdict is not capped

within the insurance pol-icy limits and there is no high-low agreement, the defen-dant(s) shall also be so allocuted. 4. If the issue of the neg-ligence of the defendant(s) is not conceded, all issues shall be determined in a full trial. There shall be no bifurcation.5. Prior to trial, the par-ties shall each prepare trial exhibit books. These books shall include any documents the parties wish the jury to review during deliberations.

Each party will present the book to the adversary prior to jury selec-tion. Any objections to proposed exhibits shall be made to the Court prior to commencement of trial (either before or after jury selection). The books shall be given to the jury when deliberations commence. Any documents found inadmissible by the court shall be removed prior to the books being submitted to the jury.

6. Requests to charge shall be given to the Court on the business day prior to trial (Cozzens- via fax at 516-493-3056) and (Gianelli – via fax at 516-493-3386).

7. Jury selection shall com-mence on the morning of trial and be completed within ninety (90) minutes of commence-ment, subject to application to the Court for additional time prior to commencement of jury selec-tion. Each side shall have three (3) peremptory challenges.

8. The parties may request one pre-tri-al conference to discuss admissibil-ity of trial documents. Upon such request, the Court may assign the conference to a Court Referee.

9. If a verdict is not reached by 4:30 p.m., the delibera-tions shall be adjourned to the following business day.

10. If your client needs an interpret-er, please notify the Court at least five (5) days prior to the trial date so that we may make the necessary arrangements.

11. Neither party shall enter judgment on the verdict.

If you wish to schedule an Expedited Jury Trial please contact Justice Cozzens in the Calendar Control Part (CCP). The EJTs are conducted before Justices Cozzens and Gianelli.

Hon. R. Bruce Cozzens

We take pride in honoring the NCBA members who are celebrating their

50, 60 and 70 year anniversary of admission to the Bar.

2019 Distinguished Service Medallion Recipient

Stephen Gassman, Esq.NCBA Past PresidentFounder of WE CARE

Senior Partner Gassman, Baiamonte Gruner, P.C.

Join us on Saturday, May 11, 2019 at the

120th Annual Dinner DanceLong Island MarriottUniondale, New York

Invitations Mailed in March$225 per person

To take a sponsorship or an ad in the

Dinner Dance Journal,

see the insert in this issue or contact Special Events at (516)747-4070 or

[email protected].

Thank You for Supporting the NCBA PRO BONO CAMPAIGN

Janet M. Connolly Hon. Angelo A. Delligatti

Mindfulness Yoga Workshop 2019Would you like to feel less stressed and more relaxed?

Mindfulness yoga helps to quell anxiety, reduce stress, aid relaxationand facilitate health and well-being.

You will learn ways to bring this practice into your daily life.

The NCBA’s Lawyer Assistance Program is pleased to invite members to participate in this eight (8) Week Mindfulness Yoga Workshop.

Wednesdays February 13, 20March 6, 13, 20April 3, 10, 175:30-6:45 p.m.

$120 workshop fee

Mindfulness is for everybody, flexibility irrelevant.

Instruction will be provided by Edith Jason, a Kripalu Certified Yoga Teacher.

Edith has been teaching Yoga for 30 years.

ENROLLMENT IS LIMITED - ACT NOW!

Classes held in the lower level President’s Room at the Nassau County Bar Association.

Please contact Beth Eckhardt at [email protected] or (516)747-4070



No-Fault Regulation 68 — A Balancing ActIn the State of New York, the law is

unsettled as to whether a defense based on the failure of an eligible injured person and/or their assignee to appear at an Examination Under Oath (EUO) (or Independent Medical Examination

[IME]), which is a violation of a con-dition precedent to coverage, has preclusive effect.1 The First Depart-ment caselaw holds that pre-clusion does not apply to such a defense, while the Second Depart-ment holds that it does. The Fourth D e p a r t m e n t

recently sided with the Second Depart-ment, continuing the trend of narrow-ly interpreting the no-fault regulation. This narrow interpretation hinders the ability of insurance companies to curtail the ever-growing crime that is insurance fraud and places into ques-tion the meaning of what constitutes a “condition precedent to coverage” by mischaracterizing the issue as an “exception to coverage.”

On November 16, 2018, the Fourth Department held in Nationwide Affin-ity Ins. Co. of Am. v. Jamaica Well-ness Med., P.C.,2 that a defense based upon an eligible injured person and/or their assignee’s failure to appear for an EUO is subject to preclusion. Although the court conceded that Nationwide properly and timely noticed the EUO of the defendant and that the defen-dant failed to appear for the EUO, the court expanded Nationwide’s burden by requiring a showing that it time-ly denied the defendant’s claims. The court reasoned that a violation of a condition precedent to coverage, i.e., a failure to appear at an EUO, is akin to a policy exclusion, and thus falling out of the gambit of the exception to coverage as carved out in Central Gen. Hosp. v. Chubb Group of Ins. Cos.3 In determin-ing whether a certain defense is subject to preclusion, New York courts must determine whether the defense is a “no-coverage” defense or whether it is an exception to coverage.4

It is commonly known that the pur-pose of the no-fault regulation5 is to provide a mechanism to ensure that individuals involved in motor vehicle accidents can pay for certain necessary expenses incurred as a result of the accident, regardless of fault.6 Howev-er, what might not be known is that the no-fault regulation was also estab-lished as part of an attempt to cur-tail the rampant insurance fraud which plagues New York State.7 For instance, the no-fault regulation requires insur-ance companies to maintain a Special Investigative Unit (SIU) in order to investigate claims for potential fraudu-lent activity.8 One of the most effective mechanisms utilized by SIU investiga-tors to investigate and detect fraudulent claims is requesting that an eligible

injured person or their assignee appear for an EUO.9

Under the no-fault regulations, as a condition precedent to coverage, an insurance company has the right to request additional verification of a claim in the form of an EUO.10 An insurance company will often request an EUO of an eligible injured per-son or their assignee when fraud is suspected.11 However, there are strict guidelines which an insurance company must follow when noticing the EUO, such as providing a venue that is most convenient to the party being exam-ined and reimbursing necessary travel expenses incurred in complying with the request.12 Oftentimes an insurance company relies on the party noticed for the EUO to comply with the request so that the insurance company may final-ize its determination of whether cov-erage should be afforded. After notice has been given and prior to the EUO being held, the eligible injured person continues to receive treatment and the health care providers continue to sub-mit claims seeking no-fault reimburse-ment for those services. The failure of an eligible injured party or their assign-ee to appear for an EUO often hinders the ability of the SIU investigator to distinguish between fraudulent claims from legitimate claims and results in a presumption of fraud. The issue then becomes a “no coverage” matter, there-by falling within the purview of Central Gen. Hosp. In other words, the failure of the party to appear renders the policy void, i.e., no coverage.

The balance between expeditiously processing no-fault claims and prevent-ing insurance fraud is a difficult one. A narrow interpretation of the no-fault regulation is important in maintaining the legislative intent to the prompt res-olution of claims. However, as an EUO is a condition precedent to coverage, an insurance company should not be obli-gated to afford coverage where a party noticed for an EUO fails to appear, rais-ing the presumption of fraud, regard-

less of whether the insurance company timely denied the claims. Katherine Lalor is an Associate Attorney with Hollander Legal Group, Melville, New York. She is a graduate of Touro College Jacob D. Fuchsberg Law Center and is admitted to the New York State Bar.

1. See Unitrin Advantage Ins. Co. v. Bayshore Phys-ical Therapy, PLLC, 82 A.D.3d 559 (2d Dept.), lv. to appeal den’d., 17 N.Y.3d 1705 (2011); see, gener-ally, State Farm Mut. Auto Ins. Co. v. Laguerre, 305 A.D.2d 490 (2d Dept. 2003)(an insurance carrier is not bound by the Insurance Law in issuing a dis-claimer for a denial of coverage that is based on a lack of coverage for the incident in the first instance as it is not an exclusion under the policy of insur-ance).2. 2018 NY Slip Op 07850 (4th Dept. 2018).3. 90 NY2d 195 (1997). The Court of Appeals indicated it was “persuaded that an insurer, despite its failure to reject a claim within the 30-day peri-od prescribed by Insurance Law §5106(a) and 11 NYCRR 65.15(g)(3), may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident. The denial of liability based upon lack of coverage within the insurance agreement, as framed in part by the litigation strategy and nature of the instant dispute, is distinguishable from disclaimer attempts based on a breach of a policy condition.” Id. at 199, citing Zappone v Home Ins. Co., 55 N.Y.2d 131, 136-137(1982).4. See Zappone v. Home Ins. Co., 55 N.Y.2d 131 (1982).5. Ins. Law §5101 et. seq; 11 NYCRR §65 (Regulation 68-C).6. See https://www.dfs.ny.gov/insurance/r68_link.htm.7. See https://www.rivkinradler.com/publications/legislative-and-regulatory-changes-to-combat-rise-in-no-fault-fraud/(last visited Dec. 19, 2018) (high-lighting that since 2007 there was an “upward spike” of insurance fraud that included criminal entities such as medical providers and law firms).8. Ins. Law §409 and 11 NYCRR § 86.6 (1998).9. See 11 NYCRR § 65-3.5.10. Id.11. Id.12. Id.

Katherine Lalor

The Nassau County Bar Association has a long-standing tradition of presenting the Nassau County Supreme Court with portraits of

Supreme Court Justices.

The formal portrait dedication ceremony for

Justice William C. Donnino

Justice Norman Janowitz

will be on Friday, March 8, 2019.

The ceremony will be held at 2:00 p.m. in the Ceremonial Courtroom, Nassau County Supreme Court.

Justice Norman St. George, Administrative Judge of Nassau County, will preside over the ceremony. Elena Karabatos, President of the Nassau

County Bar Association, will present the portraits.

Justice Daniel R. Palmieri

For more information, contact

Dan Bagnuola, Director of Community Relations, at

Nassau County Courts, (516)493-3262.

Portrait Friday, March 8 • 2:00 p.m.

Presentation

In determining whether a certain defense is subject to preclusion, New York courts must determine whether the defense is a “no-coverage” defense or whether it is an exception to coverage.4



Terranova v. Lehr Construction and the Evolution of the Compensation Lien

One of the more confusing issues fac-ing personal injury attorneys concerns what to do when it is time to settle the

case and the action arises out of a work injury. Every personal injury attorney has heard the terms “Kelly” credit and “Burns” credit—but what do they really mean? And when do they apply?

Section 29 of the Workers’ C o m p e n s a t i o n Law governs the

rights and obligations of injured workers and insurance carriers with respect to actions arising out of injuries caused by third party negligence. That section was meant to prevent a double recovery to the plaintiff by granting the workers com-pensation carrier a lien on the proceeds equal to the compensation benefits it has paid. The lien, however, is subordinate to a deduction for costs and attorney’s fees incurred by the plaintiff in effecting such recovery. By reducing its lien by the pro-portionate share of the litigation costs, the carrier has shared in the cost of the law-suit, with the result that it has benefitted by recovering that very lien.

There is often, however, a second-ary benefit to the workers compensation carrier. When an injured worker brings a personal injury action and recovers an amount greater than the amount of his or her workers’ compensation benefits, the compensation carrier also is entitled to a credit in the amount of the worker’s net recovery. In this way, the carrier has benefitted not only by recovering a lien for its past payments, but it also receives the value of future compensation pay-ments that it otherwise would have been obligated to make.

The issue of this future benefit was addressed by the courts in Kelly vs. State Insurance Fund.1

KellyIn Kelly, it was established that the

carrier’s equitable share of the cost of lit-igation should be assessed as a percentage of the value of past benefits paid as well as the value of estimated future benefits to the plaintiff, provided that amount is not so speculative that it cannot be estimated. In Kelly, the plaintiff was a widow whose husband had been killed in a work acci-dent. The compensation benefit to her for her husband’s death was determined to be a weekly payment to be made for the rest of her own life. The amount of her future compensation benefits could thus be rea-sonably determined, without speculation, with the use of left expectancy tables. The carrier, in calculating a lien reduction, would thus consider not only a percent-age of the past payments made but that same percentage of the future payments it was no longer obligated to make. In this way, the “Kelly credit” was born, with the

compensation carrier reducing its lien in contemplation of the future compensation benefits and thereafter receiving a full and immediate credit for the claimant’s net recovery. Should the amount of the future compensation exceed the third party pro-ceeds, compensation would resume once the credit is exhausted.

Much has been made over the years about which future compensation benefits can be estimated and which are so specu-lative that they cannot. Certainly, death benefits, as in Kelly, are reasonably calcu-lated with the use of life expectancy and actuarial tables. Similarly, a worker who is permanently and totally disabled has an expectation of receiving a certain amount every week for his or her life, the duration of which can be predicted. Challenges arose, however, as to the speculative nature of other forms of future compensation including cases of permanent but partial disability.

BurnsIn Burns v Varriale,2 the workers’ com-

pensation carrier suggested that since the plaintiff was neither permanently totally disabled nor deceased the amount of his future benefits was not readily predictable. It was argued that the awards of a worker who is found to be permanently partial-ly disabled were subject to change based upon factors including a fluctuation in that workers’ actual earnings should he return to employment within his partial disability restrictions. In the absence of a reliable method to calculate the present value of this future benefit the carrier’s equitable share of the litigation costs were not ascer-tainable at the time of settlement.

However, this did not mean that the plaintiff must wait indefinitely for the car-rier to pay its equitable share; another means of apportioning litigation costs was fashioned. Rather than consider the future benefit at the time of calculating the lien reduction, the court suggested that the carrier should be required to periodically pay its equitable share of attorney’s fees and costs incurred by the plaintiff as the workers’ compensation benefits arise. This ensured that the payment of the litiga-tion costs by the carrier is based upon an actual, non-speculative benefit. And in

this way the “Burns credit” was born with the carrier continuing to pay a percentage of the ongoing compensation benefits as they accrue rather than taking a full and immediate credit for the third-party net proceeds.

Challenges continued to come to the Burns rule with carriers attempting to avoid liability by suggestion that the Burns formula applied only to cases where the plaintiff had already been found to have a permanent partial disability. Howev-er, time and time again the courts have directed without limitation, that in all cases where the future value of the benefit was not easily ascertainable that “the carrier should be required to periodically pay its equitable share of attorney’s fees and costs and that there is no requirement that the claimant be classified with a perma-nent partial disability to obtain continuing apportionment under Burns. Rather, the only requirement is that the compensa-tion benefits upon which apportionment is based be non-speculative. It was even held that in cases of permanent total disability, where the claimant’s future lost wage ben-efits were easily determined, that the future medical expenses were themselves specu-lative. Thus, the lien could be reduced for indemnity purposes by Kelly, but the

future medical expenses could be subject to Burns. But arguments remained as to whether Burns applied to what are known as schedule loss awards.

TerranovaThat brings us to Terranova v. Lehr

Constr. Co.3 In that case, Joseph Terrano-va, a construction foreman, injured his right knee on a raised floor tile on job site. He sought both workers’ compensation benefits and damages from the third-par-ty contractor responsible for the defective tile. The compensation carrier provided consent to his third-party settlement and had, at the time, paid $21,495.99 in work-ers’ compensation payments. An issue still existed as to his permanent loss of function (schedule loss of use) which was being litigated by the Workers’ Compen-sation Board. Mr. Terranova was ulti-mately found to have a 10% schedule loss of use of the right leg that entitled him to 28.8 weeks of benefits, or an additional $9,960. The carrier argued that because his ultimate award was of a type that had an ascertainable present value, he was not entitled to the post-settlement apportion-ment of the litigation expenses contem-plated for other types of awards.

Neither Kelly nor Burns contemplated the fact pattern in Terranova in which a third-party action was settled prior to a workers’ compensation award for “sched-ule loss of use.” A schedule loss award is a form of permanent disability, represent-ing potential future loss of earnings based upon a loss of function from an extrem-ity injury. The award is a fixed payment though it is premised upon a speculative future loss. The Workers’ Compensa-tion Board initially interpreted Kelly and Burns as requiring that litigation costs apportioned against all schedule loss of use awards be either assigned at the time of the third-party settlement or not at all. When a schedule loss of use award has been determined prior to the resolution of the third-party action there is a fixed value upon which the litigation costs can be apportioned. However, the Court of Appeals determined that when, as in this situation, the present value of the schedule loss of use benefits is not final-ized until after the time of the claimant’s third party settlement, the carrier must pay its fair share once the present value is determined.

What is finally clear is that whether “Kelly” or “Burns,” whether indemnity or medical, whether fixed benefits or specu-lative, Workers’ Compensation Law § 29 requires compensation carriers to bear their fair share of the litigation expenses. Even when it comes to “schedule loss awards.” Les D. Jarmol Esq. is a partner in the Rockville Centre firm of Polsky, Shouldice and Rosen, PC concentrating his practice in workers’ compensation claims. Mr. Jarmol currently serves as Chair of the Workers’ Compensation Committee of the Nassau County Bar Association.

1. 60 N.Y.2d 131 (1983).2. 9 N.Y.3d 207 (2007).3. 30 N.Y.3d 564 (2017).

Les D. Jarmol

What is finally clear is that whether “Kelly” or “Burns,” whether indemnity or medical, whether fixed benefits or speculative, Workers’ Compensation Law § 29 requires compensation carriers to bear their fair share of the litigation expenses. Even when it comes to “schedule loss awards.”



Wearable Technologies: The New Discovery ToolTo successfully litigate or defend

a case, it is imperative that attorneys keep up with the times and apprise

themselves of all possible ways to obtain informa-tion. In the past, the trend has been to acquire social media records to uncover facts about the parties or the accident or incident at issue. This had led attorneys to secure informa-tion that they pre-

viously would not have gotten through a deposition or paper discovery.

Recently, a new trend is on the rise as wearable technologies are making their way into the courtroom. Wearable tech-nologies are electronic devices worn by individuals that essentially track their activities. This may include the num-ber of steps taken, activity levels, time spent exercising or asleep, location, and changes in weight, heart rate, blood pres-sure or food intake throughout the day. These devices measure a host of other information, including a person’s mood.

Many individuals wear these devices in the form of a wrist watch that is often linked or synced to their cell phones. In understanding just how these devices work and the amount of information they collect, it is imperative an attorney use this information advantageously and become familiar with the data contained on any device owned by their client. Attorneys should be prepared if they receive a demand or a motion to compel production of data from such a device. Without question, the trend to use this information will become more and more prevalent.

One of the earliest documented per-sonal injury cases where wearable tech-nologies was used to show the impact of an accident occurred in Canada. In this instance, a young, female personal trainer was injured. Her attorneys used her Fitbit to show that her activity levels were less than average for someone her age and with her profession.1 The raw data from the device was analyzed by a third-party analytics company (i.e. Vivametric) that basically took the data from the individu-al’s device and compared it to that of the general population which it had stored in a massive database. 2 There are datasets used when performing the analytics on an individual’s wearable technologies that are weighted by age, gender, body mass index and waist circumference.3

Previously, attorneys have been lim-ited to the testimony of the plaintiffs themselves to prove that their subjective complaints and residuals were emanat-ing from an accident. There was very little counsel could do to support this testimony, besides notations in medical records, without creating day-in-the life videos, surveilling the plaintiff or calling in additional witnesses. However, the increased popularity and use of these devices could make it easier to support one’s claims and will enable an attorney

to generate a picture of what an individ-ual’s day actually looks like following an accident or incident.

The question now becomes whether the courts will permit the data collect-ed to be presented as evidence. Given the case law in this state, it is not clear how the courts will come down on this issue. Over the years, there has been an increase in cases where cellphone records and text messages have been deemed as discoverable (or, at least sub-ject to an in-camera review). Ironically, although cell phones have been in exis-tence for quite some time, there still is no clear-cut rule regarding whether records pertaining to them are admis-sible or discoverable. An analysis of the case law shows that they are generally discoverable/admissible where there is a good-faith basis for believing a driver was using his or her cell phone at the time of or in close proximity to an acci-dent.4 The same issues are bound to arise with wearable technologies. It certainly will take years of motion practice and the issue repeatedly being presented to the court for there to be any real guidance on whether the data from these devices will be deemed discoverable.

On January 25, 2019, the First Depart-ment, in the matter of Vasquez-Santos v. Matthew, in Manhattan, ruled that “data mining expert may scour a plaintiff’s electronic device and email and social media accounts for evidence of physical activity following a motor vehicle acci-dent[,]” giving us a little more insight as to how courts will handle these dis-covery issues 5 In Vasquez-Santos, the Court granted defendants’ “motion to compel to allow an expert to cast a wider dragnet through the plaintiff’s electronic devices,” which included not only social media accounts and emails but also tags, documents and deleted materials.6 In the Vasquez-Santo matter, the defense saw this as a victory but this may not always be the case.7 In fact, in many cases, a plaintiff’s attorney may look to use this information to substantiate the claims and injuries plead and to bolster the credibility of an injured plaintiff. Just as with any discovery tool, whether information from these devices should be used by a practitioner should be addressed on a case-by-case basis and both plaintiffs and defendants should educate themselves on how these plat-forms and devices work.

As a plaintiff’s attorney, if one is interested in using this data to show how

a client has been affected, it certainly is best to treat this the same as any video, photograph or expert intended for use at the time of trial. First, it is important to advise your adversary of any intention to use this data, such as by exchanging it or doing a notice of intention to introduce it at trial. In addition, it is good practice to hire and consult with an analytics company early on so as to discuss what they need the attorney and the client to do. In addition, this will offer the oppor-tunity to do an expert exchange and provide reasonable notice to the other side of your intention to present expert testimony from your client’s device.

Similarly, as defense counsel, there is an interest in obtaining this information from the plaintiff or claimant. A demand for same should be done early on so that any objection or refusal to provide can be dealt with in a timely fashion. Further, obtaining same early on per-mits defendants to also consult with an analytics company and provide notice to their adversary of any experts they intend to call and to serve any necessary expert exchanges regarding the device.

Based on history with other types of electronic discovery/evidence, such as emails, laptops, iPads, cell phones, etc., accuracy and privacy will be the big-gest concern with these wearable tech-nologies. In response to this growing database of new evidence, changes have been made to various Rules that govern litigation.

For example, “Rule 34 now states that a party may request within the scope of Rule 26(b), any other party to produce ‘any designated documents or electron-ically stored information – including writings, drawings, graphs, charts, pho-

tographs, sound recordings, images, and other data or data compilations – stored in any medium from which information can be obtained either directly or, if nec-essary, after translation by the respond-ing party into usable form.’”8 However, as set forth by Katherine E. Vinez, in an article written on this very issue, she appropriately points out, “issues of rele-vancy, accessibility, privacy, collecting/processing and costs will prevent a sig-nificant number of cases from using data as evidence.”9

State Technology Law defines, “Elec-tronic record” to mean “information, evidencing any act, transaction, occur-rence, event, or other activity, produced or stored by electronic means and capa-ble of being accurately reproduced in forms perceptible by human sensory capabilities.”10 Further Rule 4518 of the Civil Practice Law and Rules states

An electronic record, as defined in section three hundred two of state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representa-tion of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowl-edge by the maker, may be proved to affect its weight, but they shall not affect its admissibility.11

Based on these sections, it is evi-dent that the wearer of the device will have to authenticate the device and data and would have to testify that the data belongs to them, that device was worn by them, etc. In addition, it also seems necessary to have an expert from an analytics company testify as to the pro-cess of analyzing the data in order to have it properly admitted as evidence. Regardless of what side of the “v” one is on, there will certainly be challenges on the way to what may come to be an extremely useful discovery tool. Deanne M. Caputo is a partner of the firm Sullivan Papain Block McGrath & Cannavo P.C., and handles personal injury matters including motor vehicle accidents, trip and falls, slip and falls, dog bite cases, assaults, construction accidents, etc.

1. Parmy Olson, Fitbit Data Now Being Used in The Courtroom, Forbes, November 16, 2014. 2. Sarah Griifiths, Fitbit data I is now being used in COURT: Wearable technology is set to revolu-tionize personal injury and accident claims, Mail Online, November 17, 2014.3. Id. 4. Morano v. Slattery Skanska, Inc., 846 N.Y.S.2d 881 (2d Dept. 2007).5. Andrew Denney, Court: defense Can Mine Plaintiff’s Social media, Devices in Accident Case, NYLJ, January 25, 2019 at 1, col 2.6. See id. 7. See id. 8. Fed. R. Civ. P. 34(a)(1)(A); Vinez, Katherine E. “The Admissibility of Data Collected from Wearable Devices” Stetson Journal of Advocacy and the Law. https://www2.stetson.edu/advo-cacy-journal/the-admissibility-of-data-collect-ed-from-wearable-devices9. Id. 10. Tech. Law § 302.11. CPLR 4518(a).

Deanne M. Caputo

Attorneys should be prepared if they receive a demand or a motion to compel production of data from such a device. Without question, the trend to use this information will become more and more prevalent.



The Electronic Health Record: How to Get It and What to Pay

In 2009 Congress passed the HITECH Act, which sought to promote the mean-ingful use of medical records in elec-tronic format.1 This statute has not only

impacted the for-mat of the record (that is, an elec-tronic or digital record as opposed to a paper record) but has signifi-cantly changed the nature of the record, the way it is created, its con-tents and volume. It also presents opportunities for attorneys seeking

their clients’ records to save time and money—if they know how to use the statute’s provisions.

The Bad Old Days of Paper Medical Records

Before the advent of electronic health care records (EHR), the medical records, and in particular hospital records, were organized according to topic—progress notes, nursing notes, medication admin-istration records, laboratory results, operative notes, radiology, etc. The record typically did not have redundan-cy of information, which impacted on the size of the record.

Access to the record and the cost of providing same in New York was governed by Public Health Law Sec-tions 17 and 18. Before 1991 there was no maximum allowable cost. In 1991 the law was amended and stated that a health care provider was required to furnish a patient’s medical records upon an appropriate and authorized request, with certain exceptions, and that the cost could not exceed 75 cents per page when the request was made by a “qualified person.”

”Qualified person” under the statute includes the patient and their attorney, health care proxy, and the estate repre-sentative. If the patient has died and no estate representative has been appointed, then PHL Section 18(3)(g) allows a dis-tributee of the deceased patient to obtain the medical records upon presentation of a death certificate.

The statute set a maximum cost, but not a minimum. Until recently the stan-dard charge assessed by most health care providers was 75 cents per page without consideration of the actual cost of the process.

A New Era of Medical Records—and Requests

The EHR, unlike the old paper record, is not a static document that; it changes every time it is reviewed, even if nothing is added or removed from the contents. The same record printed out on one day can appear different the next time it is printed, with different page numbers and page breaks. The EHR can even be printed and copied digitally in dif-ferent versions, depending on what is

selected to print and the format of print-ing. In contrast, the old written medical record would not change in appearance or number of pages however many times it was copied.

The EHR now is many times larger in size, due to the features of the EHR program used. It may produce multiple versions of the same note, and automat-ically populate into each note all prior laboratory and radiology results, vital signs, medications, and other history As the record increases in size, there has actually been a resulting increase in the cost of obtaining the record—when billed by the page.

Records Retrievable Under the HITECH Act

The HITECH Act sets forth the rights of a patient (“the individual”) seeking their own records, and aims to remove barriers to such requests. The Act con-siders the medical record to be protected health information (PHI), and the health care provider to be the covered entity. The patient can request the records from a covered entity in one or more “desig-nated record sets.”

A “designated record set” is a group of records maintained by or for a cov-ered entity regarding the individual. It includes such information as: the med-ical and billing records about individ-ual; enrollment; payment; claims adju-dication: case or medical management record systems maintained by or for a health plan; and information used in whole or in part by or for the covered entity to make decisions about individ-uals.

The regulations applying the Act allow covered entities to withhold cer-tain types of records, including quali-ty assessment or improvement records, patient safety activity records, and busi-ness planning. Also excluded from the Act are psychotherapy notes that are personal to the provider and maintained separate and apart from the rest of the patient’s records,2 and information that is compiled in reasonable anticipation of, or in the course of civil, criminal or administrative action or proceeding.3

Requesting Records Under the HITECH Act

The Act allows the patient and their personal representative to obtain the PHI. A personal representative includes a person with authority under State law to make health care decisions for the individual, such as a designated health care proxy, the individuals’ guardian, or the estate representative).

The individual may, in lieu of receiv-ing a copy of the record, seek a summary or explanation of their records. In that case, the individual must inform the pro-vider in advance of the request to receive a summary or explanation, and agree to any fees that might be charged for same.

The covered entity may require that the request be in writing and supply its own release form, but only if the form does not create a barrier or unrea-sonably delay the individual in obtain-ing his PHI. Such barriers have been described by the DHHS as the doctor’s office requiring that the patient come to the office with proof of identity when the patient requests the records sent to the home, or to access the records via

an online portal, or to mail the request. The Act encourages the covered entities to offer individuals multiple options for requesting access to records.

A HIPAA authorization is not required, nor is notarization or verifi-cation of the individual’s signature. A letter by the patient stating the specific records requested, the format in which they should be provided, to whom they should be sent and in what form (e-mail, paper, CD or USB drive). It is best that the letter be simple. It should not be on an attorney letterhead or sent with an attorney’s cover letter. It may be faxed by the attorney, however, on behalf of a client.

The patient may request the records in paper or electronic format. If an indi-vidual requests records already main-tained in an electronic format, the pro-vider must give access in that format; only if the individual declines the elec-tronic format can the provider satisfy the request with a readable hard copy. Where the record is maintained only on paper, the covered entity is still required to provide it as an electronic copy but only if it is readily producible electron-ically, that is, it can be scanned into an electronic form. If not, then a readable alternative electronic or hard-copy for-mat can be agreed upon.

Transmission or transfer can be done by a digital method when requested. A covered entity is not required or expect-ed to tolerate unacceptable risks to the security of the record when it has left its system. However, e-mail and mail

Mary Anne Walling

Sample Letter: Records to Client

REQUEST FOR ELECTRONIC FORMAT MEDICAL RECORDS

[Date] [Provider Name] [Address]

Re: [Patient Name] [Patient Address] DOB:

Date of Admissions: ENTIRE RECORD

Dear Sir/Madam:

I am the above named person. Pursuant to the HITECH Act, I am requesting, in an electronic format only, a color copy of the entirety of my records maintained by your facility. I am not requesting paper copies. Do not bill me for paper copies. The HITECH Act and its regulations do not allow you to bill for paper copies when an electronic copy has been requested. Please contact me with the amount you intend to charge before sending the records. You can contact me by telephone at ___________and by e-mail at _________________.

As you are aware, the HITECH Act requires you to act on my request within 30 days. Thank you for your anticipated compliance, prompt attention and cooperation.

Very truly yours,

Sample Letter: Records to Attorney

REQUEST FOR ELECTRONIC FORMAT MEDICAL RECORDS

[Date] [Provider Name] [Address]

Re: [Patient Name] [Patient Address] DOB:

Date of Admissions: ENTIRE RECORD

Dear Sir/Madam:

I am the above-named person [or wife, next of kin for the deceased, representative of the estate or attorney in fact of the identified above person]. Pursuant to the HITECH Act, I am requesting, in an electronic format only, a copy of my [or the above person’s] records maintained by your facility. Please provide ALL records maintained.

I am not requesting paper copies. Do not bill me for paper copies. The HITECH Act and its regulations do not allow you to bill for paper copies when an electronic copy has been requested.

According to the Federal Office of Civil Rights website (Frequently Asked Questions), the HITECH Act permits me to direct you to send the records to a third party, including any attorney’s office.

Please contact me with the amount you intend to charge before sending the records. You can contact me by telephone and mail.

Please forward the records directly to me: c/o [Attorney Name & Address]

As you are aware, the HITECH Act requires you to act on my request within 30 days. Thank you for your anticipated compliance, prompt attention, and cooperation.

Very truly yours,

See RECORD, Page 21



Uber Issues: Insurance Coverage for Rideshare Drivers

Companies such as Uber, Lyft, Via, and Juno, just to name a few, are taking over the transportation world. Just by sheer numbers, and the numerous family and friends using rideshare applications, it was clear that taxi and cab companies are becoming a thing of the past, not too far behind cassette tapes and CDs. Now the issue becomes how has our legal world, mainly in personal injury and workers’ compensation, changed with the rise of these applications.

To start at the basics, what is a ride-share application? Essentially, it is the 21st Century’s version of the taxi compa-ny, driven by a smart phone or computer program. A consumer can create an account with the company on their spe-cific app, and using GPS on their smart phone can book a ride. With a few clicks, your ride is on its way to pick you up to take you to your destination. The whole transaction—booking the ride, mapping the route, payment, and now tipping the driver—is handled on the phone appli-cation. There is practically no exchange with the driver at all.

To appreciate the legal ramifications of this type of business, it is important to understand the basics of being a driver for a ridesharing company. Unlike many

other states, New York has taken some affirmative steps to protect drivers. The State requires that rideshare appli-cations provide workers com-pensation coverage to drivers through the Black Car Fund. While the cost of the coverage is taken out of the trip fare, the coverage begins when the driver logs into the applica-tion, thus becoming available for rides. The oddity of this situation is that drivers are considered independent contractors and receive 1099 forms, but are covered as employees for workers’ compensation purposes. Further confusing matters is that drivers traditionally use their own cars and control their hours and sched-ule, but the rideshare platform controls hiring, pricing and labor standards.

Once the application is activated, workers’ compensation coverage is as well, whether on a ride or waiting for one. Thus, no-fault coverage is now a third-party benefit, and workers’ com-pensation becomes primary. When the driver de-activates or logs off the appli-cation, their workers compensation’ ben-efits cease and no-fault becomes primary

again. Thus, when a driver is involved in an accident and seeks legal advice, it is important to have a thorough understanding of whether or not they were logged on to the rideshare application at the time of the accident.

Now there are some pret-ty confusing circumstances that can arise when it comes to rideshare drivers. For instance, consider a livery car leased to a driver who

operates for an independent livery base during certain hours (for this exam-ple we will assume the base is covered the Independent Livery Drivers Benefit Fund, which is not covered by workers’ compensation). When not logged into the independent livery base, that driver can log on to a rideshare app and do rides for the rideshare company. At that point, the driver is covered by workers’ compensation. Thus, the same driver could possibly be covered by workers’ compensation for certain hours of their day, but not others.

I just want to briefly touch upon the aforementioned Independent Liv-ery Drivers Benefit Fund. Established

in 2016 and codified at 12 NYCRR Part 309, the ILDBF aims to protect livery car drivers should they suffer grave injury or death in the course of employment. The ILDBF does not provide medical or indemnity benefits like those of workers’ compensation, unless a driver falls into one of these circumstances:

1. Death in the course of providing covered services;

2. Injuries resulting from a crime committed against the driver (as documented on a police report);

3. Injuries resulting in:a. amputation or physical loss

of an arm, leg, hand, foot, multiple fingers, index finger, multiple toes, ear or nose;

b. paraplegia or quadriplegia; orc. total and permanent blind-

ness or deafness.Thus, it is plausible to have drivers

driving certain hours for an independent livery base and then using the same vehi-cle when they are off that base to work for a rideshare company. The entitle-ment to benefits in these two situations is greatly different, and as such a deter-mination of who the driver is working

Justin B. Lieberman

See UBER, Page 20



More Than a Year After the U.S. Supreme Court’s Decision in Endrew F., Little Has Changed for Parents

of Children in Special Education in New YorkWhen the U.S. Supreme Court issued

its 2017 decision in Endrew F. ex rel. Joseph F. v. Douglas County School Dist.,1 it was hailed as an important step for-

ward for students receiving special education. In fact, however, at least in New York, Endrew F. appears to have had little effect on the courts’ analy-sis as to whether a school district has provided a special education student with a free, appro-priate public edu-cation (FAPE), as

required by the applicable federal statute, the Individuals with Disabilities Educa-tion Act (IDEA).2

Before Endrew F., it was well established that a school district had to provide a spe-cial education student with an individual-ized educational program (IEP) that was “appropriate,” meaning that it was “rea-sonably calculated to enable the child to receive educational benefits.”3 In Endrew F., the U.S. Supreme Court purported to give some guidance on what that meant, holding that “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”4 Rejecting the contention that an IEP was sufficient where the student had received an educational benefit that is “merely more than de minimis”5 the Court found that “it cannot be the case that the [IDEA] typ-ically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.”6 Rather, the Court held, “the IDEA demands more. It requires an educational program reason-ably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”7 Still, however, the IEP must only be “reasonable,” not “ideal.”8 Further, an educational program need not include “grade level advancement” if such progress is not “a reasonable prospect” for the particular child.9 Moreover, in making the assessment as to whether an IEP passes muster, the U.S. Supreme Court reminded the lower courts that they are not permit-ted “to substitute their own notions of sound educational policy for those of the school authorities which they review.”10

While the decision in Endrew F. was lauded as a watershed moment for special education students, in fact, that has not been the case in New York. To the con-trary, the Second Circuit and the federal courts within this Circuit have repeated-ly held, “[p]rior decisions of this Court are consistent with the Supreme Court’s decision in Endrew F.”11 Thus, the courts have determined that Endrew F. imposed no higher standard than the federal courts in New York were already imposing upon

school districts when crafting an IEP, and, therefore, did nothing to change the rules applicable to school districts.

As a practical matter, this means that the courts remain deferential to school districts’ Committee on Special Educa-tion (CSE), independent hearing officers (IHOs) and the New York State Commis-sioner of Education (sometimes referred to as the “State Review Officer” or “SRO”) despite the U.S. Supreme Court’s deci-sion in Endrew F. Although parents have relied on Endrew F. to claim that IEPs designed for their special education children are not “appropriate” as their children have not made the necessary advancement, since Endrew F, the courts in the Second Circuit still remain reluc-tant to find IEPs deficient on that basis.12

These and other cases decided after Endrew F. demonstrate that it remains an uphill battle for parents to demonstrate that a school district has denied a child FAPE. An IEP is likely to be deemed to provide FAPE as long as the school district can show that it was created after due consideration of all relevant evidence concerning the student’s functioning and needs. Furthermore, because IEPs contin-ue to be judged prospectively, i.e., on the basis of what is known about the student at the time it is crafted, a parent may not challenge an IEP based upon speculation that, once implemented, an IEP may not, in fact, meet a student’s needs. Rather, it remains the case that an IEP may have to be implemented, and actually shown to be inappropriate (meaning that a child fails to progress, or even keep up with the curriculum) before a court is willing

to find that an IEP deprived a student of FAPE.13

Thus, while under Endrew F. more than de minimus progress must be the goal of an IEP, that case seems to have had no practical effect in New York. Accordingly, a parent who has concerns that the IEP developed for his child at the CSE meeting will not provide FAPE should ensure that a record is made at the CSE meeting regarding (a) what eval-uations were performed, (b) whether the CSE has considered a student’s current level of functioning and needs, and (c) what evidence the CSE considered (or failed to consider) when developing the IEP. Only if the parent can demonstrate that the CSE, IHO and/or SRO was less than thorough in determining what is “appropriate” for the student is that par-ent likely to be successful in any court challenge to an IEP.14 Lynn Brown is Of Counsel at Meyer, Suozzi, English & Klein, P.C., where she practices in the firm’s Litigation and Education Law Departments.

1. 137 S. Ct. 988 (2017).2. 20 U.S.C. § 1400 et seq.3. Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034 (1982). 4. 137 S. Ct. at 1001. 5. Id. at 1001.6. Id. at 1000-1001. 7. Id. at 1001. 8. Id. at 999. 9. Id. 10. Id. at 1001 (citation omitted).11. See, e.g., F.L., individually and on behalf of R.C.L., 735 Fed. Appx. 38, 41, n.3 (Mem) (2d Cir. Aug. 24, 2018); Mr. P. v. West Hartford Bd. of Educ., 885 F.3d 735, 757 (2d Cir. 2018); E.E., individually and on behalf of G.E. v. New York City Dep’t of

Educ., 2018 WL 4636984, at *7 (S.D.N.Y. Sept. 26, 2018). 12. See, e.g., J.R. v. New York City Dep’t of Educ., 2018 WL 4664086 (2d Cir. Sep. 27, 2018) (summary order) (although parents claimed that IEP was not reasonably calculated to confer educational benefits, the Second Circuit rejected that contention, finding it owed the state deference in that regard and found student with speech and language impairments received FAPE); G.E., 2018 WL 4636983, at *4 (rejecting parent’s claims that school district denied student with autism FAPE by failing to conduct a functional behavioral analysis, implement a behav-ioral intervention plan, or identify temporary tran-sitional support services to new classroom teacher, and allegedly predetermined what was in the IEP, developed an IEP that recommended an inappropri-ate program and goals, failed to provide a 1:1 aide, prescribe the appropriate teaching methodology, or adequately address the student’s sensory and man-agement needs; impartial hearing officer and SRO applied the proper legal standard).13. See, e.g., M.E. and T.E., individually and on behalf of K.E. v. New York City Dep’t of Educ., 2018 WL 582601 (S.D.N.Y. Jan. 26, 2018) (parents failed to demonstrate that the IEP developed by the CSE was inadequate and the district’s proposed place-ment was insufficient to meet their child’s sensory needs; SRO’s decision was thorough and well-rea-soned); J.P., on behalf of their Son, J.P. v. City of New York Dep’t of Educ., 717 Fed. Appx. 30, 32 (2d Cir. 2017) (parents did not establish that IEP was procedurally or substantively inadequate; as the “SRO considered the record as a whole and explicitly referred to materials that J.P.’s parents now suggest were ignored,” and “the CSE heard [the parents’] objections, considered materials they submitted, and convened a second meeting to address their objec-tions and explain its reasoning”).14. See S.B. and S.B., Individually and on Behalf of C.B. v. New York City Dep’t of Educ., 2017 WL 4326502, at *15 (E.D.N.Y., Sept. 28, 2017 (parents demonstrated that school district failed to timely reevaluate student in her areas of need and failed to review her most recent evaluations during the IEP meeting; decisions of the CSE and SRO were belied by a preponderance of the objective evidence and neither reconciled inconsistencies nor acknowl-edged their existence, and, thus, “[t]he IEP was not designed to enable C.B. to make progress in light of her educational needs”).

Lynn Brown


Expert Opinion and the Personal Injury TrialIf you are a young attorney (and at

my age, that covers about 90% of the lawyer population I come across) and you are about to try a personal injury case, the likelihood is that at some point in the trial, typically during the damages phase, you will be calling an expert witness to establish an important element of your case. This column will

discuss what I call the “Big Three” of expert testimony cases that every trial lawyer must be familiar with before attempt-ing to introduce such testimony.

Before we get into the cases, there are a few practice tips to keep in mind. First, as always,

if you think you are going to have a problem getting any testimony into evidence, I strongly recommend that you request a conference with the court before the jury is picked to resolve the issue. A written motion in limine may ultimately be required, but always ask for a conference first. Second, I strongly suggest that when you come into court to argue an evidentiary issue, do not just be familiar with the holding of a case; you must come prepared with the facts of the case as well.

People v. SugdenThe first case is People v. Sugden,1

which created what has come to be known as the “professional liability rule.” This case was an appeal from a conviction for murder after a jury trial in Suffolk County. The primary issue on appeal was “whether an expert may base his testimony on an out-of-court written statement of a witness who had testified at the trial.”2 The facts in the case are as follows.

The defendant, who was twenty years old at the time of trial, was a member of a group that called them-selves “God’s Gifts” and were known for hanging around a certain Hunting-ton-area shopping center. Defendant and another individual named Mace were planning on robbing an acquain-tance, Lawrence Fitzgerald, who was thirteen years old and was home at the time, having been suspended from school. After arriving at the home, the three males discussed getting high on glue and Fitzgerald was dispatched to go make the purchase.

Meanwhile, defendant called another friend, Patricia Berglund, and asked her to come to Fitzgerald’s home with her car. Berglund did so and brought along her daughter and another friend, Rose-mary Knox. She then picked up defen-dant, Mace, Fitzgerald, and another boy, Clifford Graebe, and proceeded to drive all of them to a partially wooded area in Huntington. When they arrived at the location, defendant and Berglund walked Fitzgerald down a path where defendant struck Fitzgerald in the head

with a cement block. Although Fitzger-ald was hurt, he was actively resisting, which led defendant to stab him several times before hitting him again on the head with the cement block. Defen-dant, Berglund, and Graebe covered the body with brush and returned to the car where defendant told the others he had killed Fitzgerald. They then left in Berglund’s vehicle and eventually went their separate ways.

The motive that was subsequently developed for this crime was that defen-dant wanted to find out if he was capa-ble of killing another human being, as he was contemplating a criminal future and thought he needed a so-called test run to see if he was up to it. The body was found soon after the investiga-tion, which led to Knox, who identified defendant as being the culprit. Defen-dant, who was in jail on an unrelated charge at that point in time, was ques-tioned, and gave a full confession.

At trial, legal insanity was the only defense proffered. Defendant testified that when he killed Fitzgerald, he was high on mescaline and believed that he was killing a giant grasshopper. A defense psychiatrist offered the opinion that defendant lacked responsibility. The People then offered the testimony of psychiatrist Dr. Harold Zolan in response, who stated that defendant was legally sane. Dr. Zolan based his opinion, in part, on the written state-ment that Berglund had given to police; however, he had never interviewed her personally. In addition, it is crucial to also understand that of the four involved (Berglund, Knox, Graebe, and Mace), only Mace did not testify.

Dr. Zolan testified at trial that he interviewed defendant for three hours, reviewed a psychologist’s report of him from age seven, other psychiatric and medical reports, his written confession, and the written confessions of the other four involved. He also admitted that he had relied on Berglund’s written state-ment in coming to his opinion; howev-er, it is worth noting that Berglund did testify at trial and was cross-examined extensively. Defense counsel moved to strike Dr. Zolan’s testimony because of the reliance on the out-of-court state-ment.

On appeal, the Court of Appeals held that allowing an expert to base, in part, his opinion on otherwise legally incompetent hearsay of a person he has not interviewed is conditioned on the hearsay declarant testifying at trial.3 The court went on further to state that “[t]he psychiatrist may rely on material, albeit of out-of-court origin, if it is of a kind accepted in the profession as reli-able in forming a professional opinion.4

Following the aftermath of the Sug-den case, practitioners should be aware of the case of People v. Goldstein,5 which was New York’s first reversal based upon the eponymous Crawford v. Wash-ington6 decision by the United States Supreme Court. Goldstein, for those not familiar, was the man who threw Kendra Webdale under a New York City subway train, killing her. While

his first trial ended in a hung jury, at his second trial, the People called a psychiatrist in opposition to Goldstein’s plea of insanity. That psychiatrist tes-tified that, in forming his opinion, she interviewed several of his co-workers and former roommates; furthermore, she testified as to what some of those individuals told her during those inter-views. The trial judge admitted this testimony as being of a kind accepted in the profession in forming an opin-ion. However, contrary to Sugden and in violation of Crawford, some of those individuals interviewed by the psychia-trist did not testify and thus could not be cross-examined; therefore, the Court of Appeals reversed his conviction and ordered a new trial.7

Hambsch v. New York City Transit Authority

The second case of my Big Three is Hambsch v. New York City Transit Authority.8 This case has been seen as adding a second element to the profes-sional reliability rule. In this case, plain-tiff was struck by a bus and sued, alleg-ing that she sustained a serious injury under Insurance Law §671. The Appel-late Division, Second Department, held that plaintiff’s proof was insufficient to establish a prima facie case and reversed the trial court’s verdict.

Plaintiff had alleged in her complaint that she suffered a serious injury in the form of a fracture in her back. In support of this position, a physician testified that, prior to his testimony, he had read an x-ray of her lower back and opined based upon this that she was suffering from spondylolistheses, essen-tially a misalignment of her vertebra. The x-rays were never introduced into evidence. The physician also testified that the condition of spondylolistheses is caused by a fracture. When asked the basis of this opinion, the physician testified that, two days before the trial, he had a conversation with a radiol-ogist, who based his opinion on an unidentified study that the radiologist had admittedly not participated in. The latter testimony was objected to at trial but was allowed in.

The Court of Appeals held that while it is settled and unquestioned law that opinion evidence must be based on facts on the record or personally known to the witness,9 there are two recognized limited exceptions to this rule: first, an expert may rely on out-of-court material if it is of a kind accepted in the profession as reliable in forming a professional opinion; second, if it comes from a witness subject to full cross-examination at trial.10 The court then added the following caveat: “[i]n order to qualify for the ‘professional reliability’ exception, there must be evi-dence establishing the reliability of the out-of-court material.”11

Applying this new requirement to the instant case, the court held that plaintiff offered no such evidence estab-lishing the reliability of the x-rays and the conversation with the radiologist involving the unidentified study, nor

had the physician himself offered any such evidence. Therefore, his opinion was inadmissible and the case was dis-missed accordingly.

Tornatore v. CohenThe third case in this trilogy comes

from the Fourth Department, who decided Tornatore v. Cohen12 this past February. Here, plaintiff sued defen-dant chiropractor for medical malprac-tice as a result of his treatment. A jury found malpractice and awarded dam-ages, amongst other things, for future medical and life care expenses. During the trial, plaintiff presented proof in the form of an expert life care planner. Defendant had moved to strike that tes-timony on the ground that her opinion was primarily based upon inadmissible hearsay statements of plaintiff’s treating physician, but the trial court denied the motion.

On appeal, the Appellate Division, Fourth Department, affirmed the trial court decision. The court noted that the expert had explained the professional methodology by which a life care plan is developed, including a review of the medical records, the recommendations made by the individuals treating pro-viders, interviewing the individual him-self, conducting research and analysis of the costs, and preparing the report. Further, the expert interviewed plaintiff about his background, work history, injuries and treatment, the recommen-dations of his treatment providers, and assessing his level of independence in light of his injuries. She also reviewed the life care plan with plaintiff’s treating physician. The expert also testified that the information upon which she relied was of the type commonly relied on in her profession and that no one part of any of the information she gathered determined her conclusion.13

The Fourth Department ultimately held that although the expert’s discus-sion with the treating physician pro-vided a basis for several components of plaintiff’s future medical needs and the expert acknowledged the extent of her reliance upon those hearsay statements, the record established that the expert had a sufficient basis for her opinion of which the hearsay statements of the treating physician were “but a link in the chain of the data upon which [she] relied.”14

There is a lot to consider and a lot to be aware of. There are, of course, many other landmark cases on this topic that a personal injury attorney needs to be aware of; for example, Wagman v. Bradshaw15 comes to mind. Nonethe-less, I think one would do well to use the above three cases as a starting-off point. Read them, Shepardize them, and begin to build a file of these cases that you can go to when you come across a professional reliability issue. As always, Professor Hutter’s two columns on the issue in the New York Law Journal in August16 and October17 of this year are very instructive. My personal go-to evi-

VIEW FROM THE BENCH

Hon. Arthur M. Diamond

See BENCH, Page 23


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MOVIE REVIEW

Jazz, Jimmy and JurisprudenceAnatomy of a Murder (1959)

Review by Rudy Carmenaty

Long before Law & Order became addictive viewing, Otto Preminger’s Anatomy of a Murder (1959) set the stan-dard for film portrayals of the American legal system. Starring James Stewart, the film was adapted from the best-selling novel by Michigan Supreme Court Justice John Voelker.1

Movie Based on a Real Trial People v. Peterson (1952),2 in which

Justice Voelker had served as defense counsel, is the basis for both novel and film. Voelker claimed Army Lt. Cole-man Peterson was not guilty by reason of temporary insanity after he was seized by an “irresistible impulse” to kill bar owner Mike Chenowith. Coleman’s “insanity” was apparently triggered after learning Chenowith had raped his wife.3 Acquitted by the jury, Peterson was a free man after spending a month in the state asylum.4

Authentic CharactersWatching the movie, what first catch-

es the eye, or rather the ear, is Duke Ellington’s pulsating jazz sound track. The sound track perfectly accentuates the total absence of moral clarity that permeates the story being told. The album earned Ellington three Gram-mys and the score was the first by an African-American composer in a major American film.5

During filming, Ellington joined direc-tor Otto Preminger on location in Mich-igan’s Upper Peninsula. He even acts as “Pie-Eye,” a jazz musician who is Jimmy Stewart’s buddy. But Ellington wasn’t the only non-professional actor in the cast.

Playing the role of Judge Weaver, the presiding judge, was Joseph Welsh. The famed Boston attorney had come to pub-lic prominence during the Army-Mc-Carthy hearings five years earlier. It was Welsh, who having skillfully cross-ex-amined Roy Cohn, uttered the immortal line, “[h]ave you no sense of decency, sir, at long last?” when Senator Joe McCarthy rushed to Cohn’s defense.6

Anatomy of a Murder has an air of authenticity that imbues every scene, informs virtually every line of dialogue and initiates every action taken by the characters.7 Preminger shot the film using local townspeople as extras and real locales, including the Marquette County Court House where Peterson stood trial.

A Lawyer and a MaverickPreminger himself had studied law in

his native Vienna and his father at one time was the Attorney General for the Austro-Hungarian Empire.8 Preminger always acknowledged the law’s profound impact: “I feel very grateful to my father, because the philosophy of law gives you a certain outlook on life.” 9 A maverick movie-maker, he made a name for him-self by challenging the motion picture production code which then strictly regu-lated film content. Preminger felt contro-versy would generate box-office receipts, but he was never vulgar or exploitative with his material.

A Legal Challenge to CensorshipFrank for its time, Anatomy of a Mur-

der was considered quite risqué. The script includes such provocative terms as “panties,” “rape,” “sperm,” “spermato-genesis,” “sexual climax,” “intercourse,” “completion” and “contraceptive.” These words were rendered even more shocking since they were being spoken by Ameri-ca’s most beloved actor Jimmy Stewart.10

Preminger not only courted contro-versy, but also frequently found himself in court. Upon Anatomy of a Murder’s initial release, Preminger and Columbia Pictures successfully sued the City of Chicago resulting in a court overturning a determination by the local police censor

board. The authorities had complained about the use of these then risqué words in the film.11

Chapter 155 of the City’s Munici-pal Code required the commissioner of police to issue a permit prior to a motion picture’s exhibition.12 The statute spe-cifically provided for refusal if a film “is immoral or obscene, or portrays deprav-ity, criminality, or lack of virtue of a class of citizens.” 13 The permit was denied.

U.S. District Judge Julius Minor, after screening the film, ruled that the movie didn’t depict “anything that could rea-sonably be termed obscene or corruptive to public morals.”14 The judge ordered the permit to be issued, enjoining the authorities “from preventing exhibition of Anatomy of a Murder in the City of Chicago.”15

Another LitigationEver litigious, Preminger later brought

an action to stop Columbia Pictures and Screen Gems, the studio’s television subsid-iary, from distributing Anatomy of a Mur-der over broadcast television. Preminger objected to scenes being deleted from the TV presentation and the interruption of the movie for commercials.

Preminger claimed that Screen Gems detracted from the film’s artistic merit, damaged his reputation as a film-maker, cheapened if not destroyed the film’s

commercial value, and falsely represent-ed to the public that the movie was a “Preminger film.”16 Citing industry prac-tice and the terms of the contract between the parties, the judge ruled against him on all counts.

A Man of PrinciplesOften referred to as “Otto the Terrible,”

Preminger had a well-deserved reputa-tion for being autocratic and overbearing.17 Yet Preminger’s pursuit of principle had broader ramifications. For instance, he refused to have the film shown in South Africa because an objection was raised to a scene where Jimmy Stewart and Duke Ellington are playing piano side-by-side.18

Such camaraderie between individuals of different races was forbidden under Apartheid. A South African film agent wanted the scene cut so the film could be shown theatrically.19 Preminger was adamant: “[m]y movie is not a South African film. It’s an American one. You either run the picture as it is, or you don’t run it all.”20

The StoryJimmy Stewart’s Paul Beigler is a

small-town prosecutor who has recently been voted out of office. Not content with his neighbors having shown him

See ANATOMY, Page 17

IMAGES VIA WIKIMEDIACOMMONS


the door, he spends most of his time fly-fishing and playing jazz on the piano. But the one thing that shines through in Stewart’s performance is that Beigler retains his passion for the law. As Joseph Welsh observed: “[i]t’s almost immoral for Jimmy Stewart to become such a good lawyer without having to work at it as I did.”21

Beigler stands in stark contrast to his slick adversary Claude Dancer (George C. Scott), an assistant attorney general sent from the state capital. At one point, Bei-gler wryly describes himself as “a humble country lawyer trying to do the best I can against this brilliant prosecutor from the big city of Lansing.” But his folksy ways belie a razor-sharp mind with an instinct for the jugular. Beigler is a far cry from the idealistic Jefferson Smith or the self-sacrificing George Bailey that the public fondly recalls from Stewart’s films with Frank Capra.

Upon meeting Lt. Fredrick Manion (Ben Gazzara), Beigler navigates a fine line between preparing his client’s defense and coaching him into a story that will get him off. Beigler is ever so careful with his words as he is dealing with an unsym-pathetic client who could well be guilty. Manion is surly in his demeanor, exces-sively possessive of his wife Laura (Lee Remick) and prone to violence. After she tells him she was beaten and raped by bar owner Barney Quill, he loads his Luger, drives over to the Thunder Bay Inn and

shoots him repeatedly. Laura, for her part, is beguiling and

flirtatious. Laura was drinking with Quill on the fateful night and willingly accepted a ride home in his car. While Manion sits in jail, Beigler catches her partying with some soldiers at a jazz club. In the context of 1950’s America, Laura’s actions cast some doubt on her veracity which Dancer will exploit during cross-examination.

Laura claims she loves Manion but she is also very much afraid of him. A police administered polygraph supports her story about the rape, but she is, by every indication, a woman trapped in an abusive relationship. Is she lying? Was she seeing Quill on the side? Was she beaten by Manion in a jealous rage?

The psychiatrist who evaluates Man-ion concludes when he shot Quill, he was temporarily insane being in the grip of dissociative reaction or irresistible impulse. Beigler is uncertain if a Michi-gan court will accept this defense. Then he finds an obscure 1886 precedent, Peo-ple v. Durfee.22 In this case, the Michigan Supreme Court ruled that “the fact that the one accused of committing a crime may have been able to comprehend the nature and consequences of his act, and to know that it was wrong, nevertheless if he was forced to its execution by an impulse which he was powerless control … he will be excused.”23

The TrialBeigler, as Voelker did in real-life,

pleads temporary insanity on behalf of his client. Both sides take nothing for granted during the trial, employing just

about every trick a lawyer can get away with. The audience, never sure just who or what to believe, is taken step-by-step through the paces of a first-degree mur-der case from the qualification of the jurors to the final verdict.

The trial’s pivotal scene takes place when Dancer cross-examines last-minute defense witness Mary Pilant (Kathryn Grant). Dancer, an experienced though overly aggressive court-room advocate, then breaks the cardinal rule of trial prac-tice: never ask a question unless you’re absolutely certain you know the answer. Not to give away too much, but the jury’s verdict seems to turn on Mary’s answer.

But the question remains, will Manion get away with murder because of Beigler’s theatrics or Dancer’s shortcomings or Mary’s last-minute revelation? The movie has one more twist, which suggests a pos-sible answer. If you want to find out what it is, then you will have to see the movie. But keep in mind, as a practitioner, it would serve you well to always get your fee upfront.

The ambiguities inherent in proving “guilt beyond a reasonable doubt” are Preminger’s true theme. “Trial by jury,” the “system,” if you will, is his real star. Sixty years after its premier, Anatomy of a Murder remains the bench mark for on-screen court room procedurals. It is also a primer for aspiring lawyers itching to get inside a courtroom. On a person-al note, it played a big role in my own youthful aspirations. To this day, I still have a passion for jazz, Jimmy Stewart and jurisprudence.

Rudy Carmenaty is a Deputy County Attorney and is the Director of Legal Services for the Nassau County Department of Social Services.

1. Voelker wrote the novel under the name “Robert Traver.”2. This case could not be located.3. Denise Noe, The Murder in Michigan that Inspired a Culturally Significant Movie: Anatomy of a Murder, Thought Catalog (November 2, 2015) www.thoughtcatalog.com.4. David J. Krajicek, Killing of Michigan bar owner in 1952 inspired film “Anatomy of a Murder,” New York Daily News (January 17, 2009) www.nydailynews.com.5. Harvey G. Cohen, Duke Ellington’s America, 340 (1st ed. 2010).6. From Special Investigation, 83rd Congress, Joseph Welsh Cross-Examines Roy Cohn, from Law A Treasury of Art & Literature, 309 (1st ed. 1990).7. The one false note takes place when Beigler and his side-kick Parnell spend the night reading U.S. Supreme Court opinions by “Chief Justice Holmes.” Oliver Wendell Holmes, however, was an Associate Justice of the US Supreme Court. 8. Albin Krebs, Otto Preminger, 80, Dies; Producer and Director, New York Times (April 24, 2006) www.nytimes.com.9. Peter Bogdanovich, Who the Devil Made It: Conversations with Legendary Film Directors, 630 (1st ed. 1997).10. Jonathan Coe, Jimmy Stewart A Wonderful Life, 160 (1st ed. 1994).11. Chicago Loses Bid to Censor Movie, Desert News & Telegram (July 9, 1959).12. Columbia Pictures Corporation v. City of Chicago, 184 F.Supp. 817 (1959). 13. Id.14. Id. 15. Id.16. Preminger v. Columbia Pictures, 49 Misc.2d 363 (Misc. 1966). 17. Krebs, Id.18. Foster Hirsch, The Man Who Would Be King, 312 (1st ed. 2007).19. Id.20. Id. 21. Tony Thomas, A Wonderful Life The Films and Career of James Stewart, 191 (1st ed. 1988). 22. People v. Durfee, 62 Michigan 487.23. Robert Traver, Anatomy of a Murder, 202 (1st ed. 1958).

Black History Month Celebration Friday, February 15, 2019

12:30 p.m.Nassau County Supreme Court, Ceremonial Courtroom

This year’s honorees

Hon. Tricia FerrellJudge of the Nassau County District Court

Hon. Alfred S. Robbins Award

Darleyne and Douglas MayersFreeport-Roosevelt NAACP Branch

LI Caribbean American Association, Inc.

Amistad Presidential Award

Traci Leslie RoseSenior Court Analyst, Nassau County Supreme Court

Hon. Michele M. Woodard Award

Refreshments will be served upon completion of the program.Entertainment and Art Exhibition

Music performed by Hempstead High School Select Chorale.

Hosted by: Nassau County Courts Black History Month Committee

and The Amistad Long Island Black Bar Association Co-Sponsored by:

Nassau County Bar AssociationNassau County Women’s Bar Association

Long Island Hispanic Bar Association

ANATOMY ... Continued From Page 16


We Care

We Acknowledge, with Thanks, Contributions to the WE CARE Fund

DONOR IN HONOR OFMichael G. LoRusso Hon. Thomas A. Adams’ appointment to the Appellate Term

DONOR IN MEMORY OFHon. Kenneth S. Diamond Hope Williams, mother of Hon. Lisa Williams, Support Magistrate, Nassau County Family CourtEllen M. Rosen Paul ChorneJill Stone Hope Williams, mother of Hon. Lisa Williams, Support Magistrate, Nassau County

Family CourtAlan M. Snowe Al Britvan, brother of Aaron Britvan& Fran Stuckelman

It’s Heartfelt to support WE CARE !

Wednesday, February 20, 2019at Domus

This spectacular event, made possible by your contributions, treats deserving children to a fun-filled afternoon,

including hot dogs, ice-cream, DJ, clowns, games, gifts and other entertainment!

Please open your hearts and wallets for WE CARE:

Mail to: Nassau County Bar AssociationWe Care Hearts

15th & West Streets, Mineola, NY 11501

To pay with a credit card, contact Jody Ratner at(516)747-4070 x226 or

[email protected].

Contributions are tax deductible.

st 31 Annual Children s FestivalHosted by the WE CARE Fund of the

Nassau County Bar Association

’

Make check payable to:Nassau Bar Foundation - WE CARE

Platinum Heart $350 Silver Heart $100 Gold Heart $200 Caring Heart $50

(suggested minimum donation)

WE CARE Hearts

WE CAREpresents

Dressed to a Tea

Thursday, March 28, 2019$50 per person

For tickets and information, contact Jody Ratner at (516)747-4070x226 or [email protected].

Mets vs YankeesTuesday July 2, 2019

7:10 p.m.

Citi Field

$150 / tktTicket includes a

$30 food/ merchandise voucher throughout the stadium!

Part of the proceeds will help to send deserving children to a Long Island Nets game at the

Nassau Veterans Memorial Coliseum

l

WE CARE

To purchase tickets,contact Jody Ratner (516)747-4070 x226 or

[email protected].

Checks made payable to Nassau Bar Foundation — WE CAREContributions may be made by mail: NCBA Attn: WE CARE 15th & West Streets Mineola, NY 11501


LAW YOU SHOULD KNOW

Hosted by Kenneth J. Landau, Esq.Shayne, Dachs, Sauer & Dachs, LLP Mineola•

on 90.3 FM WHPCCelebrating 25 Years!

On WHPC 90.3 FM radiofor Voicestream or PODCASTS of these or recent shows

go to www.nccradio.org.

Wed, Feb. 20, 2019 • 3:00 p.m.or Mon, Feb. 25, 2019 • 3:30 p.m.

How Attorneys Can Be Better Managers

Financial Eligibility Limits for Medicaid

Wed, Feb. 27, 2019 • 3:00 p.m.or Mon, March 4, 2019 • 3:30 p.m.

Interview with Bob Carlson, President of the American Bar Association

Wed, Feb. 6, 2019 • 3:00 p.m.or Mon, Feb. 11, 2019 • 3:30 p.m.

Learn About the Law

on the Radio

NYSBA 10th Judicial District ReportJanuary 2019

Peter H. Levy

NYSBA came to Manhattan. The New York State Bar Association held its Annual Meeting during the week of January 14 to 21, 2019 at the New York Hilton Midtown and various sites throughout the borough. For many, the highlight of the annual gathering of NYS lawyers is the quarterly meeting of the House of Delegates. Just prior to the House meeting, the Annual Meeting of the New York Bar Foundation and the Annual Meeting of the Association were held. Some highlights:

The Nominating Committee report was presented by Past President David P. Miranda. Mr. Miranda placed in nomina-tion the name of Scott M. Karson to be the next President-Elect of the New York State Bar Association. We all know Scott as the current Treasurer of NYSBA and Past President of the Suffolk County Bar Association. Scott preceded me as Vice President for the 10th Judicial District. More importantly, Scott is a friend of all lawyers and a fierce advocate for our pro-fession. NYSBA will be in excellent hands as Scott chairs the House of Delegates commencing June of this year and moves into the presidency on June 1, 2020.

Mr. Karson, in his capacity as Treasurer, gave a report as to the financial posi-tion of the Association. Utilizing the latest in multi-colored graphics and pie charts, Scott took the delegates through the improvements in both membership

and economic resources of NYSBA. Although not out of financial distress just yet, the Association, under the leadership of Executive Director Pamela McDevitt, has turned the corner in its financial outlook. Membership will always be a top priority for NYSBA, but as Treasurer Karson reported, current mem-bership is back over the 70,000 number and is increasing every day.

The Bylaws Committee presented a change in the NYSBA bylaws that will increase the pool of candidates who can seek a position of the NYSBA Executive Committee. This amendment was over-whelmingly approved.

On a sad note, Past President Sharon Stern Gerstman presented a moving trib-ute to Past President Paul Michael Hassett who recently passed away. Ms. Gerstman spoke of the many initiatives Mr. Hassett put into place while serving the lawyers of our state. This giant of our profession will be missed.

The delegates were addressed by our Chief Judge, Janet DiFiore. Judge DiFiore spoke of the continued Excellence Initiative that she has brought to our court system. She said, “when capacity gets expand-ed, cases get resolved.” The Chief Judge reported that cases over standards and goals on both the criminal and civil side of the system are decreasing in significant

numbers. She thanked the lawyers, litigants, non-ju-dicial personnel and judg-es for their part in making improvements. The Chief Judge further discussed the increased use of ADR (Alternative Dispute

Resolution) to resolve cases in NYS. NYSBA President Michael Miller gave

his presidential report. He called on both the President and Congress to ensure that the federal courts remain open to serve the needs of our country. He said “it is truly a dereliction of duty to have allowed a political fight to escalate to the point that essential parts of our judicial system―under the Constitution, a co-equal branch of government―are unable to serve the American people.”

Mr. Miller informed those gathered that the NYS budget recently proposed by Governor Andrew Cuomo includes a $50 increase in attorney registration fees. It remains the position of NYSBA that any such increase cannot be accepted and vowed to fight it throughout the budget process. President Miller concluded with this thought―“Whatever is wrong with America can be fixed by what is right with America.”

A report was issued by the Working Group on NYS Judiciary Law Section 470. It called for the repeal of the law. This recommendation was unanimously approved by the House of Delegates. This

law was enacted in 1909 and required that non-resident attorneys maintain a physical office in New York State in order to prac-tice in New York State. In 2009, a New Jersey attorney challenged the constitu-tionality of the law in federal court. The District Court found the law to violate the Privileges and Immunities Clause of the U.S. Constitution. However, the Second Circuit upheld the law and the Supreme Court denied certiorari in 2017. The report of the Working Group found that the original basis of the law―to ensure that nonresident lawyers can be served with process―no longer is a valid justification in today’s times.

A number of other reports were issued for information purposes and will be voted on at the April meeting of the House. These include reports from the Task Force on Evaluating Candidates for Election to Judicial Office, Task Force on Wrongful Convictions, Task Force on Incarceration Release Planning and Programs, and Task Force on School to Prison Pipeline. I will report on each of these in my next presen-tation.

These are just some of the impactful items that came before your Association’s delegates to the House in January. If you have any questions or concerns in regard to these issues or others involving the New York State Bar Association, I can be reached at (516) 822-5800 or [email protected]. I look forward to communicat-ing with you in the future.

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NCBA

Sustaining Members2018 - 2019

Mary Ann AielloMark E. Alter

Leon ApplewhaiteRosalia Baiamonte

Ernest T. BartolHoward BenjaminJack A. Bennardo

Allan S. BotterHoward R. Brill

Hon. Maxine S. BroderickNeil R. Cahn

Louis F. ChisariAlan W. Clark

Hon. Leonard S. ClarkRichard D. Collins

Daniel J. Dillon Hon.Dorothy T. Eisenberg

Charo EzdrinHoward S. FenstermanJordan S. Fensterman

Samuel J. FerraraEllen L. Flowers

Russell C. FriedmanLawrence R. Gaissert

Marc C. GannEugene S. Ginsberg

John J. GiuffreDouglas J. GoodElliot S. Gross

Hon. Frank A. Gulotta Jr.Alan B. Hodish

Warren S. HoffmanJames P. JosephElena Karabatos

Hon. Susan T. Kluewer

Martha KriselJohn F. Kuhn

Donald F. LeistmanSteven G. Leventhal

Peter H. LevyGregory S. Lisi

Robert G. LucasHon. Roy S. MahonPeter J. Mancuso

Tomasina C. MastroianniJohn P. McEntee

Christopher T. McGrathAnthony J. Montiglio

Matthew MorrisRose Nankervis

Hon. Michael L. OrensteinMichael E. RatnerGeorge P. RicciCatherine RizzoMarc W. Roberts

Edward T. Robinson IIILeonard M. Rosenberg

Hon. Marie G. SantagataStephen W. SchlisselHon. Peter B. Skelos

Ira S. SlavitHon. Arthur D. Spatt

Hon. Joseph J. SperberJill C. Stone

Joseph B. StrassmanSanford Strenger

Claire TalwarThomas A. ToscanoHon. Joy M. Watson

Michael G. LoRusso

Every year thousands of attorneys renew their membership in the Nassau County Bar Association. In addition to dues,

some members show their appreciation to the NCBA by making a special contribution and becoming a

Sustaining Member. The NCBA is grateful for these individuals, who strongly

value the NCBA’s mission and its contributions to the betterment of the legal profession.

To become a Sustaining Member,please contact the

NCBA Membership Office at(516)747-4070.

On January 25, 2019, the induction of the Supreme and County Court Judges was held. (l-r) Nassau County Supervisor Laura Curran, County Court Judge Catherine Rizzo, NCBA President Elena Karabatos, Supreme Court Justice Helen Voutsinas, and Supreme Court Justice and Nassau County Administrative Judge Norman St. George. (Photo by Hector Herrera)

JUDICIARY INDUCTION 2019

for at the time of an accident is crucial. The same accident in each of these two situations could result in different par-ties being responsible: in the rideshare situation workers’ compensation would be primary, while if they are driving for an ILDBF base then no-fault would primary.

Typically, rideshare companies tend to initially deny workers’ compensa-tion claims. In some cases, however, such as where the passenger contacted the company about the accident, they will accept the case. One would think it would be easy for a company to access information of whether a driver was active on their application at the time of an accident, but the opposite tends to be the case. Companies rarely provide information, let alone witness-es. Usually it is a representative of an insurance provider, typically The Black Car Fund, who has been provided with the information second-hand. Given the initial denial and the time to adjudi-cate the merits of the case, it would be prudent to file a protective application for no-fault benefits, in the event that it is later found that the case is not com-pensable under workers’ compensation. Also, the no-fault carrier will likely be put on notice and be represented at the Workers’ Compensation Board hear-ings to determine coverage.

So if your phone rings and you believe there is potential for not only a third-party negligence claim as a result of an accident, but also a workers com-pensation claim, here is what to tell the driver:

4. Report the accident via e-mail to the rideshare app, as soon as possible. In that e-mail specif-ically ask which rideshare app base they are assigned to. This is important as rideshare compa-nies operate multiple bases, and the claim should be filed with the

proper base. Save and print all e-mails sent and received.

5. Save all the information for the trip during which the accident happened, and for the day of the accident.

6. Seek medical treatment imme-diately.

7. Have the driver file the required C–3 Form with the Workers’ Compensation Board or speak with an attorney who handles workers’ compensation matters to ensure the documents are filed properly.

8. Have the client obtain the MV–104 report, as it is a vital document in these claims.

Finally, we must differentiate between rideshare applications and their closely linked counterparts, food delivery and package delivery services. While still pending appeal, food deliv-ery drivers for companies such as Uber Eats, Grubhub, and Seamless have been found to be independent contractors by the Workers Compensation Board.1 As such, they are excluded from work-ers’ compensation benefits and in any motor vehicle accident while on the job no-fault would be primary. These delivery drivers are not required to have workers’ compensation coverage, and do not pay into it like their coun-terparts.

These matters are no easy task and are time–consuming. They often require multiple hearings and a trial before the Workers’ Compensation Board before they are established, thus a delay in payment of medical bills to providers and of lost time compensation for the injured client. Justin B. Lieberman is an associate with the Rockville Centre firm of Polsky, Shouldice and Rosen, PC, concentrating his practice in workers compensation claims. Mr. Lieberman can be reached at [email protected].

1. E.g., Grubhub Holdings, Inc., 2018 NY Wrk. Comp. LEXIS 8575 (N.Y. Workers’ Comp. Bd. Nov. 29, 2018).

UBER ... Continued From Page 11


are considered to be readily producible methods of transfer by a covered entity.

The time for providing the records is 30 days from the date of receipt of the request, which is an outer limit.4 If the covered entity is unable to comply in the 30-day period then it may extend that time, but not greater than an additional 30 days, and it must inform the individu-al of this intent within the initial 30 days. The individual’s attorney may write to complain about this failure, and make a complaint to the DHHS. The origi-nal record request, however, must come from the patient, even if the attorney is designated as the third party to whom the record is to be sent.

Reasonable Costs Under the HITECH Act

The Act includes provisions regarding the cost that covered entities may charge individuals seeking their medical records. These provisions significantly reduce the costs when the records are provided in an electronic format. This is particularly valuable when considering, that in this era of electronic records and the manner in which they are created, patient records often span thousands of pages.

The Act allows a covered entity to charge a fee for records, but the fee must be based on certain facts. DHHS has allowed the covered entity to impose a reasonable, cost-based fee based on the following:

• labor for copying the record requested, whether in paper or electronic format;

• the supplies for creating the paper copy or electronic media such as CD or USB drive);

• the postage when requested that the copy be mailed; and

• preparation of an explanation or summary of the copy of the PHI or the summary requested.

If the covered entity maintains a certified electronic record (known as a CEHRT—certified electronic health record technology) as required by the stat-ute, the individual may request that the record be transmitted or accessed through the systems function that allows patient access, such as an online patient portal. In that case, no fee may be charged.

DHHS has stated that, for electronic records being sent in a digital format, a covered entity may charge an individual a flat fee, not to exceed $6.50, which is all-inclusive, covering labor, supplies, and postage).5 So covered entities can dispense with the process of calculating actual or average allowable costs when producing such records. If the records are not main-tained electronically, however, this cost limit does not apply.

The limitations on the cost that may be charged are only available when the individual (the patient or a qualified per-son, but not their attorney) requests the records. The individual may direct that the records be sent to a third party, including a law firm, but this request must be made in writing. When a third party requests the records with a HIPAA authorization

the Act and its cost limits do not apply. Individuals can also request to inspect their records at a provider’s facility, and no charge can be assessed for same.6

Fight for Your RightsThe Act benefits individuals and their

counsel only if they strictly follow the Act’s provisions in making the written request. Third parties, including defense attorneys processing authorizations, cannot benefit and still are subject the provisions of the Public Health Law.

However, this does not and should not be interpreted to mean that a charge of 75 cents per page should be accepted without question, especially if the records sought are known to be an EHR and the attor-ney would accept same in a digital for-mat. It behooves the requesting attorney to seek judicial intervention when faced with unreasonable and excessive per page charges for records that were clearly creat-ed and maintained in an electronic format and which are sought in a digital format. The request accompanying the patient’s HIPAA authorization should be explicit as to what is sought, in what format and by what means of transmission.

Although the HITECH Act may not limit the fees charged to third parties, the Public Health Law still requires reasonable costs, with a limit per page cost for records produced in paper form. In most cases the individuals, their attorneys, and defense attorneys are dealing with record access companies used by hospitals and health care systems to process medical records requests. Their staff likely have no knowl-edge of the statutes and their limitations. Nevertheless, they are agents of the cov-

ered entity, and in the event of a problem in getting a record for the cost allowed, the requestor should demand to discuss the request with not only the supervisor of the record access company, but also the covered entity’s administrative personnel.

If there is no resolution to the dispute, then the requestor should ask the court issue a so-ordered subpoena when the case is in suit, or bring an Order to Show Cause when the issue is occurring in the pre-suit phase of the litigation. Multistate record access companies such as Verisma and Ciox have their own corporate counsel, and it has been this writer’s experience that once involved their counsel will assist in getting the records released at a reasonable and proper cost.

A copy of a sample request for an individual to request their records, and a sample complaint letter, are provided courtesy of Michael Glass, Esq., of Rappa-port, Glass, Levine & Zullo, LLP.

Mary Anne Walling is a partner in the firm of Sullivan Papain Block McGrath & Cannavo, P.C. She specializes in the rep-resentation of plaintiffs in the litigation of medical malpractice actions against physi-cians, hospitals, nursing homes, dentists, and other health care professionals. She may be reached at [email protected].

1. 42 USC § 17901 et seq.2. 45 CFR §§ 164.524(a)(1)(i), 164.501.3. 45 CFR § 164.524(a)(1)(ii).4. 45 CFR § 164.524(b) (2).5. Clarification of Permissible Fees for HIPAA Right of Access – Flat Rate Option of Up to $6.50 is Not a Cap on All Fees for Copies of PHI, available at https://goo.gl/Pqdcpv.6. Individuals’ Right under HIPAA to Access their Health Information 45 CFR §164.524, available at https://goo.gl/tdy83z.

medical costs, lost wages and unusually expensive demands for pain and suffering;

4. All of the claimants submit med-ical bills from the same doctor or medical facility;

5. Medical bills submitted are pho-tocopies of the originals;

6. Summary medical bills are submitted without dates and descriptions of office visits and treatments or treatment extends for a lengthy period without any interim bills;

7. Vehicle driven by claimant is an old clunker with minimal cover-age;

8. Insured, even though legally liable for the accident, is adamant that claimants are responsible for the accident, indicating that the insured may have been targeted by the claimants;

9. Claimants retain legal repre-

sentation immediately after the accident is reported;

10. Past experience demonstrates that the physician’s bill and report, regardless of the varying accident circumstances, are always the same;

11. Treatment prescribed for various injuries resulting from differing accidents is always the same in terms of duration and type of therapy;

12. Medical bills indicate routine treatment being provided on Sundays or holidays.9

Some of these factors were present in Jamaica Wellness, as the insured driver had picked up three passengers, all of whom reported an accident to the police. Furthermore, the most decisive factor was the insured driver’s statement in implicating the passengers in a staged accident. It is interesting to note that upon further investigation, it has recent-ly come to light that Jamaica Wellness Medical Center was in fact a fraudulently incorporated medical facility.

On November 16, 2018, Attor-ney General Barbara D. Underwood announced a 61-count indictment charging the owners of Jamaica Well-ness, P.C. with an elaborate insurance fraud scheme that cost insurers hun-dreds of thousands of dollars.10 Among other things, the facility encouraged car accident victims to exaggerate their inju-ries, paid runners to bring them to the facility, and administered unnecessary diagnostic exams and referrals for medi-cal supplies.11 This indictment has shed light on a problem that has long plagued no-fault insurance, and appears to be a hopeful sign that there will be more crackdowns on medical facilities that commit insurance fraud, or are fraudu-lently incorporated.

Aside from the three discussed in this article, there are many other differ-ent types of insurance fraud that exist. However, EUOs, together with other investigative methods, are helpful tools afforded to insurers in detecting and preventing fraud. Insurers can take comfort in knowing that the law will reward diligent investigative efforts.

Naela Hasan is an Associate Attorney at Hollander Legal Group, P.C., and has prior experience as in-house counsel at an insur-ance company. She is a recent graduate of St. John’s University School of Law, Class of 2017.

1. 11 NYCRR § 65-1.1(d) (2002).2. 11 NYCRR § 65-3.8(e)(2).3. Staten Island Supply Co. v. Lumbermens Mutual Casualty Co., No. 02-CV-6390 (DGT) (E.D.N.Y. Mar. 29, 2005).4. Fine v. Bellefonte Underwriters Ins. Co., 725 F.2d 179, 183 (2d Cir. 1984).5. Magie v. Preferred Mutual Ins. Co., 91 A.D.3d 1232, 1233-34 (3d Dept. 2012).6. Jamaica Wellness Med., P.C. v. Hereford Ins. Co., 2018 NY Slip Op 51586(U)(App. Term 2d Dept. 2018)7. Id.8. Ins. Law § 409; see also 11 NYCRR § 86.6.9. See Insurance Fraud: Handbook for Insurance Personnel, National Insurance Crime Bureau (1999), n. 14, at 11-13.10. A.G. Underwood Announces Arrests Of Clinic Owner, Doctor, and Attorney For No-Fault Insur-ance Fraud Scheme, at https://ag.ny.gov/press-re-lease/ag-underwood-announces-arrests-clinic-own-er-doctor-and-attorney-no-fault-medical (last visited Dec. 2, 2018).11. Id.

RECORD ... Continued From Page 10

FRAUD ... Continued From Page 3

can-American mothers. The young per-formers ranged in age from ten to sixteen years old. The Nassau County Chapter fosters youth development through cul-

tural, educational, recreational, and ser-vice opportunities aimed at enhancing and enriching the lives of children.

The script, which is derived from transcripts, depositions and court deci-sions, was written by Kathy Hirata Chin and her husband, Judge Denny Chin of the U.S. Court of Appeals for the

Second Circuit. Diversity & Inclusion Committee members Rudy Carmenaty and Dana Boylan directed the presen-tation. Nassau County Family Court Judge Linda Mejias serves as Chair and Nassau County District Court Judge Maxine Broderick serves as Co-Chair of the Committee.

KING ... Continued From Page 1

For Information on

LAWYERS’

AA MEETINGSCall

(516)512-2618


NCBA Committee Meeting Calendar • Feb. 13 - March 14, 2019Questions? Contact Stephanie Pagano at (516)747-4070 or [email protected].

Please Note: Committee meetings are for NCBA Members. Dates and times are subject to change.Check www.nassaubar.org for updated information.

GENERAL, SOLO AND SMALL LAW PRACTICE MANAGEMENTWednesday, February 1312:30 p.m.Deborah E. Kaminetzky

ASSOCIATION MEMBERSHIPWednesday, February 1312:45 p.m.Adam D’Antonio

MATRIMONIAL LAWWednesday, February 135:30 p.m.Jennifer Rosenkrantz

REAL PROPERTY LAWWednesday, February 135:30 p.m.Mark S. Borten/Anthony W. Russo/Bonnie Link

VETERAN’S & MILITARY LAWTuesday, February 1912:30 p.m.Gary Port

ETHICSTuesday, February 195:30 p.m.Alfred C. Constants, III

ALTERNATIVE DISPUTE RESOLUTIONFriday, February 2212:30 p.m.Marilyn K. Genoa/Jess A. Bunshaft

TAX LAWMonday, February 2512:30 p.m.Brad Polizzano/Michelle E. Espey

NEW LAWYERSMonday, February 256:30 p.m.Jamie A. Rosen/John C. Stellakis

ELDER LAW SOCIAL SERVICES & HEALTH ADVOCACYTuesday, February 2612:30 p.m.Kathleen Wright/Danielle M. Visvader

LABOR & EMPLOYMENTTuesday, February 2612:30 p.m.Paul F. Millus

ANIMAL LAWTuesday, February 266:00 p.mMatthew A. Miller

DIVERSITY & INCLUSIONTuesday, February 266:00 p.mHon. Linda K. Mejias

WOMEN IN THE LAWWednesday, February 2712:30 p.m.Christie R. Jacobson

LGBTQThursday, February 288:15 a.m.Joseph G. Milizio/Barrie E. Barzarsky

CIVIL RIGHTSThursday, February 2812:30 p.m.Robert L. Schonfeld

EDUCATION LAWTuesday, March 512:30 p.m.Candace J. Gomez

FAMILY COURT LAW & PROCEDURETuesday, March 55:30 p.m.Ellen Pollack

HOSPITAL & HEALTH LAWThursday, March 78:30 a.m.Douglas M. Nadjari

COMMUNITY RELATIONS & PUBLIC EDUCATION Thursday, March 712:45 p.m.Moriah Adamo

PUBLICATIONSThursday, March 712:45 p.m.Anthony J. Fasano/Rhoda Y. Andors

REAL PROPERTY LAWWednesday, March 1312:30 p.m.Mark S. Borten/Anthony W. Russo/Bonnie Link

LABOR & EMPLOYMENTWednesday, March 1312:30 p.m.Paul F. Millus

ASSOCIATION MEMBERSHIPWednesday, March 1312:45 p.m.Adam D’Antonio

MATRIMONIAL LAWWednesday, March 135:30 p.m.Jennifer Rosenkrantz

CIVIL RIGHTSThursday, March 1412:30 p.m.Robert L. Schonfeld

that was called in to investigate. Ordinary litigation may rely on

agency records, from permits to broken sidewalks.14 A case example from the Second Department, Trawinski, shows how records produced from FOIL can change the outcome of a litigation. The plaintiff in Trawinski sought to recover for personal injuries for falling on a sidewalk. After a complaint was filed and discovery conducted, a motion for summary judgment was filed by the defendants. It was granted. On a motion to renew, filed after Trawins-ki’s receipt of new facts from a FOIL request, the lower court affirmed the award of summary judgment to the defendants.

The Second Department in Traw-inski reversed because “[plaintiff] had not received these documents, which were responsive to her FOIL request and in the sole possession and con-trol of the NYC defendants, until after the December 2014 order.” Indeed,

in Trawinski, “The plaintiff contended that on or about December 8, 2014, she had filed a [FOIL] request for documents…pertaining to the subject sidewalk but had not yet received any documents.” The receipt was enough to preclude the award of summary judgment.

Attorneys who utilize contingen-cy-fee retainers would be wise to amend such retainers for the assignment of an award of reasonable attorney’s fees with the amendments in the Public Officers Law. Appellate Courts in the First and Third Departments, and now at least one Supreme Court in Nassau County, granted attorney’s fees to a lawyer who represented the law firm of which he or she was a member.15 Whether one FOILs for discovery, FOILs for fees,

or FOILs because of injuries, the FOIL request, consent form, and Article 78 litigation should become part of the regular forms utilized by negligence attorneys. Cory H. Morris is an adjunct professor at Adelphi University and CASAC-T, and runs a litigation practice focused on helping indi-viduals facing addiction and criminal mat-ters, constitutional issues, and personal-in-jury matters. He represented the Plaintiff Law Firm in the cases of Matter of Law Offices of Cory H. Morris v. Nassau County, Index No. 2591/15 (Dec. 7, 2018 Order) and Matter of Law Offices of Cory H. Morris v. County of Nassau, 158 A.D.3d 630 (2d Dept. 2018), cited herein.

1. Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571 (1979).2. See L. 2006, ch. 492, § 1, Assembly Mem. in Sup-port, at 1, Bill Jacket, L. 1982, ch. 73; Pub. Off. L. § 89(4)(c).

3. See U.S. Dept. of Educ., Family Educational Rights and Privacy Act (FERPA), last updated March 1, 2018, https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html. 4. See also CPL § 160.50; example available at: https://www1.nyc.gov/assets/doc/downloads/pdf/CPL_160_50_Unsealing.pdf. 5. See, e.g., Metropolitan Transportation Authority, FOIL Request, last accessed on Dec. 11, 2018, http://web.mta.info/mta/foil.htm.6. Matter of Law Offices of Cory H. Morris v. County of Nassau, 158 A.D.3d 630 (2d Dept. 2018).7. Pub. Off. L. § 89 (3)(a).8. Abrams, Fensterman, Fensterman, Eisman, For-mato, Ferrara, Wolf & Carone, LLP v. New York City Police Dept., 2018 N.Y. Slip Op. 32334 (Sup. Ct., N.Y. Co. 2018) (citation omitted).9. Matter of Madeiros v. New York State Educ. Dept., 30 N.Y.3d 67 (2017) (quoting Matter of Fink v. Lef-kowitz, 47 N.Y.2d 567 [1979])10. Miller v. New York State DOT, 58 A.D.3d 981 (3d Dept. 2009)11. Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267 (1996).12. Matter of Fink v. Lefkowitz, 47 N.Y.2d 567 (1979)13. See Edmond v. Longwood C.S.D, 16-cv-2871 (JFB)(AYS). 14. Sabino v. City of New York, 2018 NY Slip Op. 32359 (Sup. Ct., N.Y. Co. 2018); Trawinski v. Jabir & Farag Props., LLC, 154 A.D.3d 991 (2d Dept. 2017) (“Trawinski”)15. Matter of Law Offices of Cory H. Morris v. Nassau County., Index No. 2591/15 (Dec. 7, 2018 Order). The author of this Article was the lead attorney for the petitioner.

FOIL ... Continued From Page 5

Whether one FOILs for discovery, FOILs for fees, or FOILs because of injuries, the FOIL request, consent form, and Article 78 litigation should become part of the regular forms utilized by negligence attorneys.


in Brief

dence bible is the New York Evidence Handbook,18 which is also very strong on the subject.

In the meantime, remember the golden rule of trial work: prepare, pre-pare, and prepare some more!

See you next column.Hon. Arthur M. Diamond is a Supreme Court Justice in Mineola. He welcomes evi-dence questions and comments and can be reached at [email protected].

1. People v. Sugden, 35 N.Y.2d 453 (1974).2. Id. at 456.3. Id. at 460.4. Id.

5. People v. Goldstein, 6 N.Y.3d 119 (2005).6. Crawford v. Washington, 541 U.S. 36 (2004).7. Goldstein, 6 N.Y.3d at 122.8. Hambsch v. New York City Transit Authority, 63 N.Y.2d 723 (1984)9. Id. at 725-726, citing Cassano v. Hagstrom, 5 N.Y.2d 643 (1959).10. Hambsch, 63 N.Y.2d at 726.11. Id.12. Tornatore v. Cohen, 162 A.D.3d 1503 (4th Dept. 2018).13. Id. at 1505-06.14. Id. at 1505 (citing Anderson v. Dainack, 39 A.D.3d 1065 (3rd Dept. 2007)).15. Wagman v. Bradshaw, 292 A.D.2d 84 (2nd Dept. 2002).16. Michael J. Hutter, New York’s ‘Professional Reliability’ Rule, N.Y.L.J., Aug. 1, 2018.17. Michael J. Hutter, New York’s ‘Professional Reliability’ Rule: Part Two, N.Y.L.J., Oct. 3, 2018.18. Michael M. Martin, Daniel J. Capra, and Faust F. Rossi, New York Evidence Handbook (1997).

Administrative Judge Hon. Nor-man St. George has announced that the Hon. Elizabeth Fox-McDonough has been selected as the new Supervising Judge of the Nassau County District Court. Prior to her appointment, Judge Fox-McDonough was the President of the Nassau District Court Board of Judges, and replaces Judge St. George as Supervisor.

Forchelli Deegan Terrana LLP has announced that Jay Hellman has joined the Firm as Partner in the Construc-tion practice group. Brian Sahn was featured in the New York Real Estate Journal’s ‘Year in Review Spotlight,’ and Who’s Who in Real Estate by the Long Island Business News while Andrea Tsoukalas, Jessica Leis and Erik Sni-pas participated in a Nassau County Bar Association CLE titled, “Present-ing a Case to a Zoning Board.” The firm and Steve Gaebler donated laptops to TECH MOMS, a project that col-lects new and gently-used laptops and donates them to stay-at-home moms seeking to reenter the workforce and women starting home-based businesses on LI and in NYC.

L’Abbate Balkan Colavita & Contini, LLP proudly announces that three part-ners have been elevated to the partner-ship, including James D. Spithogiannis (Business Professional Liability Group), Keith J. Stevens (Design Professional Group) and Todd M. Alderman (In-surance Industry Group). Candice B. Ratner has been promoted to Of Coun-sel in the Attorney Professional Liability Group.

Ruskin Moscou Faltischek managing partner Adam Silvers has announced the recognition of 15 attorneys repre-senting many of the firm’s cornerstone practice groups — Commercial Litiga-tion, Financial Services, Health, Real Estate, and Trusts and Estates, including 2018 Super Lawyers Harold S. Berzow, Michael K. Feigenbaum, Douglas J. Good, Mark S. Mulholland, E. Christo-pher Murray, Gregory Naclerio, Doug-las M. Nadjari, Eric C. Rubenstein, Benjamin Weinstock, and Jeffrey A. Wurst. Additionally, identified by Super Lawyers as ‘Rising Stars’ were: Jennifer L. Hartmann, Jennifer F. Hillman,

Gregory J. Kowalsky, Michael Schoenberg and Matthew J. Zangwill.

Capell Barnett Matalon & Schoenfeld LLP partner Stu-art Schoenfeld and associate Monica P. Ruela recently presented a workshop titled “Estate and Medicaid Plan-ning: Protecting Your Sav-ings, Family and Indepen-dence” at Island Trees Library in Levittown. Partners Robert Barnett and Gregory Matalon recently presented a live webinar for accoun-tants, hosted by CPAacademy.org, regarding wills and revocable trusts. Robert Barnett also presented a live webinar, hosted by Strafford, titled “Tax Reform and Partnerships: What CPAs Need to Know in 2019 - Changes in Pass-Through Rate, Active Loss Lim-itations, IRS Guidance on 199A, and More.” Partner Yvonne Cort, Co-chair of the Attorney and Accountant Joint Committee of the New York State Soci-ety of CPAs, Nassau Chapter, reported that the organization recently held its Annual Exclusive Attorney-Accoun-tant Networking Mixer. Net proceeds were donated to Family Residences and Essential Enterprises, Inc. (FREE), which assists individuals with develop-mental disabilities. The event featured a performance by members of FREE.

Bond, Schoeneck & King is pleased to announce the election of three members (partners) from the firm’s Garden City office including Candace J. Gomez (Ed-ucation) and Hilary L. Moreira (Labor and Employment).

Westerman Ball Ederer Miller Zuck-er & Sharfstein, LLP proudly announces that four attorneys have been promoted as partners, including Ellen Tobin, who is a member of the firm’s Litigation Department.

Jaime D. Ezratty has announced that The Law Firms of Horing Welik-son & Rosen, PC and Ezratty, Ezratty & Levine, LLP have merged, and will continue to practice in all areas of Real Estate Law at 11 Hillside Avenue, Wil-liston Park, NY 11596, telephone num-ber (516) 535-1700, www.hwrpc.net.

Karen Tenenbaum and Hana Boruchov spoke at the NYSSCPA, Small Firm Prac-tice Management Committee on IRS and NYS tax collec-tion. Tenenbaum Law spoke at the NYS Bar Association Law Practice Management group on IRS audits. Karen was published in Total Food Service News, “3 Simple Steps to Documenting Tax Exempt Sales and Avoiding Liability” and also spoke about residency

at a New Year’s Resolution Solutions seminar, Help Your Clients Accomplish Their Financial Plans.

The Law Offices of Alan B. Hodish is pleased to announced that Alan B. Hodish has been recognized by New York Magazine as one of “2018 New York’s Leading Personal Injury Lawyers” as presented by the Leaders in the Law. Mr. Hodish also coordinated and spoke at a program at the St. John’s University School of Law Continuing Legal Educa-tion 2018 Weekend on “The Basics of Education Law” regarding Disciplinary Hearings for Teachers and Students and Disciplinary Hearings at the Collegiate/University Level.

Ronald Fatoullah of Ronald Fatoul-lah & Associates lectured on “Keeping Clients Safe and Prepared in 2019,” for social workers, care managers and senior

care specialists at the 86th St. Atria Com-munity in Manhattan. Managing attor-ney Elizabeth Forspan presented on “Medicaid and Estate Planning” at the Kew Gardens Anshe Sholom Chabad, JCC.

Wade Clark Mulcahy is pleased to announce the opening an office on Long Island, located at 626 RXR Plaza in Uniondale. Brian Gibbons, who has been with Wade Clark Mulcahy since 2009, is the firm’s managing partner at the new office, effective February 1, 2019.

PLEASE NOTE: All submissions to the IN BRIEF column must be made as Word doc-uments.

EMAIL YOUR SUBMISSIONS TO: [email protected] with subject line: IN BRIEF

The In Brief column is compiled by Marian C. Rice, a partner at the Garden City law firm L’Abbate Balkan Colavita & Contini, LLP where she chairs the Attorney Professional Liability Practice Group. In addition to rep-resenting attorneys for 35 years, Ms. Rice is a Past President of NCBA.

Marian C. Rice

The Nassau Lawyer welcomes submis-sions to the IN BRIEF column announc-ing news, events and recent accom-plishments of its current members. Due to space limitations, submissions may be edited for length and content.

BENCH ... Continued From Page 13

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CommiTTee reporTs

Elder Law, Social Services & Health AdvocacyMeeting Date: 1/16/2019Co-Chairs: Kathleen Wright and Danielle Visvader

The topic for the Janu-ary meeting was A View from the Guardianship Bench-Part 2: A Tri-County Question and Answer Session. The panelists included Hon. Anna R. Anza-one, Hon. Arthur M. Diamond, Hon. Richard I. Horowitz, Hon. Bernice Siegal and Hon. Lee A. Mayersohn. Also on the panel were the fol-lowing law secretaries: Margaret M. Daly, Esq., Ronald J. Ferraro, Esq., Marissa Rely-ea, Esq. and Mary Biunno, Esq.

There were over one hundred attendees. The evening began with a cocktail hour affording the attendees an opportunity to meet and greet with the panelists. Before the question and answer session began, the panel was given an opportunity to comment, similar to an opening statement. Thereafter, presubmitted questions were presented to a specific judge, with everyone on the panel being given an opportunity to comment. There were no questions from the audience.

The next meeting is scheduled for Febru-ary 26, 2019, at 12:30 p.m.

Women in Law Meeting Date: 1/30/2019Chair: Christie Jacobson

The NCBA Women in the Law Com-mittee held its first meeting of the new year

on January 30 at 12:30 p.m. in the Founders Room. The meet-ing featured a joint presentation entitled Topics in Self Defense for Women by Matthew Fusco and Barry Levine. Both speak-ers provided attendees with empowering insights on how to stay strong, confident and safe.

Medical LegalMeeting Date: 1/28/2019

Chair: Mary Anne Walling

Mary Anne Walling presented on the topic of the cost of medical records and the HITECH Act. There was a vigorous discus-sion by all attending. Future topics include the theory of agency by estoppel and the case of M’duba v. Bendictine Hospital.

There was discussion on the topic of elec-tronic medical records and a future evening program regarding this topic in coordination with other committees.

The next meeting is schedule for March 8, 2019 at 12:30 p.m.

The Committee Reports column is com-piled by Michael J. Langer, a partner in the Law Offices of Michael J. Langer, P.C. Mr. Langer is a former law clerk in the United States Court of Appeals for the Second Circuit, and a former Deputy County Attorney in the Office of the Nassau County Attorney. Mr. Langer’s practice focuses on matrimonial and family law, estate and com-mercial litigation, and criminal defense.

Michael J. Langer

We welcome the following new members

NCBA New Members

AttorneysJonathan Bellezza

Matthew CapobiancoKaufman Dolowich

& Voluck, LLP

Jillian M. Enright

Cheryl L. EratoFarrell Fritz, P.C.

Joshua P. Frank

Katrina Louise LentinoDiamond Law Group

Elbert NasisForchelli Deegan

Terrana LLP

Jeannie ShaNixon Peabody, LLP-LI

Kristen L. Spoerel

Kerley Walsh Matera &

Cinquemani, PC

Elsa A. Tobin

Joseph Law Group, P.C.

Students

Paulo Martins Coelho

Jillian L. Diaz-Panzella

Karena Ioannou

John A. Lonigro

Marc Nicoletta

In MemoriamMartin P. Abruzzo


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Nassau Suffolk Law Services’ Volunteer Lawyers Project (VLP) and the Nassau County Bar Associa-tion (NCBA) are pleased to honor Dennis Buchanan as our most recent Pro Bono Attorney of the Month. This month’s award recognizes an attorney who has demonstrated tremendous dedication to the clients he represents in Landlord-Tenant Court through the VLP’s Attorney of the Day Project. Since joining the program in October of 2017, Buchanan has assisted 177 low-income clients, volunteering more than 286 hours of his time to date. His zealous representation has allowed many tenants to remain in their residences, avoiding eviction and possible homelessness.

The Attorney of the Day Project, supervised by VLP Staff Attorney Roberta Scoll, assists hundreds of indigent and disabled men, women and children in housing court to prevent homelessness. Many of the cases are holdover or nonpayment matters. Most tenants must appear pro se, and are severely disad-vantaged by lack of counsel. The courts are overbur-dened trying to administer justice. Given the lack of affordable housing in this region, eviction may place families at a severe risk of becoming homeless.

This project allows attorneys to volunteer to rep-resent these individuals for a four hour session once a week, a month or as frequently as they choose. The goal is to preserve housing or at least give the tenants sufficient time to secure alternative housing and avoid the trauma of shelter placement or homelessness. Attorneys interested in becoming involved with this and other vital work should contact Susan Biller at [email protected], or Roberta Scoll at [email protected].

Buchanan came to the VLP after two successful previous careers. He grew up in Portugal; his father was a U.S. government employee stationed in the Azores. Buchanan returned to New York to attend SUNY Downstate University and became a nurse. His involvement in labor relations and risk man-agement in that career sparked an interest in law. In 1995, he graduated from St. John’s University School of Law, and was admitted to the New York State Bar and the U.S. District Courts for the Eastern and Southern Districts of New York. Buchanan enjoyed a twenty-five year career in corporate compliance and human resources at NY Presbyterian Hospital before his retirement.

Always looking for a challenge, Buchanan decided that his retirement from full-time transactional work was the perfect time to garner experience in the court-room while helping those less fortunate. He pursued volunteer opportunities through the NCBA, which led him to the VLP Attorney of the Day Project. There he was given training materials and the opportunity to work under the direct oversight of Roberta Scoll and her team of experienced volunteer Landlord-Tenant attorneys.

“The structured environment of the Attorney of the Day Project was an excellent place for me to develop my litigation skills, and I am grateful for the chance to shadow and gain steady feedback from the other volunteers,” states Buchanan. “Working on a pro bono basis allows me to focus purely on the goal of helping a client get the best deal possible and avoid being put out on the street. It is truly rewarding to roll

up my sleeves and deal with the essence of peoples’ basic needs.”

As a result of growing up a minority in a different culture, Buchanan is able to reflect upon what it means to feel marginalized and struggle to make sense of an alien system. He recalls a rewarding case where he represented a tenant being evicted by her stepfather/ landlord. The mother of the tenant, who was the wife of the landlord, had died several months prior. The tenant had lived in the house since her mother had purchased it approximately ten years prior. The vol-unteer attorneys were able to ascertain that a co-own-er of the property was the sister of the tenant, and received her assurance not to evict the tenant. They were able to get the case dismissed. Without the VLP’s representation, the tenant may not have been able to successfully navigate the system and likely would have been evicted.

Attorney of the Day Coordinator Roberta Scoll notes, “We are very fortunate to have Dennis as a volunteer. Twice a week Dennis consistently devotes his energies representing tenants through the Volun-teer Lawyers Project. He is a tremendous help to the program.”

In addition to his work with the VLP, Buchanan also volunteers with the NCBA Mortgage Foreclo-sure Project. He enjoys sailing, bicycle riding, travel and spending time with his wife, grown children and young grandchildren. In light of his dedication and commitment to serving low income Nassau County residents, we are proud to honor him as our most recent Pro Bono Attorney of the Month. The Volunteer Lawyers Project is a joint effort of Nassau Suffolk Law Services and the Nassau County Bar Association, which, for many years, have joined resources toward the goal of providing free legal assistance to Nassau County residents who are dealing with economic hardship. Nassau Suffolk Law Services is a non-profit civil legal ser-vices agency, receiving federal, state and local funding to provide free legal assistance to Long Islanders, primarily in the areas of benefits advocacy, homelessness preven-tion (foreclosure and eviction defense), access to health care, and services to special populations such as domestic violence victims, disabled, and adult home residents. The provision of free services is prioritized based on finan-cial need and funding is often inadequate in these areas. Furthermore, there is no funding for the general provision of matrimonial or bankruptcy representation, therefore the demand for pro bono assistance is the greatest in these areas. If you would like to volunteer, please contact Susan Biller, Esq. at 516-292-8100, ext. 3136.

Dennis Buchanan, Esq. BY SUSAN BILLER

Pro Bono Attorney of the Month

has had bestowed upon him the Educa-tion Partner Award by Nassau BOCES in 2008. He has been listed in The Best Lawyers in America since the inception of such listing, a period in excess of 35

years, and is a member of Ten Lead-ers Matrimonial & Divorce Law Long Island, having been inducted in 2005.

Gassman received his B.A. from the University of North Carolina and his J.D. from New York Law School. He remains an active and valuable member of the NCBA Board of Directors.

The Annual Dinner Dance is the crowning event of the social calendar of the Nassau County Bar Association and will be held at the Long Island Marri-ott, Uniondale, New York, on Saturday, May 11, 2019. In addition to the Dis-tinguished Service Medallion recipient, those NCBA members who have been admitted to the Bar for fifty, sixty and

seventy years will be honored as well. We hope you will join our celebration when we pay tribute to all our honorees.

Invitations for the dinner dance will be mailed in March. For sponsorship and Journal ad information, see the insert in this issue of the Nassau Lawyer or contact Special Events at (516)747-4070 or [email protected] or.

RECIPIENT ... Continued From Page 1


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Law Offices of Vessa & Wilensky P.C.626 RexCorp Plaza, Uniondale, N.Y. 11556

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PREMIUM OFFICE SPACE: 41 Front Street, Rockville Centre

1 – 3 Large Windowed Offices AvailableAcross from Long Island Railroad

Shared Space Currently Occupied By 5 Other AttorneysReferral Work Available

Please contact Michael Sepe516-766-0477

[email protected]

NO FAULT ARBITRATIONS

THE NEW YORK NO-FAULT ARBITRATION ATTORNEY TO THE PERSONAL INJURY MEMBERS OF THE BAR

ANDREW J. COSTELLA, JR., ESQ.CONCENTRATING IN NO-FAULT ARBITRATION FOR YOUR CLIENTS'

OUTSTANDING MEDICAL BILLS AND LOST WAGE CLAIMS

Successfully Handling Thousands Of No-Fault Claims Proud to serve and honored that NY's most prominent personal injury

law firms have entrusted us with their no-fault arbitration matters

COSTELLA & GORDON, LLP 1225 Franklin Avenue, Suite 525, Garden City, NY 11530

(516) 747-0377 | [email protected]

DISABILITY INSURANCE LAW

GARDEN CITY AVAILABLE NOW! 500 OLD COUNTRY ROAD

Call Greg Messina (516) 741-7400 ext. 252

S/W/C of Old Country Road & Glen Cove Road

1,300 - 3,900 SF Of�ce Space Owner Occupied, Convenient Parking,

Heated Sidewalks, Immaculately Maintained!

OFFICE SPACE AVAILBLELocation: 100 Garden City Plaza, Garden City, NY, located around the Roos-

evelt Field Loop, easy access to all major parkways. Space: 7 windowed offices, 1 office without windows, and 23 cubicles

Description: All offices and cubicles come fully furnished, reasonably priced at $1,500.00 per office per month, and $500 per cubicle. Each office includes one 5 drawer cabinet. Adequate parking available. Conference rooms and full kitchen with refrigerator, microwave, water cooler and coffee/tea maker. A telephone system, internet, printers, copiers, fax and additional file cabinet

space are available if needed.

Stephanie Gualotuna | (516) 222-6200, ext. [email protected]

LAWYER TO LAWYER RATES

(INCLUDES PHOTO)

1 TIME $110

2ND CATEGORY $30

3 TIMES $90

3RD CATEGORY $20

6 TIMES $85

FOR MORE INFO, CALL

KATIE COx 631-913-4232

JOE PARINO 631-913-4253

BABARA PESCuMA 631-913-4249

HOwARD SwENGLER 631-913-4259

Hempstead Law Offices AvailableStarting at $750/month

Renovated building 3 blocks from Courthouse. Access to conference room,

kitchen area and copy machine. Parking in rear.

Southgate Commercial Real EstateJoseph Barbuto 516-781-2800 x12

Follow us on Facebook Stephen Gassman, Esq. · 2019-02-15 · The Journal of The nassau CounTy Bar assoCiaTion FEBRUARY 2019 Vol. 68, No. 6 Follow us on Facebook CONFIDENTIAL HELP

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