COVER NL 09_06.qxd - Nassau County Bar Association

THE JOURNAL OF THE NASSAU COUNTY BAR ASSOCIATION 

July/August 2012 www.nassaubar.org Vol. 61, No. 11 

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OF NOTE 

NCBA Member Benefit – I.D. Card Photo 

Obtain your photo for court identification 

cards at NCBA Tech Center. Cost $10. 

September 5, 6, & 7 • 9 a.m.-4 p.m. 

EVENTS 

WE CARE Stephen W. Schlissel 

Golf and Tennis Classic 

Monday, August 6, 2012 

See page 13 

WE CARE Mets vs. Marlins 

Tuesday, August 7, 2012 

Game Time: 7:10 p.m. at Citifield 

See page 16 

WE CARE LI Ducks vs. York Revolutions 

Sunday, August 12, 2012 

Citibank Park, Central Islip 

Game Time: 5:05 p.m.; BBQ: 3:30 p.m. 

See page 16 

DON’T MISS OUT! – SPACE STILL AVAILABLE 

NCBA Domus Open 

Rescheduled to 


Eisenhower “The Red” Course 

Registration: 12:00 p.m. 

See page 6 

Domus-on-the-Lawn 

Wednesday, September 12, 2012 

5:30 – 7:30 p.m. 

Watch the mail for details 

Judiciary Night 

Thursday, October 18, 2012 

5:30 p.m. at Domus 

Watch the mail for details 

WHAT’S INSIDE 

FOCUS: PERSONAL INJURY 

Conflict of Interest: Wrongful Death 

Future Damages After Toledo Page 3 

Deposing Doctors in Medical 

Malpractice Actions Page 3 

The Emergency Doctrine: An Important 

Aspect of Personal Injury Cases 

Page 5 

Muhammad v. Fitzpatrick and 

The ‘Natural Birthing Process’ 

Defense Page 5 

GENERAL ARTICLE 

The Pitfalls of Acquiring 

Credit Card Debt Page 9 

Rain 

Date 

The NCBA Domus Open 

was postponed & rescheduled 

for Monday, Aug. 20, 2012 at 

Eisenhower “The Red” 

For more information contact Elaine or Sheryl in 

Special Events 516-747-4070 

WELCOME! 

NCBA President Marian Rice welcomes new Executive Director Keith J. Soressi to 

Domus. (Photo by Hector Herrera) 

Zurblis Receives LI’s 

2012 Achievement in 

Communications Award 

By Caryle Katz 

Nassau County Bar Association’s Director of Marketing and 

Public Relations Valerie Zurblis has received the 2012 Long 

Island Achievement in Communications Award from the Long 

Island Chapter of the International Association of Business 

Communicators (IABC), a professional organization of more than 

15,000 business communicators in 80+ countries. 

The annual Achievement Award recognizes the region’s most 

talented communications professionals. Nominees undergo rigorous 

judging by seasoned communicators from the Long Island 

business community. Zurblis was recognized as a professional who 

elevates the profession’s public image and who serves as a role 

model for communicators. 

Zurblis, one of the region’s most accomplished business developers, 

reputation managers and media relations experts, during 

her career has helped many Long Island businesses and organizations 

increase their public profiles and grow. At the Nassau 

County Bar Association, Zurblis’ comprehensive public relations 

campaigns have resulted in local, state and national recognition, 

primarily through the Bar’s unique Mortgage Foreclosure Pro 

Bono Project, which provides free legal advice to homeowners fac- 

UPCOMING PUBLICATIONS COMMITTEE MEETINGS 

Thurs., August 9, 2012 l Thurs., Sept. 13, 2012 – 12:45 at Domus 

The Lawyer Assistance Program provides confidential help to lawyers 

and judges for alcoholism, drug abuse and mental health problems. 

Call 1-888-408-6222. Calls are completely confidential. 

Nassau Bar Opposes 

Proposed Legislation 

NYS Law Would Direct 

Divorce Litigants to Purchase 

Disability Insurance 

By Valerie Zurblis 

At the June Board meeting, after considering 

pro and con points of view, the 

Directors of the Nassau County Bar 

Association unanimously voted to oppose 

proposed New York State legislation that 

seeks to give courts the authority to direct 

litigants to actively purchase disability 

insurance to ensure continued spousal support 

in divorce matters even if the parties 

have agreed otherwise. 

The legislation was brought to the 

Board’s attention expressing the overwhelmingly 

disapproval of its provisions 

by the Matrimonial Law Committee. 

Chair, Lee Rosenberg noted that the proposed 

legislation to amend the Domestic 

Relations Law and the Family Court Act 

was “flawed, onerous and unwieldy.” 

The NCBA has forwarded its recommendation 

to Nassau County’s state senate 

and assembly legislators. 

At the awards ceremony are NCBA Immediate Past President Susan 

Katz Richman, Valerie Zurblis, NCBA Executive Director Dr. Deena 

Ehrlich, and NCBA Community Relations Administrator Caryle Katz. 

(Photo by Pat Dillon © 2012) 

ing foreclosure, and for BOLD (Bridge Over Language Divides), 

which incorporates foreign languages in all Bar Association 

services. 

A trailblazer, Zurblis was in the first class of women to graduate 

from the previously all-male University of Notre Dame. She 

is a founding member and past president of the Public Relations 

Professionals of Long Island; founding board member of the 

Executive Women’s Golf Association-LI Chapter, and has served 

on many non-profit boards including the Long Island 

Advertising Club, Girl Scouts of Nassau County and United Way 

of LI Communications Committee.

2 n July/August 2012 n Nassau Lawyer 

ANOTHER CHAPTER CLOSES AT DOMUS 

Executive Director Deena Ehrlich 

Retires After 25 Years 

By Valerie Zurblis 

The Nassau County Bar Association 

hit a milestone of sorts this summer, 

when the long-time Executive Director 

Dr. Deena R. Ehrlich finally made the 

difficult decision that she would retire. 

Her always warm smile, welcoming 

demeanor, and her signature statement, 

“Come Home To Domus” will be no more. 

For a quarter of a century, Deena was 

the one constant at the Bar Association 

throughout its ups and downs and the 

revolving door of leadership, membership 

and staff, all the while deeply caring 

for the reputation, accomplishments and 

the good will in the community. Along 

the way it seemed everything she 

touched blossomed into something deeper 

and more meaningful. 

“I consider her a friend, not just a bar 

executive director.” said Hon. Susan 

Kluewer. 

“Dr. D made it a rich, rewarding and 

lasting experience for which I will be forever 

grateful,” said Joe Ryan. 

And Lance Clarke added, “Thanks to 

her terrific efforts, NCBA will remain in 

my heart and mind forever.” 

Deena Arrives 

The Nassau County Bar Association 

had been without a permanent executive 

director for nearly a year before Deena 

found her way to the corner of 15th and 

West Streets in Mineola. “In April of 

1987, as I was completing my term as 

bar president without having had the 

benefit of an executive director to keep 

my mouth from gathering a foot or two, 

Deena Newman began her 25-year term 

of service to Domus,” recalled NCBA 

President Edward Robinson III. “She 

arrived just in time to rescue the 

Association from, what was then, virtually 

an all-male governing structure with 

a few notable exceptions (Grace Moran 

comes to mind.)” 

While many may think that Deena is 

one in a million, she is actually one in 

100. That’s how many applications were 

received after NCBA executives placed 

an ad in the New York Times in 1986 in 

search of a new executive director. At the 

time, A. Thomas Levin knew the Bar was 

looking for an executive director, and 

immediately thought of the fiancé of his 

law partner, Jerome Ehrlich. Jerry saw 

the ad and brought it to the attention of 

his soon-to-be wife, Deena Newman. At 

the time, Professor Newman was the 

director of the Office of Professional 

Services at Syracuse University’s School 

of Education, and was moving to Long 

Island to marry Jerry. 

She applied for the job, and although 

the diminutive brunette conceded that 

she had no idea what a bar association 

was, she connected immediately with the 

members of the Search Committee. 

“Deena was the unanimous choice for the 

position after an extensive search and 

interviews with applicants that included 

practicing attorneys and some highly 

regarded clerks of the court,” Robinson 

said. “She displayed an intelligence and 

a personality that we hoped would free 

us from our concern with the fate of the 

restaurant and allow us to focus on the 

‘lesser’ issues such as MCLE, membership 

diversity, judicial salaries and 

screening, etc.” 

Past President Frank Yanelli (1989- 

90), who was on the Executive Com - 

mittee at the time, agreed. “She fit in 

right away. She had that insight. She 

knew she would be working for different 

people year after year.” 

“Fortunately for NCBA, the Search 

Committee and the Board of Directors 

agreed to hire her, and the rest is history,” 

added Levin, who eventually became 

NCBA President in 1991. “The NCBA, and 

I personally, have been fortunate indeed 

to have had the benefit of her wisdom 

and counsel through the ensuing years.” 

Dinner Dance Debut 

In 1987, when Deena began her 

career at Domus, the Bar Association 

was in the midst of commemorating the 

bicentennial of the signing of the US 

Constitution. NCBA partnered with 

Nassau County to present “The Living 

Constitution,” raised funds to dedicate a 

plaque outside the Supreme Court building, 

(which still exists today), and honored 

the winners of a student writing 

competition as part of the annual Law 

Day celebration. 

In April of that year, Deena made her 

official “debut” at the 86th Annual Dinner 

Dance, chaired by future president and 

WE CARE founder Steven Gassman and 

honoring U.S. Senator Alfonse D’Amato. 

According to Jerry Ehrlich, it was one of 

the more memorable events of her leadership 

at Domus. 

“We were seated at our table at the 

Marriott, when Deena stood up and said 

to me, ‘It’s time for me to do my job,’ and 

off she went. She proceeded to work the 

room as skillfully as any candidate I had 

ever seen. Without waiting to be introduced, 

she waded into a sea of people, 

most of whom she had never met before, 

and began greeting and introducing herself 

to them. She invited them all to visit 

her office and to call her if there was anything 

she could do for them. 

“I had attended the Bar’s dinners for 

more than 20 years, and distinguished 

members and guests were always seated 

on the dais then would be asked to 

stand to be introduced. That night, however, 

the band suddenly blared out a 

Sousa march. I could not believe my 

eyes when a parade began to enter the 

room, led by Deena, my wife, who was 

followed by an assemblage of judges 

(Federal, Appellate Division, Supreme, 

County, Surrogate and District Court) 

and the U.S. Secretary of Housing and 

Urban Development. Deena has lead 

that parade annually ever since. Each 

time I grin with pride.” 

A Series of Firsts 

In Deena’s first column for the 

Nassau Lawyer in November 1987, she 

wrote about one of the many “firsts” for 

the Bar – the Tel-Law system, a tape 

recorded library of basic legal information 

with a tag line suggesting the caller 

contact the Lawyer Referral Service to 

obtain a lawyer. Tel-Law received 5,000 

calls the first year, then was upgraded to 

a fully-automated, 24/7 service. “It is 

with great pleasure that I announce to 

you that the Nassau County Bar 

Association is the first such organization 

to have a fully-automated Tel-Law system,” 

Deena wrote. “We look forward to 

increased service to the public and the 

by-product of positive publicity for our 

Bar Association.” 

She saw many more ground-breaking 

firsts at the Association over the years, 

including the formation of the WE CARE 

Fund, the launching of the monthly 

Senior Consultation Clinics, the start of 

the now traditional Domus on the Lawn 

event, and the first foreign consulates to 

come to Domus. She also oversaw innovative 

and award-winning programs 

including Murder in the Library, 

Mortgage Foreclosure Pro Bono Project 

and BOLD, plus scores of unique programs, 

ideas, events and issues that kept 

with NCBA’s mission to serve the legal 

profession and the public. Through it all, 

Deena served as tiller of the multi-ruddered 

NCBA ship, keeping it on course 

as dozens of presidents led the nation’s 

largest suburban bar association. The 

leaders appreciated Deena’s strong and 

steady hand, even more so when the 

See DEENA, Page 14

By Christopher J. DelliCarpini and 

John M. DelliCarpini 

The loss of a loved one can have repercussions 

for years. In wrongful death 

cases, courts must compensate those 

future injuries with a money judgment 

that is fair and enforceable today. As a 

recent Court of Appeals decision shows, 

doing so is seldom easy. 

In Toledo v. Iglesia Ni Christo the 

Court of Appeals approved a trial court’s 

calculation of wrongful death future 

damages. 1 The unusual procedural setting, 

however, precluded the Court from 

addressing the most controversial 

aspects of the decision below. 

Nevertheless, plaintiffs and defendants 

can find in Toledo guidance for future 

wrongful death cases. 

‘Fair and Just Compensation’ 

The determination of wrongful death 

damages is governed by a handful of 

statutes. 

EPTL § 5–4.3(a) provides that damages 

awarded for wrongful death shall be 

“fair and just compensation for the pecuniary 

injuries resulting from the decedent’s 

death.” Section 5–4.3(a) also 

states, “Interest upon the principal sum 

recovered by the plaintiff from the date of 

the decedent's death shall be added to 

and be a part of the total sum awarded.” 2 

CPLR Article 50–B sets forth the 

means for calculating “fair and just com- 

Conflict of Interest: Wrongful Death 

Future Damages After Toledo 

pensation.” The details of Article 50–B 

can be complicated, but the basic procedure 

is simple. 

Starting with a jury verdict, which 

should be for the full value of future damages, 

the court is to discount the award to 

its value on the date of death, using “the 

discount rate in effect at the time of the 

award.” 3 Next, the court is to deduct 

expenses such as attorney’s fees, then 

add interest up to the date of the judgment 

to the remainder and order payment 

of the total in periodic installments. 

4 

In practice, however, the ambiguities 

have required the Court of Appeals more 

than once to clarify the calculation of 

wrongful death future damages. 

Milbrandt: Discount to Date of Death 

In Milbrandt v. Green Co. the Court of 

Appeals considered a pair of wrongful 

death cases, Milbrandt and Schmertz v. 

Presbyterian Hospital. 5 The combined 

holding makes clear that interest for 

wrongful death accrues from the date of 

death. 

In Milbrandt the jury had awarded 

future damages for wrongful death. On 

the trial court’s instruction, though, the 

jury had discounted that award not to the 

date of death but to the date of the verdict. 

6 The defendant did not object to 

this, but did object when the trial court 

tacked on preverdict interest from the 

date of death. 7 

The Appellate Division affirmed, but 

the Court of Appeals reversed. Awards 

should be discounted to the date of death, 

the Court held, because that is 

when interest starts to accrue 

under Section 5–4.3. 8 

An award discounted only to 

the date of the verdict, though, 

“includes the return that would 

be earned on the principal from 

the date of death to the date of 

the verdict.” 9 To add preverdict 

interest, therefore, would be “to 

pay again to the plaintiff the 

return which is already includ- 

ed in the award. 10 

In Schmertz the jury awarded 

future damages to several of 

the decedent’s distributees. 

Some of those damages did accrue preverdict. 

But others, like loss of inheritance, 

would not accrue until the end of 

the decedent’s life expectancy years in 

the future. The trial court, however, did 

not discount the award at all, and 

ordered interest on the entire award from 

the date of death. 

The Appellate Division affirmed but 

the Court of Appeals reversed, holding 

that the plaintiff was entitled to preverdict 

interest on future damages, but only 

from when the damages actually accrued: 

When losses are ongoing and spread 

over the period from the date of decedent's 

death to the date of the verdict, 

the damages may be viewed as result- 

Christopher J. 

DelliCarpini 

Nassau Lawyer n July/August 2012 n 3 

ing from a series of discrete losses 

occurring after decedent’s death. If 

interest is computed as though the 

losses all occurred simultaneously 

at the time of decedent’s 

death – interest is necessarily 

included for damages 

which have not yet been 

sustained. 11 

The upshot of Milbrandt is 

that, while discounting to the 

verdict is tolerable, discounting 

all the way back to date of 

death and adding interest 

therefrom, or from whenever 

losses accrue, is the better 

approach. 

Rohring: Interest from Date 

of Liability 

Rohring v. Niagara Falls did not 

involve a wrongful death claim, but its 

holding on future damages was nonetheless 

significant in Toledo. 12 

The plaintiff, an injured construction 

worker, won summary judgment on liability 

and, almost two years later, a jury 

verdict for past and future damages. The 

judgment discounted future damages to 

the summary judgment ruling, then 

added interest therefrom. 13 

The defendants objected, arguing that 

adding interest to future damages before 

those damages are actually incurred 

See WRONGFUL DEATH, Page 18 

Deposing Doctors in Medical Malpractice Actions 

Medical malpractice depositions are unique in that 

“opinion questions” are permitted, unlike other personal 

injury matters. As has often been stated, it is well 

settled that a plaintiff in a medical malpractice action 

may inquire during a deposition as to a defendant 

physician’s expert opinion. 1 Other than a few 

cases, there has been little guidance concerning 

depositions in medical malpractice case, 

perhaps because such issues are generally 

not appealable as of right. 2 

McDermott: Where It All Started 

The first significant change in the law, 

with respect to medical malpractice actions, 

occurred more than 40 years ago, in a major 

break from the Common Law. For the first 

time, attorneys were given their most powerful 

tool for prevailing in medical malpractice 

cases: the right to ask “opinion questions” of 

doctors at trial. 

Up to that point in time, only questions of 

fact were permitted to be asked at trial or depositions. 

In McDermott v. Manhattan Eye, Ear & Throat 

Hospital, the Court of Appeals held that a plaintiff in a 

medical malpractice action was entitled to call the 

defendant doctor to the stand and question him both as 

to his factual knowledge of the case and as an expert for 

the purpose of establishing the standard of care. 3 

In McDermott, a case involving a failed corneal 

transplant procedure, plaintiff’s attorney unsuccessfully 

attempted to establish deviations from the standard 

Personal Injury Focus 

W. Russell 

Corker 

of care by cross examining the defendants with a book 

written by one of the defendants. When the plaintiff 

failed to call an expert witness on his case, the matter 

was dismissed at the end of plaintiff’s case. 4 

The question on appeal was stated as follows: 

“Whether the plaintiff should have been 

given the opportunity of establishing her 

claim of malpractice by showing, through the 

testimony of the defendant doctors, that 

proper medical practice contraindicated the 

performance of a corneal transplant on a 

patient such as the plaintiff.” 5 

Heretofore, doctors had been required to 

testify to facts within their knowledge, that 

is, “what he actually saw and did,” but not 

as to whether his actions deviated from the 

accepted standard of medical practice. In 

now permitting questioning concerning 

proper medical practice, the Court reasoned 

that the doctor’s knowledge of the standards 

of care are as much matters of “fact” 

as are the diagnosis and examination he made or the 

treatment upon which he settled. The issue of deviation 

from the standard of care, so reasoned the Court, 

is “assuredly pertinent and relevant” to a malpractice 

action. The Court also acknowledged the difficulty 

inherent in securing “independent” expert testimony 

at the time. 6 

A significant point made by the Court of Appeals, 

still relevant to date, was that, once on the stand, the 

defendant has no inherent right to remain silent or, 

answer only those inquires which will have no adverse 

effect on his case. Rather, “he must, if called as a witness, 

respond to virtually all questions aimed at eliciting 

information he may possess relevant to the issues, 

even though his testimony on such matters might further 

the plaintiff’s case.” 7 This language is particularly 

significant and appears to have been ignored by the 

Appellate Division, Second Department in Carvalho v. 

New Rochelle Hospital. 8 

See DOCTORS, Page 15


How do you thank someone? 

Thank you. Two words meant to convey gratitude. And 

most times they suffice. On the way into my office, someone 

holds the door and I say “thank you.” It works. But “how do 

you thank someone who has taken you from crayons to perfume 

– It isn’t easy but I’ll try. …” 

Deena, thank you. Twenty-five (plus) years ago, Deena 

walked into Domus essentially unaware of the enormous job 

she was undertaking – what it was like to shepherd lawyers. 

She had a different name – Deena Newman. A different look. 

Did anything in her experience up to that time 

prepare Deena for such an incredible undertaking? 

Probably not, but she made it work. Deena 

took Domus and made it the true home it is 

today. From crayons – and that was not a bad 

thing – to perfume. 

Being an Executive Director is not a job, it’s a 

calling. There is no beginning or end to the day. 

Imagine maintaining the equilibrium of an 

organization where every year the administration 

changes. Now add to the scenario the fact 

that all of the constituents are attorneys. We are 

a needy, opinionated bunch. Yet Deena and her 

staff moved us forward year after year in seamless 

fashion. 

Along the way, Deena picked up a partner for 

life – Jerry Ehrlich – who through his understanding 

of the demands Domus and its members 

makes – contributed to Deena’s ability to manage 

the unmanageable. Thank you, Jerry, for sharing. 

Long before Continuing Legal Education was mandated 

for New York lawyers, Deena and the indomitable Barbara 

Kraut, developed a program that today remains a stellar 

example of lawyers teaching lawyers. 

As our attention focused outside the membership, Deena 

guided the Association in its efforts to assist those in need in 

our County. Shortly after Deena arrived at Domus, Steve 

Gassman founded the charitable endeavor WE CARE, putting 

a name to the membership’s desire to give back to the 

community and to improve the public’s perception of the profession. 

In the years since, Deena and her staff nurtured the 

seedling charitable organization and made it possible for the 

tireless WE CARE members and community liaisons to solicit 

funds for the laudable grants by assuring donors that 

every one of the dollars contributed went directly to those 

who needed it most. 

NCBA’s pro bono efforts have always been a focus as 

FROM THE 

PRESIDENT 

Marian C. Rice 

Deena forged a relationship with Nassau Suffolk Law 

Services and helped create the Volunteer Lawyers Project. In 

more recent years, these efforts expanded to address the 

problems faced by our community in these difficult economic 

times with the Mortgage Foreclosure Project and BOLD project. 

Community outreach programs were not the norm in 

1987. Today Domus welcomes the public and provides critical 

information to segments of our community often without 

the ability to retain counsel. None of these efforts would have 

been possible without Deena and her staff. 

Technology? When Deena arrived, technology 

meant little more than a word processor. And 

notwithstanding the fact that she would be the 

first one to admit technology is not “her thing,” 

Deena spearheaded the existence of the Tech 

Center and gave our members access to the brave 

new world. 

The Lawyer Referral Information Service, conciliation 

services, alternative dispute resolution – 

none of these programs were on the horizon when 

Deena first entered Domus. As the needs of our 

members and their clients expanded, the NCBA 

under Deena’s tutelage expanded to meet and 

exceed expectations. 

Finally, the most gracious and giving act 

Deena has undertaken – with palpable mixed 

feelings – is her unconditional acceptance and the 

warm welcome extended to her successor, Keith 

Soressi. Seeing these two interact in these last days of 

Deena’s legacy has renewed my faith in the continuity of our 

Association. More on Keith in issues to come – but Keith, we 

welcome you with open arms and hearts and, again, thank 

Deena for doing the same. 

There have been ups and downs over the years but blessedly 

the tribulations exceeded the trials. I never thought I 

would be the president to write this column. It never crossed 

my mind that Deena would not be here to point me in the 

right direction, to tell me what I needed to know, where I 

needed to be. But because of Deena and the institution she 

has enriched and protected, I know it will be alright. 

Deena, your presence and grace has blessed us at Domus. 

We are grateful for your dedication, thoughtfulness and leadership. 

With all apologies to Lulu, if you wanted the sky, we 

would write across the sky in letters, that would soar a thousand 

feet high: To Deena, With Love – and Thanks …. We 

will miss you. 

Suffolk Supreme Court Justice Directory 

You may practice in Suffolk County enough 

to know that the Supreme Court spans three 

buildings, but not enough to know which justice 

sits where. Keep this guide handy to get 

you to the right courthouse. 

Hon. Alan D. Oshrin Supreme Court Building 

One Court Street, Riverhead 

This courthouse sits across the street from the 

LIRR station. Whether it’s “across the river” 

for you depends on whether you got off the LIE 

at Exit 71 (Route 24) or Exit 72 (Route 25). 

Arthur M. Cromarty Court Complex 

210 Center Drive S., Riverhead 

From the LIE drive east on Route 24, past the 

traffic circle. Center Drive S. will be your first 

right. 

John P. Cohalan, Jr. Courthouse, 

400 Carleton Avenue, Central Islip 

Take the Southern State Parkway to Exit 43A. 

Carleton Avenue will be your second right. 

Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Courthouse 

Asher. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . One Court Street 

Bailey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . One Court Street 

Bivona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Carleton Avenue 

Catterson (1st Dept.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . One Court Street 

Cohalan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . One Court Street 

Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Carleton Avenue 

Condon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Center Drive S. 

Crecca . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Carleton Avenue 

Emerson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Center Drive S. 

Garguilo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Center Drive S. 

Hinrichs (District Adm. Judge) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Carleton Avenue 

Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Center Drive S. 

Kent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Carleton Avenue 

LaSalle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Carleton Avenue 

Leis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Carleton Avenue 

MacKenzie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Carleton Avenue 

Martin (Ct. Claims; Acting S.Ct. Justice) . . . . . . . . . . . . . . . . . . . . . . . . One Court Street 

Mayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . One Court Street 

McNulty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Carleton Avenue 

Molia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . One Court Street 

Pastoressa. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Center Drive S. 

Pines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . One Court Street 

Pitts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Center Drive S. 

Prudenti (Chief Adm. Judge) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Center Drive S. 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Also 25 Beaver Street, New York) 

Rebolini. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . One Court Street 

Santorelli . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Carleton Avenue 

Sgroi (2nd Dept.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Carleton Avenue 

Whelan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . One Court Street 

The Nassau Lawyer welcomes articles that are written by the members of the Nassau County Bar Association, which would be of interest to New York State 

lawyers. Views expressed in published articles or letters are those of the authors’ alone and are not to be attributed to the Nassau Lawyer, its editors, or NCBA, 

unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations. 

Nassau 

Lawyer 

The Official Publication of the 

Nassau County Bar Association 

15th & West Streets 

Mineola, N.Y. 11501 

Phone: (516) 747- 4070 

Fax: (516) 747-4147 

www.nassaubar.org 

E-mail: info@nassaubar.org 

NCBA Officers 

President 

Marian C. Rice, Esq. 

President-Elect 

Peter J. Mancuso, Esq. 

First Vice President 

John P. McEntee, Esq. 

Second Vice President 

Steven J. Eisman, Esq. 

Treasurer 

Martha Krisel, Esq. 

Secretary 

Steven G. Leventhal, Esq. 

Executive Director 

Keith J. Soressi 

Co-Editors In Chief 

Deanne M. Caputo, Esq. 

Daniel W. Russo, Esq. 

Editor/Production Manager 

Mindy SantaMaria 

Assistant Editor 

Valerie Zurblis 

Photographer 

Hector Herrera 

Focus Editor of the Month 

Christopher J. DelliCarpini 

Personal Injury 

Upcoming 2012 Focus Issues 

September – Real Estate 

October – General/OCA Issue 

November – Labor & Employment Law 

December – Tax Law 

Committee Editors 

Deborah S. Barcham, Esq. 

Gale D. Berg, Esq. 

Richard D. Collins, Esq. 

Christopher J. DelliCarpini, Esq. 

James Fiorillo, Esq. 

Avrohom Gefen, Esq. 

Nancy Gianakos, Esq. 

Kristina S. Heuser, Esq. 

Charles E. Holster III, Esq. 

Paul Hyl, Esq. 

Gail Jacobs, Esq. 

George M. Kaplan, Esq. 

Martha Krisel, Esq. 

Kenneth J. Landau, Esq. 

Douglas M. Lieberman, Esq. 

Thomas McKevitt, Esq. 

Jeff H. Morgenstern 

Daniel W. Russo, Esq. 

Meryl D. Serotta, Esq. 

Rita Sethi, Esq. 

Allison C. Shields, Esq. 

Andrij V.R. Szul, Esq. 

Chris Wittstruck, Esq. 

Published by Long Island Business News 

(631) 737-1700; Fax: (631) 737-1890 

President and Publisher 

John L. Kominicki 

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Nassau Lawyer (USPS No. 007-505) is published 

monthly, except combined issue of July and 

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postage paid at Mineola, NY 11501 and at additional 

entries. Contents copyright ©2012. 

Postmaster: Send address changes to the 

Nassau County Bar Association, 15th and West 

Streets, Mineola, NY 11501.


The Emergency Doctrine: An Important 

Aspect of Personal Injury Cases 

The Emergency Doctrine and 

Its Proper Application 

The emergency doctrine is a doctrine 

that has continued to evolve in 

this State for over a century. 

The issue first came before the 

Court of Appeals in 1892, in 

Wynn v. Central Park. 1 In 

Wynn, the Court of Appeals 

held, “[i]t seems, where an 

employee of a railroad company 

is confronted with a sudden 

emergency, the failure on his 

part to exercise the best judgment 

the case renders possible 

does not establish lack of care 

and skill on his part.” 2 Since 

then, the doctrine has continued 

to be applied but its viability 

is something that has now been 

put into question, with some states 

evening abolishing it. 3 New York still 

recognizes this doctrine and the Court of 

Appeals has been very clear as to when it 

should apply. 

The common-law emergency doctrine 

of this State is set forth in Rivera v. New 

York City Tr. Auth., 4 which explains: 

[W]hen an actor is faced with a sudden 

and unexpected circumstance which 

leaves little or no time for thought, 

deliberation or consideration, or causes 

the actor to be reasonably so disturbed 

that the actor must make a 

Christopher T. 

McGrath 

speedy decision without weighing 

alternative courses of conduct, the 

actor may not be negligent if the 

actions taken are reasonable and prudent 

in the emergency context. 

5 Also an important element 

of the doctrine is that 

the emergency cannot have 

been created by the actor. 6 

In Caristo v. Sanzone, 7 an 

appeal came before the Court 

of Appeals from an order of the 

Appellate Division, Second 

Department, which affirmed a 

judgment of the Supreme 

Court, Richmond County, that 

dismissed a complaint in favor 

of the defendant. The underlying 

case involved a personal 

injury action that emanated 

from a motor vehicle accident where the 

defendant driver slid over a patch of ice 

and into an intersection, where he struck 

plaintiff. 8 During the trial, the court 

granted defendant driver’s request to 

charge the jury on the emergency doctrine. 

9 The Appellate Division affirmed 

the judgment in favor of the defendant, 

yet the Court of Appeals reversed the 

judgment finding that the trial court 

erred in charging the emergency doctrine. 

10 

The Court in Caristo explained, “[t]he 

emergency doctrine is properly charged 

if the evidence supports a finding that 

VINCENT J. RUSSO 

& associates, p.c. 

Westbury | Islandia | Lido Beach | Manhattan 

the party requesting the charge was confronted 

by a sudden and unexpected circumstance 

which left little or no time for 

thought, deliberation or consideration.” 

11 Essentially, when determining 

whether a jury should be charged with 

the emergency doctrine, the Court of 

Appeals requires that a Judge make a 

“threshold determination that there is 

some reasonable view of the evidence 

supporting the occurrence of a ‘qualifying 

emergency[.]’” 12 It is only after this 

threshold determination is made that a 

jury can then be instructed to determine 

whether a defendant was faced with a 

“sudden and unforeseen emergency” that 

he or she did not cause and if so, whether 

that defendant’s actions were reasonable 

and prudent. 13 

At first glance of the facts of Caristo, 

it appears odd that the Court of Appeals 

deemed the trial court as having erred 

but further exploration of the evidence in 

that record facilitates a better understanding 

of the Court’s holding. It is 

important to note that in that case, the 

defendant driver admitted that he was 

aware of worsening weather conditions 

on the day of the accident, the temperature 

immediately before the accident 

was below freezing and “it had been 

snowing, raining, and hailing for at least 

two hours” prior to the accident. 14 Given 

these facts, the Court of Appeals held 

that the presence of the patch of ice on 


the hill that defendant driver slid 

through “cannot be deemed a sudden 

and unexpected emergency.” 15 As such, 

the charging of emergency doctrine constituted 

reversible error. 16 Essentially, 

the Court found that “no reasonable view 

of the evidence would lead to the conclusion 

that the ice and slippery road conditions 

... were sudden and unforssen.” 17 

The dissent in Caristo contrasted the 

majority’s holding with Ferrer v. 

Harris, 18 which upon review, illustrates 

when the emergency doctrine is properly 

applied. In that case, the defendant driver 

was confronted with a four-year-old 

child that ran in front of the defendant 

driver’s vehicle between two parked 

cars. 19 An important point set forth in 

the Ferrer decision is that an emergency 

does not “automatically absolves one 

from liability for his conduct.” 20 Thus, 

where an individual is faced with an 

emergency situation, he or she is still 

required to act as a reasonably prudent 

person would have. 

The Caristo decision sheds light on 

the need for both plaintiffs and defendants 

to review the evidence in their 

case. It is important that both parties 

ascertain when it is appropriate to 

request or object to the charge being 

given to a jury. Plaintiffs should be 

objecting to the charge where there is no 

Why Refer Your Special Needs Client 

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See EMERGENCY DOCTRINE, Page 17


sspacce sstill 

aavvaaiillaablle 

NCBA Domus Open 

rescheduled to 


Eisenhower ““The Red” 

GOLF 

to benefit the 

Lawyers Assistance Program (LAP) 

AA 

NN 

BB 

AA 

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S 

RR 

AA 

A 

U 

AA 

SS 

C 

O 

I 

SS OC For more information contact Elaine or Sheryl 516-747-4070 

UU 

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Founded 

1899 

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NN 

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AA 

ATT 

Goodstein appointed to 

New York State Court of Claims 

Governor Andrew Cuomo announced 

the nomination of Jeffrey Goodstein as 

Judge of the NYS Court of Claims/Acting 

Justice of the Supreme Court. 

Judge Goodstein was confirmed by 

the New York State Senate on June 21. 

He was administered his oath of office by 

Judge Richard Sise at the Court of 

Support for Attorneys Facing Depression 

To help Nassau County Bar Associ - 

ation members and the local legal community 

who may be dealing with depression 

issues, the Lawyer Assist ance 

Program Committee hosts a confidential 

peer support group. 

The informal LAP depression group 

meetings are open to any attorney who 

would like to attend to network, share 

Claims in Albany on June 21. Judge 

Goodstein is a graduate of Touro Law 

School and Ithaca College. 

Prior to his appointment to the 

Bench, he was a Court Attorney Referee 

and Law Clerk to Administrative Judge 

Anthony Marano. 

experiences and offer support to their fellow 

attorneys. 

For more information and when the 

next meeting will be held, please contact 

LAP Director Peter Schweitzer, 516-747- 

4070 x218 or pschweitzer@nassaubar.org. 

Reservations are not required. As 

always, everything remains completely 

confidential. 

The Long Beach Lawyers’ Association recently hosted its annual Judge of the Year 

Dinner. The Association was honored that the recipient of the award was the 

Honorable A. Gail Prudenti, Chief Administrative Judge of the Courts of the State of 

New York. Pictured from L to R: Corey E. Klein, President Long Beach Lawyers; 

Judge Prudenti; U.S. Senator Alfonse D’Amato; U.S. District Court Judge Sandra 

Feuerstein: Appellate Division Judge Peter Skelos; Trudy Adell, Past President and 

Nassau County Administrative Judge Anthony Marano. 

Reserve Your Ad Space Now For These Upcoming Issues 

SEPTEMBER Real Estate Law 

OCTOBER General/OCA Issue 

NOVEMBER Labor & Employment Law 

DECEMBER Tax Law 

JANUARY Ethics/Legal Malpractice 

FEBRUARY Matrimonial Law 

Issues are mailed to all NCBA members. 

Call 631-737-1700 or advertising@libn.com


Muhammad v. Fitzpatrick and 

The ‘Natural Birthing Process’ Defense 

Shoulder dystocia cases are universally 

marked by allegations of excessive 

force by the delivering obstetrician. 

These deliveries often present the physician 

with a very difficult situation as the 

infant invariably becomes lodged in the 

mother’s pelvis leaving the physician 

with limited choices. There are a number 

of maneuvers which a doctor can 

attempt, the most common being the 

“McRoberts.” This maneuver employs 

hyper flexing the mother’s legs to flatten 

her spine and widen her pelvis. The 

assistant can then apply pressure to the 

abdomen and the infant’s head is then 

pulled out. This was the emergency situation 

as presented in Muhammad v. 

Fitzpatrick. 1 

On January 31, 2012 the Appellate 

Division in Muhammad v. Fitzpatrick, 2 

upheld a trial judge’s decision in Eerie 

County to preclude the defendant-doctor’s 

expert testimony that an infant 

plaintiff’s shoulder dystocia was caused 

by the natural birthing process. The 

Court effectively removed a defense here 

in New York which previously had been 

used and accepted for years. In fact, the 

exact defense that was precluded had 

been used in the same case before the 

same judge. That first trial ended in a 

hung jury and subsequent mistrial. 

Plaintiff decided to move to preclude 

before the start of the retrial and the 

same Judge granted the motion. How 

could this have happened? What are the 

ramifications other than the obvious? 

Shoulder dystocia occurs when the 

anterior shoulder cannot pass and/or 

requires significant manipulation to 

pass through the birth canal. The shoulder 

fails to follow after the infant’s head 

and the chin presses against the walls of 

the perineum. This presents an emergency 

situation and fetal death can 

occur. Stretching of the nerves associated 

with the brachial plexus and/or excessive 

force can tear nerve roots both causing 

the subsequent dysfunction. 

During the first trial the defendant 

presented the jury with the alternative 

theory that the injury occurred as a 

result of the “natural birthing process.” 

The Judge accepted this theory without 

objection and it was presented to the 

jury. The plaintiff argued excessive force 

was used by the defendant thus precipitating 

the injury. The jury could not 

make up its mind and a mistrial was 

declared. The trial was rescheduled and 

plaintiff then decided to challenge this 

common defense. 

Plaintiff’s arguments were two fold. 

Plaintiff first challenged the defendant’s 

theory under Frye v. United States 3 and 

also under Parker v. Mobile Oil Corp. 4 

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Anyone who practices in the medical 

malpractice field is very familiar with 

the litany of Court decisions post Frye. 

This is a process by which experts can be 

challenged pretrial with a limiting effect 

on your theory of liability or defense. 

Succinctly stated, you must prove that 

your proposed theory is generally 

accepted within the relevant (medical) 

community. 

Shoulder dystocia occurs 

when the anterior shoulder 

cannot pass and/or requires 

significant manipulation to 

pass through the birth canal. 

Plaintiff argued that Parker, the infamous 

case whose facts dealt with toxic 

torts, required the defendants to additionally 

prove that the data upon which 

the natural birthing defense rested was 

in fact reliable. This meant defendant 

had to meet a specific causation and 

general causation burden with actual 

documentary support. The trial court 

determined defendants failed to set 

forth exposure to a harmful event that is 

capable of causing the particular injury 


and that plaintiff was exposed to the 

harmful event sufficiently to cause the 

injury. 

No one has reported on the exact 

proof submitted by defendants to oppose 

the Muhammad motion. It would be 

interesting to specifically see exactly 

what was submitted which caused the 

trial Judge to preclude a theory which 

was used at the previous trial and previously 

employed throughout the United 

States. A review of the documents submitted 

in opposition may give subsequent 

defendants fodder to attack the 

possible insufficiency of defendant’s 

proof and thus a reason behind the 

preclusion. Not that the theory itself has 

no proper foundation, but instead the 

documentary proof in the underlying 

case was insufficient. 

Despite the outcome in Muhammad, 

the Court’s recitation and application 

of Parker to the defendant’s experts 

may also give defendants a new weapon 

against plaintiff’s CPLR 3101(d) 

responses. Plaintiff’s general and usual 

conclusory expert responses as to causation 

may now be attacked by invoking 

Parker as cited in the Muhammad 

decision. 

The Appellate Court also upheld the 

trial court’s decision based on Parker. 

See DEFENSE, Page 17 

STAGG, TERENZI, 

CONFUSIONE & WABNIK, LLP 

CONTINUES TO GROW 

Stagg, Terenzi, Confusione & Wabnik, LLP, has 

expanded operations on Long Island and in Manhattan, 

leasing an additional 4,450 square feet at its Garden City 

headquarters, and opening a new office in the Trinity 

Building at 111 Broadway. 

A full service law firm serving Fortune 500 companies, 

small businesses, municipalities and individuals, STCW 

practices in New York, New Jersey and Connecticut. 

Practice areas include commercial and general liability 

litigation, appeals, bankruptcy and creditors’ rights, 

foreclosure, banking and consumer credit litigation, labor 

and employment, securities law, municipal law and real 

estate. The firm has achieved the highest peer review 

rating by Martindale-Hubbell, which rates legal ability 

and ethical standards.


IN BRIEF 

Member Activities 

Doris L. Martin, partner and director 

at Garfunkel Wild, P.C., was named 

one of Long Island Business News’ Top 

50 Most Influential Women in Business. 

The award recognizes significant contributions 

of women professionals throughout 

Long Island. Ms. Martin 

currently heads the firm’s 

Personal Services and Estate 

Planning and Tax Practice 

Groups. She also co-chairs the 

Discharge Planning, Patient 

Rights and Elder Law Practice 

Group. Ms. Martin served several 

terms as a Board Member 

for North Shore Child and 

Family Guidance Center, a 

mental health services 

provider for children and 

families, and helped found 

the Tender Loving Care 

Foundation, an organization 

devoted to improving the experience of 

parents with children in neonatal intensive 

care units. She frequently publishes 

and is a past secretary of the Bar 

Association of the City of New York’s 

Trusts, Estates and Surrogate Courts 

Committee. Ms. Martin earned her Juris 

Doctor from New York University School 

of Law. 

Eric M. Kramer, a trusts and estates 

partner and Certified Public Accountant 

at Farrell Fritz, P.C., was recently 

appointed to the New York State Society 

of CPAs PAC Board of Trustees. Mr. 

Kramer, who earned his Juris Doctor 

from St. John’s University School of 

Law, concentrates his practice in estate 

planning and serves on the Society of 

CPA’s Governance Committee. He is a 

past president of the organization’s 

Nassau Chapter. 

Richard K. Zuckerman of Lamb & 

Barnosky, LLP recently co-presented on 

at the 12th Annual School Attorney Law 

Conference sponsored by the New York 

State Association of School Attorneys. 

Mr. Zuckerman and Sharon N. Berlin, 

also of the firm, co-authored an 

article entitled “Court of 

Appeals Update: Contractual 

No-Layoff Provisions” for the 

State Bar Association Labor 

and Em ployment Law 

Journal. 

Karen Tenenbaum of 

Melville-based Karen J. 

Tenenbaum, P.C., recently 

appeared on the cable television 

show “Something to Talk 

About” where she discussed 

New York State tax audit pitfalls 

and financial literacy for 

children. 

Eun Chong Thorsen, an attorney in 

the Litigation Practice Group with 

Vishnick McGovern Milizio LLP, was 

installed to the Board of Directors of the 

Queens County Women’s Bar 

Association. Ms. Thorsen concentrates 

her practice in the areas of commercial 

and employment litigation, estate litigation 

and matrimonial and family law litigation. 

She is also a member of the 

Korean American Lawyers Association 

of Greater New York and the 

International Association of Korean 

Lawyers. 

Barbara Stegun Phair, a partner at 

Abrams, Fensterman, Fensterman, 

Eisman, Formato, Ferrara & Einiger, 

LLP, was recently appointed to the 

Board of Directors of the New York 

Member MMe Member b er r r Benefits Be Benefits efi f s s Corner Cor Corner er 

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Davis Optical 

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Jamar Printing 

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Hertz CDP# 1141602 

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United Parcel Service 

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Brooks Brothers 

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Metropolitan Chapter of The American 

Association of Nurse Attorneys. 

Robert S. Barnett and Gregory L. 

Matalon of Capell Barnett Matalon & 

Schoenfeld, LLP recently appeared on 

the internet radio show “Behind the 

Curtain,” where they discussed Federal 

and local tax issues regarding married 

same-sex couples. 

Kristina S. Heuser-DiMascio of 

Kristina S. Heuser-DiMascio, P.C. 

recently attended the Alliance 

Defending Freedom’s Legal Training 

Academy. Ms. Heuser-DiMascio is an 

allied attorney with Alliance Defending 

Freedom. 

Robert M. Harper, an associate in 

the Trusts and Estates Practice Group 

at Farrell Fritz, P.C., was elected as an 

officer of the Suffolk Academy of Law. 

Mr. Harper, who concentrates his practice 

in trusts and estates-related litigation, 

also serves as co-chair of the 

Suffolk County Bar Association’s 

Member Services and Activities 

Committee and vice chair of the New 

York State Bar Association’s Trusts and 

Estates Law Section’s Governmental 

Relations and Legislation Committee. 

He earned his Juris Doctor from 

Hofstra University School of Law. 

New Partners, Of Counsel 

and Associates 

Assemblyman Edward P. Ra has 

joined Forchelli, Curto, Deegan, 

Schwartz, Mineo & Terrana LLP as 

Counsel in the Land Use and Zoning 

Practice Group. Mr. Ra was elected to 

represent the 21st district in the New 

York State Assembly in 2010. He has 

previously served as the Deputy Town 

Attorney for the Town of Hempstead and 

as a legal aide in the Office of the New 

York State Attorney General. 

Alicia A. Weissmeier, former Chief 

Miscellaneous Clerk of the New York 

County Surrogate’s Court, has joined 

Miller & Milone, P.C as Managing 

Attorney. Ms. Weissmeier, who earned 

her Juris Doctor from Pace University 

School of Law, concentrates her practice 

on litigation and Trusts & Estates. 

Joseph R. Bjarnson has joined 

Sahn Ward Coschignano & Baker as a 

commercial litigation associate. Mr. 

Bjarnson graduated from the Maurice A. 

Deane School of Law at Hofstra 

University, cum laude, where he was an 

Associate Editor of Hofstra Law Review 

and a member of the Dean’s Scholar 

Program. 

New Firms and Locations 

Forchelli, Curto, Deegan, Schwartz, 

Mineo, Cohn & Terrana LLP has been 

renamed Forchelli, Curto, Deegan, 

Schwartz, Mineo & Terrana LLP. 

Cullen & Dykman, LLP has opened 

an office at 99 Washington Avenue in 

Albany, New York. 

Garden City-based Davidoff Malito & 

Hutcher LLP has changed its name to 

Davidoff Hutcher & Citron LLP. 

The Honorable Stephen L. Ukeiley is a Suffolk 

County District Court Judge and author of 

The Bench Guide to Landlord & Tenant 

Disputes in New York. © 

PLEASE E-MAIL YOUR SUBMISSIONS TO 

Nassau Lawyer: 

nassaulawyer@nassaubar.org 

with subject line: IN BRIEF

Let the Buyer Beware 

Historically, collection of consumer 

credit card debt may have presented relatively 

few obstacles for creditors seeking 

money judgments. However, a growing 

trend of sales of credit card accounts after 

they have gone delinquent, to third-party 

assignees (hereinafter referred to as 

“debt buyers”) has created an industry 

that is able to capitalize on buying pools 

of debt at a deep discount, and then turning 

them into judgments that can be 

enforced dollar for dollar. As one local 

court recognized, such delinquent debt is 

often purchased by debt buyers for as little 

as pennies on the dollar, 

given the difficulty of collection, 

the costs associated with 

that effort, and the poor 

recordkeeping that debt buyers 

often inherit from the original 

creditor. 1 

What may have once been 

taken for granted by debt buyers 

is no longer the case, as 

courts in recent years have 

been scrutinizing lawsuits and 

motions for default judgments 

or for summary judgment, and 

discovering mistakes or deficiencies 

in proof submitted, which in 

turn, results in relief to debt buyers being 

denied. As we have seen in the recent 

past in the mortgage foreclosure context, 

the courts have become equally sensitive 

to the due process rights of consumers 

with credit card debt and the impact of 

judgments and delinquencies on their 

credit ratings. This is especially the case 

since many claims brought by the credit 

card industry and debt buyers are often 

not defended by consumers, or are 

defended without counsel; furthermore, 

the amounts involved are often relatively 

small and such cases are typically not 

appealed. 

The starting point for a debt buyer 

seeking a money judgment is the equivalent 

of what its assignor had to provide, 

since an assignee has the same burden as 

its assignor to show evidentiary proof in 

admissible form, of the original agreement, 

mailing of same to the cardholder, 

and the statements reflecting the unpaid 

charges and payments made. 2 However, 

a debt buyer must go further to sustain 

its claim. Most significantly, it must 

demonstrate its “standing” to sue as an 

assignee of the particular credit card 

account on which it seeks to collect at the 

time the action was commenced, and 

without sufficient proof of the complete 

chain of assignments of the specific 

account sold from the original creditor to 

the entity seeking to collect on the debt, it 

will not prevail. This was set forth in the 

leading case of Citibank (South Dakota) 

N.A. v. Martin. 3 A long line of cases from 

lower courts have followed Martin as to 

this standard of proof and have consistently 

denied relief to debt buyers where 

sufficient proof was lacking. 4 

Analysis From The Bankruptcy Court 

A recent decision in the U.S. 

Bankruptcy Court Eastern District of 

New York, in In re Taranto5 dealt with 

these issues in the context of examining 

the validity of three separate proofs of 

claim filed in a Chapter 13 

case by ECast, as assignee of 

two claims from HSBC, and 

one from FIA Card Services. 

ECast initially relied upon a) a 

blanket assignment of 

accounts from the respective 

original creditors that did not 

specifically identify the debtor 

or any specific accounts sold; b) 

reference to an unavailable 

document listing only the original 

creditor and the last four 

digits of the account, which 

was part of what was classified 

as a “voluminous” electronic file; and c) 

an “Account Summary,” with the debtor’s 

name and address, last four digits of 

account number, Social Security number, 

balance due and date account opened. In 

addition, affidavits were furnished by 

ECast representatives stating that it had 

purchased the two accounts from HSBC, 

and from an FIA representative as to the 

sale of the third account to ECast. 

All of this was sufficient to provide 

ECast with a prima facie valid claim. The 

burden of proof then shifted to the 

debtors to rebut the presumption as to 

validity of the claim. They claimed they 

never did business with ECast, owed no 

money to ECast, received no notice of the 

assignment, and that there was no evidence 

of a specific assignment of their 

debts to ECast, all of which served to 

rebut the presumption, and shifted the 

burden back to ECast. 

In applying New York law and Martin, 

Bankruptcy Judge Trust then examined 

the evidence submitted by ECast to 

determine if it had proved its claims by a 

preponderance of the evidence. He concluded 

that its own affidavits as to purchasing 

the two HSBC accounts were 

self-serving, whereas the sworn affidavit 

from FIA was clear and direct evidence of 

the sale of that specific debt to ECast, 

with the debtor’s name, date of transfer, 

balance owed, and last four digits of the 

account. On this basis, only the claim 

assigned from FIA was allowed as a valid 

claim. There was no equivalent proof 

from HSBC as to the assignment of the 

other two claims. 6 

The debtors also argued that the lack 

of notice of the assignments to ECast 

should serve to invalidate the claims pursuant 

to U.C.C. 9-406. That section 

allows a discharge of debts by paying the 

assignor until the debtor gets notice of an 

assignment, so that the debtor is not paying 

different creditors twice. 7 Judge 

Trust rejected this argument, since the 

debtors could not show that they paid the 

debts to the original creditors before getting 

any notice of the assignments. 

Consistent with Judge Trust’s ruling, 

other lower courts in New York have 

denied applications by assignees where 

they lacked sufficient proof of the assignment 

of the particular credit card account 

in question. A major defect that many 

assignees cannot overcome is that they 

try to rely on business records from the 

original creditor/assignor, without laying 

a proper foundation to avoid the hearsay 

rule. Courts have routinely rejected affidavits 

from employees or agents of 

assignees who had no personal knowledge 

of the assignor’s business record 

keeping practices; those records need to 

be authenticated by one with personal 

knowledge in order to be considered 

admissible evidence. 8 Therefore, the 

plaintiff-assignee cannot solely rely upon 

the business records of its assignor in 

order to lay a proper foundation. It is not 

enough that the affidavit comes from one 

who reviewed, filed, and retained the 


The Pitfalls of Acquiring Credit Card Debt 

Jeff Morgenstern 

Edwin J. Mulhern, Esq. 

COUNSEL TO THE PROFESSION 

AV RATED LAW FIRM ESTABLISHED IN 1954 

Representing Clients In The Areas Of: 

GRIEVANCE COMPLAINTS 

GRIEVANCE PROCEEDINGS 

Edwin J. Mulhern, Esq. 

Former Chairman of Nassau County Bar Assn. Grievance Committee 

Former Member of the Grievance Committee For The 10th Judicial District 

Past President Criminal Courts Bar Assn. of Nassau County 

One Old Country Rd. • Carle Place • New York 11514 • 516-294-8000 

1225 Franklin Ave., Suite 325 ● Garden City ● New York 11530 ● 516-294-8000 

Donate Blood 

Save a Life 

assignor’s records on behalf of the debt 

buyer, because the records were not 

made in the ordinary course of business 

of the debt buyer. Contrary to Judge 

Trust’s ruling, these courts have also 

required proof that notice of the assignment 

of the account was given to the 

debtor prior to commencement of the 

suit, concluding that notice of the assignment 

from the assignor to the debtor is 

necessary before the debtor has a duty to 

pay the assignee. 9 

In light of the flurry of cases being 

brought by debt buyers, the courts have 

become increasingly sensitive to the frequency 

in which papers submitted are 

insufficient. 10 Some courts have gone as 

far as imposing sanctions against creditors, 

or their counsel, for bringing actions 

without what was deemed to be due diligence 

on their part in reviewing the 

validity of the chain of assignments of 

claims to the debt buyers. 11 

Another issue that has arisen from 

this line of cases, is the statutory prohibition 

against buying claims for the pri- 


Annual 

Blood Drive 

Thursday, July 26, 2012 

1:30 – 7 p.m. 


15th & West Streets, Mineola, NY 11501 

516-747-4070 

Eligibility Criteria: 

Must have valid ID with signature and photo 

Minimum weight 110 lbs. 

Between 16 & 75 years of age 

(16 year old must have parental permission, 

Age 76 and over need doctor’s note) 

Questions about your eligibility? Call 1-800-688-0900. 

Eat well (low fat) and drink fluids 

No tattoos in the past 12 months 

To schedule an appointment, contact Kim Gonzalez at 

Kgonzale@pch.com, or call (516) 944-4736. 

See DEBT, Page 18


NASSAU ACADEMY OF LAW 

Ralph Catalano Elected New Dean of 

Nassau Academy of Law 

Attorney Ralph A. Catalano, a member of the 

Law Firm of Catalano Gallardo & Petropoulos, 

LLP, Jericho, has been elected the Dean of the 

Nassau Academy of Law for the 2012-13 Academic 

Year. The Nassau Academy of Law is an 

accredited provider of continuing legal education 

by the New York State CLE Board and is the largest 

provider of CLE classes on Long Island. 

Each year, the Academy organizes and presents 

more than 100 substantive legal seminars in 

dozens of practice areas to educate attorneys on 

the newest developments in the law and to provide the practical skills to 

enable attorneys to most effectively represent their clients. The Academy 

LITIGATION & 

PUBLIC RECORDS 

Wednesday, August 8, 2012 

12:30�2 p.m. Lunch & Discussion 

Litigation: Overview of the litigation lifecycle from early case analysis 

to presentation at trial. See how Lexis has developed unique 

solutions designed to support litigators at each stage. 

��The Largest repository of public records at your fingertips. 

SmartLinx allows you to sweep the system and pull back a report. 

At the NCBA Tech Center 

2 Free Classes! 

Tuesday, July 26, 2012 

9 a.m. - Learn to Research at the Tech Center 

...Because Law 

Now Get Your C 

ONE LOW FE 

Introducing an Exciting New Program F 

Domus Sch 

�� 

ter. 

The Academy will also be continuing its popular Domus Scholar Circle 

program. Members who join pay just $189 and can attend almost all 

the 1,2 and 3 CLE seminars for an entire year. 

Catalano practices in the areas of professional liability defense, commercial 

litigation, employment law, medical malpractice and complex tort litigation. 

He has also lectured on professional liability, ethics, and trial and 

appellate advocacy. 

A long-standing member active member of the NCBA, Catalano is 

CLE CREDITS for all 1, 2 and 3 credit CLE p 

attend from September 1, 2011 through June 

CLE CREDITS �� 

additional). 

CLE CREDITS at all committee meetings yo 

when CLE is offered. 

Download application at w 

call Nassau Academy of La 

�� 

Executive Board since 2002. He is also a member of the American Bar 

Association, the New York State Bar Association, and The Defense Research 

Institute. Catalano earned his law degree from Hofstra University 

School of Law. He is admitted to practice in New York and New Jersey. 

In addition, the following were elected to leadership positions: 

Associate Dean - Hon. Sondra K. Pardes, Nassau County District Court 

Assistant Deans - Jeffrey C. Daniels, Jericho 

Chandra Mary Ortiz, Baldwin 

Robert S. Barnett of Capell, Barnett, Matalon & 

Schoenfeld, Jericho 

Secretary - Mary Ann Aiello, Garden City 

Treasurer - Thomas J. Foley of Foley Griffin LLP, Garden City 

Counsel - Daniel W. Russo of Collins McDonald and Gann, Mineola 

FREE LUNCH ! 

FREE CLE ! 

NCBA MEMBERS ONLY! 

RESERVATIONS A MUST! 

GUEST SPEAKERS 

Jim Sayer 

Senior Litigation Specialist 

Shobna Saini, Esq. 

Lexis Nexis 

1.0 Credit in Areas of 

Professional Practice 

MODERATOR 

Ralph A. Catalano, Esq. 

Dean, Nassau Academy of Law 

Catalano Gallardo & 

Petropoulos, LLP, Jericho 

Lunch courtesy of 

Just Some of 

�� 

Seminars That Are 

Included In Your 

Membership! 

Join Your Colleagues in this Exciting 

Sept. 13 Escrow and Ethics 

Oct. 2 Employment Practices Liability Insurance: 

Coverage for Harassment, Wrongful Termination, 

Discrimination, and So Much More! 

Oct. 11 DEAN'S HOUR: FINRA Arbitration - Be Prepared! 

Oct. 11 New Trends in Estate Law 

Oct. 16 Ins and Outs of District Court: Landlord/Tenants 

Issues . . . and More 

Oct. 24 Jury Selection In Contested Surrogate's Court 

Matters 

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10 a.m. - Cost Effective Electronic Discovery 

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This seminar provides attendees with a better understanding of the e- 

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minimize the risks. 

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mail with form to NAL, 15th and West Streets, Mineola, NY 11501 

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Oct. 25 Trial Practice: Direct and Cross-Examination 

of a Forensic Accountant: Unique Business 

Valuation Issues in a Troubled Economy 

Oct. 26 Criminal Law Update (18B) 

Nov. 1 CPLR Update 

Nov. 5 LLC's, A - Z 

Nov. 15 Overview of the NY General Obligations 

Law: Something For All Areas of Practice 

For Financial Aid Guidelines or 

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August 8 Litigation and Public Records 1.0 1.0 FREE NA FREE - 

SEMINAR RESERVATION TOTAL 

CD and DVD Order Form 

Area of Law Seminar Name 

CD/DVD 

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Bankruptcy Chapter 7 & 13 - Role of the Trustee 1.0 1.0 35 /50 50 /70 27&130121 

Business How to Critique and Defend a Business Valuation 2.0 2.0 70/85 100/120 2BUSVAL0620 

Commercial Provisional Remedies in Federal Court 2.5 0.5 3.0 105/120 140/160 2FEDIS0530 

In The Digital Age! Criminal Issues in Matrimonial Cases 2.0 2.0 70/85 100/120 2CRIMAT0312 

Criminal Law Insights Into the Trial of a Criminal Case 1.5 0.5 2.0 70/85 100/120 2INSIGHTS0122 

The Parole Revocation Process 3.0 3.0 105/120 140/160 2PAROLE0613 

Estates & 

Trusts, Elder 

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Ethics 

Health Law 

The Changing World of Medicaid - Part I 1.0 0.5 1.5 50/65 65/80 DH061212 

The Changing World of Medicaid - Part II 1.5 1.5 50/65 65/80 DH061912 

SAVE! The Changing World of Medicaid - Part I &II 2.5 0.5 3.0 95/110 120/150 DH06121912 

Estate Law: What They Didn't Tell You in Law School 1.0 0.5 1.5 70/85 100/120 2ESTATE0122 

Surrogate's Court Contested Accounting Proceedings 2.5 0.5 3.0 105/120 140/160 2CNACT0423 

Your First Fair Hearing or Article 78 Proceeding 1.0 1.0 35 /50 50 /70 DH020812 

Civility Matters 2.0 2.0 105/120 140/160 2CVLTY0515 

Ethics: Identifying and Resolving Conflicts of Interest 1.0 1.0 35 /50 50 /70 12FLIX0121 

Business Records - EVIDENCE 4 1.0 1.0 35 /50 50 /70 DH011112 

Demystifying Appeals: Improving Your Appellate Practice 2.5 0.5 3.0 105/120 140/160 2APLS0228 

Drafting Partnership & LLC Agreements 2.0 2.0 70/85 100/120 2PARTNER0402 

Electronic Discovery 1.0 1.0 35 /50 50 /70 DH011712 

Ethical Issues That May Arise When Using Expert Witnesses 1.0 1.0 35 /50 50 /70 DH050912 

Hearsay: Unraveling the Mystique - EVIDENCE 5 1.0 1.0 35 /50 50 /70 DH021612 

How to Draft, Evaluate and Negotiate Contracts 2.0 2.0 70/85 100/120 12CONT0121 

Human Trafficking and Exploitation on Long Island 3.0 3.0 70/85 70/85 2HUTRAF0229 

Navigating the Specialty Courts 1.5 1.5 70/85 100/120 2NAVIGATE0122 

NY Notary Law: Acknowledging What Attorneys Must Know 0.5 0.5 1.0 35 /50 50 /70 2NOTARY0122 

Objection! - EVIDENCE 6 1.0 1.0 35 /50 50 /70 DH041712 

Pet Custody Issues in Divorces, Non-�� 1.0 1.0 35 /50 50 /70 2PET0419 

Planning for the Terminally Ill Client 3.0 3.0 105/120 140/160 2ILL0628 

�� 2.0 2.0 70/85 100/120 2QRPLAN0724 

Solo Practitioners 1.0 1.0 35 /50 50 /70 DH030812 

Time Management and Productivity 1.0 1.0 35 /50 50 /70 2TIME0121 

The "Write" Stuff: Tips for Effective Writing in the Real World 1.0 1.0 35 /50 50 /70 2WRITE0122 

Unwanted & Unwelcome! Sexual Harassment in the Workplace 1.0 1.0 35 /50 50 /70 DH031612 

Healthcare Today: A Minefield for the Unwary. . . 1.0 2.0 3.0 105/120 140/160 2HLTHCR0523 

Overviews of Health Law and Insurance Law 1.0 1.0 35 /50 50 /70 2HLTH0121 

Immigration Law Criminal Defense in Today's Immigration Conundrum 2.5 0.5 3.0 105/120 140/160 1IMM1129 

Insurance Insurance Law Update 2012 2.5 0.5 3.0 105/120 140/160 2INS0627 

Intellectual Prop. Patent Law Upheaval? America Invents Act 2.0 2.0 70/85 100/120 2PATLAW0130 

Litigation Civil Litigation Essentials 6.0 6.0 210/300 240/320 2CVLIT0502/03 

In The Digital Age! Criminal Issues in Matrimonial Cases 2.0 2.0 70/85 100/120 2CRIMAT0312 

A Matrimonial Primer 

Matrimonial Law, 

Family Law 

Proof Positive: A Family Court Law & Procedure Program 

Representing Your Client in JD Proceedings And More! 

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0.5 

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Understanding Tax Returns, Financial Statements for Mat Attys 1.5 0.5 2.0 70/85 100/120 2MATAX0206 

Commercial Leasing: A Primer and Pitfalls 2.0 2.0 70/85 100/120 2COMLES0201 

Real Estate Real Estate Update 1.0 0.5 1.5 70/85 100/120 2REU0121 

Successful Closings In A Distress Real Estate Market 2.0 2.0 70/85 100/120 2REAL0314 

Tax Tax Issues of the Rich and Famous 1.0 1.0 70/85 100/120 DH060512 

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Just $189!


Mat Law Applauds Exceptional Pro Bono Service 

Dozens of Attorneys Respond to Abuse Victims’ Legal Needs 

By Gail Broder Katz 

When the chips are down, it’s great to 

know that you can call on the attorneys 

at the Nassau County Bar Association to 

step up. Which is what more than 5 

dozen did when funding cuts to the 

Nassau County Coalition Against 

Domestic Abuse drastically reduced legal 

services to this underserved community. 

In the past year, 77 NCBA volunteer 

attorneys have provided pro bono representation 

to over 80 Coalition clients. 

They have lent their expertise in a variety 

of areas: matrimonial, Orders of 

Protection, child custody, child support, 

immigration, landlord/tenant and consumer 

issues, to name to just a few. 

Without their help the victims would not 

have had any legal representation. 

Instead, thanks to our volunteers, these 

individuals and families were represented 

by some of the top attorneys in their 

field. 

When these talented attorneys 

learned of our plight, they responded to 

our call with donations, volunteering to 

become mentors, and of course, volunteering 

to represent our clients. The 

clients are extremely grateful for the fine 

representation they have received. Many 

were forced to stay in unbearable situations 

simply because they could not 

afford a lawyer. Thanks to our volunteer 

attorneys these clients have had their 

legal issues resolved; their needs 

LAW OFFICES OF 

HOWARD R. BRILL, P.C. 

COUNSEL TO THE PROFESSION 

• IMMIGRATION LAW • 

• DEPORTATION 

• EXCLUSION 

• REMOVAL 

• APPEALS 

• EMPLOYER SANCTIONS 

�� 

addressed in an appropriate manner, 

and can now go on to lead productive 

lives. But most importantly they and 

their children are now SAFE. 

As a judge sitting in the Matri monial 

Part of the Nassau County Supreme 

Court, the Honorable Stacy D. Bennett 

recognizes just how valuable these volunteer 

attorneys are to Coalition clients, 

and to the system as a whole. So at her 

suggestion, the NCBA Matrimonial Law 

Committee formally recognized their outstanding 

service to the Nassau County 

Coalition Against Domestic Violence 

clients and the legal community at their 

June meeting. 

The volunteer attorneys have gained 

valuable skills, free CLE credits and a 

true sense of accomplishment by helping 

people who are often at their lowest 

point. It reminds all of us just why we 

became attorneys in the first place – to 

help others. 

The Pro Bono Project volunteer attorneys 

are truly deserving of the honor 

bestowed upon them by the 

Matrimonial Committee of the Nassau 

County Bar Association. It is but a 

small token of appreciation for all they 

have done and will continue to do. The 

Pro Bono Project is a win-win for all 

involved. So, if you or any attorneys you 

know would like to get involved and 

lend a helping hand, please have them 

contact Gail Broder Katz at 516-465- 

4700 x4028. 

• POLITICAL ASYLUM 

• WORK PERMITS 

• VISAS 

• “GREEN CARDS” 

• CITIZENSHIP 

250 Fulton Avenue, Suite 200 • Hempstead • NY 11550 

(516) 489-8786 • FAX (516) 486-4933 

�� 

Spanish Spoken 

�� 

Member: �� American �� 

Immigration Lawyers Association 

Lecturer �� & Panelist: Nassau �� 

County Bar Association, Suffolk County Bar Association 

Matrimonial Law Chair Lee Rosenberg (left) and Family Court Judge Stacey Bennett (right) 

present a plaque to Lois Schwaeber, Nassau County Coalition Against Domestic Violence, 

at the June meeting in recognition of committee members who provided outstanding pro 

bono service to the Coalition in its time of need. 

NCBA Attorneys Recognized for Pro Bono Service 

Mary Ann Aiello 

Janet Alpert 

Sol Barrocas 

Jonathan Bartov 

Illene Behar 

Meredith Bettenhauser 

Allan Botter 

Karen Brand 

Jose Canosa 

Anthony Capetola 

Deborah Chadow 

Neil Cohen 

Alexandra Cohen 

Terri Cohen-Lieberman 

Jay Davis 

Councilwoman Dina De Giorgio 

Deirdre Delay 

Joseph Demarco 

Matthew Didora 

John DiMascio, Jr. 

John DiMascio, Sr. 

Hon. Anthony Falanga 

Marcia Field 

Laurice Firenze 

Christina L. Fittner 

Ward Fitzpatrick 

Patricia Galteri 

C. William Gaylor III 

Steven Goldman 

Mark Goldstein 

Joseph Harbeson 

Jacqueline Harounian 

Cheryl Helfer 

Kristina Heuser 

Amy Hsu 

James Joseph 

Harris Kantor 

Elena Karabatos 

Margaret Leszkiewicz 

Victor Levin 

Nancy Lieberman 

Steven Maffei 

Kimberly McCreight 

Charles McEvily 

Hon. Leo McGinity 

Timothy McGrath 

Maureen McLoughlin 

David Mejias 

Randi Milgrim 

Siobhan Moran 

Steven Moser 

Patricia Pastor 

Brian Picarello 

Jon Probstein 

Jody Pugach 

Genevieve Purcell 

Hillary Reinharz 

Kieth Rieger 

Joseph Rocco 

Frances Rosato 

Jennifer Rosenkranz 

Douglas Rothkopf 

Debra Rubin 

Gail Saul 

Lawrence Schaffer 

Ross Schiller 

Stephen Schlissel 

Lisa Schoenfeld 

Charles Sherman 

Kimberly Snow 

Sandra Stines 

David Teeter 

David Vallone 

Wendi Waldman 

Edward Waldman 

Rachel Weisman 

John Zenir

REVEL IN YOUR 

ACCOMPLISHMENTS 

SEPTEMBER 2010 I VOL. 60 I NO. 1 I W W W . N A S SS A U B A R .. OO RR G 

The authority of Magistrate Judges to impose Rule 11 

Sanctions after Kiobel v. Royal Dutch Petroleum Co. 

3 This decision is an impor- 

Factual & Procedural Background 

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is an accomplishment. Reprints allow you to take 

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4 Chief 

In our federal court system, magistrate 

judges play a critical role in the 

administration of justice. The Federal 

Magistrate Judge Act (“Act”), 28 U.S.C. 

§ 636, authorizes magistrate judges to: 

[H]ear and determine any pretrial 

matter pending before the court, 

except a motion for injunctive relief, 

for judgment on the pleadings, 

for summary judgment, 

to dismiss or quash 

an indictment or information 

made by the defendant, 

to suppress evidence in a 

criminal case, to dismiss or 

to permit maintenance of a 

class action, to dismiss for 

failure to state a claim upon 

which relief can be granted, 

and to involuntarily dismiss 

an action. 1 

On occasion, lapses during 

the pre-trial phase have led 

to the imposition of sanctions by magistrate 

judges under Federal Rule of 

Civil Procedure 11. 2 

and development in Nigeria. 

Judge Kimba Wood referred plaintiffs’ 

Rule 23(c) motion for class certification 

to Magistrate Judge Henry B. 

Pitman for a report and recommendation. 

On March 31, 2004, Magistrate 

Judge Pitman recommended that the 

District Court deny plaintiffs’ 

motion. 

Recently, the United States Court 

of Appeals for the Second Circuit published 

a decision that addressed, 

among other things, whether magistrate 

judges have the authority to 

issue Rule 11 sanctions themselves, or, 

instead, are authorized only to make a 

recommendation to the District Court 

Judge for the imposition of Rule 11 

sanctions. 

tant one for federal court practitioners, 

as it addresses an issue that 

divides both the federal courts within 

the Second Circuit as well as the 

Circuit Courts themselves. 

A putative class action was brought 

in the Southern District of New York 

pursuant to the Alien Tort Statute, 28 

U.S.C. § 1350, arising out of defendants 

involvement in oil exploration 

5 

Plaintiffs objected to 

Magistrate Pitman’s Report 

and Recommendation, and 

defendants filed an 

Opposition to those objections. 

In the Opposition, 

defendants’ attorneys stated: 

(1) “Now we have learned 

that seven of [plaintiffs’] 

identified witnesses are 

being paid for their testimony;” 

(2) “[T]here can be no 

doubt that the witnesses are 

giving testimony that [plaintiffs’] 

counsel knows to be 

false;” and (3) “[W]e know that 

between February 29, 2004 and April 

2, 2004, [plaintiffs’ counsel] wired 

$15,195 to the Benin Republic for the 

benefit of the witnesses.” 

basis of these statements, plaintiffs 

moved for an order imposing Rule 11 

sanctions on the ground that these 

statements had no evidentiary support. 

Defendants’ attorneys opposed 

the motion, arguing that that the 

statements were supported by record 

evidence. 7 

third statement because “[a]lthough 

defendants’ counsel overstated the 

amount of money sent to benefit the 

[w]itnesses, the amount of the overstatement 

was small…and did not 

materially change the nature of the 

statement.” 

did, however, award plaintiffs onethird 

of their attorneys’ fees arising 

from their partially successful Rule 

11 motion. 

In an “Opinion and Order” dated 

September 29, 2006, Magistrate 

Judge Pitman denied plaintiffs’ 

motion with respect to the first statement, 

but granted the motion with 

respect to defendant’s second and 

third statements. 

statement, Magistrate Judge Pitman 

imposed a $5,000 sanction on each 

attorney who signed the filing. 

Magistrate Pitman declined to 

impose sanctions for making the 

10 

Defendants’ attorneys appealed 

Magistrate Judge Pitman’s “Opinion 

and Order” to the District Court. 

Applying a deferential “clearly erroneous 

or contrary to law” standard of 

review under 28 U.S.C. § 636(b)(1)(A), 

Chief Judge Wood affirmed Magistrate 

Judge Pitman’s Order. 

Defendants’ attorneys thereafter 

appealed Chief Judge Woods’ Order 

on two grounds: (1) Magistrate Judge 

Pitman was not authorized to issue a 

dispositive decision, such as an Order 

imposing Rule 11 sanctions, absent 

the consent of the parties; and (2) the 

imposition of Rule 11 sanctions on 

the basis of the statements identified 

by plaintiffs could not be sustained 

because of the record evidence supporting 

those statements. 

Second Circuit reversed Chief Judge 

Wood’s Order solely upon the second 

ground. The Panel, however, chose 

not to ignore the now-mooted first 

ground for appeal but instead published 

their conflicting views. The 

Second Circuit’s analysis of the mooted 

issue – whether magistrate judges, 

when acting pursuant to a district 

court’s reference, are authorized to 

issue orders, or only make recommendations 

to district judges on whether 

Rule 11 sanctions should be imposed 

– provides persuasive guidance for 

practitioners on each side of this 

issue until such time as Congress or 

the United States Supreme Court 

addresses the matter. 

Kathryn C. Cole 

6 On the 

8 For the second 

�� (631) 913-4223 

jennifer.travis@libn.com 

Analysis 

1. The Honorable Jose A. 

Cabranes 

In his Opinion, Judge Cabranes 

was persuaded by the decisions and 

reasoning of the Sixth and Seventh 

Circuits, which have held that decisions 

on Rule 11 motions are dispositive 

of a claim and are therefore not 

properly resolved by an order of a 

magistrate judge. 12 

In reaching his conclusion, Judge 

Cabranes reasoned first that a Rule 11 

motion for sanctions, which gives rise 

to proceedings separate and distinct 

from the underlying actions and 

involves parties distinct from those in 

the underlying action, is the functional 

equivalent of an independent 

claim. 13 As such, when a court determines 

whether a monetary award is 

appropriate, the “claim” has been disposed 

of and nothing but the entry of a 

judgment, or its functional equivalent, 

remains. 14 Second, Judge Cabranes 

reasoned that a narrow statutory 

exception – allowing magistrate 

judges to summarily punish acts of 

criminal conduct that occur in the 

magistrate’s presence – to the general 

principle that magistrate judges may 

not dispose of claims when acting by 

referral already exists and there was 

no basis to expand this exception by 

judicial action. 15 

Judge Cabranes concluded accordingly 

that a magistrate judge is 

authorized by law only to recommend, 

not impose, sanctions absent the consent 

of the parties. 16 

the power to impose monetary sanctions 

and concluded that all indications 

“very strongly support” the conclusion 

that the Act empowers magistrate 

judges to impose sanctions, 

except in the form of sanctions that 

dispose of a claim or defense. 

2. The Honorable Pierre Leval 

Judge Leval found that the Act 

empowers magistrate judges to hear 

and determine a wide range of matters, 

save for those matters expressly 

excepted within the Act. 17 Moreover, 

Judge Leval relied upon the amendments 

to the Act made by Congress in 

2000, which further vested magistrate 

judges with a range of contempt powers. 

18 Judge Leval viewed this as 

indicative of the fact that Congress 

intended to allow magistrate judges 

19 

While Judge Leval agreed with 

Judge Cabranes that sanctions that 

are case dispositive require de novo 

review, he stated that a Rule 11 sanction 

does not dismiss a suit or prevent 

a claim or defense from being 

advanced. 20 As such, Judge Leval concluded 

that a magistrate judge is 

authorized by law to impose by way of 

Order, Rule 11 sanctions without the 

consent of the parties. 21 

3. The Honorable Chief Judge 

Dennis Jacobs 

Chief Judge Jacobs declined to join 

the opinion of either Judge Cabranes 

or Judge Leval and instead stated that 

the issue – whether magistrate judges 

have the authority to order Rule 11 

sanctions themselves, or only to make 

a recommendation of Rule 11 sanctions 

to the district court – is an issue 

that divides the district courts within 

the Second Circuit and the Circuit 

Courts themselves. 22 Chief Judge 

Jacobs went on to state that he would 

defer the issue to Congress. 23 

1. 28 U.S.C. § 636(b)(1)(A) (2002). 

2. See, e.g., Alpern v. Lieb, 1993 U.S. Dist. 

LEXIS 3229 (N.D. Ill. 1993); Maisonville v. 

F2 Am., Inc., 902 F.2d 746 (9th Cir. 1990); 

DiPonio Construction Co., Inc., v. Int’l Union 

of Bricklayers, 2010 U.S. Dist. LEXIS 62047, 

* (E.D. Mich. June 23, 2010); McGuffin v. 

Baumhaft, 2010 U.S. Dist. LEXIS 59497 (E.D. 

Mich. June 16, 2010). 

3. Kiobel v. Millson et al., 592 F.3d 78 (2d Cir. 

2010). 

4. See Kiobel v. Royal Dutch Petroleum Co., 456 

F. Supp. 2d 457 (S.D.N.Y. 2006). 

5. See Kiobel v. Royal Dutch Petroleum Co., 2004 

U.S. Dist. LEXIS 28812 *29, 43 (S.D.N.Y. 2004). 

6. Kiobel, 592 F.3d at 80. 

7. Id. 

8. Kiobel, 2004 U.S. Dist. LEXIS 28812, at 32- 

34. 

9. Id. at *34. 

10. See Id. at *37. 

11. Kiobel, 592 F.3d 78. 

12. Id. at 85; see also Bennett v. General Caster 

Service of N. Gordon Co., 976 F.2d 995, 998 

(6th Cir. 1992) (“nothing in the Act expressly 

vests magistrate judges with jurisdiction 

to enter orders imposing Rule 11 sanctions”); 

Alpern v. Lieb, 38 F.3d 933, 936 (7th 

Cir. 1994) (“the power to award sanctions, 

like the power to award damages, belongs in 

the hands of the district judge.”) 

13. Kiobel, 592 F.3d at 86-87. 

14. Id. at 87. 

15. See 28 U.S.C. § 636(e)(2); Kiobel, 592 F.3d at 

87-88. 

16. Kiobel, 592 F.3d at 89. 

17. Id. at 91 (the Act “broadly empowers magistrate 

judges to ‘hear and determine’ any 

pretrial matter designated to them by the 

district court, with the exception of a specified 

list of matters. As for the matters 

falling within this excepted list, the extent 

Significance 

of the magistrate judge’s powers is to take 

It follows from the Second Circuit’s evidence and submit recommendations to 

the district court…[and] such additional 

decision in Kiobel that there is no duties as are not inconsistent with the 

binding precedent in the Second Constitution and laws of the United States”) 

Circuit as to whether a Magistrate (citing 28 U.S.C. § 636[b][1][B]). 

Judge has the power under the Act to 18. See Federal Courts Improvement Act of 

2000, Pub. L. 106-518 § 202 (2000) (address- 

impose sanctions. Consequently, until 

ing “Magistrate Judge Contempt 

such time as Congress or the United Authority”). 

States Supreme Court addresses this 19. Kiobel, 592 F.3d at 98. 

issue or resolves the Act’s inherent 20. Id. at 97-98; see also Lawrence v. Wilder 

Richman Sec. Corp., 467 F.Supp. 2d 228, 

ambiguity, the analysis of Judges 

232-33 (D. Conn. 2006); Laser Med. Research 

Cabranes and Leval – albeit dicta – Found. v. Aerofloat Soviet Airlines, 1994 U.S. 

provides a roadmap for practitioners, Dist. LEXIS 15210 *2 (S.D.N.Y. 1994); 

and judges alike, on each side of this Magee v. Paul Revere Life Ins. Co., 178 

issue. 

F.R.D. 33, 37 (E.D.N.Y. 1998). 

21. See also Maisonville v. F2 Am. Inc., 902 F.2d 

747-48 (9th Cir. 1990). 

22. Kiobel, 592 F.3d at 106-07. 

23. Id. (“I respectfully suggest that this knot 

needs to be untied by Congress or by the 

Supreme Court.”). 

9 Magistrate Judge Pitman 

11 The 

Kathryn C. Cole, a former clerk to the 

Honorable Richard C. Wesley of the Second 

Circuit Court of Appeals, is a commercial litigation 

associate at Farrell Fritz, P.C. 

Farrell Fritz, P.C. 

1320 RXR Plaza 

Uniondale, NY 11556 

Debt should never be the 

sole reason behind treatment of 

an employee or applicant 

©2010 Long Island Business News, all rights reserved 

JULY/AUGUST 2010 I VOL. 59 I NO. 11 I WW WW WW .. NN AA SS SS AA UU BB AA RR .. OO RR GG 

Banking/Bankruptcy Law Focus 

Bankruptcy law vs. 

employment discrimination 

Employers must be cognizant that they do not violate 

Section 525 as to employees and, perhaps, job 

applicants who have filed for bankruptcy protection 

or who indicate that they intend to file. 

Employees Who Have Declared Bankruptcy 

Section 525 is implicated in a variety of circum- 

The ongoing economic crisis has caused a 

stances. Suppose, for instance, that the 

significant increase in the number of indi- 

President of a company learns that an 

viduals who are filing for bankruptcy on 

accountant employed by the company has 

Long Island, throughout New York, and 

filed for bankruptcy protection. The 

across the nation. More and more people, in 

President may experience some trepidation 

a final effort to escape crushing debt, have 

in allowing that individual to have contin- 

sought to obtain a financial “fresh start” by 

ued access to corporate records and funds. 

availing themselves of the protections of the 

However, under Section 525 the company 

Bankruptcy Code to stop creditors from 

would be precluded from demoting or termi- 

attaching their assets or foreclosing on their 

nating the debtor solely on account of his or 

property. 

her bankruptcy. 

Since individuals who seek bankruptcy 

For example, in In re Hicks 65 B.R. 980 

protection are already financially burdened, 

(Bankr. W.D.Ark. 1986), the court relied on 

the Bankruptcy Code bars employers from 

Section 525 in holding that a bank discrimi- 

taking certain actions against bankrupt employees nated against a bank teller by transferring her to a 

and job applicants which may be detrimental to their position having no customer contact after the teller 

“fresh start.” 

filed for bankruptcy under Chapter 7. The 

In particular, Section 525 of the 

bank attempted to justify the transfer of the 

Bankruptcy Code, 11 U.S.C. § 525, protects 

bankrupt teller into a bookkeeper position 

persons who have sought bankruptcy protec- 

by arguing that the reassignment did not 

tion from being terminated by their employ- 

involve any decrease in compensation and 

er or otherwise discriminated against in 

that it was made: (1) to prevent the “embar- 

respect to their employment. An employer 

rassment” of the teller; (2) to prevent any 

may not terminate the employment of, or 

harm to customer relations and public confi- 

discriminate with respect to employment 

dence; and (3) because the bank could not 

against, an individual solely because that 

bond a teller with financial difficulties. The 

individual: (1) is or has been a debtor; (2) has 

court ruled in favor of the teller, and found 

been insolvent; or (3) has not paid a debt 

that the discrimination prohibition of 

that is dischargeable in bankruptcy. 

Section 525 is violated “when the 

Matthew V. 

Spero 

Stuart I. 

Gordon 


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DEENA ... 

Continued From Page 2 

unexpected occurred. 

“If ever there was a test of tolerance, it had to be during 

my tenure as President, when Domus was confronted 

by Court rules regulating the conduct of matrimonial 

lawyers, switching to a new publisher for the 

Nassau Lawyer, and inaugurating a trip to London, 

among other things,” remarked Past President Joe 

Ryan (1993-94), who calls her the “Queen of Tolerance.” 

“Despite the enormous pressures exerted on Deena, she 

remained calm, collected and supportive of our objectives. 

We cleared through those storms, enjoyed the 

new publisher generating ‘non-dues revenue,’ and 

toasted Domus in London’s Middle Temple Great Hall.” 

“Good heavens. I couldn’t have been president without 

her,” added Past President Hon. Susan Kluewer 

(2004-05). The seemingly never-ending parking lot situation 

at Supreme Court was a major issue during her 

term. “We ended up suing Nassau County. Deena 

nudged me when I needed to be nudged. She made me 

the best NCBA President I could be.” 

“We didn't always agree. However, we always found 

common ground,” pointed out Past President Lance 

Clarke (2007-08). “She helped me to become a better listener 

than talker. I realized that if I listened, she would 

never steer me wrong.” 

During Clarke’s presidency, NCBA tackled issues 

including diversity, judicial salaries, a new Family 

Court facility and mortgage foreclosure. But he, along 

with most others, came to a profound understanding 

and appreciation for what Deena had to offer. “I call 

her ‘Mom’ because she has been a mother to every 

LAW YOU SHOULD KNOW Hosted by: Kenneth J. Landau, Esq. 

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celebrating 20 years! 

Diversity in the Law 

Monday, July 30 • 4 p.m. 

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What a Notary Needs to Know 




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on 90.3 FM WHPC radio, live voicestream at www.ncc.edu/whpc or 

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president since her arrival,” Clarke said. “She wants 

you to succeed more than you do yourself. Her unending 

support for her presidents, even when she disagreed, 

was unwavering.” 

The Heart of NCBA 

If the membership of nearly 6,000 attorneys, judges 

and law students are the body of the NCBA, and the 

Board of Directors the head, then the Executive 

Director Deena Ehrlich is the heart. 

“She had great insight into people’s personality, not 

only with the staff, but the members as well. She 

helped me keep my perspective and continuity. She 

would always suggest a variable alternative. She let 

you make the choice, but presented it with tact and 

grace,” noted Frank Yanelli. “Deena knew her people. 

She kept us focused.” 

“I remember Deena as always having a smiling, upbeat, 

‘can-do’ attitude in all she did during my tenure,” 

added Past President Owen Walsh (2001-02). 

“The best of Deena was when a member was in 

need,” observed Past President Chris McGrath (2005- 

06). “If a member was having hard times, dues were 

never a problem. If a member or the member’s family 

needed anything, Deena was always on the phone 

reaching out for assistance.” 

Deena worked hard to make the President look good, 

but she credits the incredible staff as the true backbone 

of NCBA. “When I first met her 25 years ago, I knew she 

was going to be my friend,” noted Barbara Kraut, who 

coordinates the Nassau Academy of Law. “On her first 

day, she brought in a chocolate rose for everyone on the 

staff. That just shows what type of person she is.” 

“Deena made us look forward to coming to work 

Make a difference 

in someone’s life– 

Be a Mentor! 

S 

S 

A 

N 

B 

A 

R 

A 

A 

S 

each day,” she went on. “Deena has the talent to be 

able to encourage each staff person to work to his or 

her full potential, and she promoted a spirit of teamwork 

at the Bar.” 

This month, at her final staff luncheon at Domus 

before she retired, Deena enjoyed reviewing her Domus 

career in pictures put together by Hector Herrera, and 

laughed along with the staff singing a special rendition 

of “Thanks for the Memories” written by Caryle Katz, 

Administrator of Community Relations and Public 

Education (“Thanks for the memory/Of nail lacquer 

hues, changing your hairdo’s/ We’ll miss your style, we’ll 

miss your smile/And annual reviews/How much fun it 

was!). A beautiful necklace was presented from the staff, 

“I couldn’t have done it without all of you,” Deena 

said to staff members through her tears. “Some think 

it’s me, but it is really all of you who make me look good. 

This organization has really done a lot of good things 

over the years that I’m really proud of, and have made 

us the leading Bar Association in the country. We’ve 

been together for highs and lows, and I could not have 

gotten through the lows without all of you.” 

So as the sun sets on the “Deena Dynasty” at the 

Nassau County Bar Association, and Deena heads into 

the enjoyment of her well-deserved retirement, mixed 

feelings are left behind. Domus will never be the same. 

Although the physical person will no longer be here, 

the spirit of Deena Ehrlich’s warmth and caring will be 

forever entwined in the bricks and mortar of the Bar 

Association’s headquarters, and in the hearts of the 

many attorneys, judges, law students, staff, wives and 

husbands, community leaders and residents, whose lives 

she touched. She will always be with us when we ... 

The Nassau County Bar Association Board of Directors wishes Deena a fond farewell at her final Annual Meeting held in June. (Photo by Hector Herrera) 

U 

CO 

U 

A 

I 

S O C 

N 

T 

Y 

Founded 

1899 

N 

O 

I 

T 

Come Home to Domus! 

ATTORNEYS & JUDGES 

NCBA is looking for additional 

mentors for 

Middle School students. 

8 a.m. to 8:45 a.m. one day 

every other week 

Oct. 2012 through May 2013 

Students in (y)our following 

communities are awaiting 

mentors. 

Hempstead • Uniondale • Jericho 

Westbury • East Meadow 

Please contact Elaine Leventhal at 

516-747-4070 x.212

DOCTORS ... 


Johnson: Onto Depositions 

Eleven years later, the Second 

Department, in Johnson v. New York 

City Health & Hospitals Corp., extended 

the McDermott holding to depositions. 9 

At the deposition, questions were not 

permitted of the doctor produced by the 

defendant on the grounds that it called 

for an expression of an opinion and the 

doctor was not a party defendant in the 

lawsuit. 

The Court framed the question as follows: 

“The issue is whether the rule of 

McDermott v. Manhattan Eye, Ear & 

Throat should be extended to examinations 

before trial. Finding that every evidentiary 

expansion touching the trial 

touches the pretrial deposition as well, 

and that the scope is even greater at a 

deposition, McDermott must be held to 

affect both, citing as well CPLR 3113. 

Carvalho: But Hold On, 

There Are Limits 

Two years later, however, the same 

Court, in Carvalho v. New Rochelle 

Hospital, qualified the rule somewhat, 

by holding that one defendant physician 

may not be examined before trial about 

the professional quality of care by another 

defendant physician if the questions 

“bear solely on the alleged negligence of 

the co-defendant and not on the practice 

of the witness.” 10 

In Carvalho, the plaintiff underwent 

an appendectomy performed by a Dr. 

Mannix; the pathology report revealed 

purulent exudate on the specimen. Dr. 

Cappelletti, who performed subsequent 

surgeries on the defendant, was questioned 

concerning the significance of this 

finding with respect to developing a post 

operative abscess and whether a doctor 

(i.e., Mannix) should have gotten a culture 

and sensitivity on the material. 11 

Citing both McDermott and Johnson 

for the proposition that a defendant may 

not be question about the professional 

quality of the services rendered by a codefendant 

if the questions bear solely on 

the alleged negligence of the codefendant 

and not on the practice of the witness. 

The Court went on to hold that it is proper, 

however, if the opinion sought refers 

to the treatment rendered by the witness, 

even if it also refers to the treatment 

by the co-defendant. 12 

Having read, and re-read both 

McDermott and Johnson, I have been 

unable to find anything in the language 

in these decisions supporting the main 

holding of the case, or even the sentiment 

above expressed. 13 

Ithier: Authoritative Text 

In Ithier v. Solomon – one year after 

Carvalho – the ability to inquire of the 

defendant-doctor concerning what text 

books he considered “authoritative” was 

all but eliminated. 14 In Ithier, where 

plaintiff alleged the doctor misdiagnosed 

the plaintiff’s ailment as tuberculosis, 

the defendant was asked whether he recognized 

“any books as authoritative in 

the field of tuberculosis,” as well as what 

text books he had studied in medical 

school or subsequent thereto dealing 

with tuberculosis. The Court, without 

citing any authority, declared these 

questions “altogether too broad.” 15 

In a similar situation, defendants in 

medical malpractice action were not 

required to disclose to the patient the 

medical literature that the defendant 

doctor referenced, but was allegedly 

unable to specifically recall, during his 

deposition; it could not be determined 

whether the failure to identify the medical 

literature was either willful or in bad 

faith, and the doctor was not appearing 

as defendants’ expert, the alternative 

theory of causation the doctor proffered 

was not posited with a reasonable degree 

of medical certainty, and defendants 

could not be compelled to produce information 

which they did not possess. 16 

Bubar: The New Light 

The only case which discusses 

Carvalho since the “New Rules” (Part 

221 of the Uniform Rules for the Trial 

Courts Relating to the Conduct of 

Depositions became effective October 1, 

2006) is Bubar v. Brodman. 17 

The case involved a cardiac bypass 

and aortic valve replacement, where 

there was a bleeding complication 

requiring re-exploration; the operative 

report did not include the re-exploration 

surgery. The subsequent treating cardiologist 

was not otherwise made aware of 

the complication. The patient later 

developed sepsis leading to a stroke. 

During the cardiologist’s deposition, he 

In practice, however, the line 

between permissible factual 

testimony and impermissible 

expert opinion testimony is 

not always clear. 

was instructed not to answer, on the 

grounds that it was a hypothetical question, 

a number of questions concerning 

the significance of the post-operative 

bleeding complication. 18 

Justice Neymoyer directed the doctor 

to answer the questions blocked at the 

prior deposition. A close analysis of the 

McDermott and Johnson, so reasons the 

Judge, in light of the current law, suggests 

that the holding in Carvalho is no 

longer valid, and the questions and 

answers should be permitted. If the 

deponent knows the standard of care, 

whether or not it bears on the treatment 

of another doctor, he should be required 

to state it. 19 

Does this case, while merely a lower 

court decision, mark the death of 

Carvalho? This is a very reasoned decision, 

which is totally consistent with the 

letter and spirit of the New Rules and 

existing case law, Carvalho not with 

standing. Reason suggests that Carvalho 

is indeed dead. If the doctor knows the 

standard of care, then he must answer 

the question at a deposition. 

Depositions of Non-party Doctors 

Generally, expert opinions are not 

permitted of doctors at non-party depositions. 

In People ex rel. Kraushaar Broos. 

& Co. v. Thorpe it was noted: “the rule in 

England holding that an expert witness 

cannot be compelled to give expert testimony 

but may contract to do so for an 

adequate consideration, “was also the 

rule in New York; it is still the rule. 20 An 

examiner cannot compel a non-party 

expert to answer questions, which seek 

expert opinion; he may only ask “fact” 

questions. 21 

In practice, however, the line between 

permissible factual testimony and 

impermissible expert opinion testimony 

is not always clear. In Horowitz v Upjohn 

Co. the trial judge had made a prospective 

ruling concerning the scope of the 

deposition of the non-party, partner, and 

physician. 22 

There the Court held: “Moreover, the 

witness, in his capacity as a physician, 

may possess knowledge of discoverable 

facts which goes beyond that which is 

derived from his direct contact with the 

infant plaintiff's mother. The Supreme 

Court therefore improvidently exercised 

its discretion when it, in effect, prospec- 

tively limited the scope of examination to 

the witness’s treatment of the infant 

plaintiff's mother.” 23 

In an interesting case, counsel for 

non-party physicians-witness was precluded 

from objection during or otherwise 

participating in his client’s videotaped 

deposition. 24 The court reasoned 

that CPLR 3113(c) provides that the 

examination and cross-examination of 

deposition witnesses “shall proceed as 

permitted in the trial of actions in open 

court.” Clearly, the witness’s attorney 

would not be permitted to object to questions 

posed at the time of trial. 25 

An interesting issue arises when a 

nonparty witness subpoena is served on a 

former employee of one of the parties. In 

Rivera v. Lutheran Medical Center the 

attorneys for defendant contacted former 

employee witnesses and advised them 

that they would represent them, without 

fee, in pending nonparty depositions. 26 

Most of the witnesses were not in a position 

to bind Lutheran. 27 There, the Court 

disapproved of the attorneys “soliciting” 

the clients, in violation of Rules of 

Professional Conduct, 22 NYCRR 1200, 

Rule 7.3, and disqualified the firm from 

representing the witnesses. The Court 

held that the law firm was attempting to 

get a tactical advantage to prevent informal 

interviews of the employees by representing 

them, without fee. 28 

Conclusion 

As the Court of Appeals noted almost 

a half century ago in McDermott, “the 

issue of deviation from the standard of 

care is assuredly pertinent and relevant 

to a malpractice action.” The two prong 

standard found in the Uniform Rules for 

the Conduct of Depositions, 221.3 (iii) 

requires the witness to answer all questions 

unless the question is “plainly 


improper and would, if answered, cause 

significant prejudice to any person.” The 

use of the conjunction “and” eliminates a 

Carvalho objection; if the witness knows 

the standard of care, and it is relevant to 

the case, he is required to give the answer. 

W. Russell Corker, Esq. with offices in Garden 

City and Huntington, represents plaintiffs in 

medical malpractice, personal injury, labor 

law, and products liability cases. He can be 

reached at rcorker@corkerlaw.com. 

1. See McDermott v. Manhattan Eye, Ear & Throat 

Hosp., 15 N.Y.2d 20 (1964); Orner v. Mount 

Sinai Hosp., 305 A.D.2d 307 (1st Dept. 2003); 

Johnson v. New York City Health & Hosps. 

Corp., 49 A.D.2d 234, 236 (2nd Dept. 1975). 

2. See Lacerenza v. Rich, 39 A.D.2d 716 (2nd Dept. 

1972). 

3. 15 N.Y.2d at 29–30. 

4. Id. at 23. 

5. Id. at 26. 

6. Id. at 27. 

7. Id. at 28. 

8. 53 A.D.2d 635 (2nd Dept. 1976). 

9. 49 A.D.2d 234 (2nd Dept. 1975). 

10. 53 A.D.2d at 635. 

11. Id. 

12. Id. at 635–36. 

13. See also Harley v. Catholic Medical Center, 57 

A.D.827 (2nd Dept. 1977). 

14. 59 A.D.2d 935 (2nd Dept. 1977). 

15. Id. 

16. Sagiv v. Gamache, 26 A.D.3d 368 (2nd Dept. 

2006). See also Forgays v. Merola, 222 A.D.2d 

1088 (4th Dept. 1995). 

17. 30 Misc.3d 324 (Sup. Ct., Erie Co. 2010). 

18. Id. at 326. 

19. Id. at 330–34. 

20. 296 N.Y. 223 (1947). 

21. See Fristrom v. Peekskill Co. Hosp., 239 A.D.2d 

315 (2nd Dept. 1997); Piervinanzi v. Bronx 

Cross County Med. Gp., 244 A.D.2d 396 (2nd 

Dept. 1997); Jones v. Cummings, 55 A.D.3d 

677 (2nd Dept. 2008). 

22. 149 A.D.2d 467 (2nd Dept. 1989). 

23. Id. at 468. 

24. Thompson v. Mather, 70 A.D.3d 1436 (4th 

Dept. 2010). 

25. Id. at 1438. 

26. 73 A.D.3d 891 (2nd Dept. 2010). 

27. See Neisig v. Team I, 76 N.Y.2d 363 (1990). 

28. Id. at 372–74. 

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We Acknowledge, with Thanks, 

Contributions to the WE CARE Fund 

Donors In Honor Of 

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Hon. Steven Jaeger Lois Carter Schlissel as WE CARE Fund Honoree 

Elaine Leventhal Hon. Beth Pessala’s receipt of the President’s Award 

NCBA Staff Ken Landau’s generosity 

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Richman & Deena Ehrlich for their support of the ProBono 

Special Needs Clinic 

Hon. Denise L. Sher Hon. Elizabeth Pessala’s receipt of the President’s Award 

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Women for 2012 

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Young Lawyers and WE CARE 

Rebuild Long Island 

On Saturday May 5, 2012, the Young 

Lawyers Committee of the Nassau 

County Bar Association with the support 

of WE CARE participated in a 

ReBuilding Together Long Island, Inc., 

event in Hewlett, New York. 

Rebuilding Together Long Island, 

Inc. repairs and rehabilitates the homes 

of poor, elderly, and/or disabled home- 

owners. 

On May 5, 2012, WE CARE and The 

volunteers from the Young Lawyers 

Committee, under the guidance and 

direction of the staff at ReBuilding 

Together Long Island, Inc., performed 

many repairs including building a ramp 

and a small deck with stairs for an elderly 

woman. 

For tickets a and information contact ontact 

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L I D u c k s v s s. 

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$ 45 

per 

person

EMERGENCY DOCTRINE ... 


qualifying event that justifies the charge and defendants 

should be requesting the charge where such an 

event exists. 

The Emergency Doctrine: 

To Plead or Not to Plead 

Whether a plaintiff or a defendant in a lawsuit, it is 

extremely important to understand the importance of 

pleading the emergency doctrine as an affirmative 

defense. In certain cases, the issue of whether an emergency 

situation existed at the time of the accident or 

occurrence in question and whether an individual acted 

as a reasonably prudent person, can be determined as 

a matter of law. Thus, if the emergency doctrine was 

not properly plead, it can be fatal to a defendant, yet a 

sheer victory for a plaintiff. CPLR § 3018 (b) requires a 

party to plead “all matters which if not pleaded would 

be likely to take the adverse party by surprise or would 

raise issues of fact not appearing on the face of a prior 

pleading ....” Thus, whether the emergency doctrine 

should be plead as an affirmative defense must be 

determined on a case by case basis. 

Thus, if the emergency doctrine 

was not properly plead, it can be fatal 

to a defendant, yet a sheer victory 

for a plaintiff. 

In Bello v. Transit Authority of New York City, 21 

the court explains that “[w]here the facts relating to 

the existence of an emergency are presumptively 

known only to the party seeking to invoke the doctrine, 

it must be pleaded as an affirmative defense.” 

To illustrate this, the court in Bello explains via example, 

“where the driver of a vehicle involved in a collision 

claims to have been reacting to a sudden and 

unforeseen medical emergency, the emergency doc- 

DEFENSE ... 


The Parker decision held that the 

Court must look beyond just a Frye 

test to determine if the theory presented 

is reliable by examining the 

data upon which it is based, both in 

regards to general causation and 

specific causation. In the Muham - 

mad case, there was insufficient evidence 

that the forces of labor could 

cause Erb’s palsy (general causation) 

or that forces of labor caused the 

infant Muhammad’s injury (specific 

causation). 

The issue with Frye is different 

that an inquiry under Parker, the 

latter which deals with whether “the 

accepted methods were appropriately 

employed in a particular case.” 5 

“[T]he focus moves from the general 

reliability concerns of Frye to the 

specific reliability of the procedures 

followed to generate the evidence 

proffered and whether they establish 

a foundation for the reception of the 

evidence at trial.” 6 

Simply, the Court’s inquiry without 

a Frye hearing is whether there 

is a proper foundation for the opinion 

versus the admissibility. 

The Court has further stated. “it is 

well-established that an opinion on 

causation should set forth a plaintiff’s 

exposure to a toxin, that the 

toxin is capable of causing the particular 

illness (general causation) and 

that plaintiff was exposed to sufficient 

levels of the toxin to cause the 

illness” (specific causation). 7 

As has been suggested by Joshua 

R. Cohen of the New York State 

trine would have to be pleaded as an affirmative 

defense.” 22 In that case, the court in deciding a motion 

for summary judgment held that there was no failure 

in the defendant failing to plead the emergency doctrine 

in its pleadings because the facts surrounding 

the incident were known to the plaintiff. 23 However, 

where the converse is true, a motion for summary 

judgment can be denied on the simple error of failing 

to plead the emergency doctrine as an affirmative 

defense. 

In Zhou v. Carollo, 24 the Second Department court 

was presented with the very issue of what effect the 

failure to plead the emergency doctrine as an affirmative 

defense had on the outcome of a motion for summary 

judgment brought by the defendant. The court in 

that matter held: 

[T]he defendants failed to plead the emergency doctrine 

as an affirmative defense in their answer, and 

the perceptions of Carollo leading up to his collision 

with the infant are known only to him. As a result, 

the instant motion raises new issues of fact not 

appearing on the face of the pleadings and results in 

unfair surprise to the plaintiff[.] 25 

Given this, the court determined that the “invoking 

of the emergency doctrine would be unfair” and 

the motion for summary judgment made by defendant 

was denied. 26 Thus, it is imperative that defendants 

plead the emergency doctrine in their answers 

if they intend to use it as a defense. If a defendant 

moves for summary judgment, arguing the emergency 

doctrine, plaintiff’s counsel should turn to the 

answer to determine if the doctrine was properly 

plead and if not, raise this argument in opposition 

papers. However, the decision in Zhou, suggests that 

a plaintiff is not required to raise the argument that 

defendant failed to plead the doctrine in the answer 

when opposing a motion for summary judgment 

because a court can dismiss a motion based on such a 

failure sua sponte. 27 

Christopher McGrath is a Senior Partner at Sullivan, Papain, 

Block, McGrath & Cannavo and is a Special Professor of Law 

for Advanced Torts and New York Practice at Hofstra 

University School of Law. 

Deanne M. Caputo, Esq., assisted in the preparation of this 

article. 

Medical Defense Bar Association, 

all you need to do is substitute your 

particular issue for the word “toxin” 

and make your opponent prove his 

case. 

And remember, the Appellate 

Division Fourth Department has 

confirmed this door is now opened in 

medical malpractice cases by specifically 

stating that Parker is not limited 

to toxin cases and cited Lugo v. 

New York City Health and Hospitals 

Corp. 8 and Parker as follows: 

Therefore, the opinion of the 

defendants’ experts on causation 

should set forth the “exposure [of 

plaintiff’s daughter] to a [harmful 

in utero event], that the [event] is 

capable of causing the particular 

[injury] (general causation) and 

that plaintiff’s [daughter] was 

exposed to [a sufficiently harmful 

event] to cause the [injury] (specific 

causation). 9 

I suggest defendants now make 

plaintiffs shoulder the burden per 

Muhammad. 

Philip A. Di Pippo is a partner in Kopff & 

Di Pippo, PC of Garden City, a defense litigation 

firm concentrating in medical malpractice 

and nearly all types of personal 

injury defense litigation. 

1. 91 A.D.3d 1353 (4th Dept. 2012). 

2. 91 A.D.3d 1353 (4th Dept. 2012). 

3. 293 F. 1013 (DC Cir. 1923). 

4. 7 N.Y.3d 434 (2006). 

5. Id. at 447 (citing People v. Wesley, 83 

N.Y.2d 417, 429 (1994)). 

6. Wesley, 83 N.Y.2d at 429. 

7. See, e.g., McClain v. Metabolife Intl., Inc., 

401 F.3d 1233, 1241 (11th Cir. 2005); 

Wright v. Willamette Indus., Inc., 91 F.3d 

1105, 1106 (8th Cir. 1996). 

8. 89 A.D.3d 42 (2nd Dept. 2011). 

9. Parker, 7 N.Y.3d at 448. 

How to Win Any Negotiation 


1. 133 NY 575 (1892) 

2. Id. 

3. Caristo v. Sanzone, 96 N.Y.2d 172, 726 N.Y.S.2d334 (2001) 

4. 77 N.Y.2d 322, 567 N.Y.S.2d 629 (1991) 

5. Id. 

6. See Caristo, supra. 

7. Id. 

8. See id. 

9. See id. 

10. See id. 

11. Id. 

12. Id. 

13. Id. 

14. See id. 

15. See id. 

16. See id. 

17. Id. 

18. 55 N.Y.2d 285, 449 N.Y.S.2d 162 (1982) 

19. See id. 

20. Id. 

21. 12 A.D.3d 58, 783 N.Y.S.2d 648 (2nd Dept. 2004) 

22. Id. 

23. See id. 

24. 2010 WL 3326878 

25. Id. 

26. See id. 

27. See id. 

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WRONGFUL DEATH ... 


gives the plaintiff a windfall, which 

Milbrandt prohibits. 14 

The Appellate Division affirmed the 

judgment, as did the Court of Appeals. 

Article 50–B delays payment of damages, 

the court held, but not liability itself. 

Adding interest from when liability 

accrued, therefore, was not a windfall. 15 

Milbrandt and Rohring confirm the 

procedure as laid out in the statutes. If 

the verdict awards the full value of future 

damages, the judgment should discount 

that award to the date of liability, i.e., the 

date of death, and add interest up to the 

date of judgment. In Toledo, however, 

this procedure did not prove so simple to 

follow. 

Toledo: Restating the Rule, 

then Ignoring It 

In Toledo the decedent’s estate sued 

for negligence and wrongful death over a 

construction accident. The plaintiff won 

summary judgment in August 2006, and 

after a jury trial in December 2007 won a 

verdict that included future damages. 

The parties then submitted proposed 

judgments, neither of which followed the 

statutes or precedent. 

The plaintiff at first discounted future 

damages from the date of judgment to 

the date of verdict. Then the plaintiff discounted 

again, to the date of death. Then 

the plaintiff calculated interest from date 

of death to the verdict. Then the plaintiff 

added that interest to the award as discounted 

to the verdict. Further, the plaintiff 

discounted at a rate of roughly 4.33% 

but then calculated interest at the statutory 

rate of 9%. 16 

The defendant, on the other hand, neither 

discounted the award nor included 

any preverdict interest. The trial court 

adopted the plaintiff’s proposed judgment. 

The defendant appealed, but on 

appeal the parties entered into an unusual 

stipulation: 

The sole issue to be presented on this 

appeal is the question whether the 

trial court properly discounted the 

future wrongful death damages back 

to the date of death, and awarded 

interest thereon from the date of death 

to the date of judgment. 

The Appellate Division affirmed, relying 

on Milbrandt and Rohring. 17 The 

Court of Appeals also affirmed, restating 

the rule: 

We now conclude that the proper 

method for calculating preverdict 

interest in a wrongful death action is 

DEBT ... 


mary purpose of suing on them, in order to make a 

windfall. This ancient doctrine of “champerty” is 

provided for in Judiciary Law Section 489. 12 It 

implies that an assignee acquiring a claim must 

make some reasonable attempt to try and collect on 

it by legal means before commencing a lawsuit; as 

long as litigation is merely an incident to the larger 

transaction and is used as a last resort, the defense 

will not be established. Debt buyers should also use 

caution to make sure that the applicable statute of 

limitations has not expired before bringing their 

claims, since consumers may be pressured into 

defending actions or settling claims that are otherwise 

unenforceable. 13 

The clear message from the courts to debt buyers, 

as assignees of credit card debt, is that they are 

obliged to have all of their paperwork in order to 

to discount the verdict to the date of 

liability, i.e., the date of death, and 

award interest on that amount from 

the date of death to the date of judgment. 

18 

The judgment affirmed, however, 

obviously did not apply this method. It 

awarded interest not to the judgment, 

but only to the verdict. And, it added that 

interest to the present value of the award 

at the verdict, not at liability. 

The Court of Appeals, however, felt 

constrained by the stipulation: “[W]e do 

not address whether the preverdict 

interest should have been added to the 

award discounted to the date of death or 

to the award discounted to the date of 

verdict.” 19 

How this question was not within the 

ambit of the stipulation, however narrowly 

construed, the court did not 

explain. 

In dissent Judge Smith raised two 

concerns. If under Milbrandt an award 

discounted to verdict already includes 

preverdict interest, he wrote, then there 

is no reason to further discount to date of 

liability and then add back preverdict 

interest. 20 

But those two calculations should cancel 

each other out, Judge Smith contended, 

because you would discount and add 

interest at the same rate. That fact that 

the judgment did not do so most frustrated 

Judge Smith: 

I do not find in plaintiff’s submissions, 

or in the opinions below, or in today’s 

majority opinion, any reasoned argument 

that supports discounting with a 

lower interest rate, and then adding 

back interest at a higher one. 21 

Looking to the Future 

The problem with Toledo is that it prescribes 

a method for awarding future 

damages that clearly is at odds with the 

lower court judgment that Toledo 

affirmed. Whatever the defendant’s rea- 

sons for stipulating to limit the issues on 

appeal, it cannot have sought the outcome 

it received, a lesson to those who 

might seek to limit an appeal. 

Procedural setting aside, Toledo merely 

restates what statute and precedent 

already told us: judgments should discount 

future damages to the date of liability 

and add interest therefrom to the 

date of judgment. 

It certainly appears that, but for the 

stipulation, the Court of Appeals would 

not have affirmed the judgment below. 

Plaintiffs should not therefore rely on 

Toledo to defend a similar judgment in a 

future case. 

Plaintiffs and defendants should, however, 

apply the broad guidance of Toledo: 

establish their claims before bringing an action; otherwise 

the courts will not hesitate to deny their 

applications, even if they are unopposed. 

Jeff Morgenstern, Esq. maintains an office in Carle Place, 

New York, where he concentrates in bankruptcy, creditors’ 

rights, and commercial and real estate litigation. 

1. MBNA America Bank N.A. v. Nelson, 15 Misc. 3d 1148(A), 

841 N.Y.S. 2d 826 (N.Y. Civ. Ct. Richmond Cty. 2007). 

2. CACH LLC v. Fatima, 32 Misc. 3d 1231(A), 936 N.Y.S. 2d 58 

(Dist. Ct. Nassau, 2011). 

3. Citibank v. Martin, 11 Misc. 3d 219, 807 N.Y.S. 2d 284 

(N.Y.C. Civ. Ct. 2005). 

4. MBNA America Bank v. Nelson, 15 Misc. 3d 1148(A), 841 

N.Y.S. 2d 826 (N.Y. Civ. Ct. 2007); Palisaides Collection LLC 

v. Gonzalez, 10 Misc. 3d 1058 (A), 809 N.Y.S. 2d 482 (N.Y. 

Civ. Ct. 2005); DNS Equity Group Inc. v. LaVallee, 26 Misc, 

3d 1228(A), 907 N.Y.S. 2d 436 (Nassau Cty. Dist. Ct. 2010); 

LVNV Funding LLC v. Delgado, 24 Misc. 3d 1230(A) 899 

N.Y.S. 2d 60 (Dist. Ct. Nassau Cty 2009); Midland Funding 

LLC v. Wallace, 34 Misc. 3d 1206(A), (Mt. Vernon City Court, 

2012); Worldwide Asset Purchasing LLC v. Akrofi, 25 Misc. 

3d 768, 884 N.Y.S. 2d 631 (Ithaca City Ct. 2009). 

5. In re: Taranto, 2012 WL 1066300; also available at 

www.nyeb.uscourts.gov – “Written Opinions”. 

6. In re: Taranto, at p.19 of decision on Court website. 

1. Using the prevailing discount rate, 

discount the jury award for future damages 

to the date of liability, which for 

most such damages will be the date of 

death; 

2. Subtract from the discounted value 

attorney’s fees and other amounts per 

Article 50–B; and 

3. Using the statutory rate, add interest 

to the remainder up to the date of 

judgment. 

This is not to say that crafting future 

damages judgment will be easy or without 

controversy. 

Defendants may try to argue Judge 

Smith’s position, that discounting at one 

rate and adding interest at another (a 

much higher rate) gives plaintiffs a windfall 

and is hardly “fair and just compensation.” 

Plaintiffs, however, appear to 

have the letter of the law on their side, 

making the fairness of this a matter for 

the legislature, not the courts. 

Article 50–B remains, as Rohring 

charitably put it, “technical and complicated.” 

22 In fact, after further discussion 

the Court found the statutory scheme 

“patently ambiguous and ... impossible to 

apply as written.” 23 After Toledo, though, 

parties should be able to at least agree on 

the basic procedure and confine their disagreements 

to factual issues particular to 

each case. 

Christopher J. DelliCarpini and John M. 

DelliCarpini are partners in the DelliCarpini 

Law Firm with offices in Melville, specializing 

in personal injury litigation. For more information 

visit www.DelliCarpiniLaw.com. 

1. 18 N.Y.3d 363 (2012). 

2. See also CPLR 5001–03 (awarding preverdict, 

prejudgment, and postjudgment interest). 

3. CPLR 5041(e). See also CPLR 4111(e)(jury to 

enter award for full value of future wrongful 

death damages). 

4. CPLR 5041(b)–(d). See also Rohring v. Niagara 

Falls, 84 N.Y.2d 60, 67–68 (1994)(interpreting 

“patently ambiguous” Article 50–B to require 

determination of present value of future damages 

before deducting attorney’s fees). 

5. 79 N.Y.2d 26, 32 (1992). 

6. The action was commenced before the effective date 

of CPLR 4111(f), since renamed CPLR 4111(e). 

7. 79 N.Y.2d at 32. 

8. Id. at 36. 

9. Id. at 35. 

10. Id. 

11. Id. at 37. 

12. 84 N.Y.2d 60 (1994). 

13. Id. at 65. 

14. Id. at 69. 

15. Id. at 69–70. 

16. 18 N.Y.3d at 366. See also CPLR 5004 (setting 

interest at 9% per annum). 

17. Id. at 367 (quoting Toledo v. Iglesia Ni Christo, 

75 A.D.3d 436 (1st Dept. 2010)). 

18. Id. at 368 (emphasis added). 

19. Id. at 369. 

20. Id. at 370 (Smith, J., dissenting). 

21. Id. at 373 (Smith, J., dissenting). 

22. 84 N.Y.2d at 66. 

23. Id. at 67. 

7. UCC 9-406. 

8. Velocity Investments LLC v. McCaffrey, 31 Misc. 3d 308, 921 

N.Y.S. 2d 799 (Dist. Ct. Nassau Cty. 2011); CACH LLC v. Sliss, 

28 Misc. 3d 1230(A) (City Ct. Auburn, 2010); CACH v. Fatima, 

32 Misc. 3d 1231(A) 936 N.Y.S. 2d 58, (Dist. Ct. Nassau, 2011); 

Rushmore Recoveries X LLC v. Skolnick, 15 Misc. 3d 1139(A), 

841 N.Y.S. 2d 823 (Dist. Ct. Nassau Cty. 2007). 

9. Velocity Investments LLC v. McCaffrey, 31 Misc. 3d 308, 921 

N.Y.S. 2d 799 (Dist. Ct. Nassau Cty. 2011); CACH LLC v. 

Sliss, 28 Misc. 3d 1230(A) (City Ct. Auburn, 2010); CACH v. 

Fatima, 32 Misc. 3d 1231(A) 936 N.Y.S. 2d 58 (Dist. Ct. 

Nassau, 2011); South Shore Adjustment Co. v. Pierre, 32 

Misc. 3d 1227(A) (N.Y. City Civ. Ct. Kings County, 2011); 

LVNV Funding LLC v. Delgado, supra.; Collins Financial 

Services v. Vigilante, 30 Misc. 3d. 908, 915 N.Y.S. 2d 912 (NY 

Civ. Ct. Richmond 2011). 

10. DNS Equity Group Inc. v. Lavallee, supra; LVNV Funding 

LLC v. Delgado, supra. 

11. Midland Funding LLC v. Wallace, supra, LVNV Funding 

LLC v. Guest, 35 Misc. 3d 1232(A), (City Ct. Mt. Vernon 

2012); Worldwide Asset Purchasing LLC v. Akrofi, supra. 

12. DNS Equity Group Inc. v. Lavallee, supra; CACH LLC v. 

Fatima, supra. 

13. Portfolio Recovery Associates v. Rand, 34 Misc. 3d 52, 938 

N.Y.S. 2d 872 (Sup. Ct. App. Term, 2011); Centurion Capital 

Corp. v. Guarino, 35 Misc. 3d 1219(A) (NY Civ. Ct. 

Richmond Cty., 2012).

LAWYER TO LAWYER 

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on Alternative Dispute Resolution 

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Physician-Attorney, Professor and former Chairman 

of Surgery, available for in-house or outsourced 

medical malpractice case reviews, expert medical 

testimony, trial prep and support. Also available for 

per-diem attorney work on depositions, motions, 

and trials throughout all New York Courts. 

Dix Hills Office: 631-421-5151 

Cell: 631-255-3304 

Dmayer3091@aol.com 

WORKER’S COMPENSATION 

THE LAW OFFICES OF LEE S. BRAUNSTEIN, P.C. 

1025 OLD COUNTRY ROAD 

SUITE 403 NO. 

WESTBURY, NY 11590 

TELE 516-739-3441 FAX 516-739-3442 

“WORKERS’ COMPENSATION & SOCIAL SECURITY 

DISABILITY CLAIMS COUNSEL TO THE BAR” 

270 Main Street 215-48 Jamaica Avenue 

Sayville, NY 11782 Queens Village, NY 11428 

631-360-7750 718-465-3100 

OFFICE SPACE 

GARDEN CITY 

666 Old Country Road 

Prime Location! 

Brand new windowed 

offices available in 

professional suite with 

secretarial space, kitchen 

and conference rooms. 

Executive underground parking 

and 

other amenities available. 

(516) 393-5555 

LAKE SUCCESS 

CPA/Attorney AAA Building, 

LARGE 2 windowed room – 

secretary. area, Conf. Room, 

Internet, etc. EZ Access to all 

Highways. Avail July 

(516) 326-6767 x116 or E-Mail 

brooksea@optonline.net 

IT PAYS TO ADVERTISE IN 

NASSAU LAWYER 

MELVILLE 

Legal Suite on Route 110 

Two windowed offices with use of 

conference room. Each is available 

with or without a fully furnished 

secretarial station. All offices are 

wired for phone and internet and 

have use of the kitchenette. 

Office A - $1,300 per month and 

Office B - $1,200. Secretarial 

stations are $250 per month. 

Call (516)741-6700 or 

email anando@materalaw.com 

FOR HIRE 

ATTORNEY SEEKING WORK 

Attorney; over 25 years litigation 

experience, worked for 2 Judges. 

Enjoys Appeals, Research 

and Writing seeking P/T work, 

preferably Mineola area. 

Call (516) 482-6815 

Promote your firm to the legal community by 

purchasing an advertisement in the Nassau Lawyer 

l Your Firm’s Anniversary 

l Changes in your Firm’s Name or 

Address 

– SPECIAL RATES APPLY – 

Contact: Joe Parrino (631) 913-4253 or e-mail joe.parrino@libn.com

20 n July/August 2012 n Nassau Lawyer

COVER NL 09_06.qxd - Nassau County Bar Association

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