COVER NL 09_06.qxd - Nassau County Bar Association

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16 n July/August 2012 n Nassau Lawyer We Acknowledge, with Thanks, Contributions to the WE CARE Fund Donors In Honor Of Mark & Veronica Annunziata Hon. Denise Sher’s receipt of the Yashar Award District Court Law Department Tom Bucaria’s Birthday Deena & Jerry Ehrlich Ethan, grandson of Joan & Stephen Schlissel becoming a Bar Mitzvah 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 Hon. Sondra Pardes Bat Mitzvah of Deena & Jerry Ehrlich’s granddaughter Joan Lensky Robert In appreciation to Elaine Leventhal, Caryle Katz, Susan Katz 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 Hon. Denise L. Sher Ellen Birch named one of Long Island’s Top 50 Most Influential Women for 2012 Hon. Denise L. Sher Marian Rice named one of Long Island’s Top 50 Most Influential Women for 2012 Hon. Denise L. Sher Joan Lensky Robert’s receipt of the 2012 Theresa Award as a National Academy of Elder Law Attorneys Hon. Denise L. Sher Valerie Zurblis’ Communications Award Donors Speedy Recovery Caryle Katz Charlene Thompson Elaine Leventhal Charlene Thompson Elaine Leventhal Owen B. Walsh WE CARE Advisory Board Charlene Thompson WE CARE Advisory Board Owen B. Walsh Donors In Memory Of Celeste Curry Anne Coppola, mother of Deputy Chief Clerk, John Coppola Celeste Curry Catherine Masarik, mother of Lt. Joseph Masarik Marilyn K. Genoa Peter Farranto Joanne & Hon. Frank Gulotta Jr. Evelyn H. Weinstein Joanne & Hon. Frank Gulotta Jr. Allan Sturim Hon. Andrea Phoenix Bruce Loren Hon. Andrea Phoenix Husband of Jennifer Feingold Hon. Andrea Phoenix Father of Paige Charles Johnston Hon. Andrea Phoenix Ed Monroe, husband of Betty Monroe Hon. Andrea Phoenix Father of Marilyn Monroe Hon. Andrea Phoenix Mother-in-law of Barbara McFadden Hon. Andrea Phoenix Grandmother of Dr. Cicely Horsham-Brathwaite Ellen Rosen William Matthews, brother of Jack Matthews Hon. Denise L. Sher Anne P. Coppola, mother of Deputy Chief Clerk of Family Court, John Coppola Hon. Denise L. Sher Congressman Norman F. Lent Hon. Denise L. Sher Bruce Loren Hon. Denise L. Sher Emil J. Rucigay, Esq., father-in-law of Donald F. Vetter, Chief Clerk Hon. Frank E. Yannelli Hon. Jack M. Steingart In Honor Of Hon. Jeffrey Goodstein’s Appointment To The Court Of Claims Celeste Curry Susan Katz Richman & Family Hon. Denise L. Sher In Memory Of Edward H. Weinberg, Husband Of Hon. Claire I. Weinberg Hon. Leonard B. Austin Hon. Steven & Beth Bucaria Deena & Jerry Ehrlich Steven Eisman & Michael Ratner Executive Board & Board of Directors of NCBA Fass & Greenberg Franchina & Giordano Marilyn K. Genoa Joanne & Hon. Frank Gulotta Jr. Hon. Fred & Mindy Hirsh Evelyn Kalenscher Hon. John L. Kase Hon. Susan T. Kluewer Peter Panaro Hon. Andrea Phoenix Susan Katz Richman & Family Judge Marvin & Carole Segal Hon. Denise Sher Hon. Elaine Jackson Stack Hon. Ira Warshawsky Hon. Frank E. Yannelli In Honor Of Hon. Marilyn K. Genoa’s Election As Village Justice Of Old Brookville Elaine Leventhal Hon. Andrea Phoenix Hon. Denise L. Sher Contributions may be sent to: NCBA, Attn: WE CARE, 15th & West Streets, Mineola, NY 11501 or at: www.nassaubar.org WE CARE 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 Elaine Leven nthal 516-747-4070 0 x.212 L I D u c k s v s s. Yo o r k R e v o l u t i o n s Sunday , August 12, 2012 $ 45 per person
EMERGENCY DOCTRINE ... Continued From Page 5 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 ... Continued From Page 7 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 Nassau Lawyer n July/August 2012 n 17 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. WIN any DEAL The most powerful negotiating tools from a wide variety of sources, are all within this essential guide. It’s all here — the fancy footwork and magic moves for outgunning, outmaneuvering, and out-negotiating the other person. And the techniques for developing life skills that will dramatically enhance your chances of professional success and personal satisfaction. We welcome the following new members Attorneys Danielle Hansen Naeemah Clark Frank Michael Esposito Michael Thomas Rogers Erin M. Tregarthen Kevin S. Klein Rebecca L. Langweber Susanna E Laruccia Steven J. Lee Lilian Mungai Students Lee Pickett Angela M. Pugliese Samantha Chance Corrinne P Donaldson Eric Wahrburg Andrew Jay Extract Bruce M. Loren http://dolanbusinessbooks.com NCBA New Members In Memoriam Edward H. Weinberg Herman Yellon Unique blend of sources: � Recent advances in psychology, linguistics, trial advocacy, sales, and management communications �� from 200 of the world’s masters — the legendary street and bazaar merchants of Bombay, Istanbul, Cairo, and Shanghai. �� done that” years as a lawyer — negotiating deals on everything from amphitheaters to Zero aircraft.
Page 1 and 2: THE JOURNAL OF THE NASSAU COUNTY BA
Page 3 and 4: By Christopher J. DelliCarpini and
Page 5 and 6: Personal Injury Focus The Emergency
Page 7 and 8: Personal Injury Focus Muhammad v. F
Page 9 and 10: Let the Buyer Beware Historically,
Page 11 and 12: School was just the beginning N BOT
Page 13 and 14: REVEL IN YOUR ACCOMPLISHMENTS SEPTE
Page 15: DOCTORS ... Continued From Page 3 J
Page 19 and 20: LAWYER TO LAWYER DIVORCE MEDIATION

COVER NL 09_06.qxd - Nassau County Bar Association

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