01-12_barrister_10_2013_lo res

Transcription

THE
OFFICIAL
PUBLICATION
OF
THE
BROOKLYN
BAR
ASSOCIATION
BROOKLYN BARRISTER
©2013 Brooklyn Bar Association
VOL. 65 NO.12
October 2013
Take Me Out to
The Ball Game 2013
Brooklyn Bar Association 5th Annual Brooklyn Cyclones Outing
By Aimee L. Richter, Esq.
On Thursday night of July 18, this past summer, members of the
Brooklyn Bar Association, their family and friends went to Coney Island to watch a baseball game. One hundred and twenty-five tickets
were sold to our colleagues, to watch the Mahoning Valley Scrappers
play the Brooklyn Cyclones at MCU Park.
Scheduled for 7:00 p.m., everyone arrived clad in their finest BBA
polo shirts, tee shirts and hats, prepared for a night of studiously observing the art of our national pastime, baseball. But wait, it was at
least 100 degrees! How would we brave this heat? We consumed
large quantities of water and ice cream! We chatted, laughed, traded
stories, took pictures and enjoyed the heat wave together.
I can’t tell you who won the game —you can look it up on line, but
I can tell you that this was one of the best ways to enjoy what was one
of the hottest nights of the summer. Our members and their friends
and families were relaxed, casual and enjoying a beautiful outdoor
evening, in which baseball was the back-drop. And then we all raced
home to enjoy some well deserved air conditioning. We can't wait for
next year, to do it again.
Brooklyn Bar Association on the MCU Score Board. See pages 6 for more.
No Fault, No Foul: Litigating
First-Party-Benefit Cases-Part II
Drew M. Gewuerz is an associate attorney at
Irwin & Streiner LLC, a general practice law firm
that specializes in “No-Fault” litigation. Gerald
Lebovits is a New York City Civil Court judge and
an adjunct professor at Columbia Law School,
Fordham University School of Law, and New York
Gerald Lebovits
Drew M. Gewuerz
University School of Law. The authors thank David
S. Streiner, Esq., for his suggestions to this article
and Natalie J. Puzio, an undergraduate student at
Villanova University, for her research. This article
expands on Judge Lebovits and Kimberly Schirripa’s no-fault article published in volume 61, page 1,
of the Brooklyn Barrister in May 2009.
Jane, who was injured in a motor vehicle accident involving the use or operation of an insured
motor vehicle, seeks treatment at Medical
Provider X. Jane is insured by Insurance Carrier
Y under an insurance policy that provides for “NoFault” Personal Injury Protection (“PIP”) medical
benefits. In exchange for her treatment, Jane assigns her right to receive these benefits to Medical
Provider X. After treating Jane, Medical Provider
X submits directly to Insurance Carrier Y claims
for payment for the health-related services it performed on Jane. Insurance Carrier Y does not pay
Medical Provider X, and Medical Provider X sues
Insurance Carrier Y in the New York City Civil
Court. What happens at trial depends on numerous factors, including what reason, if any, Insurance Carrier Y had for non-payment, in which judicial department the suit was brought, and sometimes which judge is presiding in Civil Court
where the case is heard.
Litigation based on Article 51 of the New York
Insurance Law and its supplemental regulations, 11
N.Y.C.R.R. 65, otherwise known as the “No-Fault”
Insurance Law, dominates the court calendars of the
N.Y.C. Civil Courts.i This litigation is unique from
other forms of civil litigation; it arises purely from
statute and has no parallel in the common law. Due
to the litigation arising from this relatively new and
sometimes ambiguous statute, the trial and appellate judges who hear and rule on “No-Fault” cases
are often left to interpret the statute and its regulations and fill in the blanks to arrive at fair and just
results that are consistent with the rules of evidence
and other areas of law.ii From this, the burdens of
proof and evidentiary rules differ by judicial department, by courthouse, and even by the individual
trial judges within the courthouses. In other words,
depending on the case’s venue and trial judge,
plaintiffs’ and defendants’ jobs at trial will be significantly different because the judicial departments
have formed different evidentiary requirement and
because the individual trial judges interpret those
requirements differently.
This Article aims to describe with particularity
how a no-fault trial proceeds with a focus on how it
can and does proceed in different ways depending
on venue and judge. Part I of this Article discusses
how the medical providers-plaintiffs establish their
prima facie case at trial and how the requirements
differ in the judicial departments. Part II discusses
how insurers-defendants establish their defenses at
trial and how the trial judges significantly affect
that. Part III of this article discusses what the
providers-plaintiffs’ options are at trial once an insurer-defendant has established its defense.
1. Provider-Plaintiff’s Prima Facie Case
A no-fault trial can proceed in several ways depending on the insurer-defendant’s defense(s) for
non-payment, but it always begins with the
provider-plaintiff’s bills. Due to the volume of nofault cases and to limit the triable factual issues to
those legitimately in dispute, plaintiffs and defendants will stipulate that the plaintiff has established its prima facie case. Stipulating to the plaintiff’s prima facie case means that the plaintiff will
not have to put forth an initial case. In exchange
for that stipulation, the plaintiff will often stipulate
that the defendant issued timely denials pursuant
to N.Y.C.R.R. 65-3.8iii preserving its defenses,
and to the qualifications of the defendant’s expert
witness if there is one. If the trial involves a defense that the provider-plaintiff’s services were not
“medically necessary,” the parties may also stipulate to admitting into evidence relevant documents, such as the expert’s written report, which
discusses why the services at issue were allegedly
not “medically necessary,” and the injured-insured’s medical records the expert reviewed when
forming an opinion about the medical necessity of
the services at issue. When these types of stipulations are in effect, a plaintiff may rest upon the
stipulations, and the trial immediately proceeds to
the defendant’s defense(s).
To begin an unstipulated no-fault trial, the
provider-plaintiff must establish its prima facie case
through witness testimony, documentary evidence,
or, depending on the judicial department, formal judicial admissions. Under N.Y.C.R.R. 65-2.4(c)iv
and applicable caselaw, a provider-plaintiff establishes at trial its prima facie entitlement to payment
of no-fault PIP benefits by showing by a preponderance of the evidence that it submitted a claim or
bill to the defendant insurance carrier and that the
claim or bill remains unpaid.v If the plaintiff fails
to prove its prima facie case, the trial is over and the
plaintiff loses. If the plaintiff succeeds, however, a
presumption of medical necessity attaches to the
billed-for services, and to prevail the insurer-defendant must prove an affirmative defense.
How a plaintiff proves its prima facie case depends on the case’s venue. Most of the time, a
plaintiff can establish the necessary facts through
the testimony of one or two witnesses and by moving the relevant documents (bills, proof of mailPlease turn to page 3
What’s Inside
No Fault, No Foul Litigating
First-Party-Benefit-Cases
Compiled by Gerald Lebovits, Esq.
And Drew M. Gewuerz ......................................Pg. 1
The Docket
Compiled by Louise Feldman ............................Pg. 2
New Members, September 2013 ...................Pg. 2
Legal Briefs
By Avery Eli Okin, Esq., CAE ................................Pg. 2
Respectfully Submitted
By Andrew M. Fallek, Esq. ....................................Pg. 3
Committees and Sections 2013-14 ...Pg. 4, 5, 10, 11, 12
Take Me Out To The Ball Game .......................Pg. 6
Introduction to the Courts of Madagascar
By Barbara Grcevicl, Esq. .....................................Pg. 7
Page 2, BROOKLYN BARRISTER
OCTOBER, 2013
THE DOCKET
Included below are events which have been scheduled for the period
October 9, 2013 through December 31, 2013
Compiled by Louise Feldman
October 9, 2013
Wednesday
BBA Board & Foundation Meetings
Board of Trustees Room, 5:15 PM
CLE – Land Use
Auditorium, 6:00 PM
October 10. 2013
Thursday
VLP CLE – Child Support
Auditorium, 6:00 PM
October 14, 2013
Monday
In observance of Columbus Day, the Brooklyn
Bar Association Building, the Foundation Law
Library, the Lawyer Referral Service and the
Volunteer Lawyers Project will be closed.
October 15, 2013
Tuesday
BWBA Board Meeting
BWBA CLE
Auditorium, 6:00 PM
October 16, 2013
Wednesday
Joint Screening of Judicial Candidates City Bar
& BBA Judiciary Committees
Auditorium, 6:00 PM
Pro Bono Committee Meeting
Center Conference Room, 6:00 PM
LEGAL BRIEFS
JUDICIAL
RECOGNITION
PROFESSIONAL
ANNOUNCEMENTS
Congratulations to Brooklyn Bar Association member Hon. Esther Morgenstern
who is informing the bar that Brooklyn's Integrated Domestic Violence Court was selected as a domestic violence mentor court
by the United States Department of Justice,
Office on Violence Against Women. As
such the Brooklyn Court and Judge King
will play an important role in the national
effort to strengthen the court response to
domestic violence.
KUDOS AND
PROFESSIONAL
RECOGNITION
Congratulations to Brooklyn Bar Association member Hon. Elizabeth Bonina
who was selected to the Top 10 Mediator
List and was voted the #1 Arbitrator in the
New York Law Journal annual survey. Justice Bonina has served for the past several
years as the chair of the Brooklyn Bar Association Alternative Dispute Committee.
Word has reached the Brooklyn Bar Association that Presiding Justice Randolph
Eng has appointed Robert Gershon as a
member of the Advisory Committee of the
Assigned Counsel Plan. For several years
Robert Gershon had been the chair of the
Brooklyn Bar Association Assigned Counsel for Criminal Cases committee.
Word has reached the Brooklyn Bar Association that after 30 years of practice at
16 Court Street, Joyce David has relocated
her law office to a storefront located at 664
Flatbush Avenue, near Hawthrone. She will
continue to concentrate in the area of criminal defense. She can be reached at 718875-2000. Email: jbd@joycedavid.com
Brooklyn Barrister Editorial Board
member Shelly K. Werbel, the president of
the New York City Trial Lawyers Association, has announced that the 79th Annual
Banquet will be held on Wednesday, October 23, 2013 at the Tribecca Rooftop located at 2 Desbrosses Street, New York.
BEREAVEMENTS
The Brooklyn Bar Association extends
its deepest sympathy to the Gelfand family
on the passing of long time member Seymour Gelfand on August 20, 2013 following a lengthy illness. Seymour Gelfand was
admitted to practice and had joined the
Brooklyn Bar Association in 1950.
October 17, 2013
Thursday
Kings County Criminal Bar Association – Meeting
Auditorium, 6:00 PM
October 21, 2013
Monday
Volunteer Lawyers Project Gala Dinner
Steiner Studios, 6:00 PM
October 22, 2013
Tuesday
Nathan R. Sobel Inns of Court meeting
Auditorium, 5:00 PM
October 30, 2013
Wednesday
Cervantes Society Awards Ceremony
sponsored by the BBA
Auditorium, 6:00 PM
November 1, 2013
date
Friday
NYS Academy of Law CLE – The Annual UpCo-Sponsored by the BBA
Auditorium, 9:00 AM
November 4, 2013
Monday
CLE – Elder Law Program
Auditorium, 6:00 PM
_____________________
November 6, 2013
Wednesday
CLE - Collecting the Debt
Auditorium, 6:00 PM
November 7 & 8, 2013
Thursday/Friday
CLE – Bridge the Gap Series
Auditorium, 9:00 AM
Legal Briefs is compiled and written by Avery Eli Okin, Esq.,CAE, the Executive
Director of the Brooklyn Bar Association and its Foundation. Items for inclusion in
“Legal Briefs” should be sent to aokin@brooklynbar.org, faxed to 718-797-1713 or
mailed to 123 Remsen Street, Brooklyn, New York 11201-4212.
November 8, 2013
Friday
CLE – Bridge the Gap Series
Auditorium, 9:00 AM
November 11, 2013
Monday
In observance of Veteran’s Day, the Brooklyn Bar
Association Building, the Foundation Law Library,
the Lawyer Referral Service and the Volunteer
Lawyers Project will be closed.
November 12, 2013
Tuesday
CLE – Money Laundering
Auditorium, 6:00 PM
November 13, 2013
Wednesday
BBA Association & Foundation Board Meetings
November 14, 2013
Thursday
CLE – Lawyers Helping Lawyers Program
Auditorium, 6:00 PM
November 19, 2013
Tuesday
BWBA Board Meeting
Rear Conference Room, 5:30 PM
VLP – Board Meeting
November 21, 2013
Thursday
Kings County Criminal Bar Association meeting
Auditorium, 6:00 PM
November 26, 2013
Tuesday
Nathan R. Sobel Inns of Court meeting
Auditorium, 5:00 PM
November 28 & 29, 2013
Thurs & Fri
In observance of Thanksgiving, the Brooklyn Bar
Association Building, the Foundation Law Library,
the Lawyer Referral Service and the Volunteer
Lawyers Project will be closed.
December 9, 2013
Monday
BBA Foundation Annual Dinner
Marriott Hotel at the Brooklyn Bridge, 5:30 PM
December 10, 2013
Tuesday
BWBA Holiday Party
Auditorium, 6:00 PM
December 11, 2013
Wednesday
BBA Association & Foundation Board Meetings
IF YOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAIL OR FAX
OR EMAIL THEM TO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION,
123 REMSEN STREET, BROOKLYN, NEW YORK 11201.
FAX NO.: 718-797-1713 • E-mail: lfeldman@brooklynbar.org
Congratulations to Brooklyn Bar Association member Hon. Lew Fidler, a member of the New York City Council, who has
been selected to receive the Bernard Catcher Memorial Award, which will be presented at the Thomas Jefferson Democratic
Club Dinner Dance on Sunday, November
3, 2013 at the El Caribe Country Club.
its deepest sympathy to Joseph R. Costello
and his family on the passing of his step-father Joseph Cook on September 23, 2013.
its deepest sympathy to Hon. Sylvia O.
Hinds-Radix on the passing of her brotherin-law Clarence Gibbons on September 17,
2013.
its deepest sympathy to Bruno Codispati
and family on the passing of his mother-inlaw Margaret V. Rizzi on October 5, 2013.
NEW MEMBERS
MONTH SEPTEMBER 2013
ALISON ATTANASIO
THOMAS CILLILLI
PEGGY COLLEN
CARL COTTONE
CURLINA EDWARDS
BRIAN ESSER
NICHOLAS FITZGERALD
TRACEY GRANT
TRYPHENA GREENE
CYNTHIA LANE
ROGER LEVY
ENEALIA NAU
JESSICA PARRA
GEOFFREY SCHOTTER
TING YAN WU
STUDENT MEMBERS
D ANIEL A LTARAS
E RIC B ROWN
J ONATHAN H AUPTMAN
G ABRIELLE H UNTER -E NSOR
A LEX K ADOCHNIKOV
S HANTHI -S REE N ANDAM
M ICHAEL N YKUA
BROOKLYN BAR ASSOCIATION 2012-2013
Andrew M. Fallek, President
Hon. Frank R. Seddio, Second Vice President
Rebecca Woodland, President-Elect
Aimee L. Richter, Secretary
Arthur L. Aidala, First Vice-President
David M. Chidekel, Treasurer
Avery Eli Okin, Esq., CAE: Executive Director
TRUSTEES
CLASS OF 2014
Theresa Ciccotto
Joseph R. Costello
Pamela Elisofon
Fern Finkel
Dewey Golkin
Dino Mastropietro
Steven H. Richman
CLASS OF 2015
Frank V. Carone
Fidel F. Del Valle
Lara Genovesi
Richard S. Goldberg
Jaime Lathrop
Anthony W. Vaughn, Jr.
Glenn Verchick
CLASS OF 2016
Elaine N. Avery
Aemena D. Gayle
David J. Hernandez
Richard Klass
Anthony J. Lambert
Deborah Lashley
Joseph S.Rosato
TRUSTEES COUNCIL (Past Presidents)
Roger Bennet Adler
Vivian H. Agress
Andrea E. Bonina
Ross M. Branca
Rose Ann C. Branda
Gregory T. Cerchione
Maurice Chayt
Steven D. Cohn
Hon. Miriam Cyrulnik
Lawrence F. DiGiovanna
David J. Doyaga, Sr.
Joseph H. Farrell
Andrew S. Fisher
Ethan B. Gerber
Dominic Gordano
Paul A. Golinski
Gregory X. Hesterberg
Hon. Barry Kamins
Marshall G. Kaplan
Allen Lashley
Mark A. Longo
Domenick Napoletano
John. E. Murphy
John Lonuzzi
Manuel A. Romero
Hon. Harold Rosenbaum
Barton L. Slavin
Hon. Jeffrey S. Sunshine
Hon. Nancy T. Sunshine
Diana J. Szochet
OCTOBER, 2013
BROOKLYN BARRISTER, Page 3
PRESIDENT’S MESSAGE
R E S P E C T F U L LY S U B M I T T E D
By Andrew Fallek, Esq.
I can barely contain my enthusiasm. If you
came to the Brooklyn Bar Association on September 23rd you had the opportunity to hear
and meet United States Supreme Court Associate Justice Antonin Scalia. Forgive me if I
sound a bit giddy and star struck. As the president of a bar association in the “coolest city
in the world,” some might expect me to be a
little more, well, “cool.” But the notion that
any Supreme Court Justice, let alone Justice
Scalia, the rock star justice of the court, would
make a dedicated trip to 123 Remsen Street
and spend more than three hours with our
members represents a true milestone for this
organization. Just in case you thought you
knew something about Justice Scalia, I will
tell you that he was friendly, engaging, gracious and that he made everyone feel comfortable in his presence. It was a truly great
evening.
No Fault, No Foul...
Continued from page 1
ing) into evidence through the witness(es). Depending on the trial’s venue, the contents of the
testimony will be different, and a witness may not
even be required.
In the First Department, witness testimony is
not necessarily even required. The use of a notice
to admit under C.P.L.R. 3123 and formal admissions made in response to interrogatories have
been deemed sufficient to establish the necessary
facts that constitute the plaintiff’s prima facie
case.vi A typical no-fault notice to admit seeks
admissions on two facts: (1) the insurer-defendant
received the subject claims or bills; and (2) payment is overdue in whole or in part.vii Providerplaintiffs can establish their prima facie cases by
simply reading the admissions into the record.viii
Even if a defendant denies or objects to the solicited admissions in the First Department or fails
to respond to a duly served notice to admit, a
plaintiff may still establish its prima facie case because the failure to respond or deny with specificity is inappropriate to address a notice to admit
and might constitute an admission.ix
The use of formal judicial admissions to establish a plaintiff’s prima facie case is possible because of a split between the First and Second Departments as to the Second Department’s rule that
the contents of claims or bills are hearsay and can
be admitted into evidence only by establishing that
they are business records. In the First Department,
if a plaintiff elects to instead use witness testimony to establish its prima facie case rather than by
formal admissions, the testimony must include
merely that a claim or bill for services was generated and submitted to the insurer and is overdue.
If the case is being tried in the Second Department, however, the Notice to Admit by itself will
not be sufficient to establish a prima facie case. In
contrast to the First Department, the Second Department requires proof that that the overdue bill
constitutes a business record under C.P.L.R. 4518
of the provider of services. The Second Department formally added this requirement to the prima
facie case in Dan Medical, P.C. v. New York Cent.
Mut. Fire Ins. Co.x Due to Dan Medical, the
plaintiff’s witness must be able to testify to the
President Andrew M. Fallek, Esq.
provider’s general business practices regarding the
generation of bills for no-fault reimbursement, and
that the actual bill or bills in dispute was or were
generated pursuant with these business practices.
Specifically, a witness must have personal knowledge and be able to testify that the bills or claim
forms at issue were made in the regular course of
business and that they reflect a routine, regularly
conducted business activity, needed and relied on
in the performance of the functions of the business, that it was in the regular course of business
to make the bills/claim forms, and that the
bills/claim forms at issue were made at the time of
the acts, transactions, or occurrences or events described therein.xi Without that testimony, the contents of the bills/claim forms are inadmissible
hearsay and cannot be used to establish the plaintiff’s prima facie case.xii
In addition to establishing that the services in
dispute were performed, a plaintiff must establish
that it submitted the bills/claims in dispute to the
insurer-defendant and that full payment has not
been made. The plaintiff need not establish the
timeliness of the bills or the whether the assignment of no-fault benefits was proper. Those facts
constitute affirmative defenses and are not part of
a provider plaintiff’s prima facie case.xiii
Because the majority of no-fault cases are litigated years after the billed for services were performed, and the bills were generated and mailed,
the witness(es) might not have personal knowledge of the generation and mailing of the specific
bills in dispute. Witness(es) can overcome this
lack of specific knowledge by establishing either
that the provider-plaintiff’s billing and mailing
practices were the same in earlier years as they are
now or when the witness was trained, or that the
billing practices at the time of the subject bill’s
generation and mailing were likely adhered to because it was the company’s general business practice of the company to do so at that time.
Although it is helpful to have supportive documentary proof of mailing, that proof is not necessary if a witness can establish standard office
practice or procedure designed to ensure that
items are properly addressed and timely
mailed.xiv A certified mail receipt or post-office
ledger alone is insufficient to give rise to the presumption of proper mailing and receipt.xv The
None of this could have happened – and I
do mean this quite literally— without BBA
First Vice-President Arthur Aidala, who met
Justice Scalia in Italy over twenty years ago
and has maintained a close relationship with
the Associate Justice. Arthur invited Justice
Scalia to come to the Association to do a CLE
and a book signing for the Justice’s new work,
Reading Law: The Interpretation of Legal
Texts. The book’s co-author, legal lexicographer and editor of Black’s Law Dictionary,
Professor Bryan Garner, jumped at the chance
to come and the visit was arranged in record
time—maybe a little too quickly. But I am
happy to say that Executive Director Avery
Okin, CLE Director Meredith Symonds and
the BBA staff proved up to the task. Hosting a
Supreme Court Justice presents a unique set of
challenges, which include many security concerns, and Avery ran “no huddle” for a few
weeks. Even an unexpected blitz on Remsen
Street by a loud music playing Chabad
“Sukkamobile” on Monday afternoon did not
shake them. When the last bomb sniffing dog
left the building on late Monday afternoon and
officers from the NYPD counterterrorism unit
stationed themselves in front of the building,
we were ready to start.
After a brief reception in the Board of
Trustees room, Justice Scalia and Professor
Garner appeared seated side by side on the
stage in the sold out Meeting room and maintained what can best be described as an open
dialogue with each other. Scalia and Garner
have obviously spent a lot of time together,
and their entertaining faux bickering had
shades of stand-up duos like Tommy and Dick
Smothers and Burns and Allen with some Cicero thrown in for good measure. It was an
extraordinary performance. First Vice-President Aidala added a comedic touch when (in
reversed roles) he jovially pressed Justice
Scalia to answer written questions from the
audience.
We learned about textualism, which is the
Please turn to page 9
CALLING ALL WRITERS
It’s Time for the Third Annual
Barrister Fiction Writing Contest
The Rules are as Follows:
1. All submissions must be received no later than
January 30, 2014 at 5:00 pm by e-mail to Glenn
Verchick, Editor-in-Chief, Brooklyn Barrister at
gverchick@ginartelaw.com in pdf format.
2. All submissions must be works of fiction. It
can be a short story or chapter from a novel and
cannot exceed 10,000 words.
3. Contest limited to lawyers, judges, court personal, law firm employees and bar association
employees, who hold said position in the State of
New York at the time of submission. Not limited
to Brooklyn Bar Association members.
4. Brooklyn Bar Association Editorial Board
members are excluded.
5. The winner will be judge by the BBA Editorial
Board and the winner will have his or her piece
of fiction published in a 2014 issue of the
Brooklyn Barrister.
GOOD LUCK!
EDITOR’S NOTE: For space reasons, the regular monthly
State of Estates column authored by Hon. Bruce M. Balter
and Paul S. Forster, could not be included in this issue. Look
for that feature to resume in the November issue.
BROOKLYN BARRISTER EDITORIAL BOARD
Glenn Verchick
Editor-in-Chief
Diana J. Szochet
Managing Editor
Aimee L. Richter
Articles Editor
Cecilia N. Anekwe
Hon. Bruce M. Balter
Jaime J. Borer
Mark Diamond
Jason Eldridge
Paul S. Forster
Jason D. Friedman
Anthony Lamberti
Hemalee J. Patel
Robert P. Santoriella
Michael Treybich
Alexis Vigilante
Shelly Werbel
Gregory Zenon
Brooklyn Barrister is published by Everything Brooklyn Media, LLC, under the auspices of the Brooklyn Bar Association. For advertising information call (718) 422-7410. Mailing address 16 Court Street, Suite 1208, Brooklyn, New York 11241.
Vol. 66 No. 2 October, 2013. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association, 123 Remsen Street,
Brooklyn, New York 11201-4212. Telephone No. (718) 624-0675. Periodical postage is paid in Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes to the Brooklyn Barrister, 123 Remsen Street, Brooklyn, NY 11201-4212.
OCTOBER, 2013
COMMITTEES & SECTIONS 2013-2014
ADMINISTRATIVE LAW COMMITTEE
Considers law and procedure of administrative bodies
and makes recommendations to the Association. Also,
screens candidates for appointments as Administrative Law Judges.
Chair: Fidel F. Del Valle
26 Court Street, Suite 1405
Brooklyn, NY 11242
(718) 834 4850
fdelvalle@verizon.net
Vice Chair: David M. Chidekel
575 Madison Avenue, Suite 1006
New York, NY 10022
(212) 605-0161
DCJoyEsq@aol.com
Members:
Vice Chair: Gregory T. Cerchione
150 Broadway, 23rd Floor
New York, NY 10038
(212) 285-3800
gtcerchione@gmail.com
Members:
Members:
Daniel Antonelli
Elaine N. Avery
Andrea E. Bonina
RoseAnn C. Branda
Steven D. Cohn
Fern J. Finkel
Steven Jeffrey Harkavy
Perry Krinsky
Hemalee Patel
Margherita Racanelli
Anthony W. Vaughan, Jr.
Abayomi Ajaiyeoba
Charles Capetanakis
Hon. Martin E. Connor
Ethan B. Gerber
Adam Kalish
ALTERNATE DISPUTE RESOLUTION
COMMITTEE
Co-Chair: Hon Elizabeth A. Bonina
9201 Shore Road, Apt. #B301
Brooklyn, New York 11209
(917) 750-5935
elizabeth.bonina@gmail.com
ASSIGNED COUNSEL CRIMINAL CASES
SCREENING COMMITTEE
Chair:
Co-Chair: Steven Jeffrey Harkavy
12 Metrotech, 28th Floor
(718) 250-1100 xt.61106
steven.harkavy@aig.com
Members:
Catherine Canade
Ira Cure
Hon. Robin Garson
Hon. Ira B. Harkavy
Margaret J. Leszkiewicz
Lawrence N. Rothbart
Hon. Jules Spodek
Charles Sporn
Vice Chair: Andrew S. Rendeiro
(718) 237-1900
asrendeiro@yahoo.com
ASSIGNED COUNSEL IN FAMILY AND
SUPREME COURT SCREENING COMMITTEE
Chair: Susan Iannelli
(718) 855-2844
Siannelli@aol.com
Members:
Curt Arnel
Joel Borenstein
Patrick Garcia
Mindy L. Gress
Michael R. Milsap
Michael S. Somma, Jr.
Class of 2015
Ethan B. Gerber
Hon. Ellen Spodek
Class of 2016
Arthur L. Aidala
David M. Chidekel
Aimee Richter
AUDIT COMMITTEE
ANNUAL DINNER COMMITTEE
Audits Association’s accounts and formulates Annual
Report.
Chair:
Rebecca Woodland
Lonuzzi & Woodland, LLP
60 Sackett Street, Suite 2002
(718) 935-1010
rebwoodland@aol.com
Editor in Chief: Glenn Verchick
1465 Rockway Parkway
(718) 485-0400
werbel4law@aol.com
Managing Editor: Diana J. Szochet
45 Monroe Place,
Brooklyn, NY 11201
(718) 923-6300 x303
dszochet@courts.state.ny.us
Articles Editor: Aimee L. Richter
Bender, Rosenthal Isaaacs & Richter, LLP
451 Park Avenue South, 8th Floor
New York, NY 10016
(212) 725-7111
arichter@brirllp.com
Cecilia N. Anekwe
Jaime J. Borer
Marye A. Dean
Mark Diamond
Jason Eldridge
Paul S. Forster
Jason D. Friedman
Anthony Lamberti
Hemalee J. Patel
Michael Treybich
Alexis Vigilante
Shelly Werbel
Gregory Zenon
BUDGET COMMITTEE
Chair: Aimee L. Richter
New York, NY 10016
212-725-7111
Vice Chair: Arthur L. Aidala
8118 - 13th Avenue
(718) 238-9898
arthur@aidalalaw.com
Vice Chair: Hon. Frank R. Seddio
9306 Flatlands Avenue
(718) 272-6040
seddiolaw@gmail.com
Vice-Chair: Aimee L. Richter
New York, NY 10016
Arthur L. Aidala
Pamela Elisofon
Ethan B. Gerber
Bart Slavin
BANKRUPTCY COMMITTEE
Chair: Dewey Golkin
55 Liberty Street, #17C
New York, New York 10005
(212) 302-7989
dgolkin@aol.com
Vice Chair: Jeffrey Miller
32 Broadway, Suite 1301
(212) 227-4200
jmiller@jeffreymillerpc.com
Members:
Justin Auslaender
Hon. Ariel Belen
Pamela Elisofon
Ethan B. Gerber
Jonathan Ginsberg
Adam Kalish
Robert LaReddola
Hon. Jules L. Spodek
Randolph White
COMPENSATION COMMITTEE
Co-Chair: Gregory T. Cerchione
Subin Associates
(212) 285-3800
gtc@subinlaw.com
Co-Chair: David Chidekel
New York, NY 10022
(212) 605-0161
DCJoyEsq@aol.com
Members:
Elaine Avery
Diana Szochet
Arthur L. Aidala
Anthony Vaughan, Jr.
Rebecca Woodland
Steven H. Richman
David Chidekel
Rebecca Woodland
Hon. Miriam Cyrulnik
Andrea Bonina
Chair: Ethan B. Gerber
Brooklyn, NY 11242
(718) 834 4850
egerber@gerberandgerber.com
Members:
Arthur L. Aidala
David Chidekel
Domenick Napoletano
Aimee L. Richter
Hon. Frank R. Seddio
Rebecca Woodland
Members:
Chair Emeritus: Domenick Napoletano
351 Court Street,
Brooklyn, NY 11231
(718) 522-1377
domenick@napoletanolaw.com
Reviews procedure, policies and appropriate legislation concerning transactional business relationships.
Members:
BYLAWS COMMITTEE
Chair: Lara Genovesi
360 Adams Street
Brooklyn, NY 11201
(347-296-1527)
lgenoves@courts.state.ny.us
COMMERCIAL LAW COMMITTEE
Members:
Wayne C. Bodden
Michael Cibella
Mark Diamond
Charles Finkelstein
Herb Moses
Craig Newman
Stephen A. Somerstein
Presented at Annual Dinner to a member of the legal
profession for outstanding achievement in the law or
in public service.
Class of 2014
Steven D. Cohn
RoseAnn C. Branda
Hon. Frank Seddio
BROOKLYN BARRISTER EDITORIAL BOARD
Members:
ANNUAL AWARD COMMITTEE
Chair: Steve D. Cohn
16 Court Street
(718) 875-2400
Goldcohn.law@verizon.net
Danielle Eaddy
Brooklyn, NY 11242
(718)-246-2500
deaddy@eaddylaw.com
Joseph R. Costello
Alice Fisher Rubin
Hon. Pamela L. Fisher
Hon. Robin Garson
Ethan B. Gerber
Hon. Ingrid Joseph
Richard Klass
Robert R. Koeppel
Hon. Sarah L. Krauss
Hon. Katherine A. Levine
Robert E. Malchman
Hon. Gary F. Marton
Hon. Richard J. Montelione
Martin S. Needelman
Hal Rose
Oleg Rybak
Alan J. Wohlberg
Rachel S. Blumenfeld
Tracia Callender
Mary Jo Eyster
Alexander Keblish
John C. Kim
Michael F. King
William R. Lizarrago
Robert J. Musso
Hon. Elizabeth S. Stong
Anthony Vassallo
Bruce Weiner
Randolf E. White
Marvin Wolf
CIVIL COURT OF THE CITY OF NEW YORK
COMMITTEE
Considers all matters pertaining to bankruptcy and insolvency.
Considers the practical workings of the Civil Court of
the City of New York.
Chair: David J. Doyaga
(718) 488-7500
David.Doyaga@verizon.net
Chair:
Vice Chair: Gregory Messer
(718) 858-1474
gremesser@aol.com
Members:
Jeffrey Miller
New York, NY 10004
(212) 227 4200
jmiller@jeffreymillerpc.com
Marc Aronson
Hon. Reginald Boddie
Mary A. Callaghan
Theresa M. Ciccotto
Hon. Alfred D. Cooper, Sr.
Joseph G. Costello
COMPUTER TECHNOLOGY COMMITTEE
Co-Chair: Andrea E. Bonina
Bonina & Bonina, P.C.
(718) 522-1786
abonina@medlaw1.com
Co- Chair: Daniel Antonielli
New York, NY 10007
(212) 227 2424
dra@antonelli-legal.com
Members:
Hon. Elizabeth Bonina
Ron D’Addario
Helen Galette
Colin A. Liverpool
Meredith Symonds
Advertise in
the Brooklyn Eagle’s
LEGAL SERVICES
DIRECTORY
.
barrister@brooklyneagle.com
adv@brooklyneagle.com
OCTOBER, 2013
Henry A. Martuscello
Hon. Richard Montelione
Hon. Micky Morgenstern
Joseph Mure, Jr.
Eric Nelson
Andrew S. Rendeiro
Paul Leonard Sass
Hon. Matthew A. Sciarrino, Jr.
CONTINUING LEGAL EDUCATION
COMMITTEE
Recommends programs and improvements in legal
education.
Co-Chair: Steven D. Cohn
Goldberg & Cohn
16 Court Street
(718) 875-2400
goldcohn.law@verizon.net
Co-Chair: Richard Klass
16 Court Street, 29th Floor
Brooklyn, NY 11241
(718)643-6063
richklass@courtstreetlaw.com
CRIMINAL LAW SECTION
Arrange substantive programs and sponsor luncheon
and dinner events.
Chair: George Farkas
(718) 625-2500
gafarkas1@verizon.net
Vice Chair: Hon. Howard Golden
303 Beverly Road, Apt. 10F
(718) 633-4646
Vice-Chair: Mark Diamond
Box 287356 Yorkville Station
New York, NY 10128
(917) 660-8758
markd53@hotmail.com
Vice Chair: Diana J. Szochet
45 Monroe Place,
Brooklyn, NY 11201
(718) 923-6300 xt.303
CLE Vice Chair: Scott H. Klein
(718) 522-3311
cshklein@verizon.net
Members:
Members:
Judith Aarons
Roger B. Adler
Cecilia N. Anekwe
Hiram L. Bell III
Jon L. Besunder
Hon. Maurice Brill
Corey Briskin
Frank V. Carone
David M. Chidekel
Michael V. Cibella
Joyce B. David
Danielle V. Eaddy
Michael Farkas
Robert Gershon
Kenneth W. Gerver
Richard J. Howard
Hon. John G. Ingram
Adam Kalish
Leo J. Kimmel
Noah Levenson
Joseph Mure, Jr.
Eric Nelson
Craig Newman
Andrew S. Rendeiro
Paul Leonard Sass
Lisa Schreibersdorf
Hon. Matthew Sciarrino, Jr.
Gregory Zenon
Gregory Cannata
Marye Dean
Scott Klein
Hon. Lorraine S. Miller
Marcel Sager
Barton Slavin
Charles Sporn
Carol S. Tiernan
COURT FACILITIES COMMITTEE
To improve physical conditions in the courthouse.
Chair: Hon. Donald Scott Kurtz
Supreme Court, Kings County
360 Adams Street
Brooklyn, NY 11201
(347) 401 9047
dkurtz@courts.state.ny.us
Vice-Chair: Stephen Jeffrey Harkavy
Brooklyn, NY 11201
(718) 250-1100 x 61106
Members:
Jon L. Besunder
Hon. Robin Garson
John Lonuzzi
Nicholas P. Mamounis
Charles J. Marchello
Hon. Wayne P. Saitta
Lisa Schreibersdorf
CRIMINAL COURT OF THE CITY OF NEW
YORK COMMITTEE
Considers the practical workings of the Court; also
considers the Kings County District Attorney’s Office
and investigates any complaint against an attache of
thereof.
Co-Chair: Arthur L. Aidala
8118 - 13th Avenue
(718) 238-9898
arthur@aidalalaw.com
Co-Chair: George Farkas
Brooklyn, NY 11201
(718) 625-2500
gafarkas1@verizon.net
Members:
Marianne Bertuna
Maurice Brill
Hon. Deborah A. Dowling
Michael Farkas
Robert S. Gershon
Kenneth W. Gerver
Richard J. Howard
Isiris Isaac
Adam Kalish
Bryan Kolb
Noah Levenson
Maureen P. Fonti
Richard H. Freeman
Helen Galette
Armena D. Gayle
Robert Gershon
Angelo Giordano
Yvette A. Hinds-Wills
Richard J. Howard
Hon. John G. Ingram
Adam Kalish
Joseph G. Kenny
Leo J. Kimmel
Harry L. Klein
Scott H. Klein
Connie Yik Kong
Ira Kopito
Anthony J. Lamberti
Joan C. Lenihan
Noah Levenson
Ira K. Miller
Joseph Mure, Jr.
Eric Nelson
Craig Newman
Barbara S. Odwak
Lynn S. Okin
Laura Outeda
Trazana Phillip
Alan Podhaizer
Vlad Portnoy
Andrew S. Rendeiro
Marcel Sager
Paul Leonard Sass
Lisa Schreibersdorf
Hon. Matthew Sciarrino, Jr.
Gregory Zenon
DECEDENTS’ ESTATES SECTION
and dinner events.
Chair: Paul S. Forster
P. O. Box 61240
Staten Island, New York 10306
(718) 667-1948
psflaw@aol.com
Vice Chair: Frank T. Strafaci
569 Bay Ridge Parkway
(718) 748-4848
ftsesq@aol.com
Members:
Judith Aarons
Roger B. Adler
Louise Albenda
Cecilia N. Anekwe
Daniel R. Antonelli
Hon. Bruce Balter
Hiram L. Bell III
Jon L. Besunder
Andrew Bokser
David A. Bondy
Adam Braverman
Hon. Maurice Brill
James H. Cahill Jr.
Frank V. Carone
Michael V. Cibella
Michael S. Daiell
Joyce B. David
Mark Diamond
Danielle V. Eaddy
William Ellerton
Dominic J. Famulari
John D. Famulari
Michael Farkas
EMPLOYMENT AND LABOR LAW
COMMITTEE
Chair: Pamela A. Elisofon
(718) 852-1700
pelisofon@yahoo.com
Members:
Tracia Callender
Ira Cure
Cyrus Dugger
Antonia Kousoulas
Joan C. Lenihan
Alan Podhaizer
Matthew Porges
Brigette Renaud
Nancy Mottola Schacher
ENTERTAINMENT, ART & SPORTS LAW
Chair:
Members:
Daniel Antonelli
Sidney Cherubin
Bruno Codispoti
Jeannie Costello
Dean Delianites
Emily Fagiola
Robin Goeman
Michelle Hua
Omar Johnny
Jaime Lathrop
Rebecca Lockwood
Pamela Matta
Alan Podhaizer
Allegra Selvaggio
Aaron Solomon
Andrew Sonpon
Robert Thony
ELDER LAW COMMITTEE
Chair: Anthony Lamberti
435 - 77th Street
(718) 238-9826
ajlesq@alamberti.com
Vice Chair: Fern J. Finkel
41 Pierrepont Street
(718) 625-3398
ffinkel@aol.com
Members:
Roger B. Adler
Louise S. Albenda
Glenn D. Bell
Shoshana Brenenson
James Cahill Jr.
Mary A. Callaghan
Anthony Carone
Hon. Anthony J. Cutrona
Michael S. Daiell
Joseph Dirks
William Ellerton
Dominic J. Famulari
Maureen P. Fonti
Helen Z. Galette
Armena D. Gayle
Robin N. Goeman
Hon. Howard Golden
Charles Goldfarb
Judith D. Grimaldi
Leonard Herbst
Kathleen Higgins
Susan Iannelli
Alexander Keblish
Joseph G. Kenny
Michael F. King
Connie Yik Kong
Joan C. Lenihan
Noah Levenson
Ira K. Miller
Pearl Olwen Murphy
Barbara Odwak
Blaise Parascondola
Laurice Pearson
Vlad Portnow
Margarette Racanelli
Marcel A. Sager
Scott Shostak
Hon. George J. Silver
Hon. Ellen M. Spodek
Hon. Jules Spodek
Charles M. Sporn
Zvi Storch
Katy Sverdlov
Carol S. Tiernan
Joseph R. Vasile
Bartholomew M. Verdirame
Sanaa Harris
479A Hancock Street, #3
Brooklyn, NY 11233
(646) 247 4353
sanaa.z.h@gmail.com
FAMILY COURT COMMITTEE
Considers and makes recommendations as to the
statutes, practice and procedures in family law and
the work of the courts in Kings County and considers
complaints against attaches thereof.
Co-Chair: Hon. Micky Morgenstern
320 Jay Street
(347) 401-9208
emorgens@courts.state.ny.us
Co-Chair: Robert A. Ugelow
(718) 852-8641
Robertu2626@yahoo.com
Vice-Chair: Hemalee Patel
Supreme Court of Richmond County
25 Hyatt Street, Room 621
Staten Island, NY 10301
(718) 675-8758
Hemalee@aol.com
Members:
Curt Arnel
Helene Bernstein
Mindy L. Blatt
Melissa Bonaldes
Mary L. Cain
Traci Callender
Saul Edelstein
Charles L. Emma
Rachel Freier
Armena D. Gayle
Karen R. Goldberg-Sager
Yvette A. Hinds Wills
Susan Iannelli
Randi Karmel
Joshua Katz
Hailey Kaufman
Leo J. Kimmel
Trazana Phillip
Brigette Renaud
Lawrence Rothbart
Karen G. Sager
Steven Scavuzzo
Olatokunbo Sofola
Rick Stein
Zvi Storch
OCTOBER, 2013
Brooklyn Bar
Association
On the MCU
Score Board
Thursday, July 18, 2013
Hon. Frank R. Seddio, BBA Second VP
Lainey and Andy Fallek
President Andrew M. Fallek, Past President Diana J. Szochet,
Trustee Hon. Frank Carone.
Harry Foad, Nick Foad, Past President Andrea Bonina, Charlie Foad
Secretary Aimee L. Richter with Immediate Past President
Domenick Napoletano
Brooklyn Cyclones official greeter with BBA young guests
Former Trustee Steven Jeffrey Harkavy
Roseann Hiebert, LRS Director; Gina Irizarry, LRS staffer
with her son Julian, Massiel Ventura, BBA staffer
BBA Young Lawyers Section leader Daniel Antonelli, Adam Kalish and guest
OCTOBER, 2013
An Introduction to the
Courts in Madagascar
BY: Barbara H. Grcevic
Madagascar is an island nation, nearly the
size of Texas, off the southeastern coast of
Africa. Approximately 85% of the vertebrate and plant species living on the island
are found nowhere else. After trekking
through rainforests in search of various
species of lemurs and other wildlife, a weekday visit to the courts became another highlight of a June 2013 trip there.
The Malagasy courts were bustling with
attorneys and their clients. Both counsel and
judges wore robes. During my visit, I spoke
with various attorneys, including the chief
advocate of the Malagasy bar, le Batonnier
de l’Ordre des Avocats du Barreau de Madagascar, Hubert Raharison, who gave me a
brief overview of their judicial system. I
also observed trials and other courtroom proceedings which were conducted in French,
although judges sometimes spoke Malagasy
when directing remarks to defendants.
Madagagascar was a French colony from
1897 to 1958 and thus its legal system is
based on French civil law as well as traditional Malagasy law.
Attorneys described a
judicial system that is not
dissimilar to ours. The
national
Constitution
provides for an independent judiciary. It also
grants defendants the
right to a full defense at
every stage of the proceedings and to a public
trial. Defendants have
the right to be present at
their trials, to confront
witnesses, and to present
evidence.
They are
granted the presumption
of innocence.
Madagascar has three
levels of courts. The
Courts of First Instance
hear civil and criminal
cases which carry limited
fines and sentences. The
Court of Appeals, located
in the country’s capital,
Antananarivo, includes a
criminal court of first instance for cases eligible
for sentences of five
years or more.
The
Supreme Court, also in
Antananarivo, reviews
cases on appeal from the
Court of Appeals and is
the country’s highest
court. The Constitutional High Court is autonomous and oversees
the constitutionality of
laws, decrees, and ordinances and certifies election results. Military
courts, reserved for the
trial of military personnel, handle all cases that
involve national security
and are presided over by
civilian magistrates, usually with a panel of military officers. In addition, the Constitution
provides for informal,
community-organized
courts (Dina) in certain
rural areas of the country. The Dina handle
civil disputes on matters
such as cattle rustling.
Cases heard by the Dina
are not afforded the
same procedural protections of the formal court
system and decisions
have occasionally been
challenged at the appeals
court level.
While I was not able
to determine in a short
visit if the rights provided by Malagasy law
were actually enforced,
the system I observed
functioned in an orderly
and predictable fashion.
key is to establish the standard office-mailing procedure and that the bills in dispute were mailed to
the insurer defendant in a manner consistent with
or pursuant to that standard procedure.xvi
Sometimes, the medical provider outsources the
generation and mailing of the bills to a third-party
medical billing company or law firm. In these
cases, the third-party biller, despite not having personal knowledge of the medical provider’s business
practices and procedures, can overcome the bill’s
hearsay problem by testifying that the information
contained in the bill was transferred from the medical provider to the third party and incorporated into
the third-party’s company records or that the information received from the medical provider is used
in the third-party’s day-to-day operations.xvii
In some cases, the insurer-defendant’s denials,
in and of themselves, can prove that the bills, if
specifically identified and referenced, were submitted. Logically, if a denial of a particular bill is
issued, the bill must have been mailed and received.xviii Similarly, a delay letter can be used as
proof that the bill was submitted, but only if the
delay letter specifically identifies the bill.xix At
trial, both of these scenarios require in practice that
the denial and delay letter can be authenticated or
are stipulated into evidence.
In both departments, a provider-plaintiff need
not establish that the services in dispute were medically necessary. A presumption of medical necessity attaches to the billed for services once the
plaintiff establishes that it generated and mailed
the bill or bills.xx
2. Insurer-Defendant’s Initial Burden & Affirmative Defenses to Non-Payment
After a provider-plaintiff establishes its prima
facie right to reimbursement of first-party no-fault
benefits, an insurer-defendant must prove that it
complied with the regulations and issued a denial
the plaintiff’s claim in a timely fashion —30 days
from the date of receipt of the plaintiff’s claimxxi
—or had a legal justification for not doing so before
being able to put forth an affirmative defense. The
insurer-defendant’s requirements for proving generating and mailing a denial are the same as the
provider-plaintiff’s in the respective judicial departments. To give rise to the presumption of proper
mailing, the defendant must establish that the insurance company generated and mailed the denial
forms, or set forth a sufficiently detailed description
of the standard office generation and mailing procedures.xxii Depending on the judicial department,
the defendant can accomplish this via formal judicial admissions or testimony establishing that the
denials are business records under C.P.L.R. 4518.
With a few exceptions, a defendant’s choice of
defense at trial is limited to those grounds cited in
the denial.xxiii Moreover, many defenses are
waived and cannot be asserted at trial if not preserved in a timely denial. For many defenses, a
defendant will first have to establish that it issued
a timely denial and the denial must have been
highly specific as to the basis or reason(s) (defenses) for the denial. If it cannot do so, the defendant
will be precluded from offering the defense(s) that
should have been but were not preserved in a timely denial. But if it can, it then has the opportunity
to present its defense(s).
Most defenses require testimony from an employee of the insurance company or third-party
vendor, an investigator, or expert witness. The content of the testimony depends on the basis or reason(s) for the denial. Between the insurance law,
regulations, and caselaw, the insurer-defendant has
many defenses to non-payment. The defenses fall
into two categories: those that must be preserved in
a timely denial of claim, and those that do not need
to be preserved and are non-waivable.
Common defenses, such as that the providerplaintiff assigned a monetary value to its service
that is higher than it is allowed to under the New
York Workers’ Compensation Fee Schedule, the
provider-plaintiff’s service(s) in dispute were not
“medically necessary,” provider fraud (i.e., unnecessary or excessive treatment or fraudulent or excessive billing practices), services were provided
by independent contractors,xxiv and untimely
proof of claim must be preserved and asserted in a
timely denial of claim or the defendant cannot
present them at trial.xxv Defenses relating to lack
of coveragexxvi are non-waivable and do not need
to be preserved in a timely denial to be asserted at
trial. Examples of these defenses are, that the underlying motor vehicle accident was staged, a
medical provider’s fraudulent incorporation,
procuring of the insurance policy by fraud, and the
claimant is not an eligible injured person entitled
to no-fault benefits under the PIP Endorsement
OCTOBER, 2013
(failure to file a timely notice of claim).xxvii
Additionally, in the First Department, defenses
such as failure to appear at an examination under
oath (“EUO”) and independent medical examination (“IME”), are considered a breach of the insurance policy contract and thus do not need to be
preserved and asserted in a timely denial to be presented at trial.xxviii In the Second Department,
however, those defenses must be asserted in a
timely denial or are waived.xxix
A defendant’s choice of evidence largely depends on which defense(s) it presents. For example, if a defendant denied the bills in dispute under
the 30 day notice-of-claim rulexxx or 45-day rule
to submit a claim,xxxi the defendant will typically
have a claims representative or other employee
testify to the defendant’s business practices and
procedures regarding the receipt of mail, and that
the notice of claim and/or bills in dispute were not
timely received or received at all. If a defendant
attempts to establish a fee-schedule defense (that
the plaintiff overbilled for the services it performed), it will typically have a claims representative who is certified in the Workers’Compensation
Fee Schedule testify to the proper rates of reimbursement for the plaintiff’s geographic region. If
the defense is a policy violation, such as the assigner’s non-appearance at an examination under
oath (“EUO”) or independent medical examination (“IME”), a claims representative or thirdparty scheduling vendor will typically testify to the
generation and mailing of at least two scheduling
letters to the requested individual. Additionally, a
defendant will have a representative or employee
of the attorney/doctor who was scheduled to perform the EUO/IME testify to the requested individual’s non-appearance. A “bust statement” is
supportive but not required.
Although the Regulations mandate specific requirements for EUO’s and IME’s, such as that
they must be at times and places reasonably convenient to the applicant and inform them that they
will be reimbursed for any loss of earning and reasonable transportation expenses incurred in compliance with the insurer’s request,xxxii the insurerdefendant need not prove these facts at trial.xxxiii
If the defense is that there is outstanding verification or that the insurance policy’s funds have
been exhausted, a representative from the insurer
or underwriter will testify to those facts. If fraud
is alleged, a defendant will typically have an investigator testify regarding an investigation into
the fraud and its results.
Possibly the most commonly tried defense is
that the plaintiff was not entitled to reimbursement
because the services it performed were not “medically necessary.” Under 11 N.Y.C.R.R. 653.8(b)(4), an insurer-defendant may deny claims
for reimbursement of no-fault benefits based on
medical examination and “peer reviews.”xxxiv
The terms “medically necessary,” “medical necessity,” or any other derivative are not specifically defined by the Insurance Law or its Regulations. Due to the lack guidance on the issue, the
judges who decide this factual issue (the overwhelming majority of no-fault trials are bench trials) rely heavily on expert testimony and witness
credibility when deciding whether the defendant’s
non-payment was properly justified based on this
defense.xxxv
Even though the plaintiff is not affirmatively required to establish that its services in dispute were
“medically necessary” when putting forth its prima
facie case, a presumption of “medical necessity”
attaches to those services once the plaintiff’s prima
facie case is established.xxxvi From this, it is a defendant’s burden to prove, if not precluded from
doing so, that the services in dispute were medically unnecessary.xxxvii At trial, one or more “independent” doctors who are deemed experts by the
court will testify to the injured insured person’s
physical health and overall medical condition at the
time that the services in dispute were rendered, and
then opine whether the treating physician should or
should not have performed the services at issue.
The “independent” expert doctors could have
formed their opinions based on a review of the injured insured person’s medical records relating to
the injuries and treatment received from the
provider plaintiff and other medical providers arising from the motor vehicle accident or from physically examining the injured insured person at an
independent medical examination. A defendant
may call the reviewing or examining doctor as a
witness to have the doctor offer opinion about the
medical necessity of the plaintiff’s services, or have
a substitute doctor testify to the original peer/IME
doctor’s opinion if it is preserved in the written peer
review or IME report.
With regard to peer review reports, the defendant must pass a preliminary hurdle regarding the
sufficiency of the report that before testimony of
its contents is permitted. The peer review report
must “set[] forth a sufficiently detailed factual
basis and medical rationale for the claim’s rejection” to support a viable denial on grounds of medical necessity. xxxviii Plaintiffs can move to preclude the testimony based on the peer review report is being facially defective if it does not set
forth a sufficiently detailed factual basis and medical rational regarding the alleged lack of medical
necessity of the service(s) it reviewed.xxxix If the
trial judge finds that the peer review report itself is
sufficient, testimony may proceed and the trial
judge will determine if the testimony is adequate
to establish a lack of medical necessity.
Typically, the expert’s testimony will closely
follow the reasons set forth in the peer or IME report. Depending on which venue the case is tried
in, who the presiding judge is, the defendant will
have different evidentiary restrictions. Many New
York City Civil Court judges have no reservations
about allowing substitute doctors to testify and the
scope of the substitute’s testimony, in numerous
published opinions, other Civil Court judges have
ruled that substitute doctors may not testify in place
of the original.xl The ground behind not permitting
substitute doctors to testify is that they cannot authenticate the original doctor’s peer review or IME
report to admit into evidence. These judges have
ruled that the peer report is inadmissible hearsay.xli
Absent a stipulation between the parties to the admission into evidence of the peer review or IME report, there is no material in evidence upon which
the expert’s opinion can be based.xlii
At least one Civil Court judge has ruled that
the peer review report itself, in evidence, is sufficient to establish the defendant’s burden of proof
of proving that the plaintiff’s services lacked medical necessity and that live testimony is not required, particularly where the plaintiff does not
offer a witness or any evidence on rebuttal.xliii
A defendant may also face different hurdles
from different judges about the admissibility of the
medical records the peer review/IME doctors used
when forming their opinion regarding medical necessity. Although the medical records are hearsay,
expert witnesses may testify that they relied upon
specific, inadmissible out-of-court material to formulate an opinion, provided (1) it is of a kind accepted in the profession as reliable as a basis in
forming a professional opinion, and (2) evidence
presented to establish the reliability of the out-ofcourt material referred to by the witness.xliv Additionally, an expert witness may testify to the contents of the medical records in a non-hearsay purpose. The expert is not using the records for their
truth to establish that the injured insured person
sustained certain injuries and received certain treatment but is merely opining that assuming the facts
set forth in the records are true and the treatment allegedly provided was not medically necessary.xlv
Despite these rulings, Civil Court judges inconsistently apply these holdings that makes for
unexpected results at trial. Although some judges
allow all the records’ contents to come into evidence, others only allow into evidence the contents of the medical records generated by the
provider-plaintiff to come. Notably, at least one
Civil Court judge requires a HIPAAAuthorization
from the injured insured person for a no-fault trial
to proceed on the merits.xlvi
If the parties get past the evidentiary issues and
an expert witness testifies on the defendant’s behalf about why the service in dispute was not medically necessary, plaintiffs will cross-examine the
witness to discredit the expert’s opinion. Peer reviewers are routinely challenged on the adequacy
and source of the documents they reviewed to prepare their reports. At least one Civil Court judge
has expressed doubt about the reliability of the
method by which peer review doctors are supplied
with the records to review because they come
from a third-party vendor, not from the treating
physicians or insurance carriers.xlvii
3. Plaintiff’s Rebuttal Case
After an insurer-defendant rests, the providerplaintiff will have the opportunity to rebut the defendant’s evidence. Depending on the defendant’s
case and defenses, a plaintiff can rebut the defendant’s case on procedural grounds and on the merits of the defense.
For example, if a plaintiff wants to rebut the
defendant’s submission that it issued a timely denial, the plaintiff, at this point in the trial, come forward with evidence that the denial was untimely.
Although the insurer-defendant is entitled to the
presumption that, in the normal course of business,
it will mail a denial on the date of the issuance of
the denial,xlviii the plaintiff may submit evidence
to the contrary to rebut the presumption.
If a defendant establishes a defense, such as a
lack of medical necessity, by a preponderance of
the evidence, the burden shifts to the plaintiff to
rebut that defense presumption. If a defendant es-
tablished that the services in dispute were not
medically necessary, the plaintiff may have the
treating physician/chiropractor/acupuncturist or
rebuttal expert testify to rebut the presumption of
lack of medical necessity.
If a defendant asserted and established a feeschedule defense or defense based on outstanding
verification requests, the plaintiff may have its
own fee schedule expert or employee of the plaintiff testify to the compliance with the fee schedule
and verification requests.
An interesting scenario arises when a defendant
defends the action based on the 45-day rule. A
provider plaintiff must submit its claim to the insurer defendant within 45 days from the date of service(s) for which it is seeking reimbursement. Part of
the plaintiff’s prima facie case is proving that the
bills in dispute were mailed to the defendant. The
plaintiff must establish submission by a preponderance of the evidence to meet its prima facie burden
and shift the burden of proof to the defendant to
prove a defense to non-payment. If the defendant
justifies non-payment based on the allegation that
the bills in dispute were not served on it within 45
days from the date of service(s), and establishes this
fact at trial by a preponderance of the evidence, the
burden shifts to the plaintiff to rebut the defense. As
a matter of practicality, however, the plaintiff would
not be allowed to call its prima facie witness and
have the witness re-testify to the mailing of the bills;
that testimony would be redundant. In this scenario,
the fact-finder would have to assess the character
and truthfulness of both parties’ witnesses, examine
any supporting documentary evidence, and essentially rule based solely on credibility.
4. Conclusion
The no-fault statute is not a particularly long
one, and the sections relevant to the thousands of trials occurring in the Civil Courts each year are few.
Yet each trial is a puzzle that can be put together in
numerous configurations. Due to the volume of
cases, more new issues are discovered and new arguments made than possibly any other area of law.
It is inevitable that more pieces will be added to the
puzzle, causing the law within and across the judicial departments to become either more or less uniform as it is analyzed, debated, and decided.
i Mitchell S. Lustig & Jill L. Schatz, Overview
of No-Fault Litigation in New York State, N.Y. St.
B.J. 50 (Nov./Dec. 2010) (stating that approximately one-third of the entire New York City Civil Court
calendar is composed of no-fault cases).
ii See Socrates Psychological Svcs., P.C. v. Progressive Cas. Ins. Co., 7 Misc. 3d 642, 643, 791
N.Y.S.2d 394, 396 (Civ. Ct. Queens County 2005)
(stating that in no-fault actions “Civil Court judges
are the foot soldiers required to address, in the first
instance, various novel legal issues, until their appellate colleagues, often weighing the pragmatic
consequences of a particular holding, get the opportunity to review decisions and thereby formulate a
body of governing jurisprudence”).
iii This regulation provides that an insurer has
30 calendar days after proof of claim is received either to pay or deny the claim in whole or in part. Nofault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim,
which shall include verification of all the relevant
information requested.
iv This regulation provides that written proof of
claim for payment of health services shall be submitted to the insurer no later than 45 days after the
date services are rendered without reasonable justification for delay.
v Mary Immaculate Hosp. v. Allstate Ins. Co., 5
A.D.3d 742, 742-43, 774 N.Y.S.2d 564, 564 (2d
Dep’t 2004) (stating that plaintiff’s prima facie case
is no more than the submission of a bill that was
overdue when an action was commenced. The Appellate Division, First Department, explicitly followed Mary Immaculate. See Countrywide Ins. Co.
v. 563 Grand Medical, P.C., 50 A.D.3d 313, 314,
855 N.Y.S.2d 439, 440 (1st Dep’t 2008). So did the
Third Department, See LMK Psychological Services, P.C. v. Liberty Mut. Ins. Co., 30 A.D.3d 727,
728, 816 N.Y.S.2d 587, 589 (3d Dep’t 2006).
vi See Villa v. N.Y.C.H.A., 107 A.D.2d 619, 621,
484 N.Y.S.2d 4, 5 (1st Dep’t 1985) (holding that
“there was nothing improper in asking defendant to
confirm its written acknowledgement of the filing
of that claim and its subsequent failure to indicate
any defects in that notice”); Fair Price Medical
Supply, Inc. v. St. Paul Travelers Ins. Co., 16 Misc.
3d 8, 9, 838 N.Y.S.2d 848, 848-49 (App. Term 1st
Dep’t 2007) (“Inasmuch as defendant’s verified answers to the interrogatories constituted admissions
of a party, which are admissible as evidence, defendant may not now be heard to argue that plaintiff
failed to submit proof that the claims had been
OCTOBER, 2013
RESPECTFULLY SUBMITTED
term Justice Scalia prefers to describe his
method of interpreting statutes. Both authors
believe that the meaning of a statute (or a will
or contract) is to be derived from the language
used. As they state in their book, “In their full
context, words mean what they conveyed to
reasonable people at the time they were written.”
The authors have combed through ancient texts
and more recent sources to create a compendium
of canons of interpretation to assist judges in
reading text and they shared these canons with
the audience. Justice Scalia also talked about
some of the actual practices used to create and
receipt number and no signed certified mail return
receipt card has been produced.”).
xvi Gerald Lebovits & Kimberly Schirripa, No
Fault, No Foul: Litigating First-Party-Benefit
Cases, 61 Brooklyn Barrister 1 (May 2009).
xvii In re Carothers v. GEICO Indem. Co., 79
A.D.3d 864, 865, 914 N.Y.S.2d 199, 200 (2d Dep’t
2010).
xviii Lawrence N. Rogak, Rogak’s New York
No-Fault Law and Practice 100 (2009 ed.) (citing
Delta Diagnostic Radiology, P.C. v. Progressive
Cas. Ins. Co., 2007 N.Y. Slip Op 52453(U), *1
(App. Term 2d Dep’t 2007); Magnezit Medical
Care, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., 2006
N.Y. Slip Op 52515(U), *1 (App. Term 2d Dep’t
2006)).
xix Id. (citing Boai Zhong Yi Acup. Servs., P.C.
v. Travelers Ins. Co., 14 Misc.3d 129(A), 2006 N.Y.
Slip Op 52516(U), *1 (App. Term 2d Dep’t 2006)).
mailed and received, and that they were overdue.”).
For an in-depth discussion on the use of notices to
admit in no-fault litigation, see David M. Barshay &
David M. Gottleib, Use of Notice to Admit in NoFault Insurance Litigation, available at www.bakersanders.com/article/?0737 (last visited Aug. 1,
2013).
vii Barshay & Gottlieb, supra note 6.
viii See Fair Price Med. Supply, Inc. v. St. Paul
Travelers Ins. Co., 16 Misc. 3d 8, 9, 838 N.Y.S.2d
848, 848 (App. Term 1st Dep’t. 2007) (holding that
plaintiff established its prima facie case by reading
into record that defendant’s formal admissions bills
in dispute were received and partially paid, despite
no witnesses or documentary evidence submitted).
ix See Kowalski v. Knox, 293 A.D.2d 892, 893,
741 N.Y.S.2d 291, 292 (3d Dep’t 2002) (holding
that plaintiff’s prima facie case was established
through defendant’s failure to respond to plaintiff’s
notice to admit); see also Barnes v. Schul Private
Car Service, 59 Misc. 2d 967, 968, 301 N.Y.S.2d
907, 908 (Sup. Ct. Kings County 1969) (discussing
that failing to properly respond to Notice to Admit
constitutes admissions).
x Dan Medical, P.C. v. N.Y. Cent. Mut. Fire Ins.
Co., 14 Misc. 3d 44, 47, 829 N.Y.S.2d 404, 406
(App. Term 2d Dep’t 2006).
xi Lustig & Jill L. Schatz, supra note 1, at 51.
xii Id.
xiii See Hosp. for Joint Diseases v. Travelers
Property Cas. Ins. Co., 9 N.Y.3d 312, 319, 849
N.Y.S.2d 473, 476 (2007) (holding that deficiency
in an assignment is not a coverage issue and this
failure to timely address defect in assignment of
benefits waives defense).
xiv See N.Y. & Presbyterian Hosp. v. Allstate
Ins. Co., 29 A.D.3d 547, 547-48 814 N.Y.S.2d 687,
688 (2d Dep’t 2006).
xv Id. (“[C]ertified mail receipt and the United
States Postal Service ‘Track and Confirm’ printout
do not prove that the particular claim . . . was actually received where . . . no evidence that this claim
was mailed to [defendant] under that certified mail
xx A.B. Med. Servs. v. GEICO Ins., 2 Misc.
3d 26, 27, 773 N.Y.S.2d 773, 773 (App. Term
2d Dep’t 2003)
xxi N.Y.C.R.R. 65-3.8(c).
xxii Lebovits & Schirripa, supra note16.
xxiii State Farm Ins. Co. v. Domotor, 226
A.D.2d 219, 221, 697 N.Y.S.2d 348, 350 (2d Dep’t
1999) (finding that insurance carrier’s defense must
stand or fall on the reason appearing in its denial of
claim).
xxiv Recently, the Appellate Division, Second
Department, overturned the Appellate Term’s holding that an independent-contractor defense is nonprecludable and that an insurer is not obligated to
issue a denial to assert the defense. In A.M. Med.
Servs., P.C. v. Progressive Cas. Ins. Co., 101 A.D.
3d 53, 56, 953 N.Y.S.2d 219, 221 (2d Dep’t 2012),
the Second Department, held that the defendant insurer was precluded from raising an independent
contractor defense by virtue of its failure to specify
the ground for denial in its denial of claim. Under
the doctrine of horizontal stare decisis, this is now
the prevailing law until another judicial department
or the Court of Appeals issues a contrary rule. See
Mountain View Coach Lines, Inc. v. Storms, 102
A.D.2d 663, 664, 476 N.Y.S.2d 918, 920 (2d Dep’t
1984).
publish so-called “legislative history” and forcefully explained why it cannot be relied on to explain the meaning of a statute. We also learned
that under no circumstances should you refer to
Justice Scalia as a “strict constructionist.”
Contrary to what many people think, textualism is a methodology that often defies the expectations of liberals and conservatives. Justice
Scalia has voted to protect the rights of criminal
defendants and to permit flag burning as an ex-
ercise of the First Amendment. He would be
the first to tell you, however, that the words
themselves, and not his private opinions on the
substantive issues, dictated the result.
A copy of the book was included in the CLE
program and the Justice and the professor patiently signed about 200 books before heading
out to dinner with Arthur Aidala and his family.
Thanks again Arthur for an unforgettable
evening.
xxv Lebovits & Schirripa, supra note 16.
xxvi Central Gen. Hosp. v. Chubb Group of Ins.
Cos., 90 N.Y.2d 195, 199, 659 N.Y.S.2d 246, 248
(1997) (stating that an untimely disclaimer or denail
does not prevent the insurer from raising a lack of
coverage defense “premised on the fact or founded
belief that the alleged injury does not arise out of an
insured incident.”).
xxvii For a list of defenses that have been held
to constitute “lack of coverage defenses,” see Lustig
& Schatz, supra note 1.
xxviii Unitrin Advantage Ins. Co. v. Bayshore
Physical Therapy, PLLC, 82 A.D.3d 559, 560, 918
N.Y.S.2d 473, 474 (1st Dep’t 2011) (holding that
denial premised on breach of condition precedent to
coverage voids policy ab initio and that, in cases, insurer cannot be precluded from asserting a defense
premised on no coverage).
xxix See Westchester Med. Ctr. v. Lincoln Gen.
Ins. Co., 60 A.D.3d 1045, 1046-47, 877 N.Y.S.2d
340, 342 (2d Dep’t 2009).
xxx N.Y.C.R.R. 65-2.4(b).
xxxi Id. 65-2.4(c).
xxxii Id. 65-3.5.
xxxiii See Stephen Fogel Psychological, P.C. v.
Progressive Cas. Ins. Co., 35 A.D.3d 720, 721, 827
N.Y.S.2d 217, 219 (2d Dep’t 2006) (stating that defendant required to establish mailing of notices and
subject’s non-appearance); Crossbridge Diagnostic
Radiology, P.C. v. Progressive Cas. Ins. Co., 20
Misc. 3d 143(A), 2008 N.Y. Slip Op. 51761(U), *12 (App. Term 2d Dep’t 2008).
xxxiv A.B. Med. Servs. PLLC. v. Allstate Ins.
Co., 2 Misc. 3d 127(A) (App. Term 2d Dep’t 2003)
(stating that defense of lack of medical necessity
may be based on medical examination or peer review report, as implicitly provided by 11
N.Y.C.R.R. 65-3.8(b)(4)).
xxxv See Behavioral Diagnostics v. Allstate Ins.
Co., 3 Misc.3d 246, 249, 776 N.Y.S.2d 178, (Civ.
Ct. Kings County 2004) (stating that definition of
“medical necessity,” “determination of the issue
turns on credibility, since courts cannot rely solely
on the examining physician, but must consider
whether the treatment had a ‘valid medical purpose’
and resulted in an ‘actual medical benefit’”).
xxxvi A.B. Med. Servs. v. GEICO Ins., 2 Misc.
3d 26, 27, 773 N.Y.S.2d 773, 773 (App. Term 2d
Dep’t 2003).
xxxvii Id., 773 N.Y.S.2d 773, 773.
xxxviii Amaze Med. Supply v. Eagle Ins. Co., 2
Misc. 3d 128(A), 2003 N.Y. Slip Op. 51701(U), *1
(App. Term 2d Dep’t 2003).
xxxix See generally Eagle Surgical Supply Inc.
v. Mercury Casualty Co., 2012 N.Y. Slip Op
51286(U), *1 (App. Term 2d Dep’t 2012) (holding
peer-review report insufficient where doctor merely
asserted that he had insufficient documentation and
information); Citywide Social Work & Psy. Serv.,
P.L.L.C. v. Travelers Indem. Co., 3 Misc. 3d 608,
616, 777 N.Y.S.2d 241, (Civ. Ct. Kings County
2004) (A peer review report may be found insufficient when unsupported or controverted by evidence of ‘generally accepted medical/professional
practice).
xl See, e.g., Park Slope Med. & Surgical Supply,
Inc. v. Metlife Auto & Home Ins. Co., 35 Misc.3d
686, 687, 940 N.Y.S.2d 482, 483 (Civ. Ct. Queens
County 2012).
xli Id.
xlii Id. See also Wagman v. Brandshaw, 292
A.D.2d 84, 87, 739 N.Y.S.2d 421, 424 (2d Dep’t
2002) (“Inasmuch as [a] written report is inadmissible, logic dictates that testimony as to its contents is
also barred from admission into evidence.”).
xliii All Boro Psychological Svcs., P.C. v. GEICO
Gen. Ins. Co., 34 Misc. 3d 1219(A), 2012 N.Y. Slip
Op. 50137(U), *2-4 (Civ. Ct. Kings County 2012).
xliv Id.
xlv Urban Radiology, P.C. v. Tri-State Consumer Ins. Co., 27 Misc. 3d 140A, 2010 N.Y. Slip
Op. 50987(U), *1-2 (App. Term. 2d Dep’t 2010).
xlvi Eagle Surgical Supply, Inc. v. GEICO Ins.
Co., 33 Misc.3d 1227(A), 2011 N.Y. Slip Op
52142(U), *1-2 (Civ. Ct. Bronx Couty 2011).
xlvii See Consol. Imaging P.C. v. Travelers
Indem. Co., 30 Misc.3d 1222(A), 2011 N.Y. Slip Op
50159(U), *2 (Civ. Ct. Richmond County 2011).
xlviii State of New York, Insurance Department,
Superintendent of Insurance, Opinion Letter of May
24, 2004 (“It is presumed that, in the normal course
of business, a No-Fault insurer will mail a denial on
the date of issuance of the denial, subject to any evidence presented to the contrary.”).
Complete Legal Services Directory
Call Marc Hibsher at (347) 860-0508 for legal services advertising
LEGAL SERVICES / SMALL BUSINESS
Law Offices of Arnold Stream
CIVIL APPEALS & SUMMARY
JUDGMENT MOTIONS
25+ Years Quality
Experience:
Labor Law, Auto,
Premises Liability,
Contract, Insurance
304 Park Avenue South, 11th Floor, New York, NY 10010
212-247-2947
stream.arnoldatty@yahoo.com
You can advertise here, in
the Brooklyn Eagle’s LEGAL SERVICES DIRECTORY.
barrister@brooklyneagle.com
adv@brooklyneagle.com
or call Alice: (718) 643-9099, extn. 107
OCTOBER, 2013
Members:
FAMILY LAW SECTION
and dinner events.
Chair: RoseAnn C. Branda
7302 - 13th Avenue
(718) 680-5778
rab.ccb@verizon.net
Vice Chair: Phil Brown
(212) 425-1999
phil@divorceme.netmailto:phil@divorceme.net
Vice Chair: Aimee L. Richter
(212) 725-7111
Vice-Chair: Randi L. Karmel
425 Park Avenue, 27th Floor
New York, NY 10022
(212) 755-0224
rkarmel@rkarmel.com
FEDERAL COURTS COMMITTEE
Considers the practical workings of the courts and the
United States Attorney’s Office in the Eastern District;
also, considers any complaints against an attache of
thereof.
Co-Chair: Gerald J. DiChiara
404 Park Avenue South
(212) 679-1958
jdichiarag@aol.com
Co-Chair: Allen Lashley
16 Court Street
(718) 875-1128
allenlashley@verizon.netmailto:allenlashley@verizon.net
Daniel Antonelli
Steve Bamundo
George Farkas
David Hernandez
Steven Harkovy
Theodore Jones, III
Adam Kalish
Joseph D. Monaco III
Domenick Napoletano
Barbara Odwak
Matthew Porges
Aimee L. Richter
Adam Roth
Robert Santoriella
Meredith Symonds
Rebecca Woodland
FOUNDATION LAW PROGRAMS
FOR THE PUBLIC
Chair:
Fern J. Finkel
41 Pierrepont Street
(718)625-3398
ffinkel@aol.commailto:ffinkel@aol.c
Vice Chair: Hemalee J. Patel
230 Jay Street, Apt 2A
Brooklyn, NY 11201
(646) 386-5567
hemalee@aol.com
Members:
Sidney Cherubin
Jeannie M. Costello
David J. Doyaga, Sr.
Robin Goeman
Richard Klass
Jaime Lathrop
Joan C. Lenihan
Robert Santoriella
James P. Slattery
Diana J. Szochet
Members:
Curt Arnel
Elaine N. Avery
Helene S. Bernstein
Andrew Bokser
Grace Borrino
Mary L. Cain
Catherine Canade
David M. Chidekel
Steven D. Cohn
Saul Edelstein
Barry Elisofon
Dominic J. Famulari
Rachel Freir
Armena D. Gayle
Martin W. Gershon
Karen R. Goldberg-Sager
Hon. Howard Golden
Susan Iannelli
Gerard A. Imperato
Deborah B. Kahn
Philip L. Kamaras
Leo J. Kimmel
Meredith A. Lusthaus
Steven J. Mandel
Deborah Marshall
Michael R. Milsap
Michael J. Mondschein
Steven Z. Mostofsky
Hemalee J. Patel
Laurice Pearson
David H. Perlman
Trazana Phillip
Brigette Renaud
Lawrence N. Rothbart
Steven Scavuzzo
Sandra L. Schpoont
Ilana R. Schwitzer
Olatokunbo Sofola
Sherman F. Sosnow
Charles S. Spinardi
Rick Stein
Chaim Steinberger
Hon. Jeffrey S. Sunshine
Robert A. Ugelow
Members:
Roger B. Adler
Andrew M. Ayers
Hon. Dora L. Irizarry
Ronald E. Joseph
Robert LaReddola
Gregory LaSpina
Randolph E. White
GOVERNMENT AND PUBLIC SECTOR
Chair: Steven H. Richman
32 Broadway, 7th Floor
New York, New York 10004-1609
(212) 487-5338
srichman@boe.nyc.ny.us
Jon L. Besunder
Corey Briskin
Charles Capetanekis
Theresa M. Ciccotto
Rory Greebel
Robert LaReddola
Deborah Lashley
Hon. Katherine Levine
Paul V. Nuccio
Charlotte Owens
Lisa Schreibersdorf
Anne J. Swern
Diana J. Szochet
Stephen Williamson
(Includes Banking, Commercial Practices & Taxation)
Arranges substantive programs and sponsosr luncheon and dinner events.
Vice Chair: Richard Klass
(718) 643-6063
Members:
Marye A. Dean
Brian Doyle
Andrew S. Fisher
Hon. Pamela L. Fisher
Hon. Robin Garson
Susanne Gennusa
Martin Gershon
Angelo A. Giordano
Adam Kalish
Alexander Keblish
Harry L. Klein
Scott Klein
Jaime Lathrop
John J. Meglio
Jeffrey Miller
Laura Outeda
Blaise F. Parascandola
Trazana Phillip
Alan Podhaizer
Oleg Rybak
Hon. Nancy Mottola Schacher
Ilana Schwitzer
Nissan Shapiro
Sheldon Siporin
Olatokunbo Sofola
Stephen A. Spinelli
Hon. Jules Spodek
Carol Tiernan
Michael Treybich
Joseph R. Vasile
Kathleen C. Waterman
ANNUAL HON. THEODORE T. JONES, JR.,
FOUNDATION GOLF TOURNAMENT
Chair: Frank V. Carone
2626 National Drive
Brooklyn, NY 11234
(718) 272 6040
caronelaw@gmail.com
Chair: Frank V. Carone
2626 National Drive
(718) 272-6040
cacaronelaw@gmail.com
mailto:lonuzzi@aol.com
Members:
Andrea E. Bonina
David M. Chidekel
Steven D. Cohn
John Lonuzzi
Domenick Napoletano
INTELLECTUAL PROPERTY COMMITEE
Chair: Dayrel Sewell
599 East 2nd Street
New York, NY 11218
(347)787-6824
info@sewellnylaw.com
Members:
Andrew M. Ayers
Dwane Bartley
David A. Bondy
Bruno Codispoti
Colin A. Liverpool
Sheldon Siporin
Members:
GENERAL PRACTICE SECTION
Chair: Michael Mondschein
1684 Remsen Avenue
Brooklyn, NY 11236
(718) 968-9000
canarsielaw@aol.com
HOUSE COMMITTEE
GRIEVANCE COMMITTEE
JUDICIARY COMMITTEE
Endeavors to secure the election of competent and
properly qualified individuals for Judicial Office and
for District Attorney. Considers the qualifications of
candidates for such office.
Chair: Andrew M. Fallek
1 Battery Park Plaza, 32nd Floor
(212) 797-4700 xt.12
afallek@gmail.com
Considers and investigates complaints against attorneys.
Chair: Gregory T. Cerchione
Subin Associates
(212) 285-3800
gtc@subinlaw.com
Vice Chair: Lara J. Genovesi
360 Adams Street
(347) 296-1527
lgenoves@courts.state.ny.usmailto:lgenoves@courts.state.ny.us
Vice Chair: John J. Meglio
33-28 191st Street
Flushing, New York 11358
(718) 359-5555
johnmeglio@aol.commailto:johnmeglio@aol.com
Members:
Marc Aronson
Andrew Bokser
Phil Brown
Theresa M. Ciccotto
Hon. Alfred D. Cooper
Joseph R. Costello
Greg Fonti
Helen Z. Galette
Ethan B. Gerber
David J. Hernandez
Anthony Lamberti
Deborah Lashley
Doron Leiby
Jeffrey Miller
Hon. Edward M. Rappaport
Joseph Rosato
George Sheinberg
GROUP INSURANCE COMMITTEE
Chair: Aimee L. Richter
Bender, Rosenthal Isaacs & Richter, LLP
(212) 725-7111
Members:
Ira Cure
Joseph H. Farrell
Vice Chair: Deborah Lashley
33B James Street
Newark, New Jersey 07102
(718)250-3804
lashde@aol.commailto:lashde@aol.com
Members:
Elaine N. Avery
Jon L. Besunder
RoseAnn C. Branda
Gregory J. Cannata
Sidney Cherubin
David M. Chidekel
Fidel Del Valle
David J. Doyaga
Andrew S. Fisher
Andrew S. Garson
Armena D. Gayle
Ethan B. Gerber
Robert S. Gershon
Mark A. Longo
John Lonuzzi
Dino Mastropietro
John J. Meglio
Jeffrey Miller
Martin S. Needelman
Steven H. Richman
Aimee L. Richter
Manuel A. Romero
Joseph Rosato
Robert Rosenberg
Barton L. Slavin
Anne J. Swern
LAWYERS HELPING LAWYERS COMMITTEE
Co-Chair: Hon. Robin Garson
141 Livingston Street
(347) 404-9094
rgarson@courts.state.ny.usmailto:skrauss
@courts.state.ny.us
Co-Chair: John R. Urban
100 Church Street
New York, New York 10007-2601
(212) 788-0485
jurban@law.nyc.gov
OCTOBER, 2013
MEMBERSHIP COMMITTEE
Members:
Recommends means of both retaining and increasing
membership in the Association of lawyers practicing
in the county.
Kathleen Higgins
Hon. Sallie Krauss
Bonnie S. Kurtz
Joanna Lambridis
Laurice Pearson
Aimee L. Richter
Sheldon Siporin
Stephen B. Toner
Bart Verdirame
Kathleen C. Waterman
LAWYER REFERAL SERVICE COMMITTEE
Chair: Joseph Costello
5919 - 20th Avenue
(718) 331-4600
jrc@costellocostello.commailto:jrc@costel
locostello.com
Chair: David M. Chidekel
New York, NY 10022
(212) 605-0161
DCJoyEsq@aol.com
Vice-Chair: Jaime Lathrop
641 President Street, Suite 212
Brooklyn, NY 11215
(718) 857-3663
jimmy.lathrop@gmail.com
Members:
Andrea E. Bonina
Fern Finkel
Armena Gayle
Adam Kalish
Dino Mastropietro
Alan Podhaizer
Manuel A. Romero
Rebecca Woodland
Members:
Daniel Antonelli
Andrea Bonina
Jaime Lathrop
Leardo L. Lopez
PART 137 ATTORNEY-CLIENT FEE DISPUTE
RESOLUTION PROGRAM
Considers all matters pertaining to arbitration and
provides for arbitration of controversies between
members and their clients.
Chair: Domenick Napoletano
351 Court Street
(718) 522-1377
domenick@napoletanolaw.com
Vice Chair: RoseAnn C. Branda,
7302 - 13th Avenue
(718) 680-5778
mailto:Email:rab.ccc.@verizon.netrab.ccc.
@verizon.net
Advocates for improvements in the administration of
justice and the practice of law in the Legislative forum.
Chair: Hon. Frank R. Seddio
9306 Flatlands Ave.
(718) 272-6040
seddiolaw@gmail.com
Vice-Chair: Ethan B. Gerber
Gerber & Gerber PLLC
Brooklyn, NY 11242
(718) 834 4850
egerber@gerberandgerber.com
Members:
Hon. Frank V. Carone
Hon. Robin Garson
Jonathan Ginsberg
Gregory M. LaSpina
Hon. Richard J. Montelione
Alan Podhaizer
Steven H. Richman
Stephen Williamson
Chair: Steven D. Cohn
Goldberg & Cohn
16 Court Street
(718) 875-2400
goldcohn.law@verizon.net
Members:
Hon. Alice F. Rubin
MENTOR PROGRAM COMMITTEE
Matches mentors and mentees to participate in mentoring programs and arranges substitive programs,
luncheons and dinner events.
Chair: Richard Klass
(718) 643-6063
Chair: Barbara S. Odwak
(718) 875-1611
bararb@aol.com
Members:
Marc Aronson
Theresa M. Ciccotto
Mary Jo Eyster
Hon. Sallie Krauss
Sheldon Siporin
Edward Tantleff
Donald M. Zolin
Chair: Charles L. Emma
8410 3rd Avenue, 2nd Floor
(718) 232-3001
lawfirmnyc@aol.com
Members:
Steven D. Cohn
Michael Farkas
Ira Greene
Hon. John G. Ingram
Leo J. Kimmel
Michael F. King
Hon. Joseph S. Levine
Hon. Reinaldo E. Rivera
MEDICAL MALPRACTICE COMMITTEE
Chair John Bonina
(718) 522-1786
jbonina@medlaw1.com
Members:
Andrea E. Bonina
Eleni Coffinas
Hon. Gloria M. Dabiri
Jason Friedman
Andrew S. Garson
Johathan Ginsberg
Amy L. Insler
Alexander Keblish
Bonnie S. Kurtz
Lois Ottombrino
Hon. Gerard H. Rosenberg
Carmine Rubino
Robert A. Sgarlato
Hon. Marsha Steinhardt
Edward Tantleff
Glenn Verchick
NO FAULT COMMITTEE
Chair: Dean G. Delianites
Lozner & Mastropietro
1901 Emmons Avenue
(718) 615-0044
deand@lmlawnyc.com
Judith Aarons
Marc Aronson
Justin Auslaender
Adam Leitman Bailey
Mary Callaghan
Stephen D. Chiaino
Joseph R. Costello
Ene E. Crooks
Michael S. Daiell
Lawrence D. Giovanna
John D. Famulari
Susanne Gennusa
Angelo A. Giordano
Michael Goldberg
Kathleen Higgins
Adam Kalish
Harry L. Klein
ZRobert Koeppel
Carl J. Landicino
Jaime Lathrop
Matthew Lawrence Jr.
Doron Leiby
Noah Levenson
Colin Liverpool
William R. Lizarraga
Hon. Gary Marton
Valerie Niosi
Blaise Parascondola
Howard Poch
Alan Podhaizer
Frank J. Rio
Hal Rose
Oleg Rybak
Marcel Sager
Ilana R. Schwitzer
Nissan Shapiro
Scott Shostak
Olatok Unbo (Toks) Sofola
Co-Chair: John Michael Buhta
59 Kermit Place, Apt. #2
(773) 230-8694
littlejbuhta@hotmail.com
Members:
PROFESSIONAL ETHICS COMMITTEE
Promotes and maintains ethical standards and answers all inquiries pertaining thereto.
Chair: Gregg X. Fonti
Fonti & Fonti
8516 - 23rd Avenue
(718) 837-0677
greggxfonti@earthlink.net
Members:
Souren Israelyan
Randi Karmel
Bryan Kolb
Joanna J. Lambridis
Edward Vilinsky
Stephen Williamson
PUBLIC RELATIONS COMMITTEE
Promotes a better understanding of the lawyer’s role
in the community; friendly cooperation between
press and bar; considers statements in the press affecting the Association, bench and bar.
Chair:
Members:
Duane Frankson
Hon. Robin Garson
Sara Pankowski
Oleg Rybak
Karen Goldberg Sager
Carol Tiernan
Members:
Co-Chair: Jeannie M. Costello
123 Remsen Street
(718) 624-3894
jcostello@brooklynvlp.org
Daniel Antonelli
Heather Carpenter
Sidney Cherubin
Charles E. Coleman
Brian Doyle
Mary Jo Eyster
Robin N. Goeman
Adam Kalish
Alexander Keblish
William R. Lizarraga
George S. Meissner
Martin S. Needelman
James P. Slattery
Hon. Ellen M. Spodek
Diana J. Szochet
Bruce Weiner
Alan Podhaizer
601-A Surf Avenue, #22C
Brooklyn, NY 11224
(718) 946 4140
canalstreet@juno.com
Members:
Dean Delianites
Adam Kalish
Margaret Leszkiewicz
Anthony M. Vassallo
Mark J. Caruso
7302 - 13th Avenue
(718) 680-5778
mjc.ccc@verizon.net
Vice-Chair: Dayrel Sewell
599 East 2nd Street
Brooklyn, NY 11218
(347) 787-6824
info@sewellnylaw.com
PRO BONO COMMITTEE
Daniel R. Antonelli
Andrea E. Bonina
Ene Crooks
Lara Genovesi
Ethan B. Gerber
Louis Imbroto
Adam Kalish
Noah Levenson
Jae Nwawe
Hemalee J. Patel
Diana J. Szochet
Stephen Williamson
MILITARY LAW COMMITTEE
Chair:
Abayomi Ajaiyeoba
Marc Aronson
Andrew Bokser
Joseph R. Costello
Joseph H. Dirks
Randi L. Karmel
Doron Leiby
Paul V. Nuccio
Aimee L. Richter
Zvi Storch
Frank T. Strafacci
Members:
MEDIATION-GRIEVANCE MATTERS
COMMITTEE
(Includes Condemnation, Landlord & Tenant Cooperatives and Condominiums) Arranges substantive programs and sponsors luncheon and dinner events.
Members:
MEMORIAL COMMITTEE
LEGISLATIVE COMMITTEE
REAL PROPERTY SECTION
SPECIAL EVENTS COMMITTEE
Co-Chair: Diana J. Szochet
45 Monroe Place,
Brooklyn, NY 11201
(718) 923-6300 x303
Co-Chair: Andrea E. Bonina
Bonina & Bonina
Brooklyn, NY 11241
(718) 522-1786
abonina@medlaw1.com
Members:
RoseAnn C. Branda
Marye A. Dean
Fern J. Finkel
Hon. Robin Garson
Robin N. Goeman
Howard Golden
Stephen Jeffrey Harkavy
Susan B. Master
Dino Mastropietro
Matthew Porges
Aimee L. Richter
Sheldon Siporin
SUPREME COURTS COMMITTEE
Considers the practical workings of the Supreme
Court, Civil and Criminal Divisions and the Appellate
Courts. Also considers and investigates any complaint
against an attache thereof.
Co-Chair: Hon. Ellen Spodek
360 Adams Street, Room 381
Brooklyn, NY 11201
347-401-9018
espodek@courts.state.ny.us
OCTOBER, 2013
Members:
Louise S. Albenda
Daniel Antonelli
James H. Cahill, Jr.
Gregory Cannata
Hon. Anthony J. Cutrona
Michael S. Daiell
Dominic J. Famulari
John D. Famulari
Steven R. Finkelstein
Maureen P. Fonti
Paul S. Forster
Richard H. Freeman
Helen Z. Galette
Armena D. Gayle
William J. Giordano
Charles Goldfarb
Charles E. Gordon
Joseph G. Kenny
Ira Kopito
Anthony Lamberti
Ira K. Miller
Pearl Olwen Murphy
Vlad Portnoy
Marcel A. Sager
Barton Slavin
Paula J. Styles
Hon. Margarita Lopez Torres
Co-Chair: Rebecca Woodland
(718) 935-1010
rebwoodland@aol.com
Vice Chair: Hon. Mark Partnow
360 Adams Street, Room 476
(347) 296-1542
mpartnow@courts.state.ny.us.
Vice Chair: Hon. Reinaldo E. Rivera
Appellate Division, 2nd Dept.
45 Monroe Place
(718) 722-6492
Vice Chair: Hon. Arthur M. Schack
360 Adams Street
(347) 296-1518
mailto:aschack@courts.state.ny.usaschack@courts.state.ny.us
Members:
Hon. Deborah A. Dowling
Ethan B. Gerber
Angelo A. Giordano
Paul A. Golinski
Souren Israelyan
Ronald E. Joseph
Hon. Donald Scott Kurtz
Gregory M. LaSpina
John Lonuzzi
Robert E. Malchman
Charles J. Marchello
Angelique Moreno
Hon. Karen B. Rothenberg
Manuel A. Romero
Joseph S. Rosato
Hon. Wayne P. Saitta
Hon. Jules Spodek
Hon. David B. Vaughan
Edward Vilinsky
Alan J. Wohlberg
Donald M. Zolin
SURROGATE’S COURT COMMITTEE
Considers the practical workings of the court and investigates complaints against any attache thereof and
complaints relating to decedents’ estates.
Chair: Hon. Bruce M. Balter
360 Adams Street
(347) 296-1842
bbalter@courts.state.ny.us
Vice Chair: Frank T. Strafaci
569 Bay Ridge Parkway
(718) 748-4848
ftsesq@aol.commailto:ftesq@aol.com
TAXATION COMMITTEE
Considers all matters relating to taxation.
Chair: Eugene L. Stoler
60 West 13 Street
(212) 685-7215
midabet@aol.com
Vice-Chair: Michael S. Daiell
1401 Ocean Avenue,Lobby Ste. A
Brooklyn, NY 11230
(718) 338-7555
mdaiellesq@aol.com
Members:
Michael S. Daiell
Dewey Golkin
Paul A. Golinski
Anthony Lamberti
TORT LAW SECTION
(Includes Insurance, Compensation & Negligence)
Arranges substantive programs and sponsor luncheon
and dinner events.
Chair: John Lonuzzi
(718) 935-1010
lonuzzi@aol.com
Vice Chair: Hon. Donald Scott Kurtz
360 Adams Street
(347) 401-9047
dk@courts.state.ny.us
Vice-Chair: Steven Jeffrey Harkavy
Brooklyn, NY 11201
(718) 250-1100
mailto:dk@courts.state.ny.us
Members:
Henry J. Achiron
John Bonina
Andrea E. Bonina
Gregory Cannata
Gregory B. Coburn
Rosario Marquis D’Apice
Dean G. Delianites
Leslie J. Drossman
Andrew M. Fallek
Jason Friedman
Hon. Robin Garson
Ethan B. Gerber
Angelo Giordano
Rory Greebel
Marc J. Held
Hon. Allen Z. Hurkin-Torres
Ronald E. Joseph
Eileen Kaplan
Bonnie Kurtz
Nina L. Kurtz
Gregory M. LaSpina
Margaret Leszkiewicz
Dino Mastropietro
Jeffrey Miller
Joseph Monaco
Theodore Pavlounis
Manuel A. Romero
Joseph S. Rosato
Hon. Karen B. Rothenberg
Karen Goldberg Sager
Sheldon Siporin
Sheldon Siporin
Charles M. Sporn
Edward D. Tantleff
Nicholas Timko
Deborah A. Trerotola
Rebecca Woodland
Donald M. Zolin
UNLAWFUL PRACTICE OF THE LAW
COMMITTEE
Investigates and prosecutes the unlawful practice of
the law by corporations or individuals.
Chair: Gregg X. Fonti
Fonti & Fonti
8516 - 23rd Avenue
(718) 837-0677
greggxfonti@earthlink.net
Members:
Armena D. Gayle
Richard S. Goldberg
Deborah Lashley
Michael J. Mondschein
James E. Pelzer
Hon. Arthur M. Schack
WORKER’S COMPENSATION COMMITTEE
Considers desirable changes and reforms in substantive law and procedures in the law of Worker’s Compensation.
Chair: Michael Gruber
Brecher,Fishman,Pasternack, etal
335 Adams Street, 27th Floor
(718) 222-9800
michealg@brecherfishman.com
Members:
Thomas S. Bellone
Alexander Keblish
Brigette Renaud
Hon. Nancy Mottola Schacher
YOUNG LAWYERS SECTION
Sponsors substantive programs and social events.
Chair: Daniel Antonelli
New York, NY 10007
(212) 227 2424
dra@antonelli-legal.com
Vice-Chair: Adam Kalish
8 Melton Drive
Rockville Centre, NY 11570
(516) 375-1746
kalishpc@gmail.com
Members:
Justin Auslaender
Grace M. Borrino
Corey Briskin
Heather Carpenter
Damian Cortese
Ene E. Crooks
Erin Cummings
Marye A. Dean
Brian Doyle
Cyrus Dugger
Robin Goeman
Rory Greebel
Eve Jordonne
Alexander Keblish
Connie Yik Kong
Joanna J. Lambridis
Matthew Lawrence
Noah Levenson
Colin Liverpool
Susan B. Master
Rachel Nash
Jae Nwawe
Charlotte Owens
Matthew Porges
Margerita Racanelli
Adam Roth
Dayrel Sewell
Nissan Shapiro
Zvi Storch
Michael Treybich
Alexis Vigilante

01-12_barrister_10_2013_lo res

Transcription

Similar documents

Safe Summer Nights Flyer

FORT GREENE

DER KOMMISSAR hospitality design

The Sandhog Project - Dark Matter Archives

Subway Directions to Medgar Evers College Mathematics Department

biggiesb - day [B Ä RS]

Tapestry Brick Dwellings: The Emergence of a Residen*al Type In

May 2012 Newsletter

to the invite - The Brooklyn Hospital Center

Nucleus Work Chair