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THE

OFFICIAL

PUBLICATION

OF

THE

BROOKLYN

BAR

ASSOCIATION

BROOKLYN BARRISTER

©2013 Brooklyn Bar Association

February 2013

VOL. 65 NO.5

Brooklyn Welcomes Our New Presiding Justice By Mark Diamond, Esq. Randall T. Eng is the new presiding justice of the Appellate Division, Second Judicial Department. He faces a reduced roster of judges (down to 18 judges from the authorized 22) and a heavy caseload (over 4000 new appeals a year, about 20 percent criminal and 80 percent civil, and the disposition of about 12,000 cases a year). But the 64-year-old judge (he looks twenty years younger), the son of immigrant parents, who grew up working in his folks’ cleaning store, sounds ready for the challenge. Born in China, Justice Eng’s parents left after World War II, moved to Queens, and opened a garment cleaning business. He attended public grade schools, then Brooklyn Technical High School. He received his bachelor’s degree in political science and education from at the State University of New York at Buffalo. “At the time, Asian people could get employment in the technical fields but that was about it,” recalls Judge Eng. “A few were in medicine and there was a very small Chinese bar in solo practice. But Chinese lawyers were

Presiding Justice Randall T. Eng

unheard of in the larger firms and corporations. “I didn’t want to go into engineering. I just didn’t enjoy it. And I could see the handwriting on the wall. This was during the Viet Nam War and the civil rights movement. I knew things were changing. Tremendous barriers were coming down. I wanted to be part of it.” So he attended St. John’s Law School, received his juris doctor, and was admitted to the New York bar in 1973 as well as the California bar in 1978. Out of law school, he was hired by Queens County District Attorney Thomas J. Mackell, and became the first Asian assistant district attorney in New York State history. “I tried a lot of cases as an ADA,” says Justice Eng. “I still miss the trial work, the interaction with other attorneys.” After seven years with the DA’s office, in 1980, Mayor Edward Koch appointed Justice Eng as Deputy Inspector General of the New York City Department of Correction, and Inspector General a year later. In 1983, he was appointed by Mayor Koch to become a Judge of the Criminal Court of the City of New York, the first Asian judge ever in New York State. He sat mostly in Queens, but also in Brooklyn and Manhattan. In 1988, he

The Brooklyn Bar Association Announces The First Annual

HON. THEODORE T. JONES, JR. MEMORIAL GOLF TOURNAMENT for the benefit of the Brooklyn Bar Association Foundation, Inc. Monday, April 29, 2013

was appointed acting Justice of the New York Supreme Court. “Mayor Koch had a record of appointing judges from his administration, especially the IG’s office,” says Justice Eng. “I had a background in criminal justice, as inspector general and with the district attorney’s office, so I felt qualified.” In January, 1991, he became an elected Justice of the Supreme Court assigned to the criminal term in Queens, although he also heard civil cases, particularly personal injury and matrimonial matters. Some of Justice Eng’s decisions during his tenure as a trial judge show his fortitude as a man unafraid to decide a case on the law. In People v. Harris, 13 Misc.3d 901 (NY Sup 2006) Justice Eng dismissed the depraved indifference murder count of an indictment because the evidence before the grand jury showed that the murder was clearly intentional (although the grand jury dismissed the charge of intentional murder.) The case proceeded to trial on the count of manslaughter 2°. In Matter of Marvin B., 167 Misc. 2d 904 (NY Sup 1996) Marvin B. was committed for almost eleven years after having been found not responsible by reason of mental disease for a stabbing death. Marvin B. then asked for an independent psychiatrist to evaluate him, which the attorney general and district attorney both opposed. Justice Eng held that Judiciary Law § 35(4) gives the court the discretion to appoint an independent psychiatric examiner and that is what it would do, noting that during the tenplus years that the petitioner was committed, he has seen his commitment status continuously downgraded by the Commissioner of Mental Health psychiatrists. In People v. Boykin, 135 Misc. 2d 341 (NYC Crim.Ct. 1987) Justice Eng dismissed the charges of menacing and criminal possession of a weapon 4° because the complaint failed to identify anyone who had been threatened by the defendant’s wielding of a knife on a subway or claim that the defendant had threatened anyone with it. And in People v. Franco, 160 Misc. 2d 114, Please turn to page 7

What’s Inside

COLONIA COUNTRY CLUB Colonia, New Jersey

Brooklyn Welcomes Our New Presiding Justice By Mark Diamond, Esq. ..............................Pg. 1

Cost $350 per golfer

New Members, January 2013 .............Pg. 2

Watch for packages, sponsorship and registration information by flyer Email and online at www. Brooklynbar.org

The Docket Compiled by Louise Feldman ..................Pg. 2 Legal Briefs By Avery Eli Okin, Esq., CAE ......................Pg. 2 Respectfully Submitted By Domenick Napoletano, Esq. ...................Pg. 3 The State of Estates By Hon. Bruce M. Balter and Paul S. Forster, Esq. .....................................Pg. 4 Hurricane Sandy and Suspension of Speedy Trial Law by Executive Order By Isiris I. Isaac, Esq. .............................Pg. 5 Medical Malpractice Cases Update ........Pg. 6 CLE Offerings ........Pg. 11

Page 2, BROOKLYN BARRISTER

FEBRUARY, 2013

THE DOCKET Included below are events which have been scheduled for the period January 14 through March 13, 2013 Compiled by Louise Feldman

February 7, 2013

Thursday

Elder Law Committee Study Group Rear Conference Room 1:00 PM

February 18, 2013

Monday

In observance of President's Day, the BBA Building, including the Lawyer Referral Service, the Volunteer Lawyer Project and the Foundation Law Library will be closed.

February 21, 2013

Thursday

KCCBA Board of Director's Meeting Board of Trustees Room 5:00 PM KCCBA Dinner Meeting/CLE Auditorium 6:00 PM

February 25, 2013

Monday

Pro Bono Committee Meeting Board of Trustees Room 6:00 PM

February 26, 2013

Tuesday

Masters meeting - Inns of Court 5:00 PM Center Conference Room Inns of Court Program Auditorium 6:00 PM

February 27, 2013

Wednesday

BWBA Board of Director's Meeting Board of Trustees Room 6:00 PM

March 4, 2013

Monday

Foundation Public Education Program Board of Trustees Room 6:00 PM

March 7, 2013

Thursday

CLE Asset Protection Auditorium 6:00 PM

March 13, 2013

Wednesday

BBA Board & Foundation Meetings Board of Trustees Room 5:15 PM

March 14, 2013

Thursday

KCCBA Board of Director's Meeting Board of Trustees Room 5:00 PM KCCBA Dinner Meeting/CLE Auditorium 6:00 PM

March 19, 2013

Tuesday

Masters meeting - Inns of Court 5:00 PM Center Conference Room Inns of Court Auditorium 6:00 PM

March 20, 2013

Wednesday

BWBA Board Meeting Board of Trustees Room 6:00 PM

March 29, 2013

Friday

In observance of Good Friday, the BBA Building, including the Lawyer Referral Service, the Volunteer Lawyer Project and the Foundation Law Library will be closed.

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: [email protected]

LEGAL BRIEFS JUDICIAL RECOGNITION

Congratulations to Brooklyn Bar Association member Hon. Lawrence Knipel who was appointed by Chief Administrative Judge A. Gail Prudenti as the Administrative Judge for the Civil Term of the Supreme Court, Kings County effective Janury 18, 2013. Congratulations to Brooklyn Bar Association Treasurer Hon. Frank Seddio who will be honored as Democrat of the Year by Councilman Lew Fidler at the 41st Assembly District Democratic Dinner which will be held at Congregation Beth Shalom on February 28, 2013. At that same event Brooklyn Bar Association trustee Hon. Frank Carone, a member of the Taxi & Limousine Commission, will be recognized as the Public Servant of the Year. Last month the Bay Ridge Lawyers Association hosted their 2103 Annual Winter Seminar where Justice Arthur M. Schack was a featured speaker. Justice Schack spoke on “Mortage Muck and Mire.”

KUDOS AND PROFESSIONAL RECOGNITION

Also participating in the Bay Ridge Lawyers Association 2013 Annual Winter Seminar was Brooklyn Bar Association Past President Mark A. Longo. A past chair of the Grievance Committee for the Second and Eleventh Judicial Districts Mark A. Longo lectured on “Ethical Challenges for Lawyers.” Brooklyn Bar Association Trustee Pamela Elisofon was also a featured speaker at the January 18, 2013 Winter Seminar. Her remarks were entitled “Employer-Employee Relations for a Small Business.” Brooklyn Bar Association Intellectual Property Chair Bruno F. Codispoti also participated in the Bay Ridge Lawyers 2013 Winter Seminar. His lecture was entitled “IP for the GP.” Brooklyn Bar Association Lawyer Referral Service Director Roseann Hiebert has been selected for the fifth time by the American Bar Association Committee on Lawyer Referral and Information Services to participate in a Peer Assessment Review of the operations of a state bar Lawyer Referral Service. The ABA sponsored

PAR visit was held on January 14-16, 2013. Congratulations to Brooklyn Bar Association CLE Director Meredith Symonds who has received a scholarship from ACLEA — the Association of Continuing Legal Education Administrators — to attend their Mid-year Meeting, which includes professional development and best practices workshops, on February 2-5, 2013.

FAMILY MATTERS

Congratulations to Brooklyn Bar Association student member Sarah Kurtz, daughter of Hon. Donald Scott Kurtz and Nina Kurtz, who was admitted to practice on January 9, 2013. A 2012 graduate of New York Law School Sarah Kurtz took the oath of office as an Assistant District Attorney in Kings County on January 10, 2013.

BEREAVEMENTS

The Brooklyn Bar Association extends its deepest sympathy to Hon. Maxine L. Archer, on the passing of her father Norman D. Archer on December 16, 2012. The Brooklyn Bar Association extends its deepest sympathy to Marianne Cutrona and the entire Cutrona Family on the passing of Supreme Court Justice Hon. Anthony J. Cutrona on January 16, 2013. A member of the Brooklyn Bar Association for over thirty years Justice Cutrona had served with distinction on the Board of Trustees and as the Treasurer, Secretary, Second and First Vice President before his elevation to the Supreme Court, Kings County bench. The Brooklyn Bar Association extends its deepest sympathy to Donald Mastrodomenico on the passing of his father, Emil Francis Mastrodomenico, a Brooklyn Law School gradsuate and Queens based practitioner, on January 13, 2013. ___________________________________ 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 [email protected], faxed to 718-797-1713 or mailed to 123 Remsen Street, Brooklyn, New York 11201-4212.

NEW MEMBERS MONTH FEBRUARY 2013 Hon. T homas P. A liott M ar ia A r agona She re e fat B alogun

Jacquel i ne Burger Rachel Dobki n Sarah G ordon

Jef f rey Mi chal czak Eri k Unger

STUDENT MEMBERS Scott Keatley

Noel Daly

BROOKLYN BAR ASSOCIATION 2012-2013 Domenick Napoletano, President Andrew M. Fallek, President-Elect Rebecca Woodland, First Vice-President

Arthur L. Aidala, Second Vice President Hon. Frank R. Seddio, Secretary Aimee L. Richter, Treasurer

Avery Eli Okin, Esq., CAE Executive Director

TRUSTEES CLASS OF 2013 David M. Chidekel Armena D. Gayle Steven Jeffrey Harkavy Richard Klass Anthony J. Lamberti Hemalee J. Patel Isaac N. Tuchman

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

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 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

FEBRUARY, 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

A Discourse On Gun Control the heart of the amendment’s more basic protective ends.” In McDonald v Chicago the Plaintiff’s complaint challenged a Chicago Municipal Code which provided that “(a) Every registrant must renew his registration certificate annually. Applications for renewal shall be made by such registrants 60 days prior to the expiration of the current registration certificate, and (b) The application for renewal shall include the payment of a renewal fee….” In its 5-4 decision in McDonald v Chicago finding the above ordinance unconstitutional, the U.S. Supreme Court with Justices Alito, Roberts, Scalia, Kennedy, and Thomas writing for the majority stated “Two years ago, in District of Columbia v. Heller ... we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the

By Domenick Napoletano, Esq. Given the recent headlines of mass murders, the issue to bear arms, or limitations thereon, has been brought to the forefront for wide debate. Gun advocates, and opponents alike, have all expressed horror over these senseless incidents in our country. From the shootings in Arizona that saw countless loss of lives and the serious wounding of a United States Congresswoman to the slaughter of defenseless little children in Connecticut, and places in between, gun violence in our country is steadily spiraling. In the wake of such violence, New York has passed what has been described as the toughest gun control legislation in the country. In keeping with the federal government’s push for new and tougher government control on weapons, other state legislators, governors, and attorney generals, are promising to protect the gun rights of citizens in their jurisdictions in the face of what is being described as the most aggressive assault on the Second Amendment in generations. So how will the recently enacted New York Safe Act of 2013 fare, given the U.S. Supreme Court’s past scrutiny? An issue as old as our Constitution, gun control certainly goes much further than a citizen’s right to bear arms, concealed or otherwise, and the controversy has again ignited passions pro and con. While the purists, amongst those who advocate gun ownership, have been known to argue that people kill people, and not guns, a common denominator to the escalating number of gun violence incidents is, nonetheless, traceable in the fact that certain types of weapons provide the vehicle, by which the recently reported mass killings have occurred. In an anonymous letter to the editor of the Brooklyn Daily Eagle, dated November 19, 1895, the writer questioned our State’s passage of legislation, at that time, in making it a crime to carry a concealed weapon. The author questioned if “the enactments, of legislative bodies of states or municipalities, prohibiting the bearing of arms, in a certain manner, harmonizes with the constitutional provision.” In the Bill of Rights, the Second Amendment to the United States Constitution provides that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Whether it’s a crime issue, or a rights issue, debates have raged on for years. In 2010, the United States Supreme Court spoke, in their 5 to 4 decision on the matter of DC vs. Heller 552 U.S. 1035 (2007). In 1976, the District of Columbia’s City Council passed a law generally prohibiting residents from possessing handguns and requiring that all firearms in private homes be (1) kept unloaded and (2) rendered temporarily inoperable via disassembly or installation of a trigger lock. In finding the law unconstitutional Justices Scalia, joined by Roberts, Kennedy, Thomas, and Alito writing for the majority held that “The District’s total ban on handgun possession in the home amounts to a prohibi-

home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. ... Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.” Nelson Lund, J.D., Ph.D. in an article written for the Virginia Institute for Public Policy captioned, “A Primer on the Constitutional Right to Keep and Bear Arms,” stated: “The Second Amendment is among the most misunderstood provisions of the U.S. Constitution. Not because it is particularly difficult to understand. On the contrary, for more than a hundred years after it was adopted, hardly anyone seemed the least bit confused Please turn to page 7

Domenick Napoletano tion on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition ... would fail constitutional muster” said the Court. The Court went on to note that “Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The minority headed by Justice Stevens, joined by Souter, Ginsburg, and Breyer wrote “[T]he words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution. As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia. The Framers were unlikely then to have thought of a right to keep loaded handguns in homes to confront intruders in urban settings as central. And the subsequent development of modern urban police departments, by diminishing the need to keep loaded guns nearby in case of intruders, would have moved any such right even further away from

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 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. 65 No. 5 February 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.

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T H E

FEBRUARY, 2013

S TAT E

By Hon. Bruce M. Balter and Paul S. Forster, Esq. It appears that the majority of weather predicting small mammals has prognosticated an early spring so we hope that we can add to your enjoyment of the warming days with some interesting cases involving the standards to be utilized in fixing estate attorney’s fees in general, and the fees of guardian’s ad litem in particular; the granting of summary judgment awarding the proceeds of a very substantial totten trust account to the decedent’s long prior former boyfriend over the claims of the estate fiduciary that most of the funds in the account inadvertently had been deposited into the account on behalf of the decedent shortly before the decedent’s death; the grant of full executor’s commissions, without compliance with the disclosure required under SCPA §2307-a, to a New Jersey attorney who drafted the decedent’s Will at a time when the decedent was a New Jersey resident; the steps which must be taken in order to be entitled to interest on an unpaid legacy; and the duty of an executor to make proportionate distributions to all residuary beneficiaries contemporaneously and the rate of interest on the personal surcharge against the executrix for failing to do so. Court Sets Forth the Standards to Be Utilized in Fixing Estate Attorney’s Fees in General, and the Fees of Guardian’s ad litem in Particular — The Court had before it an application to fix the fee of the Guardian ad litem appointed for the decedent’s three minor children, all of whom had attained the age of majority. The Guardian ad litem initially was appointed in a contested probate proceeding and subsequently was appointed to represent the interests of his wards in two SCPA §2103 discovery proceedings, which pended for nearly three years. The parties resolved their differences pursuant to a stipulation of settlement, and the Guardian ad litem filed a final report wherein he recommended approval of the stipulation. The settlement included the waiver of commissions by the preliminary executor and co-trustees which the Guardian ad litem averred would result in a savings of $500,000.00. In addition, the surviving spouse agreed to reduce the amount of her elective share to twenty percent (20%) of the decedent’s assets located in the United States and ten percent (10%) of the decedent’s assets located in Italy, resulting in a greater share for the decedent’s children. The Guardian ad litem previously had requested an interim fee for approximately 166 hours rendered by him on which application the Court awarded compensation of $25,000.00 on account. The application for additional fees based upon 105 hours rendered involved review of order to show cause for revocation of preliminary letters; preparation of objections to extension of preliminary letters; preparation of petition seeking removal of co-trustees of 2008 Trust; preparation of petition seeking removal of co-trustees of 1997 Trust; participation in court conferences; preparation of memoranda of law; review of informal accountings for the estate and trust; correspondence and telephone communications with counsel; preparation of discovery demands; preparation for and attendance at depositions; meetings with counsel; review of proposed stipulations; participation in settlement negotiations; review of subpoenaed records; and preparation of final report. HOLDING — The Court stated that it bore the ultimate responsibility for approving legal fees charged to an estate and that it had the discretion to determine what constituted reasonable compensation for legal services rendered in the course of an estate. While acknowledging that there was no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Court stated that the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily. The Court opined that in evaluating the cost of legal services, the Court may consider a number of factors, including the time spent, the complexity of the questions involved, the nature of the services provided, the amount of litigation required, the amounts involved and the benefit resulting from the execution of such services, the lawyer’s experience and reputation, and the customary fee charged by the Bar for similar services. The Court noted that in discharging this duty to review fees, the Court cannot apply a selected few factors which might be more favorable to one position or another, but must strike a balance by considering all of the elements. The Court added that the legal fee must bear a reasonable relationship to the size of the estate, and that a sizeable estate permits adequate compensation, but nothing beyond that. The Court pointed out that the size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided. The Court stated that the burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services. The Court asserted that contemporaneous records of legal time spent on estate matters are important in determining whether the amount of time spent was reasonable for the various tasks performed. The Court noted that these factors applied equally to an attorney retained by a fiduciary or to a court-appointed Guardian ad litem. The Court added that the nature of the role played by the Guardian ad litem was an additional consideration in determining his or her fee. The Court stated that it had reviewed the contemporaneous time records submitted by the Guardian ad litem. The Court noted that some of the entries included travel time, which it held was not compensable. The Court added that there were entries reflecting time spent on the interim fee request and preparation of his affirmation of services, but the Court ruled that time spent by an attorney on his fee request is not compensable. The Court acknowledged that the Guardian ad litem was

O F

E S TAT E S

instrumental in effectuating a settlement in what were extremely contentious matters, that it was aware of the Guardian ad litem’s excellent reputation in the legal community, and that it recognized that the Guardian ad litem’s participation in the proceedings was instrumental in reaching the final settlement. Accordingly, the Court awarded the guardian ad litem an additional fee of $25,000.00 for a total fee of $50,000.00. Matter of Vescio, 2012 N.Y. Slip Op. 52308 (Surr. Ct., Nassau Co., Surr. McCarty, 12/12/12) Summary Judgment Granted Awarding the Proceeds of a Very Substantial Totten Trust Account to the Decedent’s Long Prior Former Boyfriend Over the Claims of the Estate Fiduciary That Most of the Funds in the Account Inadvertently Had Been Deposited Into the Account on Behalf of the Decedent Shortly Before the Decedent’s Death — In a turnover proceeding involve competing claims to a bank money-market savings account established by the decedent, the executor alleged that the account was an asset of decedent’s estate. A long-time friend, and former boy friend, claimed that the account was a so-called Totten Trust (EPTL 7-5.1 et seq.) and that he was the designated beneficiary of the account. The decedent, a businesswoman who wholly owned a consulting company, had first met the claimant in the late 1970’s. The two became romantically involved. By 1990 the claimant had moved in with decedent and continued to live with her for another 10 years. According to the claimant, at some time during their cohabitation decedent told him that she had made him a beneficiary of a bank account. In or around the year 2000, the claimant stopped living in decedent’s home, but while they no longer were romantically involved, they nevertheless remained friends. It was not disputed that the decedent gave the claimant a number of generous gifts during that period, including an envelope containing $10,000 in cash as an early “holiday gift” a few months before she died. The account in dispute was opened by decedent in 1996, at Citibank, where decedent maintained two other accounts. The Form 1099 (Statement of Interest Income) that the bank sent to decedent for each of the 1996 and 1997 tax years reported the Account as held in decedent’s name alone. However, the 11 subsequent Forms 1099 sent to decedent in the years before she died reported the Account as held in her name in trust for the claimant. In 2009, decedent learned that she had terminal cancer and that she would likely die within the year. In short order, she made travel arrangements to seek treatment in Japan and contacted a lawyer in New York for the preparation of a will. According to a list of assets compiled by decedent at the lawyer’s request, her total assets were worth approximately nine million dollars. Under her will, decedent disposed of United States assets only. She left tangibles and her interests in her consulting company to the estate fiduciary, her long-time friend and business associate, and 20 percent of her residuary estate to each of her two sisters, with the balance of the residuary divided equally between her then romantic partner and the fiduciary. On contemporaneously with the making of her Will, the decedent visited the claimant in his apartment. She told him that she had been diagnosed with cancer and that she was leaving the next day to seek treatment in Japan. Shortly thereafter, on the same day that the decedent flew to Japan, the fiduciary, under instructions from the decedent, added approximately $370,300 to the account. As a result, by the time decedent arrived in Japan, the balance in the Account was approximately $406,300. After the decedent’s death, Citibank released the account balance to the claimant upon his presentation of decedent’s death certificate. The fund at that time amounted to approximately $441,500. The former boy friend moved for summary judgment on his claim to the funds in the account. Bank documents were not available to the claimant in support of his claim, since, according to the deposition testimony of a Citibank employee, the bank could not find the signature cards associated with the account, and that it had destroyed other years-old documents related to the account as part of its routine housecleaning procedure. The claimant was able to support his claim with evidence consisting of the 1099’s for 1998 through 2009 showing the account to be in trust for him, bank statements, addressed to the depositor showing the account to be in trust for the claimant as to which there was no evidence that the decedent had protested their accuracy, a computer print-out of the Citibank records reflecting that the account was held in trust for the claimant, and the deposition testimony of a Citibank employee, who confirmed that such data was, as a matter of company practice, entered into the bank’s computer system at the time that the depositor supplied the information which appeared to have occurred in 1998. In opposition, the estate fiduciary submitted her own affidavit and the affidavits of two other individuals who were close to decedent, as well as the affidavit of the lawyer who drafted her Will. The affidavits posited one or more of several theories. The first theory was that decedent never established the account as a Totten Trust for the claimant. The second theory was that decedent forgot that she had established the account as a Totten Trust and intended to dispose of the account under her Will, rather than by her prior designation of the claimant. The third theory was that the decedent had revoked the Totten Trust. According to the estate fiduciary, the decedent would not have intended to leave such a considerable sum for the claimant given the couple’s checkered romantic history and his advanced age; that the substantial deposit into the account was designed merely to assure her ready access to funds to meet her medical needs during her stay in Japan, while maximizing the return on such funds, rather than to benefit the claimant in the event of decedent’s demise;

and that the decedent would have mentioned to the lawyer and to the estate fiduciary that the account was a Totten Trust for the claimant if it had indeed been such a vehicle. HOLDING — The Court awarded summary judgment to the former boyfriend and granted his claim to the funds in the account. The Court opined that the premise of a summary judgment motion is that the movant’s position is supported by the record as a matter of law. The Court acknowledged that because summary determination in opposition to a party’s position eliminated that party’s recourse to a trial, it is to be regarded as a drastic measure, to be granted only cautiously, affording the party opposing the motion every favorable inference. The Court, however, also recognized that timidity in exercising the power in favor of a legitimate claim and against an unmerited one, not only defeats the ends of justice in a specific case, but contributes to calendar congestion which, in turn, denies to other suitors their rights to prompt determination of their litigation. The Court stated that the claimant had the threshold burden to submit evidence making a prima facie case for his claim to the account. The Court noted that the claimant was not able to use his own testimony concerning decedent’s alleged disclosure to him that she had established an account for his benefit in support of his application, since, even apart from a problem with the Dead Man’s Statute under CPLR 4519, hearsay that does not come within an exception to the hearsay rule cannot be a basis for summary judgment. Nevertheless, the Court ruled that the movant had submitted proofs establishing prima facie that the account was maintained as a Totten Trust for his benefit and that at decedent’s death he had become entitled to the balance in the account. The Court stated that to resist summary judgment, the estate fiduciary had the burden of laying bare her proof to establish that there was at least some genuine question of fact requiring a trial. In the Court’s view, however, none of the fiduciary’s theories was supported by anything other than bare speculation. But such surmise is on its face problematic. For example, the Court found the decedent’s silence as to the non-testamentary provisions for the claimant was not necessarily telling, since she had also declined to disclose to her lawyer that she had just been diagnosed with a terminal illness, demonstrating to the Court that the decedent was capable of reticence. The Court also did not find compelling the fact that decedent told the lawyer about certain non-testamentary benefits for her sisters but not about the account in question in support of the proposition that the decedent would have done so if she had in fact intended to leave the account to the claimant. The Court concluded that the decedent had referred to insurance and IRA benefits to her sisters by way of explaining to her attorney the limited testamentary provisions for her sisters and that since the decedent had not even mentioned the claimant to the lawyer, there was no occasion for her to offer any similar explanation concerning him. The Court also rejected the notion that the decedent may have revoked the account, holding that the fiduciary presented no evidence as to the existence of a writing which is, by statute, an essential element of a revocation of a Totten Trust account that has not otherwise been revoked by the depositor to the extent of lifetime withdrawals. The Court ruled that as to all of the theories posed in the papers in opposition, material questions of fact were not raised on the strength of mere speculation. The Court also rejected the estate fiduciary’s challenge to the testimony of the Citibank employee as to company practices. The Court stated that although the employee described bank practices from the vantage point of her employment with the bank since 2002, if the relevant practices were different in the late 1990’s when the account had been changed to a Totten Trust, the burden to produce such evidence was on the estate fiduciary, which she failed to do. Consequently, a prima facie case having been made by the claimant, and the estate fiduciary having failed to raise a genuine question of material fact, the Court granted the claimant’s motion for summary judgment. Matter of Wess, N.Y.L.J. 1/10/13, p.17, c.1 (Surr. Ct., New York Co., Surr. Anderson) Full Executor’s Commissions Granted, Without Compliance with the Disclosure Required under SCPA §2307-a, To a New Jersey Attorney Who Drafted the Decedent’s Will at a Time When the Decedent Was a New Jersey Resident- A New Jersey attorney named as executor in the decedent’s Will petitioned to have decedent’s Will admitted to probate and to have Letters Testamentary issue to him. The attorney had not complied with the disclosure requirements for an attorney-executor found in SCPA §2307-a and 22 NYCRR 207.16(e), under the terms of which he would be precluded him from receiving a full commission. However, the attorney took the position that he was exempt from the requirements of the provisions requiring the disclosure, and in the absence of disclosure restricting commissions, because he was a New Jersey attorney and had drafted a will for a then New Jersey resident, and because there was no law in New Jersey comparable to SCPA §2307-a. The attorney and the decedent knew each other for approximately 43 years and maintained a friendship with one another. The subject Will was drafted in 1998. Although the Will stated that the decedent was “presently of Leonardo, New Jersey,” it was executed and notarized in Richmond County, New York, where the Decedent was hospitalized. Three months after the Will was executed, the decedent moved to Staten Island, New York where he was domiciled at the time of his death in 2012, as a result of a motor vehicle accident. The decedent was survived by one distributee, a son, to whom he left his entire estate. The decedent named the drafting attorney, who only was licensed in New Jersey, as the executor. Please turn to page 7

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FEBRUARY, 2013

Medical Malpractice Update THE FOLLOWING SUMMARY OF SECOND DEPARTMENT DECISIONS IN MEDICAL MALPRACTICE CASES, DECIDED BETWEEN JANUARY 1, 2012 AND AUGUST 31, 2012 By:John Bonina, Esq.

I. VENUE: Forbes v. Rubinovich, 94 A.D.3d 809 (2d Dept. 2012) Change of Venue from Kings County to Oneida County Granted. In support of their motion to change venue from Kings County to Oneida County, defendants were able to show that plaintiff actually lived in Richmond County, not Kings County.1 The only evidence of plaintiff’s Kings County residence was his own self-serving affidavit.2 No documents whatsoever were submitted to support his claims that he resided in Kings County.3 The Court noted as follows: In support of his motion, the appellant submitted evidence establishing prima facie that the plaintiff resided in Richmond County and that the defendants resided in Oneida County. In opposition to the motion, the plaintiff was required to establish through documentary evidence that he intended to retain Kings County as a residence for some length of time and with some degree of permanency (see Buziashvili v Ryan, 264 AD2d 797, 798 [1999]; Labissiere v Roland, 231 AD2d 687 [1996]; Mandelbaum v Mandelbaum, 151 AD2d 727 [1989]). The plaintiff’s driver’s license, which was issued after the commencement of the action, was irrelevant (see Buziashvili v Ryan, 264 AD2d at 798; Mandelbaum v Mandelbaum, 151 AD2d 727 [1989]; Siegfried v Siegfried, 92 AD2d 916 [1983]). Furthermore, aside from a conclusory statement contained in his affidavit that he resided at an address in Kings County prior to commencing this action, the plaintiff failed to present any other evidence sufficient to establish that he resided in Kings County with any degree of permanency at the time this action was commenced (see Harley v Miller, 295 AD2d 401 [2002]; cf. Ellis v Wirshba, 18 AD3d 805 [2005]; Schaefer v Schwartz, 226 AD2d 619 [1996]). Moreover, the appellant moved promptly to change venue after ascertaining the plaintiff’s true residence (see Neu v St. John’s Episcopal Hosp., 27 AD3d 538, 539 [2006]; Supino v PV Holding Corp., 291 AD2d 489 [2002]; Buziashvili v Ryan, 264 AD2d at 798). Accordingly, that branch of the appellant’s motion which was to change the venue of the action from Kings County to Oneida County pursuant to CPLR 510 (1) should have been granted.4 Note: Had plaintiff been able to provide documentation proving his Kings County residence at the time of commencement of the action, this motion could very well have been decided differently. Such documentation could include a lease or mortgage statement, gas bill, electric company bill, cable company bill, phone bill etc. When one anticipates the potential of such a venue motion, it is good practice to have one’s client collect these documents ahead of time.

II. STATUTE OF LIMITATIONS: Continuous Treatment: Piro v. Macura, 92 A.D.3d 658 (2d Dept. 2012) Defendant’s motion to dismiss on statute of limitations grounds denied, as there were questions of fact on the issue of continuous treatment.5 Plaintiff consulted defendant Macura in May 2003 to be evaluated for weight loss surgery and treatment of an umbilical hernia.6 Defendant performed laparoscopic banding to treat plaintiff’s obesity on November 12, 2003, and repair of his umbilical hernia on May 7, 2004. Plaintiff thereafter visited defendant several times between May 2004 and December 7, 2004, both to have the lap band adjusted and to treat the hernia wound which had become infected. On November 11, 2004 plain-

tiff also saw another surgeon for treatment of the hernia wound. Defendant expected plaintiff to return to see him four weeks after the December 7, 2004 visit, but plaintiff did not return to defendant’s office until March 29, 2005. 7 Plaintiff commenced the action on June 13, 2007 alleging that defendant was negligent in treating the infection which arose due to the hernia surgery.8 Defendant moved to dismiss on statute of limitations grounds, alleging that the sole purpose of the March 29, 2005 visit was to adjust the lap band, and that he examined the hernia wound at that time only to see if it was open, but did nothing to treat the wound.9 The Second Department denied defendant’s motion for summary judgment on statute of limitations grounds, stating as follows: “In support of that branch of the defendant’s motion which was for summary judgment dismissing the complaint as time-barred insofar as asserted against him, the defendant demonstrated, prima facie, that the action was commenced more than two years and six months after the last treatment for the umbilical hernia on December 7, 2004 (see Piro v Macura, 58 AD3d 707, 708 [2009]; Kaufmann v Fulop, 47 AD3d 682, 683-684 [2008]; Texeria v BAB Nuclear Radiology, P.C., 43 AD3d 403, 405 [2007]; LaRocca v DeRicco, 39 AD3d 486, 486-487 [2007]; Chinosi v Kringstein, 7 AD3d 558 [2004]). However, in opposition, the plaintiff raised a triable issue of fact by adducing evidence that the defendant’s treatment of the plaintiff’s hernia wound had continued until March 29, 2005 (see Piro v Macura, 58 AD3d at 708; Shifrina v City of New York, 5 AD3d 660, 662 [2004]; Couch v County of Suffolk, 296 AD2d 194 [2002]). Contrary to the defendant’s contentions, the fact that the plaintiff consulted another doctor for treatment of the same condition “ ‘does not necessarily establish that he lost his continuing trust and confidence in the defendant’ “ (Piro v Macura, 58 AD3d at 709, quoting Marmol v Green, 7 AD3d 682, 682 [2004] [some internal quotation marks omitted]; see Richardson v Orentreich, 64 NY2d 896, 898 [1985]), especially since the plaintiff continued to visit the defendant.” 10 King v. Dobriner, 94 A.D.3d 821 (2d Dept. 2012) Defendant’s motion to dismiss on statute of limitations denied, based upon the continuous treatment doctrine.11 The Court’s decision provides no details as to the basis for its holding.

CPLR 208: Montepiedra v. Hon, 93 A.D.3d 770 (2d Dept. 2012) Plaintiff Filomena Montepiedra as guardian of the person and property of Maria Georgina Rojas Montepiedra commenced this action for medical malpractice seeking recovery for injuries as a result of a ruptured brain aneurysm.12 Defendants moved for summary judgment on statute of limitations grounds.13 The Court denied the motion, stating that the tolling provision in CPLR 208 applied. The Court held that commencement of a prior action by the guardian did not eliminate the insanity toll.14 Specifically, the Court held as follows: In their moving papers, in which the defendants demonstrated, prima facie, that the action was commenced more than 2½ years after they last treated Maria, they also conceded that certain medical evidence was sufficient to establish the applicability of the “insanity” toll (CPLR 208). However, the defendants contended that since a prior, timely medical malpractice action had been commenced in Maria’s own name, against other defendants, Maria was not, in fact, incapable of protecting her legal rights at a time when a timely action

could also have been commenced against them. For this reason, the defendants argued, in their moving papers, the statute of limitations was not tolled under CPLR 208 by reason of Maria’s incapacity. The Supreme Court granted the defendants’ separate motions. This was error. Taking into account the defendants’ concessions on their respective motions, they failed to establish their prima facie entitlement to judgment as a matter of law. Contrary to the defendants’ contention, the toll provided in CPLR 208 was not terminated or unavailable due to the commencement of the prior action (see Henry v City of New York, 94 NY2d 275, 283 [1999]; Ferreira v Maimonides Med. Ctr., 43 AD3d 856 [2007]; Carrasquillo v Holliswood Hosp., 37 AD3d 509 [2007]; Costello v North Shore Univ. Hosp. Ctr. for Extended Care & Rehabilitation, 273 AD2d 190 [2000]). The defendants’ evidence demonstrated that, at the time of the prior action, although it was commenced in Maria’s name, she had little understanding of that proceeding, which was initiated, in actuality, by either her mother or her father (cf. Matter of Cerami v City of Rochester School Dist., 82 NY2d 809, 812813 [1993]).15

Relation Back: Rotondi v. DeFazio, 92 A.D.3d 859 (2d Dept. 2012) Plaintiff initially commenced an action again Mark DeFazio, M.D. Thereafter plaintiff’s motion to amend the Complaint to add Gregory DeFazio and Laurence DeFazio, M.D., P.C. as defendants was granted.16 Although the statute of limitations on plaintiff’s proposed claims against these parties expired before plaintiff sought leave to amend the Complaint, plaintiff successfully demonstrated a basis for application of the relation back doctrine. 17

III. PLEADINGS: Joinder and Severance of Claims: Moy v. St. Vincent’s Hosp. & Med. Ctr. of N.Y., 92 A.D.3d 651 (2d Dept. 2012) Denial of plaintiff’s motion to sever the claims against the bankrupt defendant (St. Vincent’s) reversed, and severance of those claims granted, with the Court holding as follows: “It has been generally held that ‘the balance of the equities lies with plaintiffs when one defendant has received an automatic stay pursuant to 11 USC § 362 (a) . . . and codefendants request a stay of the entire action’” (Rosenbaum v Dane & Murphy, 189 AD2d 760, 761 [1993], quoting Lottes v Slater, 114 AD2d 580, 581 [1985]; see Rapini v New Plan Excel Realty Trust, Inc., 8 AD3d 1013, 1014 [2004]). Here, as the prejudice to the plaintiff in being required to await the conclusion of the bankruptcy proceeding before obtaining any remedy outweighs any potential inconvenience to the defendants, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion pursuant to CPLR 603 to sever the causes of action asserted against Wayne from the causes of action asserted against the hospital (see Weber v Baccarat, Inc., 70 AD3d 487, 488 [2010]; Kharmah v [*2]Metropolitan Chiropractic Ctr., 288 AD2d 94 [2001]; Golden v Moscowitz, 194 AD2d 385, 386 [1993]; Rosenbaum v Dane & Murphy, 189 AD2d at 761). However, as Wayne correctly contends, equity requires that the defendants have the benefit of their rights under CPLR article 16, such that if their culpability is 50% or less, their exposure for economic damages should be limited proportionately to their share of fault (see CPLR 1601 [1]; Kharmah v Metropolitan Chiropractic Ctr., 288 AD2d at 94-95).”18

Supplemental and Amended Bills of Particulars: Jurado v. Kalache, 93 A.D.3d 759 (2d Dept. 2012) Defendant’s motion to strike plaintiff’s Second Supplemental Bill of Particulars was granted.19 In plaintiff’s initial Bill of Particulars, she responded to defendant’s demand for statutory violations by stating “not applicable.”20 Thereafter, a Supplemental Bill of Particulars further articulated the basis of plaintiff’s malpractice claims, but said nothing about statutory violations.21 Following defendant’s deposition, the plaintiff served a “Second Supplemental Bill of Particulars” alleging violation of various statutes dealing with falsification of medical records.22 The Court granted defendant’s motion to strike the Second Supplemental Bill of Particulars because plaintiff was not merely amplifying her prior responses, but was rather adding new allegations.23

Miscellaneous: Holmes v. Maimonides Med. Ctr., 95 A.D.3d 831 (2d Dept. 2012) Plaintiff’s loss of consortium claim was dismissed, as the injured plaintiff and spouse were married after the alleged malpractice.24 DeGroof v. Milhorat, 95 A.D.3d 818 (2d Dept. 2012). Harja v. Milhorat, 95 A.D.3d 829 (2d Dept. 2012). Brenner v. Milhorat, 95 A.D.3d 812 (2d Dept. 2012). Andrade v. Milhorat, 95 A.D.3d 798 (2d Dept. 2012). Various plaintiffs sued defendants for fraud and medical malpractice, claiming that they were induced to undergo unnecessary spinal cord detethering surgery based upon defendants’ allegedly knowingly false misrepresentations. The fraud causes of action were dismissed, since the injuries arising from the alleged fraud were no different from those resulting from the alleged lack of informed consent and medical malpractice.

IV. DISCOVERY What is Discoverable? Fox v. Marshall, 91 A.D.3d 710 (2d Dept. 2012) Plaintiff was granted discovery of defendant’s medical and psychiatric records, on the unique facts of this case.25 The Court noted the following with respect to discovery of a defendant’s medical records: Discovery of medical records regarding a party’s mental or physical condition is permitted when a defendant waives that privilege by affirmatively placing his or her mental or physical condition “in controversy” (CPLR 3121 [a]; see Dillenbeck v Hess, 73 NY2d at 286-287; Lombardi v Hall, 5 AD3d 739, 739740 [2004]). In order to effect a waiver, a party must affirmatively assert the condition and place that condition in issue “ ‘either by way of counterclaim or to excuse the conduct complained of by the plaintiff’ “ in the pending action or in a related matter (see Dillenbeck v Hess, 73 NY2d at 288, quoting Koump v Smith, 25 NY2d 287, 294 [1969]; see Grafi v Solomon, 274 AD2d 451, 452 [2000]). Under the circumstances of this case, the Supreme Court did not err in finding that the defendant Evan Marshall waived the physician-patient privilege with respect to the medical records and other documents relating to a prior criminal proceeding in which he was a defendant that are the subject of the orders appealed from here (see Webdale v North Gen.

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The estate consisted of one parcel of real property worth approximately $425,000 and any proceeds that might result from a potential lawsuit relating to the automobile accident. The sole distributee consented to the executor receiving full commission, although the executor had not complied with SCPA §2307-a. The attorney-draftsman hired counsel to represent him as executor. It was represented that the attorney-draftsman would not be the attorney for any personal injury and wrongful death actions. Holding- The Surrogate ruled that the New Jersey attorney would be entitled to full commissions, despite his failure to make the SCPA §2307-a disclosure. The Court opined that SCPA 2§307-a was enacted in 1995, effective January 1, 1996, after New York legislators recognized the need to protect clients from possible overreaching by attorneys related to them being nominated as executors. The Court explained that under SCPA §2307-a, when an attorney prepares a will to be proved in New York, the testator must be informed prior to execution of the Will that: (1) subject to limited statutory exceptions, any person is eligible to serve as executor; (2) absent an agreement to the contrary, an executor is entitled to statutory commission; (3) without the disclosure required by the statute, the attorney who prepared the will and serves as executor would be entitled to one-half of the commission to which he or she otherwise would be entitled. The Court pointed out that the disclosure to the client has to be in writing, must be witnessed by at least one person other than the executor, must be separate from the Will, but can be attached to it, can be executed prior to, concurrently with, or after the Will execution and must substantially conform with the model form set forth in SCPA §2307-a (3). The Court distinguished cases involving Wills executed prior to the enactment of the statute, involving out of state attorneys and testators, where full commissions were allowed without disclosure, because SCPA §2307-a (9)(b)(ii) specifically gives the Surrogate’s Court discretion to waive the required disclosure under certain circumstances for such preenactment Wills. The Court also distinguished cases in which out of state attorneys drafted Wills

for testators who resided in New York when the Wills were executed in which cases SCPA §2307a (1) was held to apply. In its analysis, the Court focused on SCPA §2307-a (1) and stated that the statute makes no distinction between attorneys licensed in New York or elsewhere, and would require an attorney to foresee where his client would be domiciled at the time of death. In the Court’s view, it seemed practically impossible for an attorney to draft a testamentary document, foresee where his client would be domiciled at the time of death, and comply with applicable laws of that state or even country. The Court stated that it was well aware of the legal maxim “casus fortuitus non est sperandus, et nemo tenetur divinare,” to wit: that a chance event is not to be expected, and no one is bound to foresee it. Therefore, the Court found it only logical to conclude that if a non-New York attorney drafts a will for a nonNew York domiciliary and had no knowledge of the intent of the client to change his domicile, the attorney could not be expected to comply with a New York based statute, nor a statute of any other state or country to which the client might possibly move. The Court also held that the petitioning attorney-draftsman did not have to comply with the requirements of 22 NYCRR §207.16(e) because by its express terms that Uniform Rule only applies to attorneys admitted in New York. Consequently, the Court stated that after review of all the papers submitted and with the consent of the sole distributee, the attorney-draftsman executor would be entitled to full commissions. The Court also called upon the legislature to clarify the dilemma that arises when an out of state attorney drafts a testamentary document for a non-New York domiciliary who later migrates and is domiciled in New York at the time of death. The Court stated that a simple amendment to the statute codifying the intent of the legislature would remove any doubt as to the requirement of compliance by out of state attorneys. Matter of Restuccio, N.Y.L.J. 1/14/13, p.17, c. 1 (Surr. Ct., Richmond Co., Surr. Gigante) Steps Which Must Be Taken In Order To Be Entitled To Interest on an Unpaid LegacyThe decedent’s estate included a cooperative

B’klyn Welcomes Our New Presiding Justice Continued from page 1

118-119 (NY Sup. 1992) the prosecutor re-presented to a second grand jury, alleging all of the original crimes it presented to the first grand jury and adding crimes of intent including murder that it had not presented in its original presentation, without seeking court permission. The prosecutor also added a count of assault that had been dismissed by the court. The second grand jury voted no true bill. The prosecutor then sought to go to trial based on the first indictment. Justice Eng said time out, holding that the prosecutor was “seeking to undo the damage unilaterally created by the overcharging of the second Grand Jury” and that the no true bill voted by the second grand jury “created a legal nullification of the first indictment rendering it invalid.” In March, 2007, Justice Eng was appointed by then Chief Administrative Judge Jonathan Lippman to serve as the Administrative Judge of the Criminal Term of the Supreme Court in Queens County. Less than a year later, he became an Associate Justice of the Appellate Division, Second Department. In October, 2012, Gov. Andrew Cuomo appointed the judge to become the Presiding Justice of the Appellate Division following Justice A. Gail Prudenti’s departure to become Chief Administrative Judge of the Courts of New York State. As if all that were not enough, Justice Eng also served as an Adjunct Professor of Law at St. John’s University School of Law from 1995 to 2001. He is a retired Colonel in the New York State Army National Guard, where he served in the Judge Advocate Corps and as the Chief Legal Officer. He remains active in the American Legion and several other veterans organizations.

As for the home front, Justice Eng’s wife is an internist at North Shore Medical Center. He has two sisters, one a doctor of pediatrics and geneticist, the other a lawyer retired from Jones Day, where she practiced mostly real estate law. He has two daughters, both of whom are high school students. What does he want to accomplish as presiding justice? “I would be successful if I could just perpetuate the highly effective court that Presiding Justice Prudenti left behind,” he notes. “To do so, we need additional appointments. We need a full complement of 22 judges. We try to sit four times a week. We get about 4000 new cases a year. In addition, the Appellate Division oversees the Grievance Committee, The Mental Hygiene Legal Service (the State agency responsible for representing and litigating on behalf of people receiving services for a mental disability), the Appellate Term, and the two Committees on Character and Fitness. In the last bar examination alone, there were 10,000 candidates. The volume of the work is growing. We are a self-policing profession. But that means we need enough people to do the work.” According to the Court’s website, the ten counties of the Second Department contain about 52 percent of New York State’s residents, a population exceeding that served by the three other departments combined. The Court produces about 42 percent of all appellate division dispositions. As for his other goals, Justice Eng says he wants to see increased diversity in the profession. “We need more persons of color serving in the judicial system,” he notes. “It is also the responsibility of the bar to make the profession become more representative of the community at large. We need more mentoring of persons of

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apartment on Park Avenue and an extensive art collection, which the fiduciaries of her estate sold at auction in 2010 for more than $6 million. It was alleged that approximately 2 1/2 years after the decedent’s death, the beneficiaries’ attorney received receipt and release forms relating to the proposed disbursement of bequests under the decedent’s Will, which the fiduciaries’ attorney indicated should be executed by the respective beneficiaries. In response, the beneficiaries’ attorney requested that interest be paid on the bequests to the beneficiaries pursuant to EPTL §11-1.5(d), that certain terms of release be amended, and that the receipt and release forms include 6% statutory interest. The bequests were not paid and the beneficiaries brought a proceeding under EPTL §11-1.5 (d) to compel the fiduciaries to pay the bequests with interest at the statutory annual rate of interest of 6%. The Surrogate denied the beneficiaries’ application, without prejudice to renewal, determining that a proper demand on the estate for payment of the bequests under EPTL §11-1.5 (c) had not been made because the attorney’s letter merely requested interest be paid on the bequests, but did not demand payment of the bequests. The Surrogate also determined that, even if a proper demand had been made, the fiduciaries had not openly refuse to pay the bequests and, in the absence of a demand for payment and a refusal to pay, an award of interest under EPTL §111.5 (d) was not an available remedy. The beneficiaries appealed. HOLDING- The Appellate Division affirmed the Surrogate. The Appellate Division stated that the rate of interest to be paid on a pecuniary bequest is governed by EPTL §111.5(d), which provides that, in an action or proceeding to compel payment of a distribution or distributive share, interest, if any, shall be paid at an annual rate of 6% unless fixed in the testamentary instrument, commencing seven months from the time letters are granted, including the issuance of preliminary or temporary letters. The Appellate Division added that pursuant to EPTL §11-1.5 (e), the court may direct the payment of interest at the annual rate fixed under CPLR §5004, based on a finding that a fiduciary’s failure to make the distribution was unreasonable. The Appellate Division noted that upon expiration of the sevencolor to put them on track to succeed. I am encouraged by the efforts of the Brooklyn Bar Association and other bar associations to accomplish this goal.” And for the future? “It’s funny,” Justice Eng smiles. “I went to school at St. John’s Law School, which was at 96 Schermerhorn Street at the time. Now I serve at the Appellate Divi-

month period after letters are issued, or after published notice to creditors, EPTL §11-1.5 (c) provides that an action or proceeding may be asserted against the representative of an estate to compel payment of a disposition or distributive share, but only if the personal representative refuses upon demand to pay a disposition or distributive share. In the view of the Appellate Division, the beneficiaries’ attorney’s demand pursuant to EPTL § 11.1-5 (d) that the fiduciaries pay the bequests with interest invoked application of the demand and refusal requirement set forth in EPTL 11-1.5 (c). However, the Appellate Division held that the beneficiaries’ reliance on the attorney’s letter was misplaced in that said letter contained no demand for payment of the bequests, and up to that point no such demand had been made. Accordingly, the Appellate Division ruled that Surrogate’s Court properly had denied the beneficiaries’application, without prejudice to a renewed request in proper form. The Appellate Division rejected the beneficiaries’contention that a demand for the payment of interest on a bequest was equivalent to a demand for payment of the underlying bequest and satisfied EPTL §11-1.5 (c). The Appellate Division held that a claim for the payment of interest is separate from a claim for payment of a bequest or distributive share, except where a bequest or share is paid without interest, in which case, acceptance of the payment extinguishes any claim to interest. Matter of Abrams, 100 A.D.3d 746 (2nd Dept., 2012) An Executor Has a Duty to Make Proportionate Distributions to All Residuary Beneficiaries Contemporaneously- The residuary under decedent’s Will left 40% to the executrix’ father, 40% to the decedent’s sister, and 20% to the decedent’s nephew. During the course of the administration of the estate, the executrix distributed $250,000, $100,000 to the executrix’ father, $100,000 to the decedent’s sister, and $50,000 to the decedent’s nephew, which distributions were in the proportions required pursuant to the terms of the Will. However the executrix’ accounting showed that thereafter the executrix distributed Please turn to page 12

sion on Monroe Place, just a few streets away.” It is a common observation of many lawyers with Brooklyn roots: We can’t seem to get away from Brooklyn. “Look, my father worked every day until he was 78 years old,” says the justice. “I’m 64. I’ve been a lawyer for 39 years. If I can just continue to serve, I will be a happy man.”

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about what it meant. The confusion, and some serious mistakes, only became widespread in the twentieth century, when influential people began to think it was a good idea to disarm the civilian population.” I agree with Mr. Lund’s assessment that the plain and simple language of the Second Amendment of the U.S. Constitution may not be “particularly difficult to understand,” but as the Constitution is considered a living document, its adoption in changing times, mores, and ideologies, I believe may provide reason for pause. Mr. Lund notes, in his article, that “Even the most ardent libertarians recognize that private citizens should not possess nuclear weapons, or shoulder-fired antiaircraft rockets, and very few people think that everyone should be able to buy a machinegun or a flamethrower at the hardware store.” Wherein he then ponders whether laws restricting access to those types of weapons wouldn’t also infringe upon the right of the people to keep and bear arms. Clearly the issue of gun control is not one issue but many. State after State and the Federal government itself is tackling the issue of gun control although, numerous bills have already been introduced in state legislatures that would nullify federal gun control and even criminalize enforcement of such lawless re-

strictions. Texas, Wyoming, Missouri, Oklahoma, Tennessee, Iowa, and other states are considering nullification legislation in the wake of President Obama’s recent push to enact gun control by executive decree and proposals sent to Congress. Other states are expected to join soon, and many have already adopted laws, in recent years, protecting guns made and kept within their jurisdictions from federal regulations. Given that the New York Safe Act of 2013 is a recent enactment, it is too soon to tell how it will fare. Also, as Mr. Lund’s analysis demonstrates to all of us the question that begs is, what magnitude of destruction should be afforded to individuals, under the Second Amendment of the Constitution, and would it further a secure and orderly society? Perhaps as technology advances, by the development of trigger fingerprint or scope retinal recognition, it will raise weapon owners’ accountability in general, and in their weapons intended use in particular. No matter what side of issue you may personally feel aligned to in the debate as noted earlier, both pro and con has and will go on for years to come. I would like to know how you stand on the issues as I’ve requested appointment to the ABA Standing Committee on gun violence, and if accepted your individual, and collective input would give the BBA its voice.

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Hosp., 7 Misc 3d [*3]947, 955 [2005], affd 24 AD3d 153 [2005]; see also Szmania v State of New York, 82 AD3d 1688, 1690 [2011]). Further, under the circumstances of this case, the Supreme Court properly, in effect, denied the requests for an in camera review of certain medical records (citations omitted).26 Lamacchia v. Schwartz, 94 A.D.3d 712 (2d Dept. 2012) In Camera Review of Privileges and Credentials File, as well as Minutes of Administrative Peer Review Meeting, Granted. Plaintiff sought the privileges and credentials file of defendant Mark Schwartz, M.D., as well as any separate written record of the administrative peer review hearing conducted by defendant hospital which resulted in the revocation of Dr. Schwartz’s attending privileges.27 The IAS Court had denied plaintiff’s motion, but the Second Department modified, granting an in camera review instead, and holding as follows: “Credentialing files “fall squarely within the materials that are made confidential by Education Law § 6527 (3) and article 28 of the Public Health Law” (Logue v Velez, 92 NY2d 13, 18 [1998]; see Stalker v Abraham, 69 AD3d 1172, 1173 [2010]). However, both Education Law § 6527 (3) and Public Health Law § 2805-m (2) contain identical exceptions for the discovery of “ ‘statements made by any person in attendance at such a [quality control or medical malpractice] meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting’ “ (Logue v Velez, 92 NY2d at 18, quoting Education Law § 6527 [3]; Public Health Law § 2805-m [2]). “The evident purpose of this provision is to permit discovery of statements given by a physician or other health professional in the course of a hospital’s review of the facts and circumstances of an earlier incident which had given rise to a malpractice action” (Logue v Velez, 92 NY2d at 18-19; see Swartzenberg v Trivedi, 189 AD2d 151, 153 [1993]). Here, the record suggests that such statements may have been made at the administrative peer review hearing conducted by the Hospital prior to its revocation of Schwartz’s attending privileges, and that such statements are contained either in his credentialing file or in a separate written record of such review. Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was to compel discovery of the credentialing file maintained by the Hospital regarding Schwartz, and any separate written record of the administrative peer review hearing conducted by the Hospital which resulted in the revocation of Schwartz’s attending privileges, to the extent of directing the Hospital to produce those records to the Supreme Court for an in camera review to determine whether such records contain statements by the defendants regarding the subject matter of this action, and if so, for disclosure pursuant to Education Law § 6527 (3) and Public Health Law § 2805-m (2) of those portions of the records which contain such statements.” 28 Ceron v. Belilovsky, 92 A.D.3d 714 (2d Dept. 2012) EBT of Infant Daughter Stayed, Interrogatories Ordered Instead. Plaintiff had moved to stay the deposition of her infant daughter, and to direct defendants to submit their proposed written interrogatories to plaintiff’s counsel, for submission and review by her expert psychologist. The IAS Court granted this motion, and the Second Department modified holding that this was an improper delegation of the Court’s authority to plaintiff’s expert.29 Specifically, the Second Department stated as follows: “Under the particular circumstances of this case, in which, inter alia, the plaintiff’s expert psychologist opined that requiring her infant daughter to testify under oath would be detrimental to her health, the Supreme Court providently exercised its discretion in granti-

ng the plaintiff’s motion for a protective order pursuant to CPLR 3103 (a) to the extent of staying the deposition of the plaintiff’s infant daughter (hereinafter the infant) and directing the defendants to submit their proposed written interrogatories to the plaintiff’s counsel (see Button v Guererri, 298 AD2d 947 [2002]; Verini v Bochetto, 49 AD2d 752 [1975]). However, the Supreme Court improperly delegated its authority to determine the scope of discovery to a mental health professional. Accordingly, the infant must submit responses to the interrogatories, without prejudice to the defendants moving, if they be so advised, to compel the deposition of the infant upon receipt and review of the responses to the interrogatories, and without prejudice to the plaintiff moving for an additional protective order, if she be so advised (see Button v Guererri, 298 AD2d 947 [2002]).”30

Sanctions/Dismissal: Falcone v. Karagiannis, 93 A.D.3d 632 (2d Dept. 2012) Defendant’s motion to strike plaintiff’s Complaint for failure to produce certain pathology slides and photographs of pathology slides was denied, as the Court held that plaintiff’s delays in producing the same was not willful or contumacious, nor did it deprive the defendants of their ability to establish their defense.31 However, special circumstances existed warranting the deposition of plaintiff’s expert pathologist, and production of any additional materials related to the autopsy he performed.32 Chong v. Chaparro, 94 A.D.3d 800 (2d Dept. 2012) After numerous discovery delays, the Supreme Court sua sponte directed dismissal of plaintiff’s Complaint.33 Plaintiff’s motion to vacate the order was granted at the Appellate Division level, based upon plaintiff’s argument that she had provided literally hundreds of authorizations, had appeared for depositions on three separate occasions, and noted that the defendants had never been produced for their out of Court depositions.34 The Court noted as follows: “Here, the record does not demonstrate that the plaintiff willfully or contumaciously obstructed the progress of disclosure (see Redmond v Jamaica Hosp. Med. Ctr., 62 AD3d 854, 854 [2009]). During the pendency of the action, the plaintiff provided numerous authorizations. In addition, she advised the defendants that she was unaware of a number of the medical providers for whom the defendants sought authorizations. Although the plaintiff did not conduct the defendants’ depositions by the dates set forth in the April 28, 2009, so-ordered stipulation, there is no evidence that the defendants provided dates to the plaintiff upon which they would be available to be deposed. Moreover, the record is devoid of evidence that the defendants complied with the provisions of that stipulation. They failed to provide a list of the outstanding authorizations to the plaintiff by the court-imposed deadline of May 8, 2009, designate a physician to conduct the physical examination of the plaintiff (see Cespuglio v SA Bros. Taxi Corp., 44 AD3d 697, 698 [2007]; Rodriguez v Sau Wo Lau, 298 AD2d 376 [2002]), or schedule such examination by November 2, 2009 (cf. Dacey v Horror Café, 293 AD2d 511 [2002]).” 35 Montemurro v. Memorial Sloan-Kettering Cancer Ctr., 94 A.D.3d 1066 (2d Dept. 2012) Plaintiff’s Complaint stricken for failure to comply with discovery.36 Details of plaintiff’s noncompliance not provided in the decision. Masik v. Lutheran Med. Ctr., 92 A.D.3d 732 (2d Dept. 2012). Defendants’ answer not stricken despite failure to appear for a deposition.37

V. SUMMARY JUDGMENT Procedure on Summary Judgment Motions Parker v. LIJMC-Satellite Dialysis Facility, 92 A.D.3d 740 (2d Dept. 2012) Late Summary Judgment Motion Permitted — The “Queens Problem” Plaintiff filed a Note of Issue on September 2009. However discovery, including all depositions, remained outstanding.38 At a March 8, 2010 conference, the Supreme Court extended the time within which summary judgment motions could be made to May 19, 2010.39 In the interim, a third-party action was commenced against Hunter Ambulance Inc.40 Approximately a year later, in February 2011, Hunter Ambulance moved for leave to serve and file a late motion for summary judgment.41 Neither defendant St. Johns, which impleaded Hunter Ambulance, nor the plaintiff opposed of the motion. However, Supreme Court denied the motion.42 The Second Department reversed, and granted Hunter Ambulance permission to make a late motion for summary judgment, holding as follows: “Hunter established good cause in support of that branch of its motion which was, in effect, for leave to serve and file a late motion for summary judgment, since there was significant discovery outstanding at the time the note of issue was filed and it had yet to receive any discovery by the deadline by which motions for summary judgment were permitted (see Brill v City of New York, 2 NY3d 648, 652 [2004]; Grochowski v Ben Rubins, LLC, 81 AD3d 589, 591 [2011]; Richardson v JAL Diversified Mgt., 73 AD3d 1012, 1012-1013 [2010]; Kung v Zheng, 73 AD3d 862, 863 [2010]; Abdalla v Mazl Taxi, Inc., 66 AD3d 803, 804 [2009]; Jones v Grand Opal Constr. Corp., 64 AD3d 543, 544 [2009]). Furthermore, the third-party action was not commenced until February 2010, and issue was not joined as to Hunter until March 2010, which was only approximately two months before the time to move for summary judgment would expire. Hunter also established good cause to serve and file a late motion for summary judgment by showing that it was not even aware that the plaintiff had been deposed or that the plaintiff’s note of issue had been filed when the time by which to move for summary judgment had expired (see Brill v City of New York, 2 NY3d at 652; see e.g. Simpson v Trace Equip. Corp., 59 AD3d 1140, 1141 [2009]).”43 Hayden v. Gordon, 91 A.D.3d 819 (2d Dept. 2012) Renewal permitted to cure technical defect (affidavit versus affirmation for out-of-state expert) Plaintiffs’ motion to renew their opposition to defendant’s summary judgment motion was properly granted, and plaintiffs were permitted the opportunity to correct the technical defect of having submitted an affirmation rather than a sworn affidavit for their expert physician, who was not authorized by law to practice medicine in New York State.44 Schwelnus v. Urological Assoc. of L.I., P.C., 94 A.D.3d 971 (2d Dept. 2012) Renewal permitted to cure technical defect unsigned deposition transcripts. Defendants’ initial motion for summary judgment was denied, because the motion was based on unsigned deposition transcripts.45 In a motion to renew they provided signed deposition transcripts, but the Trial Court denied their motion for renewal.46 The Second Department reversed, and granted defendants’ motion for summary judgment.47

Summary Judgment Granted Parrilla v. Buccellato, 95 A.D.3d 1091 (2d Dept. 2012) Summary judgment granted to emergency room physician, based on the limited role of the emergency room physician once a proper transfer is made from the ER.

Decedent presented to Brooklyn Hospital’s emergency room on January 5, 2006 with a three-day history of wheezing and nonproductive cough.48 After a workup the ER attending noted an initial impression of new onset atrial fibrillation and congestive heart failure.49 Lab analysis later indicated that he was suffering from an evolving myocardial infarction (MI). He was referred to the cardiac care service, and admitted to that service which took over management of his condition. At 6 p.m. that evening, he died of an acute MI.50 The emergency room physician’s motion for summary judgment was granted, with the Court noting as follows: “The appellant demonstrated his prima facie entitlement to judgment as a matter of law by establishing, through an expert’s affirmation, that he did not depart from good and accepted medical practice in treating the decedent and that, in any event, his treatment was not a proximate cause of the decedent’s death (see Nunez v Long Is. Jewish Med. Ctr.-Schneider Children’s Hosp., 82 AD3d 724, 725 [2011]; Arkin v Resnick, 68 AD3d 692 [2009]). His expert opined that, in his role as an emergency room physician, the appellant properly prescribed anticoagulants and medications to control the decedent’s ventricular rate. His expert further opined that the appellant properly admitted the decedent to a cardiac care unit at the hospital once the lab results of the decedent’s cardiac enzymes became available, indicating that the decedent was suffering from an MI. Furthermore, the expert opined that the appellant’s treatment played no part in causing the decedent’s cardiogenic shock and heart failure, which occurred several hours after he had been transferred to the cardiac care service. Contrary to the plaintiff’s contention, the appellant’s responsibility for the decedent ended when his care was transferred to another attending physician (see Dombroski v Samaritan Hosp., 47 AD3d 80 [2007]).” 51 “In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s experts opined that the decedent’s presentation in the emergency room and the results of the EKG performed while the decedent was still under the appellant’s care suggested that the decedent was suffering from an MI approximately an hour before the lab results showing the decedent’s elevated cardiac enzymes confirmed this diagnosis. The experts opined that the appellant therefore departed from good and accepted medical practice by failing to order a cardiology consult once the results of the EKG were received. However, the plaintiff’s experts failed to raise a triable issue of fact as to whether this alleged departure, which resulted in a delay of about an hour in referring the decedent to the cardiac care service, was a proximate cause of the decedent’s death (see Orsi v Haralabatos, 89 AD3d 997, 998 [2011], lv granted 18 NY3d 809 [2012]; Wilkins v Khoury, 72 AD3d 1067, 1068 [2010]; see generally Stukas v Streiter, 83 AD3d 18, 24 [2011]). Furthermore, the remaining allegations of malpractice cited by the plaintiff’s experts were conclusory and failed to differentiate between the acts and omissions of the different treatment providers (see Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]; Dellacona v Dorf, 5 AD3d 625, 625 [2004]; Kaplan v Hamilton Med. Assoc., 262 AD2d 609, 610 [1999]). Accordingly, the Supreme Court should have granted the appellant’s motion for summary judgment dismissing the complaint insofar as asserted against him.52 Garrett v. University Assoc. in Obstetrics & Gynecology, P.C., 95 A.D.3d 823 (2d Dept. 2012) Summary Judgment Granted Based on Limited Role of Moving Physician On January 31, 2005, plaintiff suffered a bowel perforation during a tubal ligation performed by Dr. Petruska, which was unrecognized during the surgery.53 The next day she was seen by the moving defendant, Dr. Nemeth at 1:30 a.m. at Brookhaven Memorial Hospital. Dr. Nemeth ordered a CT scan and various other tests and procedures. The CT scan was delayed due to plaintiff’s inability to stay still. By the time the CT scan was completed, Please turn to page 9

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Nemeth’s shift had ended and plaintiff’s care was transferred to a different physician. The radiologist’s report for the CT scan indicated the possibility of bowel perforation. Nonetheless, she was discharged from Brookhaven that day by a physician other than Dr. Nemeth.54 Nemeth’s motion for summary judgment was granted with the Court noting that Nemeth had transferred plaintiff’s care to another physician when he went off shift, and could not be responsible for the failure to act on the CT scan report.55 Kowalski v. St. Francis Hosp. & Health Ctrs., 95 A.D.3d 834 (2d Dept. 2012) Plaintiff voluntarily checked himself into defendant St. Francis Hospital for a detoxification program, while he was intoxicated from the consumption of alcohol.56 Several hours later, he left the hospital before he was formally discharged. Shortly thereafter he was struck by a vehicle while trying to cross the street.57 Plaintiff sued, alleging defendant was negligent in not detaining him involuntarily. Defendants were granted summary judgment. The Court noted that “a person who is brought voluntarily to a medical facility for treatment of alcoholism cannot be involuntarily confined solely for that treatment.”58 Accordingly, defendants lacked authority to confine plaintiff upon his departure from St. Francis.59 Forrest v. Tierney, 91 A.D.3d 707 (2d Dept. 2012) Summary Judgment Granted — Noncompliant Patient Plaintiff presented to Mercy Medical Center’s ER on December 31, 2004 complaining of right flank pain radiating to his shoulder.60 EKG, chest X-ray, and CT scans were done. The EKG result was normal. The CT scan showed a kidney stone. The X-ray showed infiltrate and fluid at the right lung base. Plaintiff was prescribed antibiotics for pneumonia and a pain medication, and discharged with instructions to return to see a pulmonary and critical care specialist in three days and to return to the ER if his condition worsened.61 He signed a statement indicating that he had received the discharge instructions, and would arrange for follow-up care as instructed.62 However, he did not see the recommended doctor or seek any treatment from any other doctor for five days, at which time he returned to Mercy Hospital’s ER and was admitted with a diagnosis of right lobe pneumonia, and subsequently underwent two surgical procedures.63 Defendants’ motion for summary judgment was granted, with the Court noting as follows: “The affirmation of the plaintiffs’ expert, submitted in opposition to the motions, failed to raise a triable issue of fact. The plaintiffs’ expert’s affirmation was conclusory and speculative, and failed to address the specific assertions of the defendants’ expert, including the assertion regarding proximate cause (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]; Stukas v Streiter, 83 AD3d 18, 25-26 [2011]; Graziano v Cooling, 79 AD3d at 805; Thompson v Orner, 36 AD3d 791 [2007]; Barila v Comprehensive Pain Care of Long Is., 44 AD3d 806, 807 [2007]; Rebozo v Wilen, 41 AD3d 457, 459 [2007]; DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; Domaradzki v Glen Cove Ob/Gyn Assoc., 242 AD2d 282 [1997]). For example, the plaintiffs’ expert did not contradict the defendants’ expert’s opinion that Forrest did not exhibit symptoms requiring hospitalization on December 31, 2004. Furthermore, Forrest himself testified at his deposition that he did not follow the aftercare instructions provided to him by the defendants to follow up with the pulmonary and critical care specialist at Mercy within three days. Therefore, there was no support for the expert’s conclusory and speculative statement that Forrest’s claimed injuries were caused or worsened by the defendants’ alleged deviations from the recognized standard of care (citations omitted).”64

Barrett v. Hudson Val. Cardiovascular Assoc., P.C., 91 A.D.3d 691 (2d Dept. 2012). Summary Judgment Granted - Inadequate Opposition.65 Savage v. Quinn, 91 A.D.3d 748 (2d Dept. 2012) Summary judgment granted as to some defendants (no physician’s affidavit in opposition, or defendants who were only students); denied as to others who failed to submit evidence in support of their motion.66 Masik v. Lutheran Med. Ctr., 92 A.D.3d 733 (2d Dept. 2012) Summary Judgment Granted — No Expert Affidavit, and Not a Foreign Object Case.67 Ballek v. Aldana-Bernier, 94 A.D.3d 923 (2d Dept. 2012) Summary Judgment Granted as to One Defendant (Conclusory Opposition by Plaintiff), and Denied to Another Defendant (Conclusory Moving Papers on the Issue of Causation).68 Navarra v. Four Winds Hospital-Westchester, 95 A.D.3d 850 (2d Dept. 2012) Summary Judgment Granted — Conclusory Plaintiffs’ Opposition.69 Lahara v. Auteri, 97 A.D.3d 799 (2d Dept. 2012) Summary Judgment Granted — Plaintiff’s Opposition “Conclusory, Speculative, and Without Basis in the Record”70 Swanson v. Raju, 95 A.D.3d 1105 (2d Dept. 2012) Summary Judgment Granted — Although Plaintiff’s Opposition Was Valid on the Issue of Departure from Accepted Medical Practices, it Was Conclusory on the Issue of Causation.71 Bezerman v. Bailine, 95 A.D.3d 1153 (2d Dept. 2012) Summary Judgment Granted — Plaintiff’s Opposition Failed to Raise a Triable Issue of Fact.72 Dorsett v. Kingsbrook Jewish Med. Ctr., 93 A.D.3d 631 (2d Dept. 2012) Summary Judgment Granted — Plaintiff’s Opposition Conclusory.73 Calli v. Forest View Ctr. For Rehabilitation & Nursing, Inc., 91 A.D.3d 898 (2d Dept. 2012) Summary Judgment Granted — Plaintiff’s Opposition Conclusory.74 Gillespie v. New York Hosp. Queens, 96 A.D.3d 901 (2d Dept. 2012) Summary judgment granted to defendant. Plaintiff failed to raise a question of fact on the issue of causation.75

Summary Judgment Denied Velinskie v. Gottlieb, 92 A.D.3d 941 (2d Dept. 2012) Summary Judgment Denied — No Res Judicata Effect to Dismissal of Prior Small Claims Court Action. In this chiropractic malpractice case, plaintiff had commenced a prior Small Claims Court action, which was dismissed when plaintiff failed to appear on the scheduled Court date.76 Four months later, plaintiff commenced this action seeking to recover damages for chiropractic malpractice.77 The parties do not dispute that the claims in the two actions are based on the same facts. Defendants’ motion for summary judgment was denied, with the Court noting that since the prior determination was not on the merits, it was not entitled to res judicata effect.78 Peterson v. Lovecchio, 91 A.D.3d 928 (2d Dept. 2012) This wrongful death case, decedent underwent surgeries performed by defendants Lovecchio and DeNoto. While her post-op course was uneventful, she became ill after being discharged from the hospital, and upon readmission it was discovered that she had a bowel perforation which ultimately led to her death.79 Defendants moved for summary judgment, and submitted a physician’s affidavit asserting

that the bowel perforation developed later, based in part on the lack of physical symptoms of bowel perforation immediately after the surgery.80 In opposition, plaintiff’s expert opined that the manifestations of devascularization would have been visible at the time of the initial surgery. Defendant Lovecchio acknowledged at deposition that certain manifestations of devascularization can be visible at surgery. Thus plaintiffs raised a triable issue of fact, and defendants’ motion for summary judgment was denied.81 Yaegel v. Ciuffo, 95 A.D.3d 1110 (2d Dept. 2012) Summary judgment denied, as defendants’ moving papers were conclusory.82 With respect to the conclusory nature of defendants’ submissions, the Second Department stated as follows: “Here, Ciuffo failed to establish as a matter of law that his failure to order a renal chem panel on December 22, 2005, did not deviate from the accepted standards of care, and also failed to support his expert’s conclusory assertions that no act or omission on his part was a proximate cause of the injured plaintiff’s injuries. In essence, Ciuffo’s expert “merely recounted the plaintiff’s complaints to [the defendant] and the treatment rendered, and opined in a conclusory manner that such treatment did not depart from good and accepted medical practice” (Couch v County of Suffolk, 296 AD2d 194, 198 [2002]). The proffered expert’s opinion was, therefore, purely conclusory and was insufficient to establish Ciuffo’s prima facie entitlement to judgment as a matter of law (see Kotler v Swersky, 10 AD3d 350, 352 [2004]; Couch v County of Suffolk, 296 AD2d at 198). In light of Ciuffo’s failure to meet his initial burden of establishing his entitlement to judgment as a matter of law, we need not consider the sufficiency of the plaintiffs’opposition papers on this issue (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Rosman failed to establish, prima facie, that he did not deviate from good and accepted medical practice in failing to order periodic blood tests during the time that he prescribed Asacol to the injured plaintiff, as his expert proffered only a conclusory opinion that Rosman’s monitoring of blood levels was within the bounds of accepted medical practice (see Kotler v Swersky, 10 AD3d at 352; see also Ayotte v Gervasio, 81 NY2d 1062 [1993]). However, his expert’s affirmation did make a prima facie showing that his alleged failure to order periodic blood tests in 2005 was not the proximate cause of the injured plaintiff’s injuries (see Alvarez v Prospect Hosp., 68 NY2d at 324; Roca v Perel, 51 AD3d at 759). In opposition, however, the plaintiffs’ expert raised a triable issue of fact as to whether Rosman’s failure to order blood tests in 2005 and on January 4, 2006, was a proximate cause of the injured plaintiff’s injuries (see Alvarez v Prospect Hosp., 68 NY2d at 324; Wexelbaum v Jean, 80 AD3d 756, 758 [2011]; Feinberg v Feit, 23 AD3d 517, 519 [2005]).”83 Heit v. Long Is. Jewish Med. Ctr., (2d Dept. 2012). Defendant’s motion for summary judgment was denied in this fall prevention case, based on the strength of plaintiff’s opposition papers.84 The Court noted as follows with respect thereto: “…in opposition, the plaintiff submitted an affidavit of an expert physician who opined, inter alia, that given the known potential side effects of Benadryl to cause dizziness and drowsiness and its potentiated effect on the elderly, the plaintiff should have been assisted by medical staff upon discharge or her condition should have been reevaluated immediately prior to discharge. Through this affirmation, and the deposition testimony of the plaintiff and the physicians who treated her at LIJ, the plaintiff raised a triable issue of fact as to whether LIJ deviated from good and accepted medical practice in the manner in which she was discharged, thus causing her to sustain injury (citations omitted).”85

Muniz v. Mount Sinai Hosp. of Queens, 91 A.D.3d 612 (2d Dept. 2012) Summary Judgment Granted to Some Defendants, and Denied to Other Defendants.86 Faicco v. Golub, 91 A.D.3d 817 (2d Dept. 2012) Summary judgment denied — defendants’ moving papers conclusory, and failed to address conflicting evidence in the record, and insufficient to refute the allegations set forth in plaintiffs’ Supplemental Bill of Particulars. 87 Caggiano v. Cooling, 92 A.D.3d 634 (2d Dept. 2012) Summary Judgment Denied, as Defendant Failed to Make a Prima Facie Showing of Entitlement to Relief.88

Plaintiffs’ Motion for Summary Judgment Denied Magel v. John T. Mather Mem. Hosp., 95 A.D.3d 1081 (2d Dept. 2012). Plaintiffs’ motion for summary judgment in this medical malpractice case based upon a negligently performed laparotomy had been granted by the IAS Court, but this holding was reversed by the Second Department.89 The Court noted that plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability with respect to the cause of action for lack of informed consent, but in opposition defendants presented an expert opinion which raised a triable issue of fact on that issue.90 The defendants’ expert opinion was not conclusory, and was adequately supported by record evidence, and thus plaintiffs’ motion for summary judgment on liability was denied.91 VI. TRIAL PRACTICE Apikoglu v. Leitman, 92 A.D.3d 623 (2d Dept. 2012). Plaintiff Precluded for Inadequate Expert Witness Disclosure “The Supreme Court providently exercised its discretion in precluding the plaintiff’s expert from testifying that the failure to perform CT scans on the plaintiff’s decedent between April 9, 2002, and April 11, 2002, as well as the failure to perform a third surgery, were departures from the accepted standard of care. The plaintiff failed to give notice prior to trial of the specific subject matter of the expert’s testimony setting forth these different theories of recovery, which were not readily discernable from the plaintiff’s bills of particulars and the statements in her CPLR 3101 (d) responses (see Ryan v St. Francis Hosp., 62 AD3d 857 [2009]; Durant v Shuren, 33 AD3d 843, 844 [2006]; Dalrymple v Koka, 2 AD3d 769, 771 [2003]).” 92 Rivera v. New York Presbyt. Hosp., 95 A.D.3d 861 (2d Dept. 2012) The case was properly dismissed at the close of evidence as to defendant Dr. Szabo, who was only treating decedent’s thyroid cancer, and not his liver disease which was the basis for the case. “Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” (Covert v Walker, 82 AD3d 825, 826 [2011] [internal quotation marks omitted]; see Ellis v Eng, 70 AD3d 887, 892 [2010]; Dockery v Sprecher, 68 AD3d at 1046). Here, viewing the plaintiff’s evidence in the light most favorable to the plaintiff, there was no evidence that the defendant Andrew J. Szabo, who was treating the decedent’s thyroid cancer, undertook to diagnose or treat the decedent’s liver disease, which he knew was being treated by the decedent’s gastroenterologist. Accordingly, the Supreme Court properly granted Szabo’s motion pursuant to CPLR 4401, made at the close of the plaintiff’s case, for judgment as a matter of law dismissing the complaint insofar as asserted against him (see Ellis v Eng, 70 AD3d at 892; Dockery v Sprecher, 68 AD3d at 1045-1046; Wasserman v Staten Is. Radiological Assoc., 2 AD3d 713, 714 [2003]).”93 Please turn to page 10

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VII. VERDICTS AND JUDGMENTS Maraviglia v. Lokshina, 92 A.D.3d 924 (2d Dept. 2012) Defendants’ verdict reversed, and new trial granted based upon both inappropriate crossexamination, and inappropriate comments by the defendants’ attorney during summation.94 The Court’s decision is illustrative as it highlights the specific inappropriate comments, including the following: “A new trial is warranted in light of the inappropriate cross-examination of the plaintiffs’ witnesses, as well as the inflammatory and improper summation comments of counsel for the defendants. The defendants’ counsel repeatedly denigrated the medical background of the injured plaintiff’s treating physician. Counsel also made inflammatory remarks, including commenting during summation that the plaintiff’s treating physician and the plaintiff were “working the system.” Moreover, counsel remarked that the injured plaintiff’s treating physician testified “at an enormous amount of Workers [Compensation] proceedings” and was the “go-to” doctor in Suffolk County for patients who wished to stop working. By contrast, counsel vouched for the [*2]credibility of the defendants’ expert witness by thanking “God there are people like [him] who are the stop gap.” Additionally, during cross-examination of the plaintiffs’ expert anesthesiologist, counsel for the defendants twice referred to the medical center where this doctor performed certain procedures as a “parking lot,” even though the court had sustained the plaintiffs’ objection to the first use of this reference. In addition, counsel persistently questioned the plaintiffs’ expert about an investigation by the Department of Health of “anesthetic mishaps” in the anesthesiology department at Long Island Jewish Medical Center, despite the expert’s testimony that the investigation did not involve his practice, and the defendants’ lack of any evidence to the contrary. Counsel also commented that the plaintiffs’ expert was “sensitive” about this topic, and stated repeatedly that the plaintiffs’ expert was “out of control.” Further, in questioning the plaintiffs’ expert about a malpractice case that had been brought against him, counsel remarked that the expert had been “afraid to take the witness stand in that case.” Moreover, counsel for the defendants cross-examined the plaintiffs’ economic expert on collateral issues, including, among other matters, the state of the local Suffolk County economy, the foreclosure rate in that county, and the 12-year period during which judges in New York State had continued to work without receiving a raise. Based on the foregoing, the Supreme Court should have granted that branch of the plaintiffs’ motion which was pursuant to CPLR 4404 (a) to set aside the jury verdict on the issue of liability and for a new trial (citations omitted) (emphasis added).”95 Bailey v. Brookdale Univ. Hosp. & Med. Ctr., (2d Dept. 2012) Decedent presented to Brookdale Hospital with a gunshot wound to his inner thigh.96 An autopsy later revealed that in addition to the thigh wound, which lacerated his right femoral artery, decedent also suffered a second untreated gunshot wound to his right buttocks.97 At trial, plaintiffs’ expert testified that defendants departed from accepted medical practices in failing to examine decedent’s body for additional gunshot wounds, since the proper procedure calls for removing all of plaintiff’s

clothes and examining the entire body for additional wounds.98 Defendants’ expert testified that, while this is the normal standard of care, this would have been a departure from accepted medical practices under the circumstances, since plaintiff was bleeding out from a severed artery and taking the time to remove his clothes and search for additional gunshot wounds would have prevented defendants from applying pressure to the gunshot wound to the thigh, which would have resulted in his death.99 A verdict in defendants’ favor was sustained, with the Court noting that: “In order to set aside a jury verdict upon the ground that it is not supported by legally sufficient evidence, there must be “no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499; see Nicastro v Park, 113 AD2d 129, 132). Here, contrary to the plaintiffs’ contention, the Hospital presented legally sufficient evidence that its personnel did not depart from accepted medical practice in their treatment of the plaintiffs’ decedent.”100 Royal v. Tyree, 91 A.D.3d 744 (2d Dept. 2012) This obstetrical malpractice case, plaintiff claimed that her child’s injuries were caused by a lack of oxygen in utero during the labor and delivery process.101 However, the plaintiff was also born with extra fingers on her hand and a hole in the heart. Plaintiff later developed microcephaly and cerebral palsy.102 At trial, plaintiff’s experts testified that the fetal monitoring strips showed heart rate decelerations associated with deprivation of oxygen, and that the defendants departed from accepted medical practices in failing to promptly deliver the child.103 Defendants’ experts testified that the strips demonstrated normal fetal oxygenation, and that nothing on the strips indicated a need to perform a Cesarean section. The defense also presented the testimony of an expert in genetics, who testified that plaintiff’s condition was genetic in origin. A verdict and judgment in favor of the defendant was sustained.104 On appeal, plaintiff had claimed prejudice with respect to the admission of the genetic expert’s testimony. However, the Court noted that the genetic expert’s testimony related solely to the issue of causation, an issue which the jury did not reach in view of its findings that the defendant physicians did not depart from good and accepted medical practices.105 Taylor v. Fakhrun Nessa Haque, 94 A.D.3d 978 (2d Dept. 2012) Defense Verdict Sustained - The Jury Was Entitled to Accept the Testimony of Defendant’s Expert over That of Plaintiff.106 VIII. DAMAGES Diarassouba v. Lubin, 95 A.D.3d 930 (2d Dept. 2012) A total award of $1,450,000.00, including $800,000.00 for past pain and suffering and $650,000.00 for future pain and suffering, was affirmed for a plaintiff who suffered permanent reflex sympathetic dystrophy (RSD) of her right calf and foot.107 1 Forbes v. Rubinovich, 94 A.D.3d 809, 810; 943 N.Y.S.2d 120, 121 (2d Dept. 2012) 2 Id. 3 Id. 4 Id. 5 Piro v. Macura, 92 A.D.3d 658, 661; 938 N.Y.S.2d 165, 168 (2d Dept. 2012)

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Id., at 659. Id. 8 Id. 9 Id. 10 Id, at 660-661. 11 King v. Dobriner, 94 A.D.3d 821, 822; 941 N.Y.S.2d 526, 527 (2d Dept. 2012) 12 Montepiedra v. Hon, 93 A.D.3d 770, 772; 940 N.Y.S.2d 322, 324 (2nd Dept. 2012) 13 Id. 14 Id, at 773. 15 Id, at 773-774 16 Rotondi v. DeFazio, 92 A.D.3d 859, 938 N.Y.S.2d 817, 818 (2d Dept. 2012) 17 Id. 18 Moy v. St. Vincent’s Hosp. & Med. Ctr. Of N.Y., 92 A.D.3d 651, 652; 938 N.Y.S.2d 328, 329 (2d Dept. 2012) 19 Jurado v. Kalache, 93 A.D.3d 759; 940 N.Y.S.2d 300 (2d Dept. 2012) 20 Id, at 760. 21 Id. 22 Id. 23 Id, at 760-761. 24 Holmes v. Maimonides Med. Ctr., 95 A.D.3d 831, 831-832; 943 N.Y.S.2d 573, 574575 (2d Dept. 2012) 25 Fox v. Marshall, 91 A.D.3d 710, 712; 936 N.Y.S.2d 307, 309-310 (2d Dept. 2012). 26 Id., at 711-712. 27 Lamacchia v. Schwartz, 94 A.D.3d 712, 714; 941 N.Y.S.2d 245, 247 (2d Dept. 2012). 28 Id., at 714-715. 29 Ceron v. Belilovsky, 92 A.D.3d 714; 938 N.Y.S.2d 607, 608 (2d. Dept. 2012). 30 Id, at 714-715. 31 Falcone v. Karagiannis, 93 A.D.3d 632, 634; 939 N.Y.S.2d 561, 562 (2d Dept. 2012) 32 Id. 33 Chong v. Chaparro, 94 A.D.3d 800, 801802; 941 N.Y.S.2d 709, 711 (2nd Dept. 2012) 34 Id. 35 Id., at 712. 36 Montemurro v. Memorial Sloan-Kettering Cancer Ctr., 94 A.D.3d 1066, 942 N.Y.S.2d 623 (2nd Dept. 2012) 37 Masik v. Lutheran Med. Ctr., 92 A.D.3d 732, 939 N.Y.S.2d 862 (2nd Dept. 2012) 38 Parker v. LIJMC-Satellite Dialysis Facility, 92 A.D.3d 740, 741; 939 N.Y.S.2d 96, 98 (2nd Dept. 2012) 39 Id. 40 Id. 41 Id. 42 Id. 43 Id. 44 Hayden v. Gordon, 91 A.D.3d 819, 820; 937 N.Y.S.2d 299, 301 (2nd Dept. 2012). 45 Schwelnus v. Urological Assoc. of L.I., P.C., 94 A.D.3d 971, 972; 943 N.Y.S.2d 141, 142 (2nd Dept. 2012). 46 Id. 47 Id, at 974. 48 Parilla v. Buccellato, 95 A.D.3d 1091; 944 N.Y.S.2d 604 (2nd Dept. 2012) 49 Id, at 1092. 50 Id. 51 Id., at 1092-1093. 52 Id., at 1093. 53 Garrett v. University Assoc. in Obstetrics & Gynecology, P.C, 95 A.D.3d 823, 824; 944 N.Y.S.2d 197, 198 (2nd Dept. 2012) 54 Id. 55 Id., at 826. 56 Kowalski v. St. Francis Hosp. & Health Ctrs., 95 A.D.3d 834; 944 N.Y.S.2d 182, 184 (2nd Dept. 2012) 57 Id. 58 Id. 59 Id., at 835. 60 Forrest v. Tierney, 91 A.D.3d 707, 708; 936 N.Y.S.2d 295, 296 (2nd Dept. 2012) 61 Id. 62 Id. 6 7

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Id., at 708-709. Id., at 709. 65 Barrett v. Hudson Val. Cardiovascular Assoc., P.C., 91 A.D.3d 691, 693; 936 N.Y.S.2d 304, 306-307 (2nd Dept. 2012). 66 Savage v. Quinn, 91 A.D.3d 748, 748749; 937 N.Y.S.2d 265, 266 (2nd Dept. 2012) 67 Masik v. Lutheran Med. Ctr., 92 A.D.3d 733, 734; 939 N.Y.S.2d 95, 96 (2nd Dept. 2012) 68 Ballek v. Aldana-Bernier, 94 A.D.3d 923, 943 N.Y.S.2d 126, 127 (2nd Dept. 2012) 69 Navarra v. Four Winds Hospital-Westchester, 95 A.D.3d 850, 851; 943 N.Y.S.2d 563, 564 (2nd Dept. 2012) 70 Lahara v. Auteri, 97 A.D.3d 799; 948 N.Y.S.2d 693, 694 (2nd Dept. 2012 71 Swanson v. Raju, 95 A.D.3d 1105, 11061107; 945 N.Y.S.2d 101, 103 (2nd Dept. 2012) 72 Bezerman v. Bailine, 95 A.D.3d 1153, 1154; 945 N.Y.S.2d 166, 167 (2nd Dept. 2012) 73 Dorsett v. Kingsbrook Jewish Med. Ctr., 93 A.D.3d 631, 939 N.Y.S.2d 708 (2nd Dept. 2012) 74 Calli v. Forest View Ctr. For Rehabilitation & Nursing, Inc., 91 A.D.3d 898, 898-899; 937 N.Y.S.2d 606, 607 (2nd Dept. 2012) 75 Gillespie v. New York Hosp. Queens, 96 A.D.3d 901, 903; 947 N.Y.S.2d 148, 150 (2nd Dept. 2012). 76 Velinskie v. Gottlieb, 92 A.D.3d 941, 941942; 938 N.Y.S.2d 909, 910 (2nd Dept. 2012) 77 Id., at 942. 78 Id. 79 Peterson v. Lovecchio, 91 A.D.3d 928; 937 N.Y.S.2d 331, 332 (2nd Dept. 2012) 80 Id., at 928-929. 81 Id., at 929. 82 Yaegel v. Ciuffo, 95 A.D.3d 1110, 1112; 944 N.Y.S.2d 601, 603 (2nd Dept. 2012) 83 Id., at 1112-1113. 84 Heit v. Long Is. Jewish Med. Ctr., 98 A.D.3d 565, 566; 949 N.Y.S.2d 213, 214 (2nd Dept. 2012) 85 Id. 86 Muniz v. Mount Sinai Hosp. of Queens, 91 A.D.3d 612, 618; 937 N.Y.S.2d 244, 249250 (2nd Dept. 2012) 87 Faicco v. Golub, 91 A.D.3d 817, 818; 938 N.Y.S.2d 105, 107 (2nd Dept. 2012) 88 Caggiano v. Cooling, 92 A.D.3d 634; 938 N.Y.S.2d 329, 330-331 (2nd Dept. 2012) 89 Magel v. John T. Mather Mem. Hosp., 95 A.D.3d 1081, 1082; 945 N.Y.S.2d 113, 114 (2nd Dept. 2012) 90 Id., at 1083. 91 Id. 92 Apikoglu v. Leitman, 92 A.D.3d 623; 937 N.Y.S.2d 888, 889 (2nd Dept. 2012) 93 Rivera v. New York Presbyt. Hosp., 95 A.D.3d 861, 862; 944 N.Y.S.2d 181, 182 (2nd Dept. 2012) 94 Maraviglia v. Lokshina, 92 A.D.3d 924, 924-925; 939 N.Y.S.2d 534, 535 (2nd Dept. 2012) 95 Id. 96 Bailey v. Brookdale Univ. Hosp. & Med. Ctr., 98 A.D.3d 545; 949 N.Y.S.2d 714, 715716 (2nd Dept. 2012) 97 Id. 98 Id. 99 Id., at 545-546. 100 Id., at 546. 101 Royal v. Tyree, 91 A.D.3d 744; 937 N.Y.S.2d 268, 269 (2nd Dept. 2012) 102 Id. 103 Id., at 745. 104 Id. 105 Id. 106 Taylor v. Fakhrun Nessa Haque, 94 A.D.3d 978, 979 (2nd Dept. 2012) 107 Diarassouba v. Lubin, 95 A.D.3d 930, 931; 944 N.Y.S.2d 225, 226-227 (2nd Dept. 2012) 63 64

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FEBRUARY, 2013

BROOKLYN BARRISTER, Page 11

Following the Dress Code: Fundamentals of Fashion Law with the BK Style Foundation (Wednesday, February 13th) A View from the Fiscal Cliff: The New Tax Act ( Thursday, February 28th) Nuts and Bolts of Landlord and Tenant Law (Wednesday, March 6th)* Asset Protection Seminar (Thursday, March 7th) Social Media and E-Discovery (Monday, March 11th) Nursing Home Neglect (Monday, March 18th) Don’t Shoot the Messenger: A Tattler’s Tale (Thursday, March 21st) Nuts and Bolts of Taking a Deposition (Thursday, April 4th)* Yes, the Rules of Evidence Do Apply to No-Fault (Thursday, April 11, 2013) Employment Law and Social Media (Tuesday, April 16th) The CPLR Update (Wednesday, April 17th)* The (Not So) Basics of Medicaid (Thursday, April 18th) Forensic Accounting in Matrimonial Issues (Monday, May 20th) Nuts and Bolts of Real Property Contracts (Wednesday, June 19th)* Nuts and Bolts of Drafting a Will (TBA)* Big Lawyers, Small Firms: How to Build Your Practice (Thursday, April 30th)* *CLE Courses that offer basic skills training

The Brooklyn Bar Association Presents:

A View From the Fiscal Cliff: Working with the New Tax Act February 28th – 6:00-8:00pm 2 MCLE Credits (Professional Practice) 123 Remsen Street, Brooklyn Presentations by: Eugene Lyle Stoler, CPA, JD, LLM Bradley M. McKinney, CPA Roberto Viceconte, CPA, JD

Sponsored by: Raich, Ende, Malter & Co., LLP, Certified Public Accountants and Advisors Course Description: Come learn how to advise clients under the American Tax Payer Relief Act of 2012. Find out what you must know and consider, what kind of planning opportunities have arisen, how to structure transactions under the act, and how to minimize the new 3.8% tax on net investment income. This program is appropriate for attorneys and newly admitted attorneys. The Brooklyn Bar maintains a financial hardship policy. For more information, please call 718-624-0675.