BARRISTER SUMMER 2019.qxd (Page 1) · enlightened self-interest. Aeg Age The process of aligning...

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E : Official banner of the annual golf outing organized by theBrooklyn Bar Association.

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ge B e T eR a P Se ea e

The death of Judge Richard A. Brownfrom the effects of an adversary he could notbest Parkinson s Disease came in theshadow of Law Day, a fitting confluence fora man who was small in physical stature, butwas a giant in the law. His loss will surely bedeeply missed not merely in ueens, butacross the city.

Judge Brown s ties to Brooklyn may havestarted with his November 13, 1932 birth,during the depths of the Great Depression.Both well-educated, and erudite, JudgeBrown graduated in 1953 from Hobart Col-lege in Geneva, New York, up in the FingerLakes region in 1953, and earned a law de-gree from New York University School ofLaw in 1956. Following his admission to thebar that year, he began his long career in pub-lic service, as a legislative counsel to the De-mocratic Assembly Conference some fiveyears later, serving from 1961 to 1969.

A A a e

Brooklyn Bar Association Past PresidentAndy Fisher, a key colleague and partnerwith his late father (and B.B.A. President),political powerhouse Harold Fisher, re-called Judge Brown from Brown s serviceas assistant counsel to Assembly SpeakerTony Travia (D East New York), prior tohis service as New York City representativeto Albany during the Administration ofJohn V. Lindsay.

Andy reports that his dad, Harold Fish-er, strongly believed Judge Brown pos-sessed the best judgment of the Democ-ratic Conference s cadre of assistant coun-sels, and, accordingly, always turned to himfor a proverbial last look on any contro-versial legislative initiative. GovernorHugh Carey apparently shared this view, ashe appointed Judge Brown to serve ascounsel to the Governor one of the mostpowerful positions in New York State Gov-ernment.

Paul Gioia, Esq., a senior counsel at Al-bany based Whiteman, Osterman and Hanna,L.L.P., and former chair of the Public ServiceCommission, noted that he served as FirstAssistant Counsel under Judge Brown, andhad both close, and daily, dealings with him.

Gioia noted that the tasks and the areasover which the Governor s chief legal coun-sel confronts are multifaceted, as he is notmerely the Governor s chief legal advisor onissues of legislation, but is also the Gover-nor s personal liaison to the Legislative lead-ership, and advises the Governor concerningjudicial appointments, and Appellate Divisiondesignations . At that time (as contrastedwith the 2019 legislative session), the StateSenate was heavily under Republican control,and so the task of negotiating legislation be-tween the more liberal State Assembly, andthe larger State Senate led by Senator WarrenAnderson (R Binghamton), required aunique skillset.

Please turn to page 11

By: Roger Bennet Adler

After Brooklyn Supreme CourtJustice Theodore T. Jones Jr. diedin 2012, members of the BrooklynBar Association decided that the bestway to honor one of the borough smost important jurists would be tohost an annual golf outing.

Today that tradition is thriving asthe Brooklyn Bar Association hostedits seventh annual Hon. Theodore T.Jones Jr. Memorial Golf Outing atthe Colonia Country Club in NewJersey on Monday.

By Rob Abruzzese,Brooklyn Daily Eagle

Starts on page 5

BBA Kee g e Te e

Me A eT g

O g

BBA Kee g e Te eMe A e T g O gBy Rob Abruzzese ............................................... Pg. 1

ge B e T e R a P Se ea eBy Roger Bennet Adler. .................................... Pg. 1

BBA LE a e aBy Jen Bryan ........................................................ Pg. 2

Ne Me e ................................................... Pg. 2

Re e S eBy Hon. Frank V. Carone. .................................. Pg. 3

La e Re e a Se e Rea e e By: Daniel R. Antonelli ...................................... Pg. 3 T e T e g e N e A eaBy Hon. Mark C. Dillon ....................................... Pg. 4

M a A La e A SeaBy Roger Bennet Adler ......................................... Pg. 4Me a Ma a e U a eBy John Bonina ...................................................... Pg. 8S a Se a aa Me a I eBy Anthony Lamberti, Esq., ................................. Pg. 10

, BROOKLYN BARRISTER SPRING, 2019

Brooklyn Barrister is published by EBrooklyn Media, LLC, under the auspices of the Brooklyn Bar Association. For advertising information call (718) 422-7410. Mailing address 16 Court Street, 30th Floor, Brooklyn, New York 11241.Vol. 67 No. 11. Summer 2019. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published four times per year: Sping, Summer, Fall and Winter 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 changesto the Brooklyn Barrister, 123 Remsen Street, Brooklyn, NY 11201-4212.

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ignificant success as a lawyer or formost any type of professional or busi-nessperson is often based on your

ability to negotiate. Whether it is with lawyersrepresenting clients, entrepreneurs, elected offi-cials, partners in your firm, clients, or just aboutanyone else, the more adept you are at bargain-ing the more you will probably accomplish.

While some lawyers are naturally good ne-gotiators with innate grit or have actively devel-oped the thought processes and skills that makethem good, many others can become moreadept with direction and practice. Also, a largepercentage of the very best negotiators will tellyou they are constantly refining and improvingtheir abilities.

There are different ways to approach nego-tiating and much of it is situational, but a fewfundamental concepts commonly separate ef-fective negotiators from those that are not. Sim-ply put

You need to accomplish your objec-tives. For example, if you are negotiatingon behalf of clients and not getting solid

preferably outstanding results, thenyou are not doing a good, let alone great,job of negotiating.

Somewhat paradoxically, you aredoing what you can to help the other sideaccomplish their objectives. That is, youare looking for ways to make the peopleyou are negotiating with achieve theirgoals thereby facilitating their success.

You recognize that by meeting yourobjectives and addressing your adversary sobjective everyone walks away from thetable as winners which is what you aretrying to make happen.

Consider business owners who need ap-proval from governmental agencies to moveforward with their project. As a lawyer. I amvery focused on achieving my client s goal. Inaddition, I also work very hard during the nego-tiations, to make sure the applicable govern-mental agencies or regulator get what they needby deeply understanding important policy ob-jectives., In the end, everyone wins.

This approach is critical for several reasons,one being that helping other people reach theirgoals, provided you are reaching your goals, issocially beneficial. It also makes tremendousbusiness sense. When you take this approach,and do it well, the likelihood of repeated successover the long term, goes up exponentially.

So, how does this approach work

I I A A T e E g e e Se I e e

You need to eliminate the word shouldfrom your vocabulary when you want otherpeople to behave in ways that can benefit you or

you believe can even benefit them. What youthink they should or shouldn’t really does notmatter. This is usually true in all aspects of lifeand is especially the case in negotiations.

If you want someone to behave in ways thatare supportive of your agenda, they will do so not because they should but because you haveguided them to see how it is in their enlightenedself-interest. If you cannot find a way to alignyour enlightened self-interest with their enlight-ened self-interest, it is highly unlikely you aregoing to get very much in the way of supportfor what you want. Exceptional negotiatorsare regularly expert at aligning everyone senlightened self-interest.

A e g A g eThe process of aligning the enlightened self-

interest of all involved is conceptually very sim-ple. First, you must be very clear about yourown enlightened self-interest. A relatively easyway to determine your enlightened self-interestswith respect to any negotiation is to be able toanswer questions such as these

Why are you participating in this negotia-tion

What outcome would satisfy youWhat results would make you feel you

have been extremely successfulWhat terms are absolutely non-negotiableWhat are your minimum acceptable resultsWhat happens if you do not reach a dealHow important is your long-term relationship with the other party

It turns out that the majority of people areable to fairly easily determine their enlightenedself-interests. When they do determine theirself-interests and are centered on their goals andagenda, they become much more clever andshrewd negotiators, and thereby successful

Now you must also identify the enlightenedself-interest of the other parties. Exceptional ne-gotiators tend to spend a lot of time and effortunearthing what is strongly meaningful to theother parties.

With a little bit of ingenuity, you will usual-ly find meaningful overlap between your en-lightened self-interest and that of someoneelse s. Specifically, even with the most taciturnlawyers or government officials on the otherside of the table, I consistently can find signifi-

cant areas where our respective agendas over-lap. Doing so, requires a certain amount ofcreativity and resourcefulness, but it is almostalways possible, and everyone finishes thenegotiation satisfied with the outcomes.

In a great many negotiations especiallyhigh-stakes negotiations there might be agreat abyss between what you want to accom-plish and what the other party is looking toachieve. Still, there are going to be areas ofcommonality few initially and more overtime. Begin to chip away. It is important tostrongly highlight and leverage off all areas ofagreement.

It is also often necessary to clearly commu-nicate how taking the actions you advocate willenable the people you are negotiating with toachieve their own goals and objectives theirenlightened self-interest. There have to beaspects of the negotiation that will get themwhat they want. This might mean, for ex-ample, showing them how they will substan-tially profit by going along with your key terms.Exceptional negotiators prove to be very adeptat framing their positions. However, this mustbe done in the context of other people andtheir enlightened self-interests, while their ownenlightened self-interest is in the background.

So, what do you need to do Simply putfor every person in every negotiation, askyourself

“What is his or her enlightened self-inter-est in these negotiations?”

“Am I appealing to his or her enlightenedself-interest?

If not“How can I align my enlightened self-interest

with his or her enlightened self-interest?”This approach to negotiations is grounded in

integrity as well as results, so always remember:credibility is the hallmark and foundation forany negotiation. Therefore, vigilantly guardyour credibility, it is your greatest weapon.Also, never forget that despite how unpleasantyour negotiation may be, your adversary is yourcolleague. A lesson I learned very early fromthe late, legendary friend to many, The Hon.Theodore T. Jones, New York Court of Appeals.Showing respect will go a long way ssocia-

resident rank V. Carone, Es .

RESPE T ULLY SUBMITTE—————————————— PRESIDENT’S MESSAGE —————————————

SUMMER, 2019 BROOKLYN BARRISTER, Page

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The Brooklyn Bar Lawyer Referral Service( LRS ) is now online. Through its partnershipwith Community Lawyer, the LRS is excited toprovide its attorneys with the opportunity tomanage their referrals completely online. TheBrooklyn Bar is the first bar association in NewYork City, and one of the first in the State, tobring its referral service into the cloud. Ludditesfear not-members who prefer the traditionalemail fax paper check method may continue toreceive referrals without change. For those whohave long been waiting to point and click-fear nomore. You can now enjoy the ease and efficiencyof online referrals, reporting, and payment.

aAttorney members will be notified of refer-

rals via email. The email will include a link to theattorney s personal page on the online portal. Theportal is the hub where attorneys can view newreferrals, submit initial status reports (wheremembers currently enter phone only, retainedhourly, etc.), update matter status, pay dues andfees, as well as view past referral information.

Again, attorneys who wish to manage theiraccounts as they have been will be able to con-tinue in the same manner and will not notice anychange in service. However, all members are en-

couraged to take advantage of the online portal,which will reduce attorneys administrativework, increase efficiency, and save money.

T a gYou are not on your own. While the Com-

munity Lawyer portal is intuitive, tutorials areavailable in various formats.

To view a walkthrough of the new sys-tem, please email Roseann Hiebert [email protected], and she will respondwith a link to the video tutorial.

Once logged into your account, you can alsoclick the Help Guide link to access a search-able library of online articles covering commonquestions about how to use the portal.

Be e e B BaThe LRS has traditionally been a major

source of revenue for the Brooklyn Bar. Howev-er, changes in the way potential clients find coun-sel has challenged referral services across thecountry. Services such as LegalZoom, Avvo, andGoogle have permanently altered the landscape.Legal help websites directly compete with attor-neys lawyer directories control large portions ofthe lawyer referral market and Google has en-tirely changed the attorney-search game. Thenumber one online search tool for attorneys isGoogle. Number two is YouTube- owned byGoogle.

The LRS is adapting to the changing land-scape through two primary mechanisms. Thefirst is the newly implemented CommunityLawyer software, which is expected to capturemore potential clients through an easier, faster,and more efficient user experience. The newmanagement software is also expected to save

La e Re e aSe e Rea e

e By: Daniel R. Antonelli

staff hours by streamlining LRS management,which will free up time that can be refocused onclient retention and fee collection. The secondmechanism is robust online marketing includingsearch engine optimization, pay-per-click adver-tising, and social media. This marketing strategyputs the LRS high in Google search rankings-often on the first page-which secures a significantmarket share of potential clients seeking Brook-lyn attorneys.

S g UExisting LRS members should create an ac-

count by following the instructions in the Wel-come email they received from CommunityLawyer. If no email was received, membersshould contact LRS Director Roseann Hiebert [email protected]. Non-members inter-ested in joining the LRS should also reach out toRoseann Hiebert.

T e A E e e Neg a gBy Frank V. Carone

S

Page , BROOKLYN BARRISTER SUMMER, 2019

T e T e g e N e A eaCPLR 5513(a) provides that the time for taking

an appeal as of right is 30 days after service by aparty of a copy of the order or judgment to beappealed from, with notice of its entry. Whilethat rule sounds straight-forward, beware of acouple of complications.

Those of us practicing law at least 25 years agoremember a time when the procedures for obtain-ing, serving, entering, and appealing from ordersand judgments varied from county to county. Insome counties, judges filed original papers with thecounty clerk and transmitted written notice of entryas to trigger the time for filing appeals. In othercounties, judges filed the original papers with theclerk s office but notified parties that they needed toobtain and serve a copy to trigger the appellate timeframe. Elsewhere, attorneys needed to periodicallyrequisition files at clerk s offices to locate orders orjudgments, to then serve them with notice of entry.And there were even some counties in the statewhere original papers were sent by the judge to themovant, who was then responsible for filing the or-ders or judgments with notice of entry.i To unifythe administrative and geographical differencesbetween counties, the state legislature amendedCPLR 5513(a) effective January 1, 1997 to require

service of the order or judgment to be appealedfrom by a party to the action, with notice ofentry, which uniformly commences the time forfiling a Notice of Appeal for all.

The calculation of the 30-day time for filing aNotice of Appeal is muddied if multiple partiesserve the same order or judgment with notice ofentry on different dates. Are the 30 days meas-

ured from the first such notice, or the last Ifnotice of entry is served upon some, but not allparties, when does the time to appeal commenceAre five days added for mailing

A recent opinion from the Appellate Division,Second Department, clarifies all of the foregoingquestions, as the answers have not always beenunderstood. W. Rogowski Farm, LLC v Countyof Orange,ii decided on March 13, 2019, in-volved the appellants suit to declare null andvoid a prior tax foreclosure judgment againstcertain parcels of land in Orange County, and anappeal of the Supreme Court s denial of thatprayer for relief. The order appealed from wasserved with Notice of Entry three times by threedifferent respondent parties. The AppellateDivision dismissed the appellants entire appealas untimely, since the Notice of Appeal wasfiled beyond the time frame of CPLR 5513(a)measured from the first service of the order withnotice of entry to all. The initial Notice of Entrycommenced the 30-day deadline as to all of theparties who, by affidavit of service, were servedwith it. In dicta, the Appellate Division stated alogical corollary: if an order or judgment isserved upon some, but not all, parties, the timeto appeal by a party not served does not begin torun until service with Notice of Entry is accom-plished against it.

While attorneys and judges are pro-grammed to think of the appeal time as 30days, the mailing of the Notice of Entry addsfive days to the calculation,iii so that as a prac-tical matter, an appealing party has 35 daysfrom the date of the initial mail service. How-ever, if the appealing party self-serves theorder or judgment with Notice of Entry, it isnot entitled to an additional five days for itsown mailing. With e-filing, the time runsfrom the e-filing with Notice of Entry, withoutextension.

The importance of CPLR 5513 is that non-compliance with the statute s deadline is anon-waivable and jurisdictional defectiv whichcannot be forgiven under CPLR 2001. Markthe appeal time on your office calendars ac-cordingly.

_______________* Mark C. Dillon is a Justice of the Appellate Di-

vision, Second Department, and an Adjunct Profes-sor of New York Practice at Fordham Law School.

* Mem. of the Office of Court Admin., Bill Jack-et, L. 1996, ch. 214.

* __AD3d __, 2019 WL 1141580.* CPLR 2103(b)(2); Stancage v Stancage, 173

AD2d 1081.* Mileski v MSC Indus. Direct Co., Inc., 138

AD3d 797, 799.

By: Hon. Mark C. Dillon *

T E PRA TI E PA E

M a A La e A SeaThe April release of the redacted Mueller

Report focused sharp attention on both theRule of Law, and the legal profession. From

Sir Thomas More s speaking truth to power tothe tyrant King Henry the Eighth, depicted in therole made famous by Paul Scofield in A Man forAll Seasons, through Sam Liebowitz s defense inpre-civil rights Depression-era Alabama, courageis not in great supply, or often appreciated. Don

McGahn, Esq., in his role as White House coun-sel, speaking truth to Presidential power under-scores the power which the legal profession as-cribes to obedience to law, not the naked authorityof the governmentally powerful. McGahn recalledhis job was as White House counsel, not personalcounsel to the subject of a criminal probe.

As we approach Law Day observances, nowmore than ever it is for the legal profession tosalute Don McGahn, and every other lawyer whoremembered that oaths are to uphold and defend

the Constitution and federal law. All Americans,regardless of political affiliation or belief, oweMr. McGahn a great debt for hewing to integrity,and a reputation for professional ability.

President Trump has chided both White Housecounsel McGahn, and Attorney General WilliamBarr, to follow the ethics of the late Roy Cohn,Esq., who represented Trump when he was a pri-vate citizen, and back during the last century. Forthose who have forgotten (or perhaps don t know)Cohn s legal legacy, a review of Matter of Roy

Cohn*, 118 A.D. 2d 15 1st Dept. 1986 tells thesorry tale graphically. Sadly, not every lawyerpractices with the skill and sensitivity displayed byBoston lawyer Joseph Welch, Esq., when address-ing Senator Joseph McCarthy (R Wisconsin)during the Army McCarthy hearings.

Long live the rule of law, and those who heedits call. The others may be little more than shys-ters in suits, too willing to check their profession-al ethics at the gates of power, like the ancient Is-raelites did the golden calf.

By: Roger Bennet Adler

on. ar . illonhoto co rtesy o Broo lyn Bar Association


I just want to thank the first vice presi-dent of the Brooklyn Bar Association, An-thony Lamberti, said David Chidekel, pres-ident of the Brooklyn Bar Association. An-thony took over the event this year for thefirst time after Frank Carone ran it for manyyears and did a great job.

We managed to sell more foursomes thanwe have in years.

Justice Jones graduated from St. John sUniversity School of Law, which was still onSchermerhorn Street in Brooklyn at the time,after he served in the U.S. Army from 1967to 1969. After law school, he began his ca-reer as a Legal Aid attorney before he be-came a law secretary and eventually wentinto private practice.

In 1990, he was elected to the New York StateSupreme Court, where he eventually became ad-ministrative judge in 2006. In 2007, he joined theCourt of Appeals, the state s highest court.

Judge Jones was a son of Brooklyn. He wasborn and educated in the public schools ofBrooklyn, Chidekel said. He was a passionatebeliever and supporter of individual rights bothas an attorney and a judge. Perhaps his greatestcontribution was his mentoring of young lawyersand students. Judge Jones was also an activemember of the Brooklyn Bar Association formore than 25 years.

The annual golf outing is one of the pri-mary ways that the Brooklyn Bar AssociationFoundation, the charitable arm of the BBA,raises money. The majority of the money raisedthis year will go toward scholarships for Brook-lyn Law School students.

It was in recognition of his mentoring workthat the BBA chose to fund a scholarship foryoung people to assist them in achieving theirprofessional dreams, Chidekel said. Thefunds raised from the golf outing go to the foun-

BBA keeping Justice Ted Jones’ memory alive through golf outing

ict red: ran Ciorciari, Jen Bryan, Anthony J. Lamberti, Louise Benevento.

It was in recognition of his Judge Jones mentoringwork that the BBA chose to fund a scholarship foryoung people to assist them in achieving their profes-sional dreams. A

Continued. on page 6

ict red: Daniel Antonelli, Adam Kalish, Anthony Vaughn, Jr.Continued from page 1

ict red: Joseph Baccellieri, Robert Gardner, Michael Magliano, Anthony Lamberti. ict red: Bill Santo, John Scoderi, Dr. rank Valdinoto, hilip Strocchia.

ict red: Anthony Genovessi, Matt Didora, David Gold asser, rank Carone.


dation and together with other foundationfunds help support the annual scholarships tostudents in law school and pre-law students.

The foundation funds also go to publiceducation lectures for non-attorneys on peo-ple s legal rights, Chidekel continued. Theprograms run the gamut from criminal rightsto bankruptcy, and the next public educationprogram will focus on issues of divorce. Thepublic education programs are run by FernFinkel and Hemalee Patel.

The outing attracts a big mix of membersof the legal community, from some of the bor-ough s top judges to attorneys, court employ-ees and even law school students. This year snotable attendees included Zachary Carter,


Continued from page 5

The foundation funds also go to public education lectures for non-attorneys on people s legal rights. A

ro e t: Hon. lummer Lott, Hon. Ray Rodriguez, George arkas, Hon. Zachary Carter.

ict red: rank Rio, Jeffrey Saltiel, Eddie Antar. ro e t: Hon. La rence Knipel, David Vaughn, Joseph Rosato, Ryan Mahoney.

ict red: James Caffrey, Hon. Bernard Graham, Steven Bamundo, Hon. Donald Kurtz.



corporation counsel of New York City ChiefCourt Officer Michael Magliano and judgesHon. Lawrence Knipel, administrative judge forthe Supreme Court, Civil Term Hon. BernardGraham Hon. David Vaughan and Hon. Ray-mond Rodriguez.

This year s winning foursome includedSteven Bamundo, Hon. Donald Kurtz, JusticeGraham and James Caffrey. The second-placegroup included Adam Roth, Darren Marks,Alex Tisch and Barrett Robinson. RyanMahoney and Joe Ferri won longest drive.Justice Kurtz also won closest to the pin onhole 13.

Continued from page 6

ict red: Matthe Lonuzzi, John Lonuzzi, Andre allek.

ict red: Juliana Lamberti, Ale Corridi, James Corridi, Dan Corridi. ict red: Ralph alma, Mike Rossi, Mark Rayo, Larry Laconi. Brooklyn Eagle photos by Andy Katz

ict red: ony Vaccaro, Christopher Merone, Larry Moringiello, Michael Gaggi.

SPONSORS

FOR THE 2019HON. TED JONES

GOLF OUTING


THE FOLLOWING SUMMARY OF

SECOND DEPARTMENTDECISIONS IN

MEDICAL MALPRACTICE CASESDECIDED BETWEEN

FEBRUARY 1, 2019 AND MARCH 31, 2019

WAS PREPARED BYBROOKLYN BAR ASSOCIATION

MEDICAL MALPRACTICE COMMITTEE CHAIRMAN

JOHN BONINAVargas v Lee, 2019 NY Slip Op 02142

e P a g a e a e aa e e a a E e Me a

Re EMR Plaintiff alleged that following surgery, defen-

dants failed to properly manage and treat an ischemicinjury to his left lower extremity, resulting in a belowknee amputation. During discovery plaintiff movedto compel production of the audit trail of his medicalrecords from defendant hospital covering the periodof May 1 through May 17, 2012.

Defendant opposed, claiming that plaintiff s re-quest was overreaching, overbroad, unduly burden-some and beyond the scope of discovery duplica-tive of information already obtained and intendedto unreasonably harass defendant. Further, they sub-mitted an affidavit from their vice president of infor-mation technology, claiming that compiling the re-quested audit trail would be time consuming.

The lower court denied plaintiff s request for dis-closure of the audit trail, and plaintiff appealed. TheSecond Department reversed, noting that there shallbe full disclosure of all matter material and necessaryin the prosecution or defense of an action, and thatif there is any possibility that the information is

sought in good faith for possible use as evidence inchief or for cross examination discovery should bepermitted.

Specifically, with respect to discovery of the audittrail, the court stated as follows:

The plaintiffs demonstrated, and Wyckoff doesnot dispute, that a a a ge e a ee e e e e e a e e e a a e

e e e a e e , a e e ee , e a e e e e e e ae e , a a ge a e e e (see

Gilbert v Highland Hosp., 52 Misc 3d 555, 557 SupCt, Monroe County see also Matter of Irwin vOnondaga County Resource Recovery Agency, 72AD3d 314, 320). Hospitals are required to maintainaudit trails under federal and state law (see 45 CFR164.312 b 10 NYCRR 405.10 c 4 v ). As arguedby the plaintiffs, the requested audit trail was relevantto the allegations of negligence that underlie thismedical malpractice action in that the audit trailwould provide, or was reasonably likely to lead to, in-formation bearing directly on the post-operative carethat was provided to the injured plaintiff. Moreover,the plaintiffs request was limited to the period imme-diately following the injured plaintiff s surgery. Theplaintiffs further demonstrated that such disclosurewas also needed to assist preparation for trial by en-abling their counsel to ascertain whether the patientrecords that were eventually provided to them werecomplete and unaltered (see Allen v Crowell-CollierPubl. Co., 21 NY2d at 406).

In response to the plaintiffs threshold showing,Wyckoff failed to demonstrate that the requested dis-closure was improper or otherwise unwarranted. Al-though Wyckoff argued that the audit trail may con-tain information that would not be useful to the plain-tiffs, it did not dispute that the audit trail would nev-ertheless contain information pertaining to the med-ical care that it provided to the injured plaintiff in thewake of his foot surgery. Furthermore, the affidavit ofWyckoff s vice president of information technology,in which she averred that compilation of the request-ed audit trail would be time-consuming, was con-clusory and inadequate to show that the requestedproduction would be unduly onerous (cf. Andon v302-304 Mott St. Assoc., 94 NY2d at 747). Wyckoffsimilarly failed to substantiate its claim that the infor-mation contained in the audit trail had already been

provided to the plaintiff. Under the circumstances ofthis case, the Supreme Court improvidently exercisedits discretion in denying that branch of the plaintiffsmotion which was to compel Wyckoff to produce theaudit trail of the injured plaintiff s patient records forthe period of May 1, 2012, through May 17, 2012(see generally Forman v Henkin, 30 NY3d at 666).

J.H. V NYCHHC, 2019 NY Slip Op 0120La e N e a A a a ePlaintiff mother presented to Elmhurst Hospital

on November 23, 2010 with complaints of pain, di-minished fetal activity, and vaginal leakage. She wasseen and discharged the same day. Two days later herchild was born by emergency cesarean section, with-in an hour of her presentation to Elmhurst. The childsustained brain damage and cerebral palsy as a resultof perinatal and neonatal asphyxia. Plaintiff allegedthat defendant was medically negligent both on No-vember 23rd in discharging her despite hours of non-reassuring fetal heart tracings, and again on Novem-ber 25 in failing to expeditiously perform a cesareansection.

Plaintiff filed a notice of claim on August 29,2013. Thereafter in September 2016 plaintiff movedto deem the late notice of claim timely served nuncpro tunc, arguing that defendant had knowledge ofthe essential facts of the claim within the statutory 90day period by virtue of its possession of medicalrecords, and that they were not substantially preju-diced by any delay.

The lower court denied plaintiff s application,and plaintiff appealed. The Second Department re-versed, holding as follows:

Here, in support of his motion, the plaintiff sub-mitted, inter alia, medical records from the hospitaland an affidavit from a physician who reviewed themedical records and concluded, among other things,that there had been a departure from accepted med-ical practice. T e e a e e a e

a e a a e a e ae e a e e e e e e

e e ge N e e 2 , 2010, a g a e e e e ge e

a a a e e a e ae e a ea g e a ea

a g Inasmuch as the medical records, upon in-dependent review, showed that the mother was notadmitted to the hospital on November 23, 2010, de-spite a physician s order, and that two days later, theplaintiff was delivered one hour after the mother ar-rived at the hospital and only after a fetal heart moni-tor alarm sounded four times, they provided the hos-pital with actual knowledge of the essential facts con-stituting the claim (see Matter of Leon v New YorkCity Health & Hosps. Corp., 163 AD3d at 672 Mat-ter of Breslin v Nassau Health Care Corp., 153 AD3dat 1258 Brunson v New York City Health & Hosps.Corp., 144 AD3d 854 2016 Matter of Khan v NewYork City Health & Hosps. Corp., 135 AD3d940 2016 ).

Feduniak v NYCHH, 2019 NY Slip Op 01564La e e a a a g a eIn July 2009 plaintiff gave birth to her daughter at

defendant hospital. At 1AM the day after the infantwas born, she was transferred to defendant s NICUdue to a seizure. Her blood glucose levels were stabi-lized and she was transferred to Mount Sinai. Ap-proximately a year later she was diagnosed with glob-al developmental delays.

The relevant time line with respect to the late no-tice of claim application was as follows:

2009 Treatment at defendant hospital 2012 Plaintiff served a notice of claim with-

out leave of courtA g 2012 Defendant provided plaintiff with

a limited number of pages from the records. Ma 201 Plaintiff testified at a 50-h hearing.

201 Plaintiff served an amended notice ofclaim, again without a leave of court

A g , 201 Defendant advised that the out-standing medical records could not be found.

Se e e 11, 201 Plaintiff s counsel received163 pages of neonatal records for the child, but cer-tain items such as a CTscan film and information per-taining to blood sugar levels from the date of birth andthe following day were again missing.

a a 11, 201 Plaintiff moved to compel de-fendant to produce a child s complete record

e a 201 Defendant produced additionalneonatal records.

Se e e 201 Plaintiff moved to deem thelate notice of claim to have been properly and timelyserved.

Plaintiff s application was granted, with the courtnoting that the delay in serving the notice of claimwas directly attributable to the child s infancy, since itwas not apparent the child suffered a permanent in-jury until after the 90 day period had expired. Further,on the issue of actual notice, the court noted that de-fendant was aware that the child s condition was re-lated to her glucose levels, which were not measuredat birth, and that this fact was documented in the med-ical records. Lastly, the court noted that there was noprejudice to the defendant.

Simpson v Edghill, 2019 NY Slip Op 00923Summary judgment was granted in this ophthal-

mological malpractice case. Although plaintiff sub-mitted an expert affidavit from a board certified oph-thalmologist, which was the correct expert on theissue of departure from good and accepted medicalpractice, the ophthalmologist was not properly quali-fied to opine on the issue of causation. In this respectthe court held as follows:

In opposition, the affidavit of the plaintiff s expertfailed to raise a triable issue of fact as to the causationelement. While it is true that a medical expert neednot be a specialist in a particular field in order to tes-tify regarding accepted practices in that field . . . thewitness nonetheless should be possessed of the requi-site skill, training, education, knowledge or experi-ence from which it can be assumed that the opinionrendered is reliable (Behar v Coren, 21 AD3d1045, 1046-1047 2005 , quoting Postlethwaite vUnited Health Servs. Hosps., 5 AD3d 892, 8952004 ). Thus, where a physician opines outside his

or her area of specialization, a foundation must be laidtending to support the reliability of the opinion ren-dered (Behar v Coren, 21 AD3d at 1047 see Gal-luccio v Grossman, 161 AD3d 1049, 1052 2018 ).Here, e a e e , a a e

e a g , a a e , a ,a e a a e e a a e e E ge a e e a e e a a a e a g e e e a a e g

e e a a e e e , e aa a e e a a e a

e g a a e ee ea e aa ea ge a ee e e e

N e e 201 The plaintiff s expert failed to ar-ticulate that he had any training in the treatment ofmeningiomas or what, if anything, he did to familiar-ize himself with the applicable standard of care. Theaffidavit, therefore, lacked probative value and failedto raise a triable issue of fact as to whether any de-parture from the accepted standard of care proxi-mately caused the plaintiff s injuries (see Feuer v Ng,136 AD3d 704, 707 2016 Tsimbler v Fell, 123AD3d 1009, 1010 2014 ).

Wright v Morning Star Ambulette Services, Inc.,2019 NY Slip Op 02381

Summary Judgment GrantedDefendant made out a prima facie case on the

issue of lack of informed consent by submitting,amongst other things, a consent form signed by dece-dent. Plaintiff had objected under CPLR 4519 (theDead Man s Statute), which plaintiff claimed pre-cluded defendant from offering testimony concerninga personal transaction or communication with thedecedent. The court however noted that the DeadMan s Statute does not bar introduction of documen-tary evidence against a deceased s estate, and that in-troduction of a document authored by a deceaseddoes not violate the Dead Man s Statute. Thus thecourt held that defendant made a prima facie showingof entitlement to relief, shifting the burden to theplaintiff.

In opposition, plaintiff offered only the affirma-tion of her attorney, which failed to raise a triableissue a fact.

Bueno v Allam, 2019 NY Slip Op 02055Summary judgment denied as to medical mal-

practice claims, but granted on informed consentclaims with respect to defendants who did not per-form surgical procedures but rather failed to diagnosean anastomotic leak following a gastric bypass proce-dure.

Lefkowitz v Kelly, 2019 NY Slip Op 02328Summary judgment denied, despite plaintiff sub-

mitting an unsworn physician s affidavit in opposi-tion to the motion, as the defendant failed to raise thatissue in the lower court.

Kovacic v Griffin, 2019 NY Slip Op 02326Summary judgment denied in this birth injury

case, with the court noting as follows: in opposition, the plaintiffs submitted an expert

affidavit from a physician who was board certified inobstetrics and gynecology who opined that each of thedefendant physicians departed from good and accept-ed practice in their treatment of the plaintiff motherduring the prenatal care period and the ensuing laborand delivery of the infant plaintiff. Summary judg-ment is not appropriate in a medical malpractice actionwhere the parties adduce conflicting medical expertopinions (Feinberg v Feit, 23 AD3d 517, 519 seeDray v Staten Is. Univ. Hosp., 160 AD3d 614, 618),since conflicting expert opinions raise credibility issueswhich are to be resolved by the factfinder (see Guctasv Pessolano, 132 AD3d 632, 633).

Iodice v Giordano, 2019 NY Slip Op 02072In this podiatric malpractice case summary judg-

ment was granted to a defendant who only saw plain-tiff on one occasion. Plaintiff s opposition includednew allegations of negligence not previously raised,and plaintiff s expert affidavit was conclusory andspeculative.

Wodzenski v Eastern Long Island Hospital,2019 NY Slip Op 01819

Summary judgment denied, as defendant failed tomake a prima facie showing of entitlement to relief.Defendant s expert merely recounted the treatmentrendered and opined in a conclusory manner that suchtreatment did not represent a departure from good andaccepted medical practices.

Lowe v Japal, 2019 NY Slip Op 01585Summary judgment granted, as plaintiff s expert

affidavit was speculative and conclusory, and thus didnot raise a question of fact.

Larkin v Wagner, 2019 NY Slip Op 02327At the trial of this birth injury case, plaintiff pre-

vailed on departure and causation, but the jury award-ed zero damages for past and future pain and suffer-ing, as well as no damages for future lost earnings.Defendant was granted judgment notwithstanding theverdict by the trial court, and plaintiff appealed. TheSecond Department reversed, and remanded for anew trial on damages only, holding as follows:

A motion for judgment as a matter of law pur-suant to CPLR 4404(a) may be granted only whenthe trial court determines that, upon the evidence pre-sented, there is no valid line of reasoning and permis-sible inferences which could possibly lead rationalpersons to the conclusion reached by the jury uponthe evidence presented at trial, and no rational processby which the jury could find in favor of the nonmov-ing party (Tapia v Dattco, Inc., 32 AD3d 842,844 see Cohen v Hallmark Cards, 45 NY2d 493,499 Gaspard v Aronoff, 153 AD3d 795, 796). A juryverdict may not be set aside as against the weight ofthe evidence unless the evidence so preponderate din favor of the moving party that it could not havebeen reached on any fair interpretation of the evi-dence (Killon v Parrotta, 28 NY3d 101, 107, quot-ing Lolik v Big V Supermarkets, 86 NY2d 744,746 see Gaspard v Aronoff, 153 AD3d at 796).

T he discretionary power to set aside a jury verdictand order a new trial must be exercised with consid-erable caution, for in the absence of indications thatsubstantial justice has not been done, a successful lit-igant is entitled to the benefits of a favorable jury ver-dict (Nicastro v Park, 113 AD2d 129, 133).

Here, the plaintiff adduced legally sufficient proofto establish a departure from the standard of care andas to causation. In particular, the plaintiff s expert ob-stetrician-gynecologist, Barry Schifrin, opined thatthe child suffered a placental abruption plus orminus fetomaternal transfusion, which caused aproblem of oxygen availability in the baby s brain.Schifrin opined 3 that continuous EFM testingshould have been undertaken beginning on the date ofthe mother s fall, November 4, 2008. Schifrin testi-fied that the EFM performed on November 12, 2008,showed that the child had been in distress for quitesome time. The plaintiff s expert pediatric hematol-ogist, Jill DeJong, opined that the child s anemia wasrelated to a fetomaternal transfusion. Based on thatevidence, the jury could have reasonably found thathad the respondents undertaken or begun continuousEFM on November 10, 2008, the harm to the childwould have been avoided or mitigated. Further, al-though the respondents experts opined that the re-spondents did not depart from accepted practice, the



Medical Malpractice Update

SUMMER, 2019 BROOKLYN BARRISTER,

THE FOLLOWING SUMMARYOF SECOND DEPARTMENT

DECISIONS IN MEDICALMALPRACTICE CASES

DECIDED BETWEEN DECEMBER1, 2018 AND JANUARY 30, 2019WAS PREPARED BY BROOK-

LYN BAR ASSOCIATIONMEDICAL MALPRACTICECOMMITTEE CHAIRMAN

JOHN BONINA

Livsey v Nyack Hospital, 2018 NYSlip Op 08289

A e e a e e e 199 a ea e e a e a a e e

e a e g e a e a e .

Here, in opposition to the defendant s prima facieshowing that the time in which to commence this med-ical malpractice action had expired, the plaintiff failedto raise a triable issue of fact as to whether the ureteralstent catheter allegedly inserted in his body was a for-eign object such that the discovery rule should apply.According to the parties experts, a ureteralstent catheter is a tube that bridges the kidney to thebladder, and is inserted and intentionally left in a patientfor up to six months to assist in the draining of the kid-ney when the ureter is obstructed or when damage tothe ureter was repaired and it is healing. The parties ex-perts agree that if a ureteral stent catheter was insertedin the plaintiff s body during the 1993 procedure, thenit was intentionally left in his body for the purpose ofassisting in the draining of the kidney. Thus, the devicewas retained in the plaintiff s body (if inserted at all) for

postsurgery healing purposes and was not anal-ogous to tangible items or surgical paraphernalia,such as clamps, scalpels, sponges, and drains, intro-duced into a patient s body solely to carry out or facil-itate a surgical procedure (Walton v Strong Mem.Hosp., 25 NY3d at 573, quoting LaBarbera v NewYork Eye & Ear Infirmary, 91 NY2d 207, 212 1998 ).For these reasons, the ureteral catheter stent was not aforeign object, and the action should have been dis-

missed as time-barred (see LaBarbera v New York Eye& Ear Infirmary, 91 NY2d at 212-213 see also Leacev Kohlroser, 151 AD3d 707, 709 2017 ).

Ferrara v Zisfein, 2019 NY Slip Op 00096P e a e g a e e e

a a e a a e e a a ePlaintiff underwent a cardiac catheterization at de-

fendant South Nassau Communities Hospital, per-formed by defendant Zisfein. After the lawsuit was ini-tially started, but within the statute of limitations, plain-tiff added defendant DeBrady, an anesthesiologist whointubated plaintiff after complications arose during theprocedure, as well as defendant North American Part-ners in Anesthesia, whom defendant hospital had rep-resented was DeBrady s employer. However, after thestatute of limitations expired, plaintiff learned that de-fendant Atlantic Medical Anesthesia Associates, andnot North American, was in fact DeBrady s employerat the time of the procedure in question.

DeBrady s motion for summary judgment on thegrounds that he did not commit malpractice was grant-ed unopposed. Plaintiffs opposed defendant Atlantic smotion for summary judgment on statute of limitationsgrounds relying upon the relation back doctrine, argu-ing that they were vicariously liable for the acts of anon-party Dr. Cantalupo, a different anesthesiologistemployed by Atlantic.

Defendant Atlantic s motion for summary judg-ment on statute of limitations grounds was granted,with the court holding that the potential malpractice ofa non-party was insufficient to trigger the relation backdoctrine. In this respect the court stated as follows:

Since Atlantic was made a party to the action afterthe expiration of the statute of limitations based solelyon its unity of interest with DeBrady, who was timelyserved, Atlantic s liability in the instant action cannotbe predicated upon vicarious liability for the allegednegligent acts of other employees of Atlantic who arenot parties to this action, including nonparty Cantalupo.Accordingly, Atlantic demonstrated its prima facie en-titlement to judgment as a matter of law dismissing theamended complaint insofar as asserted against it, upondismissal of the action as against DeBrady (see Jonesv Cummings, 55 AD3d 677, 678 2008 ). In opposi-tion, the plaintiff and SNCH failed to raise a triableissue of fact (see Last v Guardian Life Ins. Co. of Am.,72 AD3d 1032 2010 cf. Schiavone v Victory Mem.Hosp., 300 AD2d 294 2002 ). Contrary to the con-tention of the plaintiff and SNCH, Cantalupo cannot bedeemed a party to this action for the purpose of the re-lation-back doctrine as to Atlantic, even though theamended complaint names John Doe, M.D., as a de-fendant employed by Atlantic. The plaintiff nevermoved to substitute Cantalupo for John Doe, M.D.,and, in any event, there has been no showing that anyof the requirements of CPLR 1024 to substitute a partyfor a John Doe were met here (see generally Holmesv City of New York, 132 AD3d 952, 953-9542015 Porter v Kingsbrook OB/GYN Assoc., 209

AD2d 497 1994 ).Accordingly, Atlantic s liability in this action rises

or falls with only DeBrady (see Schiavone v VictoryMem. Hosp., 292 AD2d at 366). Because the SupremeCourt directed dismissal of the amended complaint in-sofar as asserted against DeBrady, the court also shouldhave awarded Atlantic summary judgment dismissingthe amended complaint insofar as asserted against it.

Cannella v Spector, 2018 NY Slip Op 08626In this dental malpractice case, plaintiff moved for

sanctions for spoliation of evidence, based on defen-dant s failure to produce a pre-extraction mandibularstudy model used to create a mold for plaintiff s den-tures. The motion was denied, as plaintiff failed toshow that defendant negligently or intentionally failedto preserve evidence.

Noble v Kingsbrook Jewish Medical Center,2019 NY Slip Op 00608

Summary judgment was granted in this deep veinthrombosis pulmonary embolism case, as there wereno signs or symptoms of a DVT or PE until five daysafter the procedure in question at which time decedentsuffered a fatal pulmonary embolism.

Here, the defendant made a prima facie showingthat he did not depart from the accepted standard ofcare in his treatment of the decedent through the sub-mission of the expert affirmation of Howard Luks, anorthopaedic surgeon, the decedent s medical records,and the defendant s deposition testimony (see Hernan-dez v Nwaishienyi, 148 AD3d 684, 686 2017 Feuerv Ng, 136 AD3d 704, 706-707 2016 Lopez v Gra-muglia, 133 AD3d 424, 425 2015 Matos v Khan,119 AD3d 909, 910 2014 ). Specifically, Luks opinedthat the use of Lovenox to prevent the decedent fromdeveloping DVT, and the dosage prescribed by the de-fendant, was appropriate and consistent with the ac-cepted standards of care for an orthopaedic surgeontreating a patient following knee replacement surgery.The record demonstrates that the defendant prescribeda postoperative prophylactic anticoagulant at the rec-ommended dosage to prevent DVT. The record furtherdemonstrates that the decedent exhibited no symptomsof DVT until five days after the surgery, when she suf-fered a fatal pulmonary embolism. Furthermore,Luks s affirmation addressed the alleged departures set

forth in the plaintiff s bill of particulars (see Gullo vBellhaven Ctr. for Geriatric & Rehabilitative Care,Inc., 157 AD3d 773, 774 2018 Henry v SunriseManor Ctr. for Nursing & Rehabilitation, 147 AD3d739, 740 2017 ). Contrary to the Supreme Court sstatement, the plaintiff never claimed that the defendantdeparted from accepted standards of care by failing touse non-drug related DVT prophylaxis.

In opposition, the plaintiff failed to raise a triableissue of fact through the affirmation of his expert.While it is true that a medical expert need not be a spe-

cialist in a particular field in order to testify regardingaccepted practices in that field, the witness nonethelessshould be possessed of the requisite skill, training, ed-ucation, knowledge or experience from which it can beassumed that the opinion rendered is reliable(Postlethwaite v United Health Servs. Hosps., 5 AD3d892, 895 2004 citations and internal quotation marksomitted see Reid v Soults, 138 AD3d 1087, 10912016 Bongiovanni v Cavagnuolo, 138 AD3d 12, 182016 ). Thus, where a physician provides an opinion

beyond his or her area of specialization, a foundationmust be laid tending to support the reliability of theopinion rendered (Lavi v NYU Hosps. Ctr., 133 AD3d830, 831 2015 ). Here, e a e e ,

e a e e a g , a ea e a a e a g e e e

ae ge , a a ag atreatment to prevent DVT, and failed to set forth howhe was, or became, familiar with the applicable stan-dards of care in this specialized area of practice (id. at831 see Galluccio v Grossman, 161 AD3d 1049, 10522018 Tsitrin v New York Community Hosp., 154

AD3d 994, 996 2017 DiLorenzo v Zaso, 148 AD3d1111, 1115 2017 Feuer v Ng, 136 AD3d at 707).

In any event, the affirmation of the plaintiff s ex-pert failed to set forth what treatment was required bythe applicable standards of care regarding DVT pro-phylaxis (see Quille v New York City Health & Hosp.Corp., 152 AD3d 808, 809 2017 ). Moreover, whilethe defendant s expert did not address whether thedecedent was at an increased risk for developing DVTas a result of her anemia, the plaintiff s expert did notindicate that anemia was a risk factor for DVT. There-fore, the plaintiff s expert s affirmation was of no pro-bative value and failed to raise a triable issue of fact.

Refuse v Wehbeh, 2018 NY Slip Op 08704S a g e g a e a a e e

a e e a e , a a e a e a e aa a e g e e e e e

However, Halper failed to make a prima facieshowing that he was entitled to judgment as a matter oflaw dismissing the complaint insofar as assertedagainst him (see Terranova v Finklea, 45 AD3d at573 Ward v Engel, 33 AD3d at 791). Halper s experts,the physicians Heidrun Rotterdam and Joan S. Adams,a e a e e a ega , e e a a , a e a a a

a e g e a ga e a a e a e a, a a e e ee a e , a a e e eea e e ee a e e ge ae a ea e

. Although Halper s experts opined that the bowelinjury, which occurred during the emergency caesare-an section, was not caused by Halper s treatment of theplaintiff, they failed to address the plaintiff s allegationthat the amniotomy necessitated the emergency cae-sarean section. Contrary to Halper s contention, theseallegations were not improperly asserted as alternativetheories of liability for the first time in opposition to hismotion (see Smith v Agnant, 131 AD3d 463, 4662015 cf. Dolan v Halpern, 73 AD3d 1117, 11192010 ). Further, Halper could not sustain his prima

facie burden by relying on evidence that he submittedfor the first time with his reply papers (see Poole vMCPJF, Inc., 127 AD3d 949 2015 Damas v Valdes,84 AD3d 87, 96 2011 ). Since Halper failed to make

a prima facie showing, his motion should have beendenied regardless of the sufficiency of the plaintiff sopposition papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853).

Salgado v North Shore University Hospital, 2018NY Slip Op 08967

Summary judgment was denied in this fall preven-tion case, with the court noting as follows:

in opposition, the plaintiffs raised triable issuesof fact as to whether the defendants departed from ac-cepted standards of practice by failing to prevent Sal-gado from falling out of bed and whether his injurieswere exacerbated by his fall. More particularly, theplaintiffs submitted the affirmation of an expert whoopined that the monitoring and precautions against fallsimplemented by the hospital in its Medical IntensiveCare Unit departed from accepted standards of practicebecause, given the medical condition noted in Salga-do s chart, i.e., calm and lethargic with no righthand grip or right arm or leg movement early the sameday, Salgado s fall could not have occurred unless re-straints were improperly applied. Furthermore, with re-spect to causation, the plaintiffs expert opined that theincrease in the size of Salgado s intercranial hemor-rhage from the morning of the fall, accompanied by thenew onset of midline shift, was too extensive and rapidin onset to be due solely to the natural progression ofSalgado s original hemorrhage.

Wei Lin v Sang Kim, 2019 NY Slip op 00161Summary judgment denied, as defendant failed to

make a prima facie showing of entitlement to relief. Inthis regard the court stated:

the defendant failed to establish, prima facie, thathe did not depart from good and accepted medicalpractice, or that any departure was not a proximatecause of the injured plaintiff s injuries. The defendant sexpert merely summarized the medical records andcertain deposition testimony, and opined in a concluso-ry manner that the defendant s treatment of the injuredplaintiff did not represent a departure from good andaccepted medical practice (see Kelly v Rosca, 164AD3d at 891 Barlev v Bethpage Physical TherapyAssoc., P.C., 122 AD3d at 784). Since the defendantfailed to establish his prima facie entitlement to judg-ment as a matter of law, we need not consider the suf-ficiency of the plaintiffs opposition papers (see Wine-grad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Bethune v Monhian, 2019 NY Slip Op 00415Summary judgment granted, as plaintiff failed to

submit a physician s affidavit in response to defen-dant s prima facie showing.

Geffner v Mercy Medical Center, 2018 NY SlipOp 08280

P a a a e e e e e e a e e , a e e

In this case plaintiff had a documented history ofbeing unprepared for trial. After filing a note of issue onJune 26, 2012, the case came on for trial on May 13,2013. However plaintiff s counsel requested an ad-journment, claiming that his experts needed more timeto arrange their respective schedules. The court deniedthe request and dismissed the complaint. However thecourt thereafter vacated that dismissal and restored theaction to the trial calendar.

The case came on for trial again on August 4, 2015,at which time plaintiff s counsel once again requestedan adjournment, this time claiming that the expert lostemployees in his office and he is not available. Plain-tiff s request to substitute experts was denied, and thecase dismissed. This dismissal was affirmed by theSecond Department, with the court noting that plaintiffoffered to only vague excuses for the expert s unavail-

Medical Malpractice Update

jury was entitled to resolve the conflicting expert tes-timony in the plaintiff s favor (see Bobek v Crystal,291 AD2d 521, 523 McElroy v Yousuf, 268 AD2d733, 736). Accordingly, the Supreme Court shouldnot have granted that branch of the respondents mo-tion which was to set aside the jury verdict on theissue of liability and for judgment as a matter of law(see Bianco v Sherwin, 165 AD3d620 Hollingsworth v Mercy Med. Ctr., 161 AD3d

831, 832-833).The jury s failure to award any damages for past

pain and suffering and future pain and suffering devi-ates materially from reasonable compensation, inlight of the evidence of the severe deficits suffered bythe child, her ongoing need for medical treatment, on-going medical events such as intractable seizures, andevidence of her consciousness and ability to interactwith others (see CPLR 5501 c Eun Sook Maing vPo Ching Fong, 71 AD3d 1077, 1078 Sankar v Ja-

maica Hosp. Med. Ctr., 68 AD3d 844 see alsoRamos v New York City Hous. Auth., 280 AD2d 325,326). The jury s failure to award any damages for fu-ture lost earnings also deviates materially from rea-sonable compensation (see CPLR 5501 c Gormanv Matthew, 151 AD3d 816, 817-818 Sneddon v CSXTransp., 46 AD3d 1345, 1347).

Fetcha v Scheinman, 2019 NY Slip Op 01199CPLR 4401 dismissal at the close of plaintiff s

case affirmed, with the court noting as follows:We agree with the Supreme Courts granting of

the defendants motion pursuant to CPLR 4401 forjudgment as a matter of law dismissing the complaint.Upon accepting the plaintiff s evidence as true and ac-

cording the plaintiff the benefit of every favorable in-ference, the court was confronted with the admissionsof the plaintiff s medical expert who indicated, duringher cross-examination testimony, that the posteriorapproach to brachioplasty, the procedure used by thedefendant, while not the expert s preferred method, isan accepted procedure and is within the standard ofcare. This was repeated during recross examinationwhen the plaintiff s expert acknowledged that the pos-terior brachioplasty is an accepted procedure in thefield of plastic surgery. The plaintiff s expert renderedno testimony establishing the manner in which thedefendants conduct deviated from the accepted stan-dard of care, as her testimony centered around herpreferred method for brachioplasty, which simply dif-fered from the defendants approach.

Medical Malpractice UpdateContinued from page 8


, BROOKLYN BARRISTER SUMMER, 2019

ability, no details as to when plaintiff learned of the un-availability, and failed to establish good cause to offerthe testimony of a substitute expert.

Crayton v Sher, 2018 NY Slip Op 08461e a g e e e a e e e

e e ge a ge e g eUnder the circumstances presented, we disagree

with the Supreme Court s determination to instruct thejury on the emergency doctrine. T e e e ge

e a ee e e e , a e a e , a e e a e a

e a e ee a e e a e a e e e a a a e , a a a e e e e e e a

a a a e a e a e e e e e ge (Mertsaris v 73rd Corp., 105 AD2d 67,

87 n 3 1984 see Amodeo v Cumella, 41 AD3d 396,398 2007 ). e e, e e e a a

e eea e e e a a ee a a S e a a e a a a e e

g e a e a e a e e. In-deed, Sher admitted that, in his 30 years of experience,

creating airways for patients is what anesthesiologistsdo. Further, Sher was advised by Noto that amucus plug was blocking the tracheostomy tubewhich Sher was ultimately able to replace withinseconds. Accordingly, there was no sudden and un-foreseen condition for which Sher was not trainedor prepared.

Therefore, it was error to instruct the jury onthe emergency doctrine and the plaintiff is entitledto a new trial.

Daniele v Pain Management Center of Long Island,2019 NY Slip Op 00093

P a e e a e a e a e e e e e e

At the trial of this matter plaintiff alleged a delay indiagnosing a spinal epidural abscess, resulting in majorspinal damage and multiple surgeries. The jury foundin plaintiff s favor, held Dr. Kirschen 15 liable andWinthrop University Hospital 85 liable, and award-ed $2,600,000.00 in damages.

However the court set aside the verdict and ordereda new trial in the interest of justice, based on the trial

court precluding defendants from cross examiningplaintiff s experts on the issue of possible departuresfrom accepted medical practice by subsequent treatingphysicians.

Garbie v Ahmad, 2019 NY Slip Op 00098Defendants verdict reversed and a new trial or-

dered. During deliberations, the jury sent a notestating that a juror cannot come to a fair decisiondue to emotional distress. Rather than speak withthe juror in question or conduct an inquiry, thecourt over objection excused the juror and seatedan alternate. The appellate division held that thefailure to conduct an adequate inquiry was re-versible error requiring a new trial. In this respectthe court stated as follows:

In 2013, CPLR 4106 was amended to providethat a trial court may discharge a regular juror andreplace that juror with an alternate juror, even afterdeliberations have begun, if the juror has become unable to perform the duties of a juror (CPLR

4106 see L 2013, ch 204). I e e ge e a ge a e a e e a

a a e, a a , a e e e ge a a a e a e e e , a e a e e ea

a e e a e e e e e e e a ge a e a e a a e

a e (cf. Avila v City of New York, 73 AD3d 444,446 2010 People v Tufano, 124 AD2d 688, 689

1986 ). a e a e a e a e e(cf. Avila v City of New York, 73 AD3d at 446 see gen-erally People v Pizarro, 24 AD3d 309 2005 , affd 7NY3d 840 2006 ).

In this medical malpractice action, the SupremeCourt received a note during deliberations that a jurorcannot come to a fair decision due to emotional dis-tress. The court, however, refused to conduct any in-quiry as to the nature of the juror s difficulty, and re-fused even to speak to the juror individually. Instead,over objection, it excused the juror and seated an alter-nate. The court s failure to make adequate inquiry waserror, requiring a new trial (cf. Avila v City of New York,73 AD3d at 446-447). We reject the contention that, bygenerally consenting to the retention of alternate jurors,the plaintiff consented to the court s substitution of adeliberating juror by an alternate juror without ade-quate inquiry (id.).

Matter of Irfan v Vullo, 2019 NY Slip Op 00122In this article 78 proceeding seeking to com-

pel the New York State Medical Indemnity Fundto accept a medical malpractice plaintiff, thecourt affirmed denial of the state s motion to dis-miss the proceeding. However, the court alsoheld that granting the petition and ordering thatthe Medical Indemnity Fund to accept the infantplaintiff for enrollment without a hearing waspremature, and remanded the matter to SupremeCourt for a hearing on the merits.

Medical Malpractice UpdateContinued from page 9

E DER A PDATE

There is a great deal of uncertaintyandThis article endeavors to keep our brethrenup to date on some recent changes or interpreta-tions to the CPLR, changes to Veterans Admin-istration Benefits and analyses of a few elder lawfinancial issues.

A PLR 210 Se e U a A eEveryone is familiar with CPLR 2103(b)

which governs service on attorneys. When serv-ice is made under CPLR 2103(b)(2), five daysare added to the prescribed time period for serv-ice. Another method of service (and probablymore popular) is to serve an attorney by dis-patching the paper to the attorney by overnightdelivery service pursuant to CPLR 2103(b)(6).When using this method of service, one businessday is added to the prescribed time period. It ap-pears that the additional day is meant to take intoaccount one extra day required to effectuate serv-ice (overnight).

The Second Department ruled that a party sdeposit of its motion papers with Federal Ex-press on Friday for weekday delivery onMonday constitutes a failure to use FederalExpress overnight delivery service, seeMoran v. Bac Field Services Corp.,164 AD 3d494 (2d Dept. 2018).

B AMEN MENT TO PLR 00The Governor signed into law (December

18, 2018) amendments to CPLR 8003 (1)(a)and (b). If you have ever been appointed a ref-

eree in a foreclosure action, these amendmentswill affect your compensation in these matters.

Subdivision (a) was amended to increase thefee as referee to compute from $250.00 to$350.00.

Subdivision (b) was amended to increase thefee as referee to sell real estate from $500.00 to$750.00.

PART RULES O IE U EWithout going into a detailed history of the

implementation and the attorney fee earnings re-striction, on October 31, 2018, the Chief Judgeand the Administrative Board voted to amendPart 36.2(d)(2) to allow the compensationrestrictions for certain fiduciary appointees tobe increased to $100,000.00.

Despite the language in the amendment thatit be effective immediately, it has been reportedthat certain counties are interpreting the changeto go into effect on January 1, 2019. Thesecounties are using the prior $75,000.00 limita-tion for the 2018 calendar year.

MATTER O BREIER NEYORK STATE EPT O SO IAL SER

I ES, 2019 N Y A Le 91The lesson of this case is that many of our

clients that need assistance with filing MedicaidApplications seek to have non-attorneys prepareand file their Medicaid applications for familymembers in order to save money.

In this case, the attorney-in-fact designatedthe Medicaid coordinator at the nursing home tofile the Medicaid application. The filing by thefacility s representative had the legal effect of

making the facility the proper party to receivenotices.

The application was denied by DSS due tothe failure to submit proper documentation.There were untimely filings for a fair hearing andthose untimely filings resulted in a dismissal ofthe fair hearing.

The applicant died in the interim period andthe Estate Administrator filed a CPLR Article 78proceeding contending that the applicable statuteof limitations should have been tolled becausethe notices denying the application were not sentto the decedent s attorney- in-fact.

The Appellate Division ruled that the de-nial notices were sent to the recognized rep-resentative (the person or entity that filed theapplication) pursuant to Social Services Law11 (12) and 18 NYCRR 358-3.1. Accordingly,

the statute of limitations is not tolled and theAgency s denial of benefits was upheld.

E ETERANS A MINISTRATIONBENE ITS

Prior to October 18, 2018, the VA providedAid and Attendance to qualified veterans (basedon War time service) if their net worth did not ex-ceed $80,000.00. The rules also permitted trans-fer of assets with no look back period for anytransfer of assets.

On October 18, 2018, the VA implementednew eligibility rules for Aid Attendance. Thequalified veteran may not have a net worth in ex-cess of $123,600.00, not counting a home or va-cant land (less than 2 acres). There is now a 36month look back period for assets transferredafter October 18, 2018.

The division used to calculate the penaltyperiod (period of ineligibility) is the maximumannual pension rate for a veteran with onedependent ($2,170.00 for 2018). This is set forthin 38 CFR 3.276 (e)(1).

The new rules have expanded the definitionof medical expenses that may be deducted fromthe income received by the veteran which couldentitle him or her to aid and attendance.

NAELA held a webinar in October, 2018,which provided a far more expansive analysis ofthese new rules. Contact NAELA for specificson how to view this program.

It is evident that planning is now the buzzwork for veterans that might be contemplatingaid attendance benefits in the future.

BANKRUPT YAN INAN IALE PLOITATION O T E EL ERLY

We have all heard of cases where the elderlyhas been exploited and suffered financial loss. Insome of these cases, the elderly person either in-dividually or through an agent (like a guardian)commences proceedings to recover funds thatwere converted by the exploiter.

The exploiters are using the protection ofbankruptcy laws seeking to discharge their debtsand other obligations. It is important for elderlaw practitioners to be mindful of how the ex-ploiters are using bankruptcy protection to thwartcollection efforts.

It is wise to familiarize oneself with the bank-ruptcy code or to have a bankruptcy attorneyaccessible to their clients in this predicament.

By Anthony Lamberti, Esq.,

S a Se a a a Me a I e

A ertise in the Brooklyn Eagle’s EGA SER I ES DIRE T R

ontact Alice Peters t [email protected]

Judge Brown, Gioia notes, was both wellregarded, highly respected, and trusted by bothDemocrats and Republicans alike. He negoti-ated with knowledge, skills and discretion.With the benefit of hindsight, these legislativeoriented skills were likely transferable toJudge Brown s service on five judge appellatepanels in seeking to build consensus courtdecisions.

Sid Davidoff, Esq., the senior and foundingpartner at Davidoff, Malito, and Cintron, a high-ly regarded government affairs law firm, was aclose assistant and advisor to the late Mayor JohnV. Lindsay when Judge Brown served as theNew York City representative to state govern-ment. Mayor Lindsay had lost the Republicanprimary during his reelection campaign, butwon the general election on the liberal and in-dependent lines. Mayor Lindsay needed a newDirector of Legislative Affairs, and recruited

Judge Brown.With politically hostile Governor Nelson

Rockefeller, and no major party endorsements,there was no doubt that this would be one ofour most difficult legislative sessions, re-called Davidoff. Judge Brown was nonethe-less able to overcome all those seemingly in-surmountable obstacles to promote MayorLindsay s agenda so successfully that he wasable to secure both the votes, and the Gover-nor s signature on many pieces of legislationthat were important to both Mayor Lindsay,and the people of New York City.

Judge Brown continued in that role for allfour years of Mayor Lindsay s second term.There is no doubt, Sid Davidoff notes, that thesuccesses that the Lindsay Administrationachieved were in great part due to the out-standing talents, and nearly mythic abilitiesof Judge Brown.

B T e 19 S a e a e

In 1967, a State Constitutional Conventionwas convened during Governor Nelson A. Rock-efeller s term. The 1966 election had produced aDemocratic majority of the convention dele-gates. The Convention President was AssemblySpeaker Tony Travia, and so Judge Brown, alongwith Edwin Margolis, and Joel Cohen, Travia slegislative counsels, now donned the hats ofcounsel to Convention President Travia.

Of necessity, the Convention s Rules Com-mittee was the power amongst all other com-mittees, with Democrats significantly controllingRules Committee seats. A Super Rules Com-mittee, consisting of Travia, Harold Fisher, Esq.,and Judge Brown, guided Travia. Followingthe convention, the voters failed to ratify the pro-posed constitution (voters were given a singleup or down vote). Nonetheless, Judge

Brown s role as a key Travia counsel elevated hisstature as a go to lawyer on matters requiringquality analysis and sechel (sound judgment).

T e a Yea

Judge Brown s judicial career began auspi-ciously in 1973, while assigned to ManhattanCriminal Court at 100 Centre Street. On hisinitial day of service in the pre-metal detectorera, a defendant pulled a pistol, prompting acourt officer to yell Duck down, Brown.Fortunately, Judge Brown, who clearly did nothave far to fall, escaped unscathed. Themoniker Duck Down Brown, however, wasfirmly affixed. One of the significant casesover which he presided as a Criminal CourtJudge was the arraignment of DavidBerkowitz, on murder charges in the notoriousSon of Sam case in the 1970s, when he

served as Supervising Judge of the BrooklynCriminal Court. He was subsequently electedto Supreme Court, ueens County in 1977,leaving the bench to serve as GovernorCarey s counsel.

After several years of service up in Albanywith Governor Hugh Carey s administration,Judge Brown moved to the courtroom, initiallyelected to Supreme Court, ueens County, andthen was designated by Governor Carey an As-sociate Justice of the Appellate Division, SecondDepartment, a court that was then filled with

such legal luminaries as Presiding Justice MiltonMollen, Vito Titone, Leon Lazer, WillieThompson, Seymour Boyers, David Gibbons,Lawrence Bracken, James Niehoff, and GuyJames Mangano. For those who had the pro-fessional privilege, and opportunity to orallyargue before that court, it was a judicial gold-en age, akin to watching the 1927 Yankees, or1955 Brooklyn Dodgers play baseball. OneAppellate Division panel was more outstand-ing than the next

Judge Brown brought a strong workethic to his service as an appellate court jus-tice. A former court staff counsel related thatBrown was commonly known to arrive at theBrooklyn Heights court by 6:00 a.m. to get anearly start on the day s work. While that

early arrival is powerful proof of his commit-ment, the counsel noted that then Court ClerkMarty Brownstein, and then Law Secretary toJustice Willie Thompson were already in thecourt working away, and ready for their nextpot of coffee Not to be outdone, then Associ-ate Justice, now Senior U.S. District JudgeArthur D. Spatt was already having his lunch

Judge Brown was reportedly perceived bycolleagues and staff as collegial, main-stream, fair, decent, etc. in a time whenappellate courts were more judicially deferen-tial to the rulings of trial level courts. Simplyput, a judicial mensch. His role as an Asso-ciate Justice of the Appellate Division, SecondDepartment appears to have been a highlightof his illustrious legal career. On average,every month (with the exception of July andAugust) Brown participated in adjudicatingappeals, with a volume of cases far greater ina month than the Court of Appeals decided ina year. Mindful of the rich and diverse caseswhich are the grist of the Court s cases, I haveselected a handful of cases which JusticeBrown authored in his decade of appellatecourt service.

In Carry v. Moser, 89 A.D. 2d 1, 454 N.Y.S.2d 311 2nd Dept. 1982 , Justice Brown appliedthe doctrine of contributory negligence in thecontext of a personal injuries case in which a carpassenger failed to wear a harness-type seat-belt with which the vehicle was equipped, andfell out of the vehicle onto the roadway, whereshe was struck by another vehicle.

In People v. DiLuca, 85 A.D. 2d 439, 448N.Y.S. 2d 730 2nd Dept. 1982 , Justice Brownwas assigned to a prosecution leaning panel withPresiding Justices Mangano, Willie Thompson,and Niehoff involving the review of a trial in Suf-folk County conducted by the late shrewd Suf-folk County trial judge Joseph Juspan. The trialjudge had allowed the jurors to take notes duringthe summation and charges, over defense coun-sel s objection, but failed to instruct the jury onthe proper use of such notes. Judge Brown notedthat the former Code of Criminal Procedure(Section 426) allowed them, but the C.P.L. wassurprisingly silent.

In Paladino v. Adelphi University, 89 A.D. 2d85, 454 2d 868 2nd Dept. 1982 rev g 110 Misc.2d 314 Sup. Ct. 1981 , involving a case of al-leged educational malpractice, parents sueda private elementary school seeking damagessustained as a perceived consequence of an al-leged breach of a contract to provide aquality education for their son. Special Term

had rejected the notion that a cause of actionexisted for perceived educational malprac-tice, but denied summary judgment basedupon breach of contact. Judge Brown voicedconcern that the courts might become em-broiled in determining the propriety of thecause of instruction adopted by a privateschool.

Richard E. Mischel, Esq., Presiding JusticeMollen s law secretary (following the late SteveFisher, Esq.), recalled that Judge Brown wasone of the Court s true intellectuals, and oneof its more liberal members. He was per-ceived to be fair, and was fair, day in and dayout, in his service on appellate panels.

Aprilanne Agostino, the current Chief Clerkof the Appellate Division, Second Department,was serving as a Law Assistant when JudgeBrown s then Law Secretary Dan O Reilly waspromoted to Chief Court Attorney. Aprilannesucceeded him.

She respected him as a hard worker, who

was both a very bright jurist, a great writer,and, equally important, a wonderful person.They tended to perceive cases from a similarlyjurisprudential viewpoint, and she admired hiswillingness to file a dissenting opinion whenprinciples required one. His dissenting opinionswere simultaneously principled, but non-con-frontational and collegial in nature. JudgeBrown did not pursue personal attacks on col-leagues, favoring discussions laced with humor not vitriol.

She later accompanied Judge Brown to KewGardens when Mario Cuomo appointed him as

ueens District Attorney, as his counsel. Sheserved in an integral role until returning to theAppellate Division to serve as Law Secretary tothe late Justice Charles B. Lawrence. The latter,while today not well remembered, was a greatappellate justice, who was often overshadowedby his brasher Brooklyn colleague, Justice WillieThompson. April noted Judge Brown frequentlycalled to check up on her, and was pleasedwhen she was selected to serve in the prestigiousposition as Chief Clerk of the Court.

For April, he was one of the most inspira-tional and influential mentors a lawyer couldever hope to have.

An indicia of perceived fairness (at the crim-inal side of the court) is the frequency of applica-tions which the judge receives from lawyers rep-resenting defendants who have been convictedand sentenced, and seek a stay of judgment pend-ing appeal. Judge Brown took the EighthAmendment seriously, and so was the go toJustice on such applications. He granted a stay,and set bail pending appeal in the famousHoward Beach case, even as the defendants

underlying conduct was likely antithetical to allwhich Judge Brown stood for. No one jumpedbail, or violated his trust (see People v. Kern, 137A.D. 2d 862, 524 N.Y.S. 2d 521 2nd Dept.1988 ).

One of the opinions which Judge Brown au-thored in dissent was People v. Bleakley, 125A.D. 2d 687 2nd Dept. 1986 . My attention hadbeen called to it by the warm remembrance ofCourt of Appeals Judge (ret.) Joseph Bellacosa,which appeared in the May 8th issue of the NewYork Law Journal. Judge Bellacosa recountedhaving met and worked with Judge Brown whenBrown was serving as Chief Counsel to thenGovernor Hugh Carey, and then collaborated onthe installation of Chief Judge Charles Breitel ssuccessor, Judge Lawrence Cooke.

Judge Bellacosa, later appointed to the Courtof Appeals by Governor Cuomo, referenced hisauthorship of People v. Bleakley, 69 N.Y. 2d 4901987 rev g 125 A.D. 2d 687 2nd Dept. 1986 ,

because Judge Bellacosa s opinion for the Courtof Appeals addressed the important fact weigh-ing function of the Appellate Divisions apower not jurisdictionally within the power ofthe Court of Appeals. Bellacosa s opinion upheldJudge Brown s dissent from the Appellate Divi-sion s affirmance of a Westchester conviction.Judge Bellacosa did not note, or comment, on thecomposition of the majority which voted to af-firm. A review, however, of the Appellate Divi-sion s memorandum opinion in the Appellate Di-vision Reports reveals that the majority consistedof formidable judicial colleagues, i.e. PresidingJustice Milton Mollen, Associate Justice WillieThompson, and Guy James Mangano.

The decision not to concur, and to, in turn, filea sole dissenting opinion, particularly in the con-text of an appeal over which Presiding JusticeMollen had presided, was likely a jurispruden-tially significant act of both reasoned principle,and judicial courage. That the Court of Appealslater sided with the sole dissenting associate jus-tice on the Mollen Court was a clear sign of thehigh regard which Justice Brown commandedduring his years of service on Monroe Place.

In People v. Deitsch, 97 A.D. 2d 327, 470N.Y.S. 2d 158 2nd Dept. 1983 , Justice Brownauthored a unanimous opinion in which theCourt overturned a dismissed order by the lateJustice Sybil Hart Kooper, which had dismissedmanslaughter and related charges against aBrooklyn textile factory owner whose ware-house in erupted in flames, killing one employee.In a case with overtones of the Triangle Shirt-waist Fire in Manhattan, Justice Brown foundthe Grand Jury evidence sufficient to hold theirconduct a direct cause of death (c.f. People v.

Rosenheimer, 209 N.Y. 115, 123 1913 ).Donnell v. Stogel, 161 A.D. 2d 93, 560 N.Y.S.

2d 200 2nd Dept. 1990 rev g 139 Misc. 2d 72Sup. Ct. 1988 , addressed contract rights be-

tween Plaintiff Donnell, who began dating andthen living with Defendant Stogel, prior to her di-vorce. Beyond cohabitating together, Plaintiffhelped Defendant establish his development of anew footwear company when defendant voicedan intent to discontinue their relationship. Theythen entered into a written agreement to providePlaintiff with an agreed upon salary, and bonusesif the company became profitable.

The trial judge at a bench trial successfullymoved to dismiss because it facilitated adultery.Judge Brown s opinion, for a panel which in-cluded Justices Geraldine Eiber and SondraMiller, reversed. The case was remanded for re-trial. These cases provide only a small windowinto Justice Brown s service on a court adjudicat-ing thousands of both appeals, and motions.

A e B

At the end of the day, likely many morewill likely focus more on his service for over aquarter of a century as the ueens District Attor-ney than his collegial service on America sbusiest intermediate appellate court. He succeed-ed a predecessor whose leadership skills hadbeen drawn into question. Young law schoolgraduates, from outside ueens (and who werenot members of a Democratic political club),were attracted to service on his staff.

He later was elected President of the NewYork State District Attorneys Association by hisprosecutorial colleagues. His office continued toplay both an active, and vital role in the State Dis-trict Attorneys Association, in formulating andadvancing its legislative agenda, both with Al-bany, and at City Hall.

One legally controversial initiative which hisoffice employed was a practice of conducting in-terviews of pre-arraignment defendants in cus-tody. The office claimed that such interviews,without the presence of defense counsel, was ini-tiated based on a script which created a mis-leading sense of urgency, and a promise that theDistrict Attorney s Office would investigate thedefendant s version of the facts.

When Acting Supreme Court Justice JoelBlumenfeld suppressed a statement so elicited,and questioned the ethical propriety of the prac-tice, prompting an Article 78 proceeding in theAppellate Division, Second Department, the as-signed panel denied Judge Brown s applicationfor a writ of prohibition (see Matter of Brown v.Blumenfeld, 45 A.D. 3d 836 2nd Dept. 2007 .

Some 10,000 suspects were reportedly inter-viewed more than 60 either discussed thecrime, made admissions, or confessed. The prac-tice was viewed by many in the profession to bea professionally inappropriate undertaking, if nota flagrant Sixth Amendment violation.

His strong worth ethic, and commitment tothe Rule of Law, inspired many young lawyerswho have gone on to contribute to the fabric ofthe legal community. Judge Brown was, until hisillness, a well-known figure who turned up athomicide scenes around ueens. We and ueensare the better that Judge Brown reinvented him-self in the Frank Hogan model.

Judge Brown was, however, not all workand no play. Gary Darche, Esq., Past Presidentof the ueens County Bar Association, recount-ed Judge Brown hosted a weekly Sunday dou-bles tennis game with such luminaries as JusticesSeymour Boyers, Burton Roberts, and LeonardFinz.

Gary recalls Judge Brown as a dedicatedfamily man, who was a credit to the bench. Mayhe rest in peace.

— Roger B. Adler, Past President

* Court of Appeals judges were then elected.* Mindful that most Appellate Division deci-

sions are in memorandum decisions, JudgeBrown’s signed opinions stand out. One explana-tion may have been his development of a body ofdecisional work to justify possible promotion tothe Court of Appeals. That he was not appointeddoes not suggest that only the “best and bright-est” find their way onto the courts.

SUMMER, 2019 BROOKLYN BARRISTER,

ge B e T e R a P Se ea eContinued from page 1

, BROOKLYN BARRISTER SUMMER, 2019

ABOVE: Avery Eli Okin, Anthony J. Lamberti with lowest score winners Steven Bamundo,Hon. Donald Kurtz, Hon. Bernard Graham, James Caffrey Brooklyn Eagle photos by Andy Katz

Avery Eli Okin, Chris Merrone and Anthony J. Lamberti.

Anthony J. Lamberti and Hon. Donald Kurtz.

Anthony J. Lamberti and Hon. Zachary Carter.

Joseph Rosato and Hon. David Vaughn.

Anthony J. Lamberti and Mark Rayo.


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