By James G. Fouassier
The last thing anyone wants to read in this month’s issue is more about the novel coronavirus but emergency mandates and tempo-rary changes in regulated health claims administration may be im-portant to some of your clients.
There is a need to fi rst follow up on the subject of our last few articles. On March 2, 2020, the Supreme Court of the United States granted certiorari in Tex-as v. United States, which will be heard as California v. Texas (the appeals from Tex-as and California were consolidated). The order granting cert was not limited to any of the distinct legal issues presented below, so SCOTUS will be considering all of them during its next term, which was scheduled to begin in October 2020 but may be delayed like everything else.
The court is expected to schedule one hour of oral argument when the case is heard. Ex-pectations were that argument would take place before the November 2020 election but, again, that may not happen given the ex-igencies of the moment. Even if it did, no de-cision is likely to issue (especially given the potential political consequences) until near the end of the court’s term in late June 2021.
Since the order does not affect any stays pending appeal that current-ly are in place the Affordable Care Act will remain in full force and effect until the fi nal ruling comes down.
Now, on to COVID-19. In re-sponse to the pandemic, the New York Departments of Financial Services and Health have been
quick to reduce the barriers to patient care that routinely accommodate all interactions between health care providers and the insur-ers and plans that pay for care. (Keep in mind that all of this applies to New York regulat-ed insured products and the few self-funded plans not subject exclusively to federal reg-ulation under ERISA, such as government employee health programs. Over half of all insured persons are covered by ERISA plans. This also does not apply to traditional Medi-care and “Medicare Advantage” plans. See infra.) First and foremost, services related to the diagnosis and treatment of COVID -19 will not be subject to the usual patient re-sponsible shares: no copayment, coinsurance or deductibles. Health insurers and plans pay providers “net” claims, meaning the contract-ed or “usual and customary” amount of the claim less the patient shares, and it is the ob-
By Lynn Poster-Zimmerman
Just recently, on March 17, the world was ready to celebrate St. Pat-rick’s Day, with all the usual mass gatherings, parades, rowdy bars and restaurants. Yet, there are no St. Pat-rick’s Day celebrations, Passover Seder family gatherings, Easter Day Parade. The world is not the same.
Our everyday lives are not the same. Our routines, crazy as they so often are, have come to a screeching halt. The cause: COVID-19, an unseen and heretofore un-known force of nature, wreaking havoc here at home and across the globe. Yet, we are not alone and, as a society and a bar association, we will persevere and we will all get through this, as we hope and pray for each other’s health and safety.
Effective today, our Suffolk County Court system has been consolidated, with all essen-tial operations located in the Cohalan Court-house Complex in Central Islip. The Suffolk County Bar Association has been working closely with our administration to keep abreast of the ever-shifting landscape and keep you all informed. We are most fortunate to have the strong and steady guidance of our District Ad-ministrative Judge, C. Randall Hinrichs, to navigate us through these mammoth, yet tem-porary, transitions in our system. Due to Judge
Hinrichs’ monumental efforts, ded-ication and wisdom, what could have turned into a disaster, is well and functioning. Rest assured, we are continuing to monitor the situa-tion and advise you as to the evolv-ing adjustments.
We need to remind ourselves that this too shall pass. When? We do not know. How? We do not know.
As attorneys and judges, we are the ones who are used to calling the shots, directing, being strong for our clients and having the answers. Now, we are not. Yet, we are all part of this hu-man race. We can use our skills in our learned profession to help guide others through this, to remain calm, make safe and appropriate choic-es for ourselves, our clients and our families.
As diffi cult as these circumstances are, I think about the history of our civilization and the tragedies and calamities that our fore-
THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION
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VOL. 35, NO. 4 - April 2020
INSIDEApril 2020
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COVID – 19 and Your Clients
(Continued on page 20)
(Continued on page 20)
April 2020Annual Peter Sweisgood DinnerThursday, April 30 at 6 p.m. Watermill Inn, SmithtownThe legacy of Rev. Peter Sweisgood, now in its 32nd year, is an event you don’t want to miss. He was instrumental in assisting many Long Island professionals affl ict-ed with alcoholism and drug abuse and sat on many panels dealing with this syn-drome. The dinner, hosted by the Lawyers Helping Lawyers Committee, chaired by Elaine Turley and Rob Garcia, worked tire-lessly to get the word out that if you have a problem, you are not alone and there is a confi dential committee to assist. The dis-tinguished Arthur Olmstead, our honored guest, and Executive Director Jane LaCova will be remembering the Rev. Peter Sweis-good. For reservations go to the website for the fl yer or call the offi ce.
May 2020Annual MeetingMonday, May 4 The Annual Meeting is when the election of offi cers, directors and members of the Nominating Committee takes place. Fur-ther information will be available on a SCBA eblast.
June 2020Instillation of Scott M. KarsonNYS Bar PresidentMonday, June 1, at 6 p.m.Great Hall SCBA Past President Scott M. Karson will be installed in a special reception as the President of the New York State Bar Asso-ciation. Chief Judge Janet DiFiore of the NYS Court of Appeals will administer the Oath of Offi ce. Call the SCBA for further information.
112th Installation Dinner Dance Friday, June 5, at 6 p.m. Cold Spring Country Club, HuntingtonThe Honorable Derrick J. Robinson will be installed as the 112th President of the Suf-folk County Bar Association. The installa-tion of the offi cers, and directors will also take place at this annual event. For further information, call Jane LaCova at the SCBA.
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Our Mission“Th e purposes and objects for which the Association is established shall be
cultivating the science of jurisprudence, promoting reforms in the law, facilitating the administration of justice, elevating the standard of integrity, honor and courtesy in the
legal profession and cherishing the spirit of the members.”
Write for The Suffolk Lawyer Did you ever wonder how you could get involved in your bar association’s monthly newspaper? Do you have a great idea for an article or believe your colleagues would benefi t from information you’ve recently learned? Or do you just enjoy writing?
You too can write for Th e Suff olk Lawyer. Writing for the paper is open to all members and doing so is encouraged. Th e Suff olk Lawyer is a refl ection of the fi ne members that belong to the Suff olk County Bar Association. Why not get involved? For additional information please contact Editor-in- Chief Laura Lane at [email protected] or call (516)376-2108. Look forward to hearing from you!
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Lynn Poster-Zimmerman ......................................................................PresidentHon. Derrick J. Robinson ............................................................President ElectDaniel J. Tambasco ...............................................................First Vice PresidentVincent J. Messina, Jr. ..................................................... Second Vice PresidentCornell V. Bouse .................................................................................... TreasurerPatrick McCormick ................................................................................SecretaryJoseph A. Hanshe............................................................................Director (’20)Sean Campbell ................................................................................Director (’20)Michael S. Levine ............................................................................Director (’20)Gerard J. McCreight .......................................................................Director (’20)Andrea A. Amoa .............................................................................Director (’21)Hon. Caren Loguercio ...................................................................Director (’21)Th eresa A. Mari ..............................................................................Director (’21)Peter R. McGreevy ..........................................................................Director (’21)Paul Devlin ......................................................................................Director (’22)Jeff rey S. Horn .................................................................................Director (’22)Peter D. Tamsen ..............................................................................Director (’22)Cynthia S. Vargas ............................................................................Director (’22)Justin M. Block Past President ......................................................Director (’22)John R. Calcagni ................................................... Past President Director (’20)Patricia M. Meisenheimer ................................... Past President Director (’21)Sarah Jane LaCova ................................................................. Executive Director
The Suffolk LawyerUSPS Number: 006-995 is published monthly except July and August by Long Island Business News, 2150 Smithtown Avenue, Suite 7, Ronkonkoma, NY 11779, under the auspices of the Suffolk County
Bar Association. Entered as periodical class paid postage at the Post Office at Huntington, NY and additional mailing offices under the Act of Congress. Postmaster send address changes to the Suffolk
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in conjunction with The Suffolk LawyerEditor-in-Chief
LAURA LANEFrequent Contributors
Leo K. Barnes, Jr.Elaine ColavitoIlene S. Cooper
Paul DevlinHon. Mark C. DillonJames G. Fouassier
Hillary A. FrommerAndrew Lieb
David A. Mansfi eldPatrick McCormick
Cory MorrisVesselin Mitev
Craig D. RobinsBarry Smolowitz
Stephen L. UkeileyLouis Vlahos
Mordy YankovichVictor Yannacone, Jr.
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• Administration • Appeal • Executor• Guardianship • Injunction• Receiver • Lost Instrument
• Stay • Mechanic’s Lien• Plaintiff & Defendant’s Bonds
THE SUFFOLK LAWYER - April 20204
By Kera Reed
This is part two of a two part series.At times, it is clear that a person is not
simply missing as an absentee as contem-
plated by Article 9 of the Surrogate’s Court Procedure Act (“SCPA”) but is likely de-ceased. There are a number of reasons why a declaration of death of such missing per-son may be preferable than proceeding to
seek the appointment of a temporary admin-istrator for an absentee since a declaration of death pursuant to the Estates Powers and Trust Law (“EPTL”) § 2-1.7 will permit the alleged decedent to be treated as dead for
purposes of “any ac-tion or proceeding in-volving property, con-tractual or property rights contingent upon his death or the admin-istration of his estate.”
EPTL§ 2-1.7 gov-erns the presumption of death by absence.1
There are two general considerations in seeking relief under this statute.
The fi rst consideration is an absence for three years provided for in EPTL §2-1.7(a).2
The statute requires that the alleged dece-dent be continuously absent for three years, that there be no explanation for the absence other than death, and that the petitioner search diligently for the alleged decedent.3
The statute directs the court to set the date of the alleged decedent’s death to be three years after his or her disappearance un-less there is clear and convincing evidence which establishes an earlier date as a more probable date of death.4
The second consideration is exposure to specifi c peril provided for in EPTL§ 2-1.7(b).5 An easy example of the specifi c peril would be an airplane that crashes in which it can be shown that the alleged dece-dent was a passenger. However, sometimes whether a disappearance is a specifi c peril may be a question of fact.6
Under either approach, the procedure for obtaining a declaration of death pursuant to EPTL § 2-1.7 has similarities to a proceeding for the appointment of a temporary adminis-trator for an absentee: An interested person will need to commence the proceeding by fi ling a petition with the Surrogate’s Court together with evidence of a diligent search based upon the facts and circumstances; a citation will issue which will need to be
THE PRACTICE PAGE
Hon. Mark C. Dillon
General Business Law 11 in-structs that service of civil process of any kind is prohibited on Sun-days. Service made on Sunday in violation of the statute is void (Foster v. Piasecki, 259 AD2d 804, 805). The statute has exist-ed since 1965 (L.1965 , c. 1031, sec. 45), consistent with local “blue laws” that were in effect at the time. The statute’s obvious purpose is to provide rest for both process servers and defendants on the Lord’s Day. The statute is not an unconstitutional es-tablishment of religion, nor does it violate the equal protection clauses of the federal and state constitutions (Fine v Commissioner of Dept. of Consumer Affairs, 168 AD2d 285).
A companion statute is GBL 13, which provides that service cannot be made on Sat-urdays upon any person who keeps Saturday as a holy time. A violation of that statute is a misdemeanor. The statute is protective of religiously observant Jews. Service made in violation of the statute is void (JP Morgan
Chase Bank, Nat’l Ass’n. v Lilker, 153 AD3d 1243, 1244). However, mere service upon a Jewish defen-dant is not void unless two specif-ic requirements are met. First, the recipient of the process must actu-ally use and observe Saturday as a no-work holy time. Second, the process server’s choice of serv-ing on Saturday must be motivated
by malice (GBL 13; Signature Bank N.A. v Koschitzki, 57 Misc.3d 495 [Sup. Ct., Kings Co.]). The religiously-prohibited service in-cludes not only personal service, but oth-er methods of service as well. If process is made on Saturday upon a person of suitable age and discretion under CPLR 308(2), the statute may be violated if the timing was ma-licious (accord Garner v Doggie Love LLC, 2011 WL 197729 [Sup. Ct. NY Co.). Simi-larly, if service is affected by the “nail and mail” method under CPLR 308(4), and affi x-ation occurs on Saturday, the statute is vio-lated (JP Morgan Chase Bank, Nat’l Ass’n. v Lilker, 153 AD3d at 1245). Any service that is invalidated under GBL 11 or 13 represents
a failure to obtain personal jurisdiction over the defendant, meaning that the plaintiff is not entitled to re-commence a second action beyond the statute of limitations within the six-month grace extension of CPLR 205(a).
Cases involving alleged violations of GBL 13 involve whether the defendant is truly ob-servant, and even more frequently, whether the service was timed with religious malice. Malice necessarily speaks to the process serv-er’s state of mind. It may be established by reasonable inferences drawn from the facts, such as Saturday service upon an outwardly Orthodox or Hasidic person. It exists when the process server actually knew that the per-son being served was observant (Hirsch v. Ben Zvi, 184 Misc.2d 946, 948). In Hirsch, where service was affected on a Saturday that also happened to be Sukkot, the religious ob-servance of plaintiff’s counsel was imputed to the process server in fi nding malice and in-validating the process (Id., at 948). Service of process will withstand challenge when the defendant, while Jewish, is not shown to ob-serve Saturday as a holy day (Chase Manhat-tan Bank, N.A. v Powell, 111 Misc.2d 1011
[Sup. Ct., Nassau Co.], or when the element of malice is lacking (Hudson City Savings Bank, FSB v Schoenfeld, 172 AD3d 692, 693; Matter of Kushner, 200 AD2d 1, 2).
The service of mere notices, such as a con-tractual notice under a lease, does not violate the prohibitions of GBL 11 and 13 (Glenball, Ltd. v TLY Coney, LLC, 57 AD3d 843).
GBL 11 and 13 do not prohibit service of process on national holidays, nor service upon observers of religious holidays that fall on weekdays, or in the case of Christians, on Saturdays. Thus, service of process on a non-Sunday Christmas is valid, whereas ser-vice on Easter, which is always on a Sunday, is not. And statutorily, Passover, Yom Kippur and other high Jewish holidays are apparent-ly fair game for service of process when they do not fall on a weekend. The reader might notice the statutory inconsistencies.
Note: Mark C. Dillon is a justice of the Appellate Division, 2nd Department, an Adjunct Professor of New York Practice at Fordham Law School and an author of CPLR Practice Commentaries in McKinney’s.
Days When Serving Process is Forbidden
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SURROGATE
Absentees and Declarations of Death – What Happens When Someone Disappears
kEra rEED
(Continued on page 21)
THE SUFFOLK LAWYER - April 2020 5
By Laura Lane
Barry Smolowitz, a general practitioner focusing on criminal, computer and education law, is a former New York City police officer. He moved forward in life at a differ-ent pace than most, entering college when he was 16 years old and becoming a trainee police officer when he was 17. That’s about the time he first became interested in the law.
How did you end up becoming involved in the police department at 17? I was going to college and was living in Brooklyn. I was too young to drive so I had to take two trains and two buses to get there. I used to get home at 1 a.m. My father was a transit police officer and he told me about the police trainee exam. You could become a police officer on your 21st birthday. On a lark I took the exam and did extremely well. I left college and was appointed to the police department working the midnight to 8 tour as an as-sistant desk officer. Because I was a civilian I was inside. I started reading law books and that piqued my interest in the law in general.
But you didn’t go back to college at this time, right? At 21 I went to the police academy, and back to college. A year later I made an arrest in Brownsville Bed Stuyvesant that went to trial. The attorney defending the person I arrested won. He came over to me and said, “What’s a nice Jewish boy like you doing in the police department?” He said I was smart and should become a lawyer. I told him I had to finish college first. So, I did finish college, then went to graduate school and then law school all while I was a police officer. I went to school part time.
Then what happened. I got transferred to the legal de-partment. In Manhattan they had a Legal Bureau back then, which had 150 people in it, most of which were police offi-cers. One of my jobs was to give legal opinions to the police on the street.
You ended up being in the police department for 18 years. How did you end up leaving? I left because of an injury where I tore the ligaments in my knee after making an arrest. That was 2 ½ years before I actually left. My plan had been to stay a police officer who was also an attorney and then go up through the ranks in the Police Department. When I retired I was 34 and wasn’t even admitted to the bar yet.
You went to Touro. I was in the first full graduating class there. That’s when I got involved in the Suffolk County Bar Association.
Why did you join? My first three cases were matrimo-nial and I didn’t know what to do. I went back to Touro but there were no alumni to call. I was the alumni. Most of the teachers never practiced a day in their life. I decided to go to the SCBA and join and see if they could help me. They were nice and gave me names of people to call, which in-cluded Barry Warren, Harvey Besunder and Craig Purcell. They, and others, took me under their wing and asked for nothing in return.
How did you initially get involved at the SCBA? Before there were mandatory CLE’s I volunteered at the Academy. I ran the programs, assisted in putting on lectures. I brought surveys into the Academy and did lectures on technology too.
You became the Academy Dean in 1997. Why did you get more involved? The bar was good to me. I met a lot of good people there. There are very few people that transcend from law enforcement to law at the bar. I’m a take charge type of individual. They weren’t used to that at the SCBA and they appreciated it. It’s about getting things done. That’s how I got involved in technology there. They were shipping their computers down south to have them fixed. I helped them so they didn’t have to do that anymore.
When did you first take an interest in technology? I started to get involved in technology when I was 5 years old. By age 10, I was repairing televisions and radios. Then when I was in high school I worked part time jobs as a tele-vision repairman. I am, and have been for years, an amateur radio operator. When in the Legal Bureau at the Police De-partment I got my first computer. Electronics for me is as natural as breathing.
Why would you recommend that attorneys, both new to the profession and the more experienced join the SCBA? There are a lot of reasons. If you are young in the practice the bar offers many opportunities to learn a lot early on. The bar has influence in the legal profession and gives a voice to insti-tuting change. As a member you can be a part of this. You can also become a mentor to younger practitioners, and of course there is the opportunity for comraderies.
You have been an instructor at the Traffic and Park-ing Violations Agency in Suffolk since 2015. Why do you continue to be involved? I teach required courses to motor-ists considered to be problematic. I originally did this as a volunteer because the roads were so dangerous. I’m trying to make a difference.
You have received many awards. Which ones are you most proud of? I received the SCBA’s President’s Award and Director’s Award twice. Those are important.
What do you like about being an attorney? My life has always been surrounded by situations where I give back or assist people. Being a lawyer is a service profession. When one does the job correctly we can have a major positive im-pact on people’s lives. Everything we do in this country in-volves the law. I help people. That’s why I became a lawyer. And that’s why there are other things that I also do that helps people outside of the practice of law.
You’ve always had your own practice. Why? I left a job in policing and made a thoughtful decision. I didn’t want to work in an office or a firm. I wanted to be my own boss, to decide how and when I would help somebody.
What kinds of challenges did you face? Initially it was how to establish and run a business. I always had a home office and never regretted it. It gives me a certain amount of freedom. I also wanted to give my clients a personal ex-perience. I do not advertise. My clients come to me on re-ferral. If you hire me you get me. And that’s worked pretty well for me. I was one of the first practices in 1986 that was completely computerized. Channel 12 even came in to in-terview me.
Getting back to the SCBA, is there any other reason why membership is of value? We are dealing in a time where different generations expect different things. Millen-
nials don’t engage like baby boomers do. The SCBA brings individuals who have similar interests that allow you to ex-amine and exercise a wide range of thoughts and beliefs to reach a common goal. You don’t get that if you isolate. The SCBA also brings diversity among the different areas of law.
Among your other responsibilities you are the official photographer for the SCBA. Do you enjoy it? I have been an amateur photographer since I was 13. I saw in the early days the way photographs were being shot and knew we could do better. I started doing it on a lark. Then one thing led to another. People seem to enjoy the photos that I take. I enjoy it and get a kick out of it.
You have been on Grievance for 12 years. Why? At the SCBA I was on the Ethics Committee and then became the chair. I was on the bar’s Grievance Committee and became its chair. I left it because I was assigned to the 10th Judicial District Grievance Committee. Even back in law school I al-ways thought that lawyers hold a special place in public trust. Lawyers should be beyond reproach. I find that 90 percent of everything that comes in is dismissed or disposed of without discipline. The percentage of lawyers doing bad things is ex-tremely low but unfortunately there are some that are doing very bad things. I’m still policing. But I’m doing it differently than when I was a police officer. I’m policing the profession with my participation in the Grievance Committee.
Note: Laura Lane, an award-winning journalist, is the Editor-in-Chief of The Suffolk Lawyer. She has written for the New York Law Journal, Newsday and is the senior edi-tor for three North Shore publications at Herald Community Newspapers in Nassau County.
Meet Your SCBA Colleague — Barry Smolowitz
Barry Smolowitz
(Continued on page 23)
By Cory Morris
New Yorkers in 2020 can rejoice “that workers for [at least one food delivery] app are considered employees for purposes of unem-ployment benefits.”1 While most courthouses are closed, (many matters deemed non-essen-tial due to COIVD192), the courier, fast-food chains and the salesclerk that stocks the toilet paper are believed to be more essential than access to justice for a great deal of litigants.
Gig workers, working second or third jobs and perhaps unable to secure benefits
through more traditional employ-ment, are on the frontline of the COVID19 pandemic and deserv-ing of some recognition. Touted by the New York Attorney General in her March 26, 2020 Press Release, “During Coronavirus Pandemic, Decision Will Allow Drivers to Col-lect Unemployment Benefits,” this New York Court of Appeals deci-sion addresses but falls woefully short of fix-ing another pandemic problem just waiting to rear its ugly head — benefits for gig workers.
There’s an App for thatThe newly minted New York
Court of Appeals decision In the Matter of the Claim of Luis A. Vega v. Postmates Inc. upholds the award of unemployment benefits to a Postmates’ courier, or what has be-come known as a gig worker, Luis A. Vega.
When you visit https://postmates.com/, the advertisement reads: “Food, drinks, groceries, and more available for delivery and pickup.” If one were so inclined to click on
https://careers.postmates.com/, it currently re-cites that “[w]e’re here to build the future, not just to maintain the status quo. For our peo-ple, Postmates is a way of life and a part of pop culture” and beckons those seeking a ca-reer with Postmates to “[b]e a part of a com-pany that facilitates $6.6 billion in economic activity across all sales, courier earnings, and merchant growth.” While it sounds like a part-nership, Postmates’ couriers are classified as independent contractors. However, as Post-mates argued before the New York Court of
EMPLOYMENT COVID-19 CIVIL RIGHTS
Delivery Drivers – Essential and Entitled to Unemployment Benefits
Cory morriS
THE SUFFOLK LAWYER - April 20206
By Elaine Colavito
Suffolk County Supreme Court
Honorable Paul J. Baisley, Jr.
Summary judgment as to Habberstad de-fendants denied; questions of fact as to own-ership of vehicle at time of accident.
In Wael Fakhro and Katherine Fakhro v, Ahmed Adjoor, Habberstad BMW, Hab-berstad Motorsport Inc., BMW Financial Services NA, LLC and BMW Financial Services, LLC, Index No.: 605871/2018, decided on Aug. 28, 2019, the court denied that branch of plaintiff’s motion for summa-ry judgment against the Habberstad defen-dants was denied.
In this action for personal injuries sus-tained as the result of a motor vehicle acci-dent, it was alleged that the vehicle was op-erated by defendant, Adjoor, and was owned by defendant Habberstad BMW, Habberstad Motorsport, Inc., BMW Financial Services, NA, LLC, and BMW Financial Services, LLC and had been provided to non-party, Jozet Ayoub for use while her vehicle was being serviced. The Habberstad defendant alleged that defendant, Ayoub, did not have their permission or consent to operate the
vehicle and was not an authorized driver pursuant to the rental agree-ment for the vehicle. Plaintiffs moved for partial summary judg-ment as to the issue of liability.
In rendering its decision, the court pointed out that plaintiffs could not meet their prima facie burden on their motion for summary judgment by evidence submitted for the first time in their reply papers. Thus, the evidence submitted by plaintiffs in their reply to the Habberstad defendants’ opposition papers would not be considered as grounds for their summary judgment motion. The court found that plaintiffs failed to establish their burden as their submissions revealed questions of fact regarding the ownership of the vehicle operated by defendant, Ayoub, at the time of the accident.
Motion for default judgment denied; acci-dent not described nor was how defendant’s negligence caused or contributed to injuries.
In Rosa Mori v. Southampton Manage-ment, Inc. and Steamy, Inc., Index No.: 610387/2019, decided on Jan. 3, 2020, the court denied the motion pursuant to CPLR 3215, granting leave to file a default judg-ment against defendant, Steamy, Inc.
In rendering its decision, the court noted that in her affidavit, plaintiff stated only that Steamy, Inc., “failed to properly and/or adequately train and/or instruct their [sic] employees, creating a condition which was dangerous and defective. She did not de-scribe the nature of the accident or how the defendant’s negli-
gence caused or contributed to her injuries. As such the court was unable to determine whether a viable cause of action existed.
Honorable James Hudson
Motion to reargue denied; expert testimo-ny proposed by the plaintiff regarding DTI was not yet generally accepted in neurology for the use in clinical treatment of individual patients; and could not therefore, be present-ed before a jury.
In Denise Brouard and Gerald Brouard v. James Convery, PV Holding Corp., and A Vis Rent a Car System, Inc., Index No.: 28560/2005, decided on May 9, 2019, the court denied the plaintiff’s motion for re-argument.
The court noted that the issue in the case was one of the plaintiff’s employing a nov-
el and unrecognized application of DTI (Dif-fusion Tensor Imaging), a scientifically and judicially recognized technology. The court clarified and stated that the issue was not, as plaintiff contended, that the court was im-properly refusing to permit the use of DTI results as part of the testimony of plaintiff’s expert at trial.
In rendering its decision, the court said that as previously stated in the Feb. 9, 2018 Mem-orandum Decision, there should exist a clin-ical (not merely scientific) consensus, and that the proper foundation be laid as well as acceptable methods employed, in each par-ticular case. In consideration of the instant motion for reargument, the court awaited the outcome of further development of the judi-cial use and application of DTI technology. The court noted that nether case was precise-ly on point to the case at bar. In rendering its decision, the court declined to follow recent persuasive authority and noted that it will wait until the Court of Appeals or Appellate Division issued a binding authority on point. The court pointed out that the burden of prov-ing general acceptance of scientific princi-ples or procedures for the admissibility of expert testimony rested in the party offering
BENCH BRIEFS
ElainE Colavito
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CONTRACT LAW
The COVID-19 Shutdown and the Impossibility of Performance DefenseBy Jarrett M. Behar
As we are all painfully aware, Gov. An-drew Cuomo has issued an Executive Order directing that all “non-essential” businesses statewide terminate their in-office personnel functions. In addition to the public health and policy issues that arise from this order, a myr-iad of legal questions also follow. While there are no concrete answers to many of these questions, given the unprecedented nature of the COVID-19 pandemic, it is helpful to look to caselaw to anticipate how these issues may play out in the business disputes that are sure to emerge from this situation. One such issue is the applicability of the defense of impos-sibility of performance that may be asserted against a party seeking to enforce its con-tractual rights against another party that has failed to perform its obligations.
General contract law in New York (and most places) provides “that once a party to a contract has made a promise to perform, it must follow through or be lia-ble for damages, even when un-foreseen circumstances make that performance burdensome.”1 The defense of impossibility of per-formance has been typically ap-plied very narrowly in light of the view that a contract, when distilled down, is really just an arm’s length allocation of risks between the parties.2 As a result, the Court of Appeals has recognized that this defense should only be available in “extreme circumstances” and “only when the destruction of the subject matter of a contract or the means of perfor-mance makes performance objectively im-possible.”3 In addition, the event that pro-
duced the impossibility must not have been something that could have been foreseen or guarded against in the contract.4
In a general sense, the COVID-19 pandemic was not foreseeable to parties that en-tered into contractual agreements through most of 2019. However, can the same be said about con-
tracts that were entered into after the first case of COVID-19 was reported in China around Dec. 31, 2019 or after the first case was reported in the United States around Jan. 21, 2020?5 These questions will un-doubtedly have to be answered by the courts as businesses become unable to perform their contractual obligations as a result of the COVID-19 pandemic and the ensuing governmentally-ordered restrictions.
One case resulting from a governmental act occurred in Orange County, New York when the purchaser in a sale of real property con-tract attempted to rescind the contract after the relevant jurisdiction enacted a moratorium on subdivision approvals and then enacted a re-vised zoning code that prohibited the type of subdivision contemplated in the agreement.6 The Appellate Division, Second Department affirmed the trial court’s dismissal of the ac-tion and held that it was not unforeseeable that the town would change its zoning code in a manner rendering the planned subdivision im-possible.7 The court partially relied on its hold-ing in an earlier case that found that sophisti-cated developers should either anticipate such a change or guard against it in the terms of the underlying contract.8
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CONSUMER BANKRUPTCY
Bankruptcy and Foreclosure Practice Under COVID-19 and the Coronavirus CARES Act - Important Updates on Bankruptcy and Foreclosure MattersBy Craig D. Robins
We are all grappling with how to compre-hend the impact of COVID-19, which will likely transform the way we conduct our practices for the next few years. Consumer bankruptcy and foreclosure defense prac-titioners returning to work after being side-lined by the coronavirus pandemic will see an impact on all aspects of their practice.
With the virus raging on, large sectors of the workforce have been laid off and many businesses have been paralyzed. Facing the
highest unemployment rates since the Great Depression, a tremen-dous number of consumers and businesses will be unable to pay their debts. Mortgage payments will not be made. It is certain that we will see a dramatic uptick in the number of bankruptcy filings and foreclosures.
Considering that before the pandemic many Long Island households only had modest savings, not to mention thousands of dollars of credit card debt,
the lack of income, combined with various expenses caused by COVID-19, will wipe out many families’ savings, placing many in a situation in which bankrupt-cy is the only answer to get a fresh new start. Job loss will also thrust many into foreclosure.
CARES Act On March 27, 2020, the CARES Act was
signed into law. This is the $2.2 trillion stim-ulus package, formally titled the Coronavirus
Aid, Relief and Economic Security Act. The act aims to provide emergency assistance for individuals, families and businesses affected by the 2020 coronavirus pandemic. Although its most publicized measures consist of finan-cial relief for businesses and individuals, bur-ied within its 880 pages are also some im-portant changes to various provisions of the Bankruptcy Code.
Bankruptcy means test changes Previously, with some limited exceptions,
Craig D. roBinS
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JarrEtt m. BEhar
SIDNEY SIBEN’S AMONG US
Condolences…To the family of honorary member Rob-
ert Jay Dinerstein, who passed away on March 15.
To the family of Patricia A. McByrne, mother of Pat Quinlan and mother-in-law of past SCBA President Robert F. Quinlan passed away.
To the family of SCBA member Patrick F.
Young passed away.
Elizabeth “Betty” Copertino died. She was the wife of Hon. John Copertino, for-mer Appellate Justice, Tenth JD, who passed away last year. Betty was also the son of Dis-trict Court Judge Hon. Carl Copertino.
To the family of Rudolph “Rudy” Cart-ier, a long-time and very active member of the Association.
To the family of Guy Raimondi, the father
of SCBA members Christopher and John E. Raimondi.
To the family of Michael Chetkof, a long-time member of SCBA and a dear, close friend of Justin Block.
To the family of Annette Elstein, moth-er of Hon. Sandra J. Feuerstein, U.S. Dis-trict Court Eastern District of N.Y. Annette was 99 years old, just two months shy of her 100th birthday.
The Board of Directors is saddened and sends its heartfelt sympathies to the fami-lies, colleagues and friends of the beloved members and family of members who have passed away during this COVID-19 (Coro-navirus) crisis:
New Members…The SCBA extends a warm welcome its
newest members: Rodger D. Citron, John R. Eyerman and Jason T. Katz.
EMPLOYMENT
Employers Face Potential Exposure for Personnel Decisions Related to the Coronavirus By Mordy Yankovich
The coronavirus pandemic is causing em-ployers to have to make difficult decisions re-garding their staff. Many employers are being forced to lay-off or furlough employees or re-duce their hours and compensation. Amid all of this internal chaos in an effort to remain in business, employers cannot afford to make a misstep that may lead to exposure for failure to comply with the new emergency federal and state sick and family leave laws or for making employment related decisions based on an employee’s protected class in violation of federal, state or local discrimination laws. The following is a summary of the require-ments of these applicable laws:
Emergency Family Medical Leave Expansion Act/ Emergency Paid Sick Leave Law
The federal paid leave laws enacted in re-sponse to the coronavirus apply to employers with less than 500 employees. An employee is entitled to 80 hours of paid sick leave if the employee is: quarantined as a result of the coronavirus; seeking a medical diagnosis for
symptoms of the coronavirus; car-ing for an individual who is quar-antined; or experiencing any oth-er substantially similar condition specified by HHS.
The Emergency Family Medical Leave Expansion Act entitles em-ployees who are unable to work or telework because of their need to care for a child whose school has been closed (or childcare provider is unavail-able) due to the coronavirus to 12 weeks of leave. The first 10 days of leave are unpaid. For the following 10 additional weeks, the employer must compensate the employee at a rate of no less than two-thirds of the employ-ee’s regular rate of pay. However, such pay is capped at $200 per day and $10,000 total. The law does contain a hardship exemption for employers with less than 50 employees where the “viability of the business as a go-ing concern would be jeopardized.”
New York State Paid Sick Leave/ Ex-panded Paid Family Leave
New York state passed legislation requir-ing employers to provide leave to employees
who are under a mandatory or pre-cautionary order of quarantine or isolation due to the coronavirus or to care for a child subject to such order. A qualifying employee is entitled to paid leave based on the number of employees that work for his/her employer. Employers with up to 99 employees must provide qualifying employees with at least
five days of paid sick leave (employers with less than 11 employees with a net income for 2019 of less than a million dollars do not have to provide paid leave). Employers with 100 or more employees must provide 14 days of paid sick leave. Qualified employees may also now use Paid Family Leave for addi-tional leave if the employee or his/her child is under an order of quarantine or isolation. Employees eligible for Paid Family Leave are entitled to 60 percent of their pay up to a maximum weekly benefit of $840.70.
Federal, state and local discrimination laws Title VII of the Civil Rights Act of 1964
(“Title VII”), the New York State Human Rights Law (“NYSHRL”) and the Suffolk
County Human Rights Law prohibit discrim-ination and harassment based on protected classes such as race, religion, sex, disability, national origin, age, etc. The NYSHRL re-cently lowered the standard for establishing a claim of harassment to treating an employ-ee “less well” based on his/her membership in a protected class. Employers risk expo-sure to claims of discrimination/harassment if they do not apply workplace policies, im-plemented as a result of the coronavirus, in a uniform manner. For example: Reducing “older employees” hours because they are more susceptible to the virus or mandat-ing that only Asian Americans telework can constitute discrimination.
Employers, including law firms, should enact and enforce uniform policies in order to ensure compliance with the above laws and consult with employment counsel prior to making personnel decisions.
Note: Mordy Yankovich is a senior as-sociate at Lieb at Law, P.C. practicing in the areas of Employment, Real Estate and Corporate Law. He can be reached at [email protected].
FAMILY
Child Support Modifications and Retroactivity in a ‘Paused’ WorldBy Jeffrey L. Catterson
With New York being the epi-center of the coronavirus’s do-mestic surge, its financial im-pact has been immediate and far ranging. With Gov. Andrew Cuo-mo’s directive for 100 percent of the non-essential work force to “Shelter in Place,” many of our clients have been furloughed, laid off or, more drastically, terminated from their only
sources of income. With no end in sight nor a clear understanding of what the economic landscape will be for their employment once they weather this storm, clients are rightfully concerned about how to manage their support obligations and minimize any arrears.
Making matters worse, based upon Judge Marks’ March 22,
2020 Administrative Order prohibiting any filings but for strictly defined “essential”
matters, these aggrieved parties are pro-hibited from filing petitions to modify their support obligations. This inability to file an application to modify support prevents the payor from ‘stopping the clock’ on support arrears for date of application retroactivity. Specifically, Family Court Act §451 (1) pro-vides as follows:
Except as provided in article five-B of this act, the court has continuing ju-risdiction over any support proceed-ing brought under this article until its
judgment is completely satisfied and may modify, set aside or vacate any order issued in the course of the pro-ceeding, provided, however, that the modification, set aside or vacatur shall not reduce or annul child support ar-rears accrued prior to the making of an application pursuant to this section. The court shall not reduce or annul any other arrears unless the defaulting party shows good cause for failure to
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NOMINATING COMMITTEE
Report of the Nominating Committee Pursuant to Article VI, SEC 2 of the Bylaws of the Suffolk
County Bar Association (SCBA), the Nominating Committee has submitted the following report of names of candidates to be placed in nomination for the election to be held at the Annual Meeting on May 4, 2020, which Report has been submitted in writing to the Secretary of the SCBA, Patrick McCormick, who hereby notifies the members of the SCBA:
President-Elect .............................................Daniel J. TambascoFirst Vice President ................................. Vincent J. Messina, Jr.Second Vice President ......................................Cornell V. Bouse
Treasurer ......................................................Patrick McCormickSecretary .......................................................... Hon. John J. Leo
Directors (Four with terms expiring 2023)........................................................................... Jarrett M. Behar...................................................................... Catherine E. Miller...........................................................................David R. Okrent........................................................................... Daniel A. Russo
Nominating Committee Members (Three with terms expiring 2023).............................................................................Sean Campbell
............................................................... Jennifer A. Mendelsohn
............................................................. Lynn Poster-Zimmerman
The members will also be voting on a Bylaws amendment for Article III, Admissions and Dues, click here.
We are not sure if this meeting will be a virtual meeting, so stay tuned for further information.
Respectfully submitted,Patrick McCormick,Secretary
JEffrEy l. CattErSon
morDy yankoviCh
THE SUFFOLK LAWYER - April 20208
FAMILY
Love and Lawyering in the Time of Cholera By Vesselin Mitev
“Three weeks from now, with the sun upon my face during the brisk walk to the court-house, I shall be litigating my cases. And if you find yourself surrounded by friendly ad-versaries, compliant clients, and accommo-dating judges, do not be afraid; for you are in Elysium, and you are already dead!”
This immortal speech given by Maxi-mus Decimus Meridius, portrayed by Rus-sell Crowe in the 2000 epic “Gladiator” can be quickly YouTubed as ready reference to my weak parody above, but buoyed by ris-ing strings and a somber score, it depicts the aforementioned Roman general roaring at his troops to hold the line before the impending battle against a Germanic warrior tribe.
“Three weeks from now, I will be harvest-ing my crops. Imagine where you will be, and it will be so. Hold the line! Stay with me! If you find yourself alone, riding in the green fields with the sun on your face, do not be
troubled; for you are in Elysium, and you are already dead.”
Twenty years later, the film still holds up and especially now, in what we have quickly universally all termed to be challenging, un-precedented, or uncertain times, will at least fill 3 hours of your dai-ly quarantine or social distancing.
Lawyering in the midst of a pan-demic has been, in a word, surreal. Working from home has, in my experience, proven a poor substitute to the very zeitgeist of our practice, which is interacting with other hu-mans, whether they be clients, adversaries or courts.
The in-person simultaneous interaction upon which we are built has been replaced by the pixelated thin veneer of a virtual reality; we can feel the tension crackle in the court-room during zealous cross-examination; to be sure, I don’t think anyone is ready for a contempt hearing held via Zoom.
I submit that labeling the ma-jority of lawyers non-essential, when historically, through the epochs, it is only the existence of laws (and their factotums — lawyers) that have held together societies from disintegrating into chaos and anarchy, was and is ill-advised and reactionary.
Friends and family from afar re-gale me nightly with anecdotes (the opposite of data) about how when this passes we will all see an uptick in clients seeking divorces and with other family law issues; the sardon-ic societal joke being, of course, that none of us can really stand the people we have cho-sen (now forced) to be closest with, and giv-en the choice would unsubscribe from that familial mailing list.
Nor is it of especial succor that some limit-ed issues can be brought to the courts during the closure. The reality is that people’s le-gal problems, at best, can be put on the back
burner for a short while, but cannot be de-frayed indefinitely. And when the smoke clears and regular life resumes, and it will, the rich ironies and vagaries of our practice and profession will be on full display again.
Are you not entertained?
Note: Vesselin Mitev is a partner at Ray, Mitev & Associates, LLP, a New York liti-gation boutique with offices in Manhattan and on Long Island. His practice is 100 percent devoted to litigation, including tri-al, of all matters including criminal, matri-monial/family law, Article 78 proceedings and appeals.
Vesselin Mitev
COMMERICAL LITIGATION
The At-Issue Doctrine & Waiver of Ancillary Privilege By Leo K. Barnes Jr.
Many trial attorneys prepare summations before voir dire or opening statements be-cause an effective summation will have a nexus with voir dire and opening statements such positions can be taken with the jury or judge premised upon what the admissible ev-idence will show. Although the summation will undoubtedly be refined during the trial process, the blueprint for the case presenta-tion must be determined well in advance.
That global perspective must start at the first client interview. For example, when drafting a complaint, plaintiff’s counsel risks waiving the right to a jury by includ-ing certain equitable claims which constitute a waiver. “The rule is fundamental that where a plaintiff seeks legal and equitable relief in respect of the same wrong, his right to trial by jury is lost. If any right remains, it is the right of the defendant.” Di Menna v. Coo-per & Evans Co., 220 N.Y. 391, 396 (1917). Sometimes, the pursuit of equitable claims is inevitable; but in situations where the equi-table claim is merely perfunctory, the savvy attorney will avoid the same to avoid the risk of jury waiver. The same global perspective must continue through the discovery process so that other waivers are not inadvertently ef-fectuated.
In Alekna v. 207-217 W. 110 Portfolio Owner LLC, 156847/2016, New York Coun-ty Supreme Court Justice Carol Edmead de-termined that the “at-issue” doctrine applied, ordering defendants to produce an otherwise privileged due diligence report. According to the decision in Alekna, plaintiffs’ claim was premised upon a rental overcharge scheme stemming from allegations that defendants failed to honor their obligations in connec-tion with their receipt of J-51 tax benefits (J-51 is a tax exemption/abatement program for multi-family property owners).
The Buyer Defendants bought the subject property from defendants 207 Realty Asso-
ciates LLC and Mann Realty As-sociates (Seller Defendants) in April 2016. In their amended an-swer and cross-claims, the Buyer Defendants alleged that they did not willfully overcharge plain-tiffs, as Buyer Defendants relied on misrepresentations as to plain-tiffs’ rental status in the rent rolls provided by Seller Defendants. Moreover, Buyer Defendants alleged that they “could not reasonably have discov-ered” Plaintiffs’ rental status. These allega-tions were significant because the Buyer De-fendants could be liable for treble damages if a finding was made that they willfully over-charged plaintiffs (see Smoke v. Windermere Owners, 173 A.D.3d 500 (1st Dep’t 2019)).
Apparently, the parties agreed that a cer-tain Due Diligence Report, prepared by Buyer Defendants’ former counsel, would, in the absence of an applicable exception or waiver, be protected by the attorney/client privilege. However, plaintiffs argued that the Due Diligence Report was discover-able, because the at-issue doctrine provided a waiver of privilege such that the Due Dil-igence Report should be exchanged during discovery. The Buyer Defendants argued that the at-issue doctrine did not apply, as Buyer Defendants did not plan to use the Due Diligence Report at the dispositive mo-tion or trial stages of the action.
Accordingly, plaintiffs filed a CPLR 3124 motion to compel defendants to produce the Due Diligence Report, while the defendants opposed the motion on the basis that the Due Diligence Report was privileged and was not waived.
As per the Court of Appeals observation in Green v. Montgomery, 95 N.Y.2d 693, 699-700 (2001):
[p]rivileges, while important in the law, are not absolute. Indeed, most rights and privileges are waivable, even such constitutional rights as the right to a jury trial, the right to appeal and the
right against self-incrimination.Accordingly, for the “at issue”
doctrine, an otherwise privileged communication is waived when a party places the subject matter of advice “at issue.” Orco Bank, N.V. v Proteinas Del Pacifico, S.A., 179 A.D.2d 390, 577 N.Y.S.2d 841 (1st Dep’t 1992). Under the “at issue” doctrine, a party that plac-
es legal advice or other privileged facts or communications at issue is deemed to have waived any privilege with respect to such facts or communications and can be com-pelled to produce the same. The doctrine ap-plies when a party, through affirmative acts, places privileged material at issue and has se-lectively disclosed the otherwise privileged advice. Determining waiver of attorney-cli-ent privilege requires careful analysis of facts and circumstances regarding whether a party actually placed otherwise confidential com-munications “at issue.” See Deutsche Bank Trust Co. of Americas v Tri-Links Inv. Trust, 43 A.D.3d 56, 837 N.Y.S.2d 15 (1st Dep’t 2007); American Re-Insurance Co. v U.S. Fidelity & Guar. Co., 40 A.D.3d 486, 837 N.Y.S.2d 616 (1st Dep’t 2007).
Applying the foregoing principles, Justice Edmead determined that the defendants had, in fact, placed their otherwise privileged documents at issue in the litigation and or-dered disclosure subject to certain permissi-ble redactions:
Whether this doctrine applies where a landlord alleges that its overcharge of tenants was unwilful, and that it had no way of discerning, at the time it bought the subject property, whether the prior receipt of J-51 benefits placed the subject units within the ambit of rent stabilization, is a novel question of law. The court finds that the at-issue doctrine does apply in these circum-stances. The sale of the subject prop-erty was in April 2016, nearly seven years after the Court of Appeals land-
mark decision in Roberts v. Tishman Speyer (13 N.Y.3d 270 (2009)) (hold-ing that landlords receiving J-51 ben-efits may not luxury deregulate units within buildings receiving such bene-fit). Moreover, Roberts’ progeny had, by the time of the subject sale, made it clear that the Roberts decision applied retroactively (see Gersten v. 56 7th Ave, 88 A.D.3d 189 (1st Dep’t 2011).Thus, it is reasonable to conclude that the Buyer Defendants’ Due Diligence Report may contain statements as to the legal status of plaintiffs’ apart-ments. To the extent that it does, plain-tiffs are entitled to a redacted copy of the Due Diligence Report, as this ev-idence would rebut the Buyer Defen-dants’ allegations regarding their own ignorance. Failing to order the Buyer Defendants’ to turn over portions of the Due Diligence Report that relate to the legal status of the apartments within the subject property would de-prive plaintiffs of vital information re-lating to an issue that Buyer Defen-dants have brought into play. Portions of the Due Diligence Report that do not relate to the regulatory status of the apartments remain privileged and are properly redacted [bold added].
The court’s determination that the defen-dants’ election to assert a position which ultimately resulted in the disclosure of oth-erwise privileged documents serves as a re-minder that counsel must maintain a global perspective on the litigation end zone and the ramifications which correspond with the route thereto.
Note: Leo K. Barnes Jr. is a partner at Barnes Catterson LoFrumento Barnes LLP. He practices commercial litigation and can be reached at [email protected].
lEo k. BarnES Jr.
“Three weeks from now, I will be harvesting my crops. Imagine where you will be, and it will be so. Hold the line! Stay with me! …
THE SUFFOLK LAWYER - April 2020 9
CONSTRUCTION LAW
The Enforceability of Contractual Limitation of Liability Clauses By Kenneth A. McLellan
A clear contractual provision limiting dam-ages — absent exceptions such as gross neg-ligence — will be enforced by the New York courts. This principle of New York law is of particular importance in a construction law context, particularly to professional engi-neers engaged in performing inspections or architects engaged in design activities. In-deed, the court’s enforcement of such a lim-itation can be critical to any professional or entity who might perform a service for a rel-atively small fee that, without such a limita-tion in place, could result in enormous expo-sure, such as a burglar or fire alarm company.
The Appellate Division, Second Depart-ment, recently reaffirmed the enforceability of a limitation of liability. In Astoria Gener-ating Company, LP v. Riley Power, Inc., 179 A.D.3d 987 (2nd Dept. 2020), a decision is-sued earlier this year, the court held that “[a] clear contractual provision limiting damages is enforceable.” The court went on to note three exceptions: A special relationship be-tween the parties; a statutory prohibition; and if the provision enforcement of such a provi-sion is against public policy because the par-ty seeking to enforce it was grossly negligent. The Astoria Generating case involved con-tract with Riley Power to overhaul and refur-bish of a steam boiler. Astoria owned and op-erated a power station where it manufactured and sold electricity. Astoria claimed that there was a pressure explosion that caused damage to Astoria’s property and sought recovery.
In arriving at its decision, the Second De-partment relied on a line of its own prior cas-es. The Court cited Schietinger v. Tauscher Cronacher 40 A.D.3d 954 (2nd Dep’t. 2007). In that case, the defendant, an engineering
firm, was successful in enforcing a contractual provision that its li-ability for a pre-purchase home inspection be limited to $1,705. The plaintiff homeowners in that matter alleged that the defendant engineering firm negligently per-formed an inspection, failing to disclose that the roof contained as-bestos and was in such poor con-dition that it would need to be re-placed. The court affirmed dismissal of the complaint, finding no gross negligence.
The court in the Astoria Generating case also cited Ryan v. IM Kapco, 88 A.D3d 682 (2nd Dep’t. 2011), further discussed gross negligence. That case also involved a home inspector and found that the defendant’s li-ability was limited to $550. Plaintiff home-owners claimed that the defendant failed to discover and disclose that the roof rafters were not the proper size. The plaintiff’s claim was dismissed and the decision was affirmed by the Second Department.
The Second Department has held that for a plaintiff to show that a defendant’s work was performed in a grossly negligent fashion, it must be “so defective as to evidence a reck-less indifference to the rights of others or a failure to exercise even slight care.” See Id.
In order to shed more light on what New York courts consider “gross negligence,” we can turn to a case cited in the Ryan case, which is Sommer v. Federal Signal Corp., 79 N.Y.2d 540 (N.Y. 1992). In that case the Court of Appeals held that “[it] is the pub-lic policy of this State, however, that a party may not insulate itself from damages caused by grossly negligent conduct [.]” The Som-mer case is recommended reading for any practitioner either representing a plaintiff or
defendant, in this situation. The set of facts presented in the
Sommer case had a bearing on the court’s decision due to issues of public safety. The Sommer case in-volved a fire. The building owner contracted with Holmes Protec-tion, Inc., for monitoring of the building’s central fire station. As part of the service, Holmes would receive any alarms that sounded
at the building and would immediately no-tify the fire department. There was a mis-communication between the building’s chief engineer and an allegedly inexperienced sub-stitute dispatcher at Holmes. The Holmes dis-patcher had allegedly mistakenly deactivated the system. A fire broke out, but the Holmes dispatcher did not report alarms to the fire de-partment. A small fire grew out of control al-legedly causing $7 million in damages.
Holmes’ contract contained an exculpato-ry clause that limited liability to a maximum of $250. The Court of Appeals found that whether there was gross negligence under the set of facts provided was an issue of fact.
On the same day it decided the Sommer case, the Court of Appeals also handed down David Gutter Furs v. Jewelers Protection Services, 79 N.Y.2d 1027 (1992). In David Gutter the court provided its view of a set of facts that would not support a claim of gross negligence where a contractual limitation of liability protected the defendant. In the Gutter Furs case, the plaintiff fur dealer contracted with the defendant to design, install and mon-itor a burglar alarm system. Plaintiff moved into the location with an alarm designed by defendant, and $300,000 of furs were stolen. The burglar alarm did not sound. Plaintiff claimed the exculpatory clause should not be
enforced because the defendant was grossly negligent. Plaintiff based its claim on an ex-pert’s opinion about the inappropriate type and location of motion sensors. Plaintiff also claimed that the defendant should have as-certained that the inventory should have been arranged. Plaintiff further claimed that defen-dant should have conducted a post-occupan-cy inspection. The court found the allegations against defendants did not raise an issue of fact as to whether defendant performed its duties with “duties with reckless indifference to plaintiff’s rights, and thus the contractual exculpatory and limitation of liability clauses are enforceable [.]” See Id.
As noted, while limitation of liability claus-es is generally enforceable, the courts will ex-amine the set of facts presented to determine whether a defendant’s gross negligence may create an issue of fact precluding summary judgment. It appears that the inquiry is fact specific. The court has expressed special con-cern where a party’s service involves signif-icant public interest. Practitioners may wish to consider exceptional circumstances identi-fied by the courts in past cases when evaluat-ing the enforceability of such a clause.
Note: Kenneth A. McLellan is a partner with Winget, Spadafora & Schwartzberg, LLP, and is admitted to practice in New York and New Jersey. His main practice ar-eas are construction law and defending pro-fessional malpractice claims.
Disclosure: Matthew Tracy, Esq., of Winget Spadafora and Schwartzberg, LLP, worked on Ryan v. IM Kapco, 88 A.D.3d 682 (2nd Dep’t. 2011). That case is mentioned in the article. He represented the respondents in the appeal.
kEnnEth a. mClEllan
VEHICLE AND TRAFFIC
Coping with Court Closures During the Coronavirus CrisisBy David A. Mansfield
The coronavirus crisis has had a tremen-dous effect on the practice of law for de-fense lawyers that has resulted in the closure of the courts and agencies except for certain non-routine matters.
The Suffolk Traffic and Parking Violations Agency deserves credit for a clear and con-cise posting to answer the vast majority of routine inquires. While there is no substitute for the agency that is open.
There are resources available to the de-fense lawyer to keep track of adjourned cas-es. The agency has assigned each return date with a corresponding adjourned date for first
appearance, adjourned conference and payment dates.
The Suffolk Traffic and Parking Violations Agency has posted links on its website https://www.suffolk-countyny.gov/tpva/Closure-Relat-ed-Information#ptc for resched-uling of first appearance dates, conference dates and payment of fine dates. The new dates for these matters are in mid-May and June.
The attorney of record will receive a new conference date notice for their case. And tri-als will be rescheduled with notices sent by regular mail. It is likely that trials will be re-set for May and later dates.
If your client’s license was sus-pended for failing to answer a sum-mons on or before April 1, 2020, the agency can be petitioned to re-quest a lifting or termination of the suspension by email between the hours of 8 and 10 a.m. [email protected].
This article makes no represen-tation that a request to lift a §510-
3a suspension pending prosecution will be favorably acted upon.
The District Court cases can be monitored on webcrims as well. Go to https://iapps.courts.state.ny.us/webcrim_attorney/Login
An exception is youthful offender eligible
cases, which will not be posted.The defense lawyer can set up an eTrack
account to allow for email notifications in individual cases. Go to https://iapps.courts.state.ny.us/webcivil/etrackMain
And Traffic Violations Bureau cases in New York City can be monitored with a vpassny account at https://secap.dmv.ny.gov/unprotected/logoff.asp
Please stay safe.
Note: David Mansfield practices in Islandia and is a frequent contributor to this publication.
DaviD manSfiElD
THE SUFFOLK LAWYER - April 202010
REAL ESTATE DEVELOPMENT
Summary of Recent Land Use, Zoning and Environmental Real Estate Decisions By Jason A. Stern
As shown in our previous columns, cli-ents can face a variety of real estate develop-ment issues, the answers to which depend on land use, zoning, environmental, and munic-ipal laws, rules and regulations, which vary among the counties, towns, villages and cit-ies across Long Island and New York state. However, there are certain overarching legal principles that guide these answers and this column reviews recent New York court deci-sions on such principles to give practitioners a framework for understanding the issues and how the courts address them, with an empha-sis on decisions from the Appellate Division, Second Department:
Pre-existing nonconforming use denied for “Short-Term Rental,” which was never permitted
In Cradit v. Southold Town Zoning Board of Appeals, 179 A.D.3d 1058 (2d Dep’t 2020), Cradit purchased real property in the Town of Southold (“Town”) in a low-density residen-tial district in 2014 and used same for “short-term rentals.” The following year, the Town amended its zoning code to prohibit “tran-sient rental properties” in all districts. Cra-dit applied to the Town Zoning Board of Ap-peals (“ZBA”) to continue using the property for short-term rentals as a pre-existing non-conforming use, which the ZBA denied. Cra-dit commenced an Article 78 proceeding in the Supreme Court, Suffolk County (Arthur G. Pitts, J.) seeking to vacate and reverse the ZBA’s decision. The Supreme Court denied and dismissed the Article 78 proceeding; on appeal, the Appellate Division, Second De-
partment affirmed. The Second Department found the ZBA “cor-rectly determined that Cradit’s use of the residence for short-term rentals was similar to a hotel/mo-tel use” and such use “had nev-er been a permissible use” in the zoning district. Thus, the Second Department held Cradit could not establish such short-term rent-al use was a legal “pre-existing” noncon-forming use because such use had nev-er been legal at the property and affirmed the dismissal of the Article 78 proceeding.
Use variance granted based on evidence of cemetery’s “Decline In Revenue”
In White Plains Rural Cemetery Assn. v. City of White Plains, 168 A.D.3d 1068 (2d Dep’t 2019), White Plains Rural Cemetery Association, a not-for-profit public cemetery (“Cemetery”), sought to construct a cremato-ry on property that had long been used as a cemetery. The Cemetery applied to the City of White Plains Zoning Board of Appeals (“ZBA”) for a use variance to allow the cre-matory, which the ZBA denied. The Ceme-tery commenced an Article 78 proceeding in the Supreme Court, Westchester County seeking to vacate and reverse the ZBA’s de-cision. The Supreme Court granted the Cem-etery’s application and reversed the ZBA’s decision. On appeal, the Appellate Division, Second Department affirmed. The Second Department found the Cemetery satisfied the first factor in deciding a use variance applica-tion: namely, whether the landowner demon-strated “factually, by dollars and cents proof, an inability to realize a reasonable return” on
the property, based on “evidence consisting of projections from a fi-nancial analyst the profit and loss statements which demonstrated that it had operated at a loss for the five-year period preceding the fil-ing of its application.” The Second Department also found the ZBA had erred “in finding this evidence was contradictory and conflict-
ed with a 2014 tax document indicating the Cemetery had a positive that year,” because the ZBA “failed to differentiate investment income accrued in the Cemetery’s statutori-ly required permanent maintenance fund,” pursuant to the not-for-profit laws, from “net losses” the Cemetery actually incurred “as a result of its decline in revenue.” Thus, the Second Department held there was “no ra-tional basis” for the ZBA’s decision the ZBA was directed to grant the Cemetery’s use variance application.
Zoning Board not bound by prior prec-edent for “Historic District” property
In Magid Setauket Associates v. Town of Brookhaven Board of Zoning Appeals, 2019 WL 7172440 (S. Ct. Suffolk Co. Dec. 16 2019) (Joseph Farneti, J.), Magid Se-tauket Associates (“Magid”) owned a Shell gas station in a “Historic District Transition Zone” and requested an area variance from the Town of Brookhaven (“Town”) Board of Zoning Appeals (“BZA”) to install a can-opy to “protect patrons from weather while they are at the fuel pumps filing their vehi-cles.” The variance sought a 15.5 foot set-back from the property line, where 50 feet was required — or a 69 percent relaxation
of the setback requirement. The BZA denied Magid’s application and Magid filed an Ar-ticle 78 proceeding in the Supreme Court, Suffolk County, challenging such decision, which the Supreme Court denied. The court found the BZA had a “rational basis” for its decision, particularly since the BZA found the canopy would have “an adverse visual and developmental impact on, and was in-consistent with, the historic character of the surrounding district.” The court also reject-ed Magid’s argument that the BZA’s decision was arbitrary because “similar applications” had been granted in the vicinity both be-cause, as a matter of law, zoning boards may “change its views as to what is for the best interests” of the Town and, as a factual mat-ter, because “none” of such “similar applica-tions” were located within a Historic District Transition Zone, like the subject proper-ty. Thus, the Supreme Court denied and dis-missed Magid’s Article 78 proceeding.
As these decisions continue to demon-strate, practitioners should be familiar with the overarching legal principles governing real estate development in New York, as well as the local land use, zoning, environmental, and municipal laws, rules, and regulations in rendering advice on these issues.
Note: Jason A. Stern is a partner and di-rector of litigation at Weber Law Group LLP, which focuses on commercial real es-tate, land use, zoning, government rela-tions, environmental law, and complex lit-igation. Mr. Stern can be reached at (631) 549-2000 and [email protected].
JaSon a. StErn
By Louis Vlahos
This is part two of a two part series.
A lot happens upon the death of an individ-ual partner, including, for example, the fol-lowing: • The partnership’s taxable year will close
only as to the deceased partner, for pur-poses of determining the decedent’s dis-tributive share of partnership tax items for the portion of the partnership taxable year ending with the date of death.1
• The decedent’s estate (or other successor, such as a living/revocable trust, depend-ing upon how the deceased partner held their partnership interest; the “Estate”), will take such interest with an adjusted basis equal to the fair market value of such interest at the date of the partner’s death, increased by the Estate’s share of partnership liabilities on that date and re-duced to the extent such value is attrib-utable to items constituting income in re-spect of a decedent.2
• If the partnership has in effect, or if it timely makes, an election under Sec. 754 of the code, the Estate will receive a
special basis adjustment to its share of the partnership’s basis for its assets, derived from the Estate’s basis for its partner-ship interest at the date of the deceased partner’s death.3
But what about the taxable year of the partnership? Does the partner’s death have any ef-fect thereon?
The Estate as a partnerA deceased partner’s Estate is a new and
separate taxpayer that springs into existence, and begins its first taxable year, upon the death of the partner.4
If the deceased partner’s successor is an ir-revocable trust,5 it generally must use the cal-endar year as its taxable year.6 However, if the partnership interest is held by the dece-dent’s estate,7 the estate may choose any an-nual accounting period as its taxable year,8 and there’s the rub.9
What if the estate’s choice of taxable year results in a change of the partnership’s tax-able year? This would be the case, for exam-ple, where the decedent had a greater than 50-percent interest in partnership profits and capital. The estate’s selection of a fiscal year
would produce a new “majority interest” taxable year — a new re-quired year.
What if the estate did not hold any interest in the partnership, and said interest was held, instead by the decedent’s formerly revocable trust? As indicated earlier, a trust must use the calendar year as its taxable year; thus, with nothing
more, the partner’s death would have no im-pact upon the partnership’s taxable year.
But what if the executor of the estate and the trustee of the trust elect to treat and tax the trust as though it were part of the estate for purposes of the income tax?10 In that case, the trust would not be treated as a separate trust for the taxable years of the estate ending after the decedent’s date of death and before the “applicable date.”11 Rather, as part of the estate, the trust would take the estate’s tax-able year for its own. Consequently, the part-nership in which the trust holds an interest may be subject to a change in its majority in-terest taxable year.
Change of taxable yearThis situation raises an interesting issue:
how will the partnership know that the Es-
tate’s selection of a fiscal year may have resulted in a change of the partnership’s required taxable year? Why would the part-ners care?
There are a number of concerns. For one thing, the change may affect the timing of when the partnership’s tax items are to be accounted for by the partners in determining their taxable income.
In addition, a short period return (of less than 12 months) will have to be filed, begin-ning with the day following the close of the old taxable year and ending with the day pre-ceding the first day of the new taxable year.12 The partnership does not annualize its tax-able income for purposes of preparing this short period return; rather, the return for the short period is made as if that period were a taxable year.13
A number of elections must be made on a timely filed tax return.14 What if a partner-ship is unaware of the change to its required taxable year? In that case, it will likely fail to file the necessary short period return, along with any elections that must be made with such return.15 It will also fail to have included with the return, or to have sepa-
TAX
The Death of a Partner: Out With the Old Taxable Year, In With the New?
(Continued on page 24)
louiS vlahoS
THE SUFFOLK LAWYER - April 2020 11
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REAL PROPERTY
Self-Help Commercial Evictions Don’t Make Business SenseBy Andrew Lieb
A commercial landlord can legally pur-sue a self-help eviction in New York State. However, pursuing such an eviction through self-help is a terrible business plan for a commercial landlord and should be avoid-ed. A self-help eviction exposes a landlord to monetary penalties, a proceeding to re-store the tenant into possession and the po-tential for arrest. Therefore, it is advised that a commercial landlord forgoes its common law right of self-help eviction and instead, pursues a judicial eviction, irrespective that a judicial eviction is time consuming and costly, because the negative attributes of a judicial eviction are de minimis as com-pared to the exposure incident to a self-help eviction. Savvy commercial landlords should act in accordance with the findings from macro-level cost/benefit analysis rath-er than acting in accordance with cursory evaluations of only the initial barriers to en-try of available tactics in the pursuit of legal goals such as evicting tenants.
Under the common law, “a commercial landlord may utilize self-help where (1) the subject lease specifically reserves the land-
lord’s right to reenter and regain the premises upon tenant’s breach of its obligation to pay rent, (2) prior to reentry, landlord serves upon tenant a valid rent demand, (3) reentry was affected peace-ably, and (4) tenant is in fact in de-fault in its obligation to pay rent.” Sol De Ibiza, LLC v. Panjo Real-ty, Inc., 29 Misc.3d 72 (App. Term 1st Dep’t. 2010). However, proving com-pliance with these elements is a bigger lift than simply pursuing a judicial eviction in the first instance. While it is acknowledged that a self-help evicting landlord may not be required to prove compliance because their tenant may not commence an action to raise these issues, it’s equally plausible that such a tenant wouldn’t oppose a judicial eviction proceeding brought by their landlord and therefore the likelihood that issue is raised should be disregarded in macro-level cost/benefit analysis.
With respect to a self-help eviction, the Ap-pellate Term, in Sol De Ibiza, confirmed the requisite language to satisfy element (1) is “if Tenant shall make default in the payment of rent reserved...then…Landlord may with-
out further notice, re-enter the de-mised premises either by force or otherwise, and dispossess Tenant by summary proceedings or other-wise.” Therefore, pursuit of a self-help eviction should be strictly predicated on such language being set forth in a lease. It is noted that such language should be included in all commercial leases, irrespec-
tive of the thesis of this article, because the existence of such language creates leverage in pre-eviction negotiations between landlord and tenant. Regardless, if such language is absent from a lease, self-help eviction should be avoided.
With respect to elements (2) and (4), each are both required in self-help and judicial evic-tions. Consequently, these elements should be disregarded in cost/benefit analysis.
With respect to element (3), the issue of peaceable reentry can pose litigated ques-tions of fact. While case law holds that changing the locks is peaceable, if a tenant appears during such lock-changing event, this peaceable act can quickly transform into forceful. See Ferby v. Jonero, LLC, 44 Misc.3d 1229(A) (N.Y. City Civ. Ct.,
2014). If reentry becomes forceful, RPAPL §853 creates compounded exposure. RPA-PL §853 provides that, “[i]f a person is dis-seized, ejected, or put out of real property in a forcible or unlawful manner, . . . he is entitled to recover treble damages in an ac-tion therefor against the wrong-doer.” Be-yond RPAPL §853, the Housing Stability and Tenant Protection Act criminalizes self-help eviction as a Class A Misdemeanor, at RPAPL §768, with accompanying civil pen-alties. However, unlike §853, §768 only ap-plies to a residential “dwelling unit” and as such, is inapplicable to the instant cost/ben-efit analysis. Nonetheless, §853 applies to commercial landlords and should, alone, tip the scales in cost/benefit analysis away from a self-help eviction.
As to the benefits of self-help eviction, when eviction is uncontested, judicial evic-tion is more cumbersome than self-help evic-tion. Judicial eviction, unlike self-help evic-tion, requires fees for service of process, filings with the court, the provision of le-gal services, the sheriff or marshal, a mov-ing company and more. Judicial eviction in-
anDrEw liEB
(Continued on page 26)
THE SUFFOLK LAWYER - April 202012
OPINION
Lessons from the COVID-19 Pandemic By Victor Yannacone, Jr.
As a result of the COVID-19 pandemic, courts, law offices, solo and small firm prac-tices, small businesses, workplaces, employ-er-employee relationships, will all be dif-ferent, perhaps for only a short while, but certainly in the immediately foreseeable fu-ture and perhaps forever. Every lawyer will eventually have to learn to work efficiently and productively from home and rethink the nature and purpose of a law “office.”
For time billing lawyers without deep-pocket retainer clients, lost billable hours may never be recovered. For contin-gent fee law firms who advance disburse-ments, the interruption in cash flow may be catastrophic. Associates who depend on salaries and do not have their own paying clients may find themselves unemployed in-definitely. Partners who cannot maintain cli-ent billing to cover their income may face a dramatic change in life-style or perhaps find their status changed from equity partner to “of counsel.”
Many solo practice and small firms will have to merge or join together in some kind of group practice to consolidate redundant services and reduce overhead, general and administrative expenses.
The new realities of cyber practiceFederal and state government can and
should create secure virtual facilities in the cloud such as courthouses and document depositories and provide secure access to those facilities for attorneys wherever they may be located.
Working alone at home is now a fact-of life for many lawyers. Just you, your laptop, your smart phone and the internet. Your files are stored somewhere in cyberspace. But there are more questions than answers about prac-ticing law from home.
Is there enough room in your home for your family and your practice? Will your clients just pay their bills without questioning the value to them of every billable hour. Will your clients willingly pay rates that include your rent and the salaries of secretaries, parale-gals and clerks?
There is no longer any justifi-cation for requiring counsel and parties to travel significant distances and spend the substantial time to do so. Cost-conscious clients will no longer pay for it and busy lawyers cannot afford it.
The internet practice of transactional law
With electronic signatures and acknowl-edgements, most small business transactions can be conducted online. Virtual real estate closings can be managed by title companies and lending institutions online and in the cloud. Negotiations can be conducted face-to-face through video conferencing no matter how many individuals may be involved and how far apart they may be.
The courthouse and the courtroom are changing
Will the judges and administrators of the federal and state court systems recognize the opportunity to build on the “social distanc-ing” experience of this pandemic to stream-line litigation and limit courthouse and court-room appearances to actual trials or hearings on dispositive motions?
Changing arcane criminal law practic-es and procedures
Since video arraignments and bail hear-ings can be conducted shortly after an arrest directly from a police station or correction-al facility over a secure government enabled
videoconferencing system with a judge, district attorney, and defense lawyer available on call, we should see the end to busloads of prison-ers transported from some kind of holding facility to the courthouse where assistant district attorneys and defense attorneys mill around waiting — sometimes all day— for a 5 or 10 minute appearance?
At a video arraignment or bail hearing all relevant information can be available on-line for all the parties to view and comment on in real time. Prisoners can be remanded, granted bail or released on their own recog-nizance with or without restrictions such as GPS tracking devices in less than 24 hours freeing active law enforcement officers from burdensome paperwork to go back in the cars and on the streets.
Bringing efficiency to the practice of civil law
The “Meet & Confer” by teleconference procedure, now a staple of federal practice, should become universal. Pre-trial confer-ences requiring personal appearances at the state courthouses can be replaced by a re-quirement for Joint Pre-trial Orders such as those required by the federal courts and where necessary subsequent videoconfer-ences with a judge or magistrate.
Depositions/examinations before trial can be conducted by video conference as they are now since the “social distancing” rules were imposed.
Because of the enormous and almost un-constrained power of federal judges to man-age litigation and federal magistrate judges to manage discovery, there is no reason why the Suffolk County Bar Association togeth-er with their sister bar association in Nassau County cannot begin to formulate sensible rules to improve the administration of jus-
tice involving litigation in at least the East-ern District of New York and the Tenth Ju-dicial District of New York State and present practical proposals from active practitioners to the courts for action.
It is time for barristersIt is also time for the courts and the law as a
profession to recognize that not every lawyer is suited by temperament, or is capable, much less competent to advocate for a client before a judge and jury or argue an appeal. It is time to hearken back to the common law tradition we share with England and limit access to our courtrooms to American Barristers. We must heed the admonition of the late Chief Justice Warren E. Burger in 1973 that, “The painful fact is that the courtrooms of Ameri-ca all too often have ‘Piper Cub’ advocates trying to handle the controls of ‘Boeing 747’ litigation.” https://ir.lawnet.fordham.edu/flr/vol83/iss3/2
See also, https://yannalaw.com/public-pol-icy-essay-1/justice-law-american-legal-sys-tem/advocacy-and-training-advocates/
Note: Victor John Yannacone Jr. is an ad-vocate, trial lawyer, and litigator practicing today in the manner of a British barrister by serving of counsel to attorneys and law firms locally and throughout the United States in complex matters. He has been continuous-ly involved in computer science since the days of the first transistors in 1955 and ac-tively involved in design, development, and management of relational databases. He pi-oneered in the development of environmen-tal systems science and was a cofounder of the Environmental Defense Fund. He can be reached at (631) 475–0231, or [email protected], and through his web-site https://yannalaw.com.
TRANSACTIONAL
When is a ground lease like an annuity? By Irwin Izen
This month’s column has our client, a local businessman, looking to defer a substantial capital gain via a 1031 exchange. Unfortu-nately, having sold his relinquished property months ago, our client’s 1031 exchange is up against a fast approaching replacement prop-erty deadline. Pressed for time, our client is presented with both traditional (improved properties) and “nontraditional” options. One such option is purchasing real property subject to a long term Ground Lease (GRL).
In our scenario, low and behold, broker A (who admittedly has been working effort-lessly with our client since the “relinquished property” was sold, knowing full well that he has a commission riding on any purchase) has negotiated for our client to purchase real property currently operated by a national franchisor, under a long term Ground Lease (GRL). Guiding your client through this pur-chase, subject to the GRL, is your Action in the TransAction
After reviewing the Letter of Intent (LOI), which clearly states (as it should in any ne-
gotiation) that it is non-binding and subject to the more formal ex-ecution of a Purchase and Sales Agreement (PSA), you request counsel forward the PSA for re-view. Knowing the sale is sub-ject to the GRL, a copy should be readily available, if not attached to the PSA.
You immediately note both [GRL & PSA] are subject to the tenant’s RIGHT of FIRST REFUSAL (ROFR) to purchase the property. This is of upmost significance to your client. As is usual in a 1031 exchange, three replacement proper-ties are identified, however as these replace-ment properties are removed from the re-sale marketplace, the unanticipated exercise of a ROFR may leave your client without a replacement property and an unexpected tax liability. A more thorough review of the GRL and other documents will be provided during the due diligence period provided in the PSA and consequently the transactional attorney is best advised to negotiate the com-mencement of the due diligence period after
the tenant has either declined or waived an ROFR.
Customarily, there is an uncon-ditional “Due Diligence” period provided the purchaser, with strict “time is of the essence” deadlines. During this period, access to the property is provided for appraisals, environmental testing, building in-spections and other inspections. A
prudent purchaser should also conduct any required municipal searches early on as de-pending on the level of sophistication of the municipality, searches (H&B, Violations, Fire, etc.), of the property could take weeks. An often overlooked fact is whether the prop-erty is being operated under the proper per-mits, including annual building and fire mar-shal inspections.
The GRL is quick to obligate the tenant to all secure all operational permits and other municipal compliance so alerting the tenant to an outstanding municipal requirement is easily rectified so that the permitted use can continue uninterrupted. Due diligence peri-ods become particularly crucial when financ-
ing the purchase as environmental and ap-praisal conditions need to be timely satisfied.
Eventually, the due diligence period is ei-ther extended if additional information is re-quired or upon expiration of the due diligence period, the transaction either becomes firm or terminated. Of course, compliance with any notice requirements contained in the PSA for cancellation must be followed or the purchas-er risks waiver of same.
For example, the tenant declines the ROFR, so now the focus is on the property being sold subject to the underlying GROUND LEASE (GRL). As you purview the GRL, you note:• The tenant is responsible for “all” operat-
ing expenses, including insurance, taxes, assessments, etc., thus making it a triple net GRL. Unlike customary PSA negoti-ations, there is no tax adjustments or oth-er reimbursements to seller for prepaid items paid by the tenant.
• The tenant is a well-recognized brand name affording certain concessions such as the right to sublease and liberal cura-tive default provisions. As demand for
(Continued on page 25)
irwin izEn
viCtor Yannacone, Jr.
THE SUFFOLK LAWYER - April 2020 13
Tax Defense & Litigation
Long Tuminello, LLP120 Fourth Avenue
Bay Shore, New York 11706(631) 666-2500
Harold C. Seligman has been a member of theUnited States Tax Court since 1987.
He has represented individual and corporate clients in hundreds of tax cases, both large and small,
over the past 30 years against the IRS and New York State Department of Taxation and Finance.
www.longtuminellolaw.com
WHO’S YOUR EXPERT
The Products Liability ExpertBy Hillary Frommer
In two recent decisions, the fed-eral courts addressed the admissi-bility of expert testimony in prod-ucts liability cases. In both Amica Mutual Insurance Co. v Electrolux Home Products, Inc.,1 and Bal-ura et al. v Ethicon, Inc. et al.,2the courts excluded certain expert testimony offered by the plaintiffs on the grounds that it was unreliable.
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence and the principles set forth in Daubert v Merrell Dow Pharm, which re-quires the federal court to determine wheth-er the witness qualifi es to be an expert; the proffered expert opinion is based on reliable data and methodology; and the proffered tes-timony on a particular issue will assist the tri-er of fact.
In both cases, the courts found that the fi rst prong of the test was satisfi ed, in that the plaintiff’s respective witnesses qualifi ed as experts. There were, however, issues with the second prong — reliability. A discussion of the courts’ analyses on that issue is below.
In Amica Mutual Ins. Co., the plaintiff brought suit seeking insurance coverage for fi re damage to property that was allegedly caused by a clothes dryer manufactured by the defendant. The plaintiff asserted legal theories of negligence, breach of warranty, and strict liability based on the product’s al-legedly defective design and manufacture and on the defendant’s alleged failure to
warn. The plaintiff sought to of-fer the expert testimony of Arthur Bronstein, and specifi cally, his opinion that the exposure of wires over time to vibration or heat “led to electrical arcing, generated heat, and eventually ignited the wire in-sulation and/or accumulated lint inside the dryer,” which caused the fi re. The court determined that Dr.
Bronstein’s opinion regarding the existence and nature of the alleged defect did not have “suffi cient indicia of reliability.” Specifi cal-ly, the court found it signifi cant that while the expert testifi ed as to his observations of the subject dryer, he admittedly examined the dryer only after “its internal components had been heavily damaged by fi re, and af-ter the dyer had been moved by fi refi ghters, which further dislodged some internal com-ponents.” The expert also admitted that he had not examined or tested any other dryer with the same make and model as the sub-ject dryer, that he had not tested the insula-tion material used in the dryer to determine how it functioned when exposed to vibra-tion or heat. Moreover, the expert admitted that his hypothesis aside, he could not iden-tify any reliable method “for distinguishing between arcing that causes a fi re and arcing that results from a fi re that has spread from elsewhere.” These admissions were critical for the court, which it expressly recognized that “testing of hypotheses is considered the hallmark of reliable scientifi c methodology.” In sum, the court concluded that the expert’s
(Continued on page 26)
hillary a. frommEr
MEMBERSHIP SERVICES
Heart Health Seminar, at a Steakhouse?By Paul Devlin
Insignia Steak & Sushi in Smithtown. That is where members of the SCBA gathered in a standing-room-only crowd for a presenta-tion on heart health and fi nancial planning on Feb. 27, 2020. The irony of having an event about heart health at a steakhouse was not lost on anyone. The running joke throughout the night was precisely this irony. So why did we make this choice?
The catalyst for this event was the desire of SCBA President Lynn Poster-Zimmerman to get valuable information and resources about wellness to our members. Not only career wellness as the SCBA does with CLEs, com-mittee meetings and various other initiatives. But also, physical and fi nancial wellness.
With that intent, I wanted to organize an event that members would be excited about attending. I landed on Insignia as the venue with the broadest appeal. This was especially true given that we offered an open bar, passed hors d’oeuvres, and a sushi bar, all compli-ments of our sponsors.
The messages of the presenters were very well received. The single most important take-away for me was what cardiologist Da-vid J. D’Agate, M.D., of the Suffolk Heart Group referred to as the heart test you need but have probably never heard of. He start-
ed his presentation telling the sto-ry of Jim Fixx. Mr. Fixx was in in-credible physical shape. He went running every day and even wrote the book entitled, “The Complete Book of Running.” Nevertheless, he died of a massive heart attack while running at age 48. Mr. Fixx had three-vessel coronary artery disease. We have all heard stories of a seemingly healthy and active person dy-ing suddenly of a heart attack.
Dr. D’Agate followed this story with powerful statistics such as the fact that one American suffers a heart attack every 40 seconds, and that one in every three deaths in the U.S. is due to heart disease. As in the case of Mr. Fixx, this disease is often silent until it is too late. Blood screenings at annu-al physicals can show normal levels of LDL cholesterol even though the same patient could have coronary artery disease. EKG results can also be deceiving.
The good news is that there is an effective way to screen for coronary artery disease, al-though most people have never heard of it. It is the coronary artery calcium score (CAC a/k/a calcium score). This “mammogram” of the heart is a CT scan that shows the doctor de-fi nitively whether there is any artery disease. One of the reasons the test is not well known
is that it is not covered by health insurance. The out-of-pocket cost of this imaging is approximately $150. The radiation dose of the test is considered low, about the same about as a mammogram. There is no signifi cant preparation required and the scan takes about 10 minutes to complete. A prescription for the CAC test is required.
Almost everyone should have a CAC test. Even if you are perfectly healthy and active, this test could save you from being another statistic like Mr. Fixx. Dr. D’Agate recom-mended that most people with zero coronary artery disease on the initial scan repeat the test every fi ve years.
In addition to the heart health presentation, attendees heard some common-sense advice from fi nancial planner, Christopher Carri-ere of Prudential Advisors. At the time of this event, the market had just begun a sharp downward trend. Mr. Carriere told the crowd that in times like these the important thing is to stick to your fi nancial plan. A comprehen-sive plan anticipates downturns in the mar-ket. If you have a plan, stick to it even when panic selling seems most tempting. If you do not have a plan, put one in place now and hire a fi nancial planner if you are not well versed in fi nancial planning.
The fi nal presenter of the evening was Adam Goldstein of Lexitas Reporting. He highlighted the effi ciencies in cost and op-erations of his nation-wide fi rm. They are highly advanced in using technology to give attorneys various options such as remote video depositions.
I am grateful for all who helped make this event a success by attending and being recep-tive to the valuable information provided by the presenters. I am equally grateful to the sponsors who made it possible to have this event at an excellent venue with no charge to our members. The three sponsors were Zwanger-Pesiri; Prudential Advisors; and Lexitas Reporting.
As I write this article, New York state is on “pause” due to the COVID-19 pandemic. I hope this writing fi nds all of you well. For those of you who may be ill, I wish you a speedy and complete recovery. When things get back to normal, please seriously consider undergoing the CAC test.
Note: Paul Devlin is an active member of the SCBA, serving on the Board of Directors and as co-chair of the Membership Services & Activities Committee. He is an associate attorney with Gentile & Tambasco, where his practice focuses on personal injury litiga-tion. He may be reached at (631) 760-0923.
paul DEvlin
THE SUFFOLK LAWYER - April 202014
By Joseph A Hanshe
Last year I read a fascinating book by Jen-nifer Doudna, Ph.D. who is a Professor of a Biochemistry in the Molecular and Cell Bi-ology Department of the University of Cali-fornia, Berkley. The book, “A Crack in Cre-ation,” with a subtitle of “Gene Editing and the Unthinkable Power to Control Evolu-tion.”1 The book concerns the development of CRISPR-Cas9 technology by Doudna and her colleagues and it has the world buzzing with excitement.
CRISPR-Cas9 is a unique technology that enables geneticists and medical research-ers to edit parts of the genome by removing, adding or altering sections of the DNA se-quence. The potential for the medical profes-sion was noted at the time to be unlimited; but, was it safe for use in humans. Scientists believe that the technology could possibly be used to cure diseases associated with ab-errant genome conditions such as sickle cell anemia, Tay Sachs disease and many cancers. The technology can make heritable changes in human embryos. It is thought that it may well give scientists a cure for HIV. The origi-nal research took place in laboratory animals, not humans.
Two articles appeared in the Feb. 28, 2020 edition of “Science,2” published by the American Association for the Advancement of Science. One was by Jennifer A. Doud-na entitled, “Knocking out Barriers to Engi-
neered cell Activity” (pg.977) and another by Edward A. Stadtmau-er, et al, entitled “CRISPR-En-gineered T Cells in patients with Refractory Cancer.” (pg. 1001). The Stadtmauer article revealed the first-in-human clinical trial de-signed to test the safety and fea-sibility of CRISP-Cas9 gene edit-ing of T cells from patients with advanced, cancer. The experimental treatment was designed to test the efficacy of the technology in the treat-ment of myeloma and sarco-ma cancers. Needless to say, the preliminary test results demonstrated that the ge-nome engineering is safe and feasible using CRISPR-Cas9 in humans
Dr. Doudna’s article recounted the success of Stadtmauer’s in the treatment of myeloma and sarcoma. She followed six very ill pa-tients for nine months and found no residual adverse effects. It was thought that using the CRISPR-Cas9 technology would generate an adverse immune response to the protein used in Cas9 since it is of bacterial origin. No such effects were noted. Consequently, the first step in using the CRISPR-Cas9 system in humans with genetic diseases proved to be successful. There remains a very long peri-od before the medical therapy will become generally accepted by the medical communi-ty. Let’s hope! In my humble opinion Doud-
na and her colleagues deserve the Nobel Prize in Medicine. Needless to say, the legal and ethical issues involved in this therapy requires careful scrutiny.
Equally exciting news comes out of the Genetic Laboratories at Harvard University School of Medicine. At Harvard, Dr. David
Sinclair is researching lifes-pan and aging. After years of experimentation at Har-vard, MIT and the University of Sidney, Australia, Sinclair has come up with a grand theory of aging. He espous-es that aging is not caused by DNA mutations, mitochon-
drial disfunction, stem-cell exhaustion or any of the other hallmarks of aging. His hypothe-sis is that aging is the result of the epigenetic3 noise that accumulates over years of cellular insult. It can be slowed, halted, or reversed by activating the gene circuit that counters this noise. He notes in his book, “Lifespan, Why We Age-and Why We Don’t Have To,” that his research shows that every cell in the body produces sirtuins, which are enzymes that change the packaging of DNA and turn genes on and off as needed. He notes that activating the sirtuins in mice improves DNA repair, in-creases their exercise endurance, and extends their life span by 40 percent.
Think of the year 2050, when Sinclair’s work on aging enables the human body to
live to 150 years, or more, and Doudna’s CRISPR-Cas9 cures all maladies associat-ed with genome malfunction. Its food for thought for lawyers on how to structure a le-gal framework to protect the moral and ethi-cal values we have come to accept. So, I say to those who have read my article on “Med-ical Aid in Dying” you should think careful-ly about ingesting that “killer pill.” Any day there could be a medical intervention that could convert your aging, diseased body into a spry 150 old. Smile!
Note: Joseph A. Hanshe received his Bachelor of Science and Master of Science Degree in the Biomedical Sciences at Hofstra University. Thereafter he attended SUNY Downstate Medical School where he completed advanced courses in the medi-cal sciences. He practices medical malprac-tice law and criminal law from his office in Sayville, New York. He was appointed by the New York State Appellate Division Second Department as a court examiner where he assists the Suffolk County Supreme Court in Article 81 guardianships. He is chair of the Health and Hospital Law Committee.
1. Houghton, Mifflin Harcourt, Boston and New York 2017.2. Science is published weekly by the American Association for the Advancement of Science, 1200 New York avce., NW, Washington DC 200053. The process by which the expressions of genetic information is modified on a molecular level without a change to the DNA sequence.
Advances in Medical Research
JoSEph a hanShE
FOCUS ON
Health And Hospital Law
SPECIAL EDITION
By Matthew Daidola
In response to the terrorist attacks on Sept. 11, 2001, the United States launched Oper-ation Enduring Freedom and invaded Af-ghanistan. Soon thereafter, in March 2003, a collation of forces led by the United States military invaded Iraq. The invasion and sub-sequent occupation are still on-going to-day. For both safety and convenience, burn pits were used to dispose of the garbage and waste produced at our military bases.
This approach to burning trash is not new for American military forces. The practice has been conducted since the time of Gener-al George Washington. However, never be-fore have we seen a military action with this level of sophistication and duration. Many of our large bases appear to function more like city centers than temporary military outposts. Furthermore, like diverse city centers, they generate complex garbage and waste.
For decades, the Environmental Protection Agency has been aware of the damaging ef-fects burning garbage has on human health. In a 1980 health-assessment of a munici-pal solid-waste incinerator in Ohio, the EPA
found dangerous levels of toxins and particulate matter in the sur-rounding residential area. Further, it was discovered that the proxim-ity to the garbage-burning inciner-ator spiked the predicted lifetime cancer risks of the nearby neigh-borhoods and, thus, triggered im-mediate regulatory action.
According to recent esti-mates by the U.S. Govern-ment Accountability Office and the Department of De-fense, there are at least 230 burn pits in Iraq and Af-ghanistan. The largest of these burn pits was located at Balad Air Base, Iraq — also known as Camp Anaconda. It comprised 10-acres of burning trash operating 24-hours a day, 365-days a year, from 2003 until 2009. All U.S. military personnel entering Iraq were initially flown into this airbase. It is estimated over 3.5 mil-lion military personnel have been exposed.
In 2009, researchers began analyzing the Veterans Affairs’ medical records of military
personnel who served between 2004-2007. At the conclusion of their analysis, they discovered un-usually high levels of new-onset asthma in military personnel de-ployed overseas when compared to military personnel stationed at home. Even more concerning was the heightened levels when com-
pared to the general public, since asthma diagnosed af-ter the age of 13 was a bar from military enlistment. The condition was termed Iraqi/Afghanistan War Lung Injury (IAW-LI).
Many sick veterans and contractors now find them-
selves without benefits or proper compensa-tion. Eighty percent of veterans who put in claims related to burn pit exposure are de-nied. Several high-profile civil suits and ap-peals have been dismissed. In the past, leg-islation has been proposed on all levels of government, state and federal, without com-prehensive coverage coming to fruition.
Further questions of liability arise since most of these burn pits were controlled by private contractors but at the direction of the U.S. government. Recently, the United States Supreme Court rejected an appeal from over 60 lawsuits by veterans and veteran lobbyist groups seeking to hold private contractors liable. The lower federal appeals court had held that the decision to utilize burn pits were “made by the military.” It appears that the is-sue is now evolving into more of a political
question, therefore, rendering relief through the courts an unlikely possibility.
Currently, there is a new bi-partisan leg-islative bill under construction. It is expect-ed to be brought before Congress this sum-mer. Attached to the bill are Senators Kirstin Gillibrand (D-NY), Cory Gardner (R-CO), Congressman Raul Ruiz (D-CA) and me-dia personality Jon Stewart, who has signed on as the official spokesperson. Also part of the team is Dr. Anthony Szema and Dr. Rob-ert Miller, leading members of the initial re-search teams that discovered the negative health implications burn pit exposure has had for our veterans. They hope to succeed where other policy makers have failed.
Passage of the bill would provide much needed benefits for our veterans but could also cause chaos within the courts, the VA medical system, and the private insurance in-dustry. With millions exposed and billions in benefits needed, we expect this issue to con-tinue well beyond the duration of the initial military action.
Note: Matthew Daidola, is a former New York City Police Officer and a graduate of St. John’s University School of Law. He re-cently completed a pre-medical post-bacca-laureate at Stony Brook University and has aspirations to attend medical school in the near future. Matthew is an integral part of the Burn Pit legislative team, attends con-ferences in Washington D.C., and wrote the underlining medical research summary for the bill.
Burn pits, the ‘New Agent Orange’
matthEw DaiDola
FOCUS ON
Health And Hospital Law
SPECIAL EDITION
The Suffolk Lawyer wishes to thank Health and Hospital Law Special Section Editor James Fouassier for contributing his time, effort and expertise to our April issue.
JamES fouaSSiEr
THE SUFFOLK LAWYER - April 2020 15
By Denise Snow
Chances are pretty good that at some point, someone you know will be receive a denial of a benefit for a treatment, medication or di-agnostic from their insurance company. At-torneys who assist the disabled with getting home care services are seeing a surge in deni-als of benefits. Therefore, this article will fo-cus on External Appeals for Managed Long-Term Care (MLTC) denials.
A brief review of health insurance is ben-eficial. A denial of a treatment, diagnostic, pharmaceutical or service triggers the ap-peal. To identify an enrollee’s appeal rights, one must first determine the type of plan be-cause there are some differences in the pro-cess amongst plans. The scope of this article is a basic overview, and some plans are not discussed. However, for most plans, the ap-peal process will proceed first with an inter-nal appeal (the plan makes the determination) and if the benefit is still denied, an external appeal (an independent review organization makes the determination).
Employer based insurance plans, other than government (city, county, N.Y. state employees, e.g. NYSHIP) and church em-ployers fall under the scope of the Em-ployee Retirement Income Security Act of 1974 (ERISA). Employer plans may be ei-ther self-insured or fully insured. In a ful-ly insured plan, the employer pays premi-ums to a health insurance company which in turn pays the bills incurred when an em-ployee utilizes a health service. In self-in-surance plan (sometimes noted as “welfare benefit plan”), the employer or union is re-sponsible for bill payment. It is often dif-
ficult to determine what type of plan provides the coverage (em-ployees usually do not know; the card does not indicate). Often one must call the employee’s human resource department for clarifica-tion. Through preemption, both of these plans fall under the purview of ERISA, although through a savings clause, states retain the right to regulate fully insured plans. The result is self-insured plans fall under federal jurisdiction, whereas fully insured plans fall un-der state and federal juris-diction, thus generally pro-viding a greater degree of protection for the enrollee.
Medicare and MedicaidAs to public insurance, Medicare has a
5-level appeal process: Determination, Re-consideration by independent organization, Hearing with an Administrative Law Judge with the Office of Hearings and Appeals, Re-view by the Medicare Appeals Council, and lastly, Civil action in Federal District Court.
In Medicaid, due process protects a benefi-ciary’s claim to services by providing notice of state actions and providing beneficiaries with an opportunity for a hearing to review those actions. These standards were set forth in the U.S. Supreme Court’s 1970 decision in Goldberg v. Kelly. In New York state, fee for service Medicaid beneficiaries can proceed with a request for a fair hearing. They have 60 days from the date of the notice to request a fair hearing. If the denial is upheld in the fair hearing decision, they can then file an
action under Article 78 of CPLR within four months of the decision.
Managed Long Term CareManaged Long Term Care
(MLTC) is a system of private health insurance companies that was approved by the NYS Depart-ment of Health to offer services to
the chronically and disabled for home care. As such, the beneficiary has the patient protections of both commer-cial insurance and Medicaid. However, the incentive for plans to deny is obvious. As noted by the Inspector Gen-eral, U.S. Department of
HHS, “Managed care organizations (MCOs) contract with State Medicaid agencies to pro-vide beneficiaries with Medicaid services. MCOs must cover services in at least the same amount, duration, and scope that would be covered under Medicaid fee-for-service. However, capitated payment models in man-aged care may create an incentive for MCOs to inappropriately limit or deny access to covered services to increase profits.”
When the plan makes an adverse benefit determination, the MLTC is required to send a timely and adequate written notice of the denial which is the Initial Adverse Determi-nation (IAD). In the case of a reduction or discontinuance of services the notice must be mailed not less than 10 days from date of the proposed action. An adequate notice must provide specific reasons for the action and state the corresponding laws/regulations. Notices must be available in alternative for-mats and in a manner that takes into consid-
eration the special needs of the beneficiary. Pursuant to Mayer v. Wing, Medicaid person-al care service may not be reduced or termi-nated without showing that the beneficiary’s medical condition or social circumstances changed since services were originally au-thorized, change in circumstances justify-ing the reduction, or proof that a mistake was made in the original authorization.
The beneficiary must then submit an inter-nal appeal within 10 days of the date of the notice or effective date of the reduction of previously authorized services for Aid Con-tinuing (AC). This deadline is critical. Aid continuing will allow the beneficiary to keep their services through the internal and exter-nal appeal process. This is new. Previously, the beneficiary requested a fair hearing at this point for AC. The beneficiary has 60 days from the date of the IAD to appeal. A fair hearing may not be requested until a decision is made on the beneficiary’s internal appeal, which the plan issues as a Final Adverse De-termination (FAD).
It is good practice to draft a comprehen-sive, detailed internal appeal for two reasons — it may persuade the plan to change its de-cision and it will be the basis of a fair hear-ing and/or external appeal. Call the treating physician, ask for any supporting letters of medical necessity and/or medical records. The advocate should immediately request the clinical records from the plan, importantly, the Uniform Assessment System (UAS). The UAS is the assessment tool the plan used to make its determination.
In attacking the denial, first look at the no-tice. Was it timely? Was it adequate? Did it
Health Insurance Denials: External Appeals
DEniSE Snow
FOCUS ON
Health And Hospital Law
SPECIAL EDITION
By Joseph A. Hanshe
Pending before the New York State Assembly is A.2694 (Assem-blywoman Amy Paulin) and in the New York State Senate is (S.3949 (Sen. Diane Savino). Both legisla-tions concern Medical Aid in Dy-ing in New York State. Each concerns the medical prac-tice of a physician prescrib-ing medication to a qualified individual that the individual may choose to self-admin-ister to bring about death. In the United States there are 10 States and Washington D.C. that have laws to per-mit the practice. However, as a background to the proposed legislation, there is the United States Supreme Court case of Vacco v. Quill 521 U.S. 793 (1997). The Vacco case con-cerned the right to die in New York. In Vac-co, the court ruled 9-0 that a New York ban on physician-assisted suicide was constitutional, and preventing doctors from assisting their patients, even those terminally ill, in extremis and in great pain, was a legitimate state inter-est that was well within the authority of the state to regulate. The quandary often lies in the ethical considerations and beliefs of the phy-sicians, which at times are at odds with their very ill patients.
The physician’s education ends with the Oath of Hippocrates upon their receipt of the MD degree. In the classical version of the oath, one of the ethical considerations sworn to by the doctor is: “I will neither give a deadly drug to any-body who asked for it, nor will I make a suggestion to this effect.
Similarly, I will not give to a woman an abortive remedy.”
In 1964, because of the advances in modern medi-cine and science, the Hip-pocratic Oath was re-written by Louis Lasagna, the dean of the Tufts School of Med-icine and adopted by most
of the medical schools throughout the Unit-ed States. In the modern version, it states in part, “most especially I must tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awe-some responsibility must be faced with great humbleness and awareness of my own frail-ty Above all, I must not play at God.” This new ethical value is often at odds with Ju-deo-Christian morals.
The legislature has before it a proposed law that would enable physicians to adminis-ter drugs to an adult, defined in the law as 18 years or older. The patient must be terminally ill with a prognosis of six months or less to
live and is mentally capable of making their own healthcare decisions, and physically ca-pable of ingesting the lethal medication. It should be noted, that advanced age, disability and chronic health conditions are not quali-fying factors for medical aid in dying. These factors notably are those found in most nurs-ing homes.
Besides the strict eligibility criteria these proposed laws establish the follow-ing core safeguards: • The attending physician must inform the
terminally ill adult requesting medical aid in dying about all other end of life care options. This includes comfort care, hos-pice care, pain control and palliative care.
• The attending physician must inform the terminally ill adult requesting medical aid in dying that they can change their mind at any time in any manner. This includes deciding not to self-ingest the medication once they have obtained it. And,
• The attending physician must also offer the individual an opportunity to rescind their request.
There are problems to overcome, policies to address and clearly defined guidelines to questions be put in place. For instance, is medical aid in dying euthanasia? Is it sui-cide? Does it promote suicide? Regulations must be in place so that insurance companies do not deny treatment because medial aid in dying is an available end of life option. In ad-dition, there are guidelines that must address
the possibility of family or health care pro-vider coercion. The policies, laws and diffi-culties experienced in those states that have enacted medical aid in dying laws should be carefully reviewed to avoid any known prob-lems that have arisen in those jurisdictions.
In modern times, those of us who care for and love house pets go to great pains to in-sure their comfort. When they are in extre-mis, terminally ill and in great pain, with all the love in our hearts we may choose to put them down so they will not suffer. While our pets have no say in the decision, hear-ing their cries of pain motivates us to act on their behalf. In the proposed legislation, it is the terminally ill, clear minded, un-coerced, individual who should have the right to die as well.
Note: Joseph A. Hanshe received his Bachelor of Science and Master of Science Degree in the Biomedical Sciences at Hofstra University. Thereafter he attended SUNY Downstate Medical School where he completed advanced courses in the medi-cal sciences. He practices medical malprac-tice law and criminal law from his office in Sayville, New York. He was appointed by the New York State Appellate Division Second Department as a court examiner where he assists the Suffolk County Supreme Court in Article 81 guardianships. He is chair of the Health and Hospital Law Committee.
Medical Aid in Dying in New York
JoSEph a. hanShE
FOCUS ON
Health And Hospital Law
SPECIAL EDITION
(Continued on page 25)
THE SUFFOLK LAWYER - April 202016
PERSONAL INJURY — MEDICAL RECORD REQUESTS
The Challenge to Obtaining Medical Records at Cost Under the Hi-Tech Act By Michael Glass and Christopher Glass
The delivery of medical records to pa-tients and their attorneys has undergone seis-mic changes in the last few decades. Federal and state HIPAA laws created strict standards governing patient privacy. In New York, Pub-lic Health Law Sections 17 and 18 required health care providers to turn over medical re-cords at a cost not to exceed $0.75 per page. In 2009, Congress passed the Health Infor-mation and Clinical Health Act (the Hi-Tech Act)1 which required medical providers to provide patients with an electronic or digital copy of their medical records at a special “pa-tient rate,” which was essentially the provid-er’s cost, if those records were maintained in electronic format.2
The statute and the regulations also pro-vided that patients could direct the medical provider to send the electronic record to a third party (which presumably included the patient’s attorney).3
HHS issued a “Guid-ance” in 2016 entitled “Individuals’ Right under HIPAA to Ac-cess their Health In-formation 45 C.F.R. § 164.524.” The Guid-ance made clear that the patient should have ac-cess to the medical re-cord irrespective of whether the request by the patient emanated from a third party (like an attorney’s office) or was to be sent to the patient’s attorney’s office. More specifically, HHS declared that the special patient rate ap-plies “when an individual directs a covered entity to send the (medical record) to a third party.”4 “This limitation,” HHS said, refer-ring to the Patient Rate, “applies regardless of whether the individual has requested that the copy of PHI be sent to herself, or has di-rected that the covered entity send the copy directly to a third party designated by the in-dividual (and it doesn’t matter who the third
party is).”5 Attorneys who need-
ed their client’s medical records soon began to realize that they could obtain their entire cli-ent’s medical chart in an electronic format, at the providers’ cost of delivering the record,
which was a fraction of the usual $0.75 per page maximum rate under New York state law. The attorney’s best practice was to send a letter to the health provider signed by the patient requesting that an electronic record be forwarded to the attorney, as agent of the patient. In the last few years, it became com-monplace for the personal injury attorney to receive a several thousand page hospital re-cord for a minimal cost, usually between $6.50 and $20.00. Needless to say, the Hi-Tech Act Guidance was not welcomed by the large national record copying companies like CIOXX, IOD and VERISMA, who were los-
ing millions of dollars every year in record copying revenue and who felt the reduced rate for medical records should only apply if the records were truly for the personal use of the patient.
Enter then, the recent decision in CIOX Health LLC v. AZAR, No. 18-CV-00640 (APM); 2020 U.S. Dist. LEXIS 12801 (District Ct. District of Columbia Jan. 23, 2020). CIOXX arose out of a challenge to a Department of Health penalty against a hos-pital serviced by CIOXX for the failure to provide records at the special patient rate to a patient who directed the records be sent to her lawyer. CIOXX argued the agency Guidance under the statute requiring CIOX to send the records at the special patient rate to the attor-ney was invalid on procedural grounds. The Agency issued the guidance, CIOX argued, without ever following the notice and com-ment requirements in the federal Administra-tive Procedures Act (APA),6 which governs
BOOK REVIEW
The Man Who Played John WayneBy William E. McSweeney
This is part one of a three part series.
“Ah, but a man’s reach should exceed his grasp,
Or what’s a heaven for?” — Robert Browning
Though covering some material already familiar to many readers regarding its prin-cipal subject, Scott Eyman’s exhaustively re-searched and elegantly written “John Wayne: The Life And Legend” does much more; the book as well presents an instructive, compre-hensive survey of the American movie indus-try from the days of pre-sound to the present. Of greatest value, with respect to his princi-pal, Eyman doesn’t merely cover new ter-rain, he digs beneath it to unearth a novel and plausible theme that at once unifies the facts and compels the reader’s sympathy — yes, sympathy — for the actor.
If John Ford’s title, “The Searchers,” had been cast in the singular, that term could have characterized its star, the man movie-goers knew as John Wayne. He was ever-searching. Born Marion Morrison in Winterset, Iowa on May 26, 1907 to a father who was an itiner-ant pharmacist and a mother who favored her younger son Bob, Marion from an early age would seek stability and recognition.
He would also seek to put poverty long behind him. After the Morrisons settled in Glendale, California, the elder son would help support the family by doing odd jobs around the community and would as well accept help — this from local firemen who gave him milk for “his cat,” though all knew there was no cat at home. The family pet was a dog, “Big Duke.” The shy, soft-spoken boy who tended to him was “Little Duke,” lat-er “Duke,” a nickname Wayne would cling to all his life, a continuing reminder of hard
days, a continuing spur to attain better ones.
If the fates imposed poverty on him, in a just balance they would con-fer physical grace and good looks. In his ma-turity, tall, deep-chest-ed, with shoulders that took up the width of a doorway, with brown hair, blue eyes, prom-inent cheekbones, a sculpted jaw, Duke in his handsomeness caused others to rivet their at-tention on him. In a word, he was photogenic — essential to the medium he would enter as a young man. Upon first meeting him, ac-tress-writer Louise Brooks later recalled that,
“Looking up at him, I thought, this is no actor but the hero of all
mythology miraculously brought to life…(He) was, in fact, that which
Henry James defined as the greatest of all works of art — a purely
beautiful being.”
But he was more than just a pretty face. Predictably, given his upbringing, he was an overachiever as a student in Glendale High School. A Latin scholar, a first-string tackle, a class officer, a participant in near-ly all extracurricular activities, Duke, by his drive, would gain the respect of students and teachers, and by his gentle, easy-going de-meanor, would gain their affection as well. Topping out at 6’4,” the scholar-athlete was a big man on the Glendale campus in both senses of the phrase.
The scholarship he displayed in high school would remain an essential part of his life. Duke was a chess and bridge-player; a quoter of John Milton and Shakespeare; had an office lined with the works of Dos Pas-sos, Faulkner and Hemingway. He had a
surgeon’s sure hand when it came to incis-ing a script: “I was disappointed in the lack of color and character in Jack Martin,” the clear-sighted young actor wrote to the impe-rious Cecil B. DeMille, then about to shoot “Reap The Wild Wind.”
“John Wayne: The Life And Legend”
By Scott Eyman
Simon & Schuster, New York
With photographs and index.
ISBN# 13579108642.
DeMille read Duke’s letter aloud to the three screenwriters involved in “Wild Wind.” When finished, the director asked them, “If an actor can see what’s wrong and work it out, why couldn’t you?”
A night-time reader, a lover of words, Duke nonetheless understood and submit-ted to the paradox imposed on him by the visual medium of film: His screen persona thus favored using as few words as possible. But what words he was given to read! Those written by, among others, Dudley Nichols, Borden Chase, and Frank Nugent. “I know all I want to know . . . I asked you to mar-ry me, didn’t I?” (Nichols, “Stagecoach.”) “And the air there is clean enough to wash your face in.” (Chase, “The Flame of the Barbary Coast.”) “There are some things, Mary Kate, a man doesn’t forget.” (Nugent, “The Quiet Man.”) “We’ll find her, as sure as the turning of the earth.” (Nugent, “The Searchers.”) The lines might have been giv-en to him, but no one else could have read them so perfectly — with meaning, with soft delivery, with conviction.
His understated delivery of lines was a re-action to the scenery-devouring histrionics of those actors — transitioning noisily from si-lence to speech — he witnessed as a young man newly employed on the 20th Centu-
ry-Fox movie lot. Having been injured and having lost his football scholarship while in his second year at the University of Southern California, Duke applied to and was hired at Fox as a prop-man. In those pre-union days of the late 20’s Duke worked all manner of jobs: geese-wrangler; carpenter; “juicer” (light-rigger); grip. It was this exposure to a variegation of skills, and his mastery of them, that later led him to become a micromanager — an uncredited assistant director — on many of his films.
“Jack should be brusque and sure of himself in all physical
situations because of the station in life he has reached at a youthful age. He doesn’t need to be a mental
giant — maybe a little short on logic, but must not be dull — must possess a definite sense of humor to help him through two or three
melodramatic situations that arise.”
It was on the Fox lot that Duke — who wanted above all to be an actor — met and impressed directors John Ford and Raoul Walsh. Ford had already underutilized the strapping young man in bit parts but had yet to cast him in anything substantial. It was Walsh who was to christen him “John Wayne” and to cast him as lead actor in “The Big Trail,” an epic tale of the pioneers’ west-ern trek.
Under the rubric of “be careful of what you wish for, you might get it,” Duke was to be doubly damned for having accepted the role of wagonmaster in “Trail.”
Note: William E. McSweeney is an attor-ney whose written work has appeared in various publications. He lives in Sayville, New York, with his wife and Editor-in-Chief, Jacqueline Shortell McSweeney.
(Continued on page 26)
ChriStophEr glaSSmiChaEl glaSS
william mCSwEEnEy
THE SUFFOLK LAWYER - April 2020 17
DEAN’S LIST
By Peter Tamsen
In my last Article I had promised a “Part Two” on OCA compliance as an Academy CLE pre-senter. I felt that was a great follow up to the re-cent OCA audit at the Academy. I will admit I penned that article at the same time as the first article for two reasons. One being to get it done and out of the way, the other reason was to keep the continuity of that topic going in my mind and in print.
Sadly, drastic changes have occurred in our world that re-quire the Academy to pause and reinvent itself to survive.
The quest, at least for me, as dean (my predecessors may blanche at this), was to make the Academy financially via-ble, and to continue the tradition of providing stellar pro-grams to the members of the bar. I wanted our presenters to be the best of the best. For the most part this seemed to work. We were on pace to be slightly ahead of budget for our current fiscal year. Things were looking good!
One thing changed all that. The coronavirus came to town. This invisible monster put life for all on hold. It stopped us all in our tracks. Although I write this as Academy Dean, the virus impacts everything and each and every one of us every day in every way.
The Suffolk County Bar Association’s building is shut-tered due to the quarantine. If the building is not available, programs can’t take place in the Great Hall nor can they be recorded for transmission or replay. We are in essence out of business. This is a problem for the Academy.
A solution however is in the works.Ever since I got involved with the Academy I champi-
oned the concept of distance learning. For years, I pushed for distance learning both at the Academy and for other in-stitutions I am involved with. The Academy was never for-mally prepared for distance learning technology and we were slow to adapt.
We do presently have (please check the website) web re-plays of previously recorded live programs available 24/7 for your viewing pleasure.
With the help of many, especially the Academy Executive Director Cynthia Doerler, we are now changing formats on the fly. We are now going to webcasts/web conferences us-ing Zoom. This software is available for all to use.
For those unfamiliar with Zoom, you should look into it. The software package the Academy uses allows up to 100 people to engage in an online meeting. This works well for the Academy. We can present programs using this format going forward. Zoom can be on a cell phone, desktop, or an
iPad/tablet. Other distance learning platforms are being researched.
To make the programs work you need a device that connects to the internet. If the device you are using has a camera and a microphone you can join the video conference and participate fully in the program. This new platform will change the way programs are offered and will change the di-rection of how the Academy presents programs in
the future. Zoom works best for programs of a shorter du-ration so you will see programs of an hour to an hour and a half in duration.
While I always enjoy seeing the Great Hall filled to ca-pacity that is impossible now. At least we no longer have to worry about parking issues!
So, what’s next for the Academy? We need content! In my years of involvement with the Academy we went from the traditional three hour evening programs to shorter lunch & learns at the courthouse. We always had programs in the works. Now the Academy will shift to webcast programs.
All of the prior planning is out the window! If you had a program in the works, please contact me or Cynthia to discuss changing the program to a webcast format. If you have an idea for a program, contact us to get the program planned and on the schedule. We need content. If you can get us the content, the viewers will come and the Academy will survive.
The shopping cart on the bar website has been changed to accommodate this new way of program delivery. The Acad-emy has offered and will offer a few free programs to mem-bers. We are well aware that with the world in quarantine and the courts shutdown, not only is the Academy/Bar suf-fering, our are members too. We think free programs and continued free credits are essential for our members.
I encourage you to check the Suffolk County Bar Associ-ation website for program offerings in this format. We will also be offering discounted bundled replays of pre-recorded programs in various practice areas along with the occasional free program.
I will close by extending a promise that I will continue to do my best to keep the Academy moving forward during this transition. When normal returns, I look forward to greeting you in person at the entrance to the Great Hall or in a Zoom program and I will personally thank you for the support of the Academy during these unusual time.
To all, please stay safe, stay home and use the down time to learn and fulfill all the CLE requirements you may have by obtaining those credits at the Suffolk Academy of Law.
Welcome to the New World
pEtEr tamSEn
The Suffolk Academy of Law, the educational arm of the Suffolk County Bar Association, provides a comprehensive curriculum of continuing legal education courses. Programs listed in this issue are some of those that will be presented during the Spring of 2020.
REAL TIME WEBCASTS: Many programs are available as both in-person seminars and as real-time webcasts. To determine if a program will be webcast, please check the calendar on the SCBA website (www.scba.org).
RECORDINGS: Webcast programs are available approximately one-week after the live program, as on-line video replays, as DVD or audio CD recordings.
ACCREDITATION FOR MCLE: The Suffolk Academy of Law has been certified by the New York State Continuing Legal Education Board as an accredited provider of continuing legal education in the State of New York. Thus, Academy courses are presumptively approved as meeting the OCA’s MCLE requirements.
REMINDERS: Cancellations for a full refund must be received within 24 hours before the course. You will be able to receive a credit for your next live program up to three months after the scheduled program.
Program Locations: Most, but not all, programs are held at the SCBA Center; be sure to check the website listings for locations and times.
Tuition & Registration: Tuition prices listed in the registration form are for discounted pre-registration. At-door registrations entail higher fees. You may pre-register for classes by returning the registration form with your payment. Sign up on line at: https://www.scba.org.
Non SCBA Member Attorneys: Tuition prices are discounted for SCBA members. If you attend a course at non-member rates and join the Suffolk County Bar Association within 30 days, you may apply the tuition differential you paid to your SCBA membership dues.
Americans with Disabilities Act: If you plan to attend a program and need assistance related to a disability provided for under the ADA, please let us know.
Disclaimer: Speakers and topics are subject to change without notice. The Suffolk Academy of Law is not liable for errors or omissions in this publicity information.
Tax-Deductible Support for CLE: Tuition does not fully support the Academy’s educational program. As a 501(c)(3) organization, the Academy can accept your tax deductible donation. Please take a moment, when registering, to add a contribution to your tuition payment.
Financial Aid: For information, please call the Academy at 631-234-5588.
NOTEWORTHY – If you have paid for a live program and were not able to attend, you will be able to receive a credit for your next live program up to three months after the scheduled program.
We invite you to plan a course or suggest a topic for CLE credit. Contact Dean, Peter D. Tamsen or Executive Director, Cynthia L. Doerler at [email protected].
Materials for all Academy programs will be emailed to you usually one day prior to the program. Register on-line at www.scba.org.
Andrea Amoa, SecretaryHon. Paul J. Baisley, Jr.
Jarrett M. Behar, Associate Dean
Kenneth A. Brown
Hon. John Kelly, Co-Chair,Curriculum Committee
Hon. John J. Leo, Associate Dean, Co-Chair, Curriculum
CommitteeDarlene Jorif Mangane
Cooper Macco
Brittany C. ManganHon. James A. McDonaugh
Hon. Deborah PoulosHon. John E. Raimondi
Marianne S. RantalaHon. Eric Sachs
Tarsha C. SmithJason A. Stern, Treasurer
Ashley M. VallaDavid Welch
Paraskevi Zarkadas
AcAdemy of LAw
OFFICERS
DEAN Peter D. TamsenEXECUTIVE DIRECTOR Cynthia Doerler
OF THE SUFFOLK COUNTY BAR ASSOCIATION
SUFFOLK ACADEMY OF LAW
THE SUFFOLK LAWYER - April 202018
OF THE SUFFOLK COUNTY BAR ASSOCIATION
SUFFOLK ACADEMY OF LAW
Fusco, Brandenstein,
& Rada P.C.Over 4 Decades of Top Legal Expertise
Gina’s Enchanted
Flower Shop
CCCRONIN & CRONIN&
Law Firm, PLLC
The Academy of Law would like to thank the following sponsors for their generous support.
Tradition Title Agency, Inc.
Thank You to All Who Participated in the 2020 High School Mock Trial
The Academy would like to extend appreciation to teachers, attorneys, and the Suffolk County judiciary who volunteered their time to mentor and advise the students and judge the com-petitions for this annual ed-ucational program. With a heavy heart, the tournament was wisely cancelled due to COVID-19.
The tournament encom-passes the valuable lessons of ethics, civility and profes-sionalism; furthers students’ understanding of the law, court procedures and the le-gal system.
Our profound thanks to
County Coordinators and Suffolk County Bar Asso-ciation members, Glenn P. Warmuth, Esq. & Leonard Badia, Esq., who headed up this annual educational pro-gram co-sponsored by The Suffolk County Bar Associ-ation and The Suffolk Acad-emy of Law.
The Suffolk County Bar Association and the Suffolk Academy of Law extends their heartfelt thanks to Hon. C. Randall Hinrichs, District Administrative Judge for Suffolk County for his assis-tance and continued support of this important program.
— Cynthia L. Doerler
2
www.CPBJ.com
•Central Penn Business Journal
•717-236-4300
JUNE 14, 2019
FOOD BUSINESS
Craft-beer boom spurs local hops farmers
By Jason Scott
Pennsylvania leads the nation in craft-
beer production.
But while more beer is being brewed in
places like Carlisle, Harrisburg and York,
brewers here must rely on some key in-
gredients that often travel long distances.
One is hops, which are not widely
grown in Pennsylvania, or on the East
Coast in general.
In fact, most hops come from Washing-
ton, Oregon and Idaho, which account for
the majority of the country’s hop produc-
tion. Washington alone has about 40,000
acres of hops.
Two Cumberland County hop farmers
are hoping to claim a piece of that market
and inspire other Pennsylvania farmers to
consider cultivating the crop for breweries
in Pennsylvania.
“It’s a niche thing. Not too many peo-
ple do it,” said Michael Reifsnyder, who
planted 3,400 hop plants on his 15-acre
West Pennsboro Township property in
2017.
A big reason for the lack of new hop farm-
ers is difficulty in getting started and com-
peting with larger established operations.
“These local houses are up against com-
panies that can reach a better economy
of scale, plus have quality control proce-
dures and logistics plans that have been
in place for decades,” said Brandalynn
Armstrong, co-owner of Zeroday Brewing
in Harrisburg. “It makes it harder for the
small producer to compete.”
Hop growing requires a large trellis for
the twining vines and an irrigation system.
Farmers also need special equipment to
harvest, process and package the hops.
Hops, which take three years to reach
full harvest, also are prone to pests and
diseases and can be difficult to grow in
certain soil types and climates.
But Reifsnyder, who retired in 2011
from the U.S. Navy after 22 years of service,
took a chance on hops after experiment-
ing with grapes and asparagus on his
Carlisle-area farm, dubbed GEMS Farm.
He also saw success at nearby hop yard
Sunny Brae Farms and thought his farm
could provide complementary varieties of
fresh local hops to small breweries.
He and his wife, Sharon, along with
their two teenage daughters, maintain
the hop yard, which is entering its second
year of harvest. GEMS currently grows five
varieties of hops on 3.25 acres, but the plan
is to eventually grow to seven acres, plant
a wider variety of hops and reach more
breweries.
“Expansion is on our radar,” he said.
Local thirst
In preparation for hop harvest later
this summer and early fall, the Reifsny-
ders recently purchased equipment that
will allow them to pelletize dried hops
— meaning to grind them into powder
and press them into small pellets. Pellet-
ized hops have a longer shelf life and are
what many brewers rely on throughout
the year.
The farm’s hop yard could yield about
5,000 or 6,000 pounds of hops this year.
GEMS expects to pelletize the majority
of its hops this year after selling almost
all of its harvest last fall to local breweries
making wet-hopped beers — also known
as fresh-hop beers that use hops fresh off
the vine.
Wet-hop batches of beer can use five
to 10 times as many hops as pelletized
batches.
Local brewers say they are eager to buy
more local ingredients, including hops,
but purchasing decisions come down to
quality, price and availability.
Jeff Musselman, head brewer at the
Millworks in Harrisburg, said the local
market has struggled to check all three
buckets. Most local hop farms are growing
on one or two acres and not pelletizing.
“The vast majority of local hops are
brewed in late summer or early fall for
wet-hop beers,” he said. “That has been
the big limitation.”
The Millworks and other breweries said
they would like to buy more local hops
year round, especially pelletized hops, to
support farmers.
“I think brewers absolutely want to use
it,” Musselman said, noting the differences
in smell and taste between East and West
Coast hops.
But Musselman said he expects local
hops would cost more than those from
larger West Coast suppliers, given the
lower hop volumes at local farms. Nev-
ertheless, he said he would still buy local
hops for special PA Preferred brews, i.e.,
beers made with Pennsylvania-produced
agricultural commodities, like hops or
grain.
Victor Shaffer and Andrew Lyons start-
ed growing an acre of hops outside of
Mechanicsburg last year. Their company,
called Lion Bines Hop Farm, is expected to
produce a partial harvest of hops this year
and a full harvest next year.
But the partners are investing now in
processing equipment to pelletize their
hops, with an eye on making extra money
by pelletizing hops for other farmers.
“In the future, we would love to process
for other farms so there is less of a cost
barrier,” Shaffer said.
Both Cumberland County hop farms
acknowledged the hops business in Penn-
sylvania is not much more than a seedling.
But through trial and error, they are opti-
mistic hop farms will begin to sprout.
“I hope we see more hop growers,” Rei-
fsnyder said. <
Lancaster County is continuing to draw
more people, with 2018 as the ninth consec-
utive year that the county saw increases in
visitors, visitor spending and tourism jobs.
The nine-year uptick is the result of a
diverse group of businesses and continued
changes in the perception of the county,
the county’s tourist information center, Dis-
cover Lancaster, wrote in a recent report.
Visitors to the county spent $2.24 billion in
2018, up 4.6 percent from $2.14 billion in 2017.
Of that total, $482 million of went to wages and
salaries for the 16,968 people working in the
Lancaster County tourism industry, accord-
ing to the report by Discover Lancaster, which
is based in East Lampeter Township.
The number of visitors to the county also
increased, rising from 8.64 million in 2017
to 8.85 million people in 2018, an increase
of 2.5 percent.
The report’s data was provided by Oxford,
England-based Tourism Economics and
based on hotel-tax collections reported by
the county, average hotel-room rates and
trends in visitor spending.
Lancaster County has had a long tradi-
tion of enticing tourists to its Pennsylvania
Dutch dining, outlet shopping and family
attractions like the Strasburg Railroad in
Strasburg Township and Dutch Wonder-
land in East Lampeter Township.
Those attractions have continued to pull
in tourists from across the globe but now
share the market with new businesses and
destinations.
They include popular restaurants and
bars, revitalized downtowns in places like
Lititz and Columbia, and outdoor activities
like Refreshing Mountain Retreat in Clay
Township, according to Joel Cliff, director
of communications for Discover Lancaster.
“We have worked on broadening our
brand for the last five or six years to expand
people’s expectations of what Lancaster is
all about,” Cliff said. “There are eight or 12
reasons to come to Lancaster not just the
three you already knew.”
The tourism increases also mirror the
economic growth in the U.S. as a whole, ac-
cording to Cliff.
“Clearly the economy has continued to
build itself back after the Great Recession,”
Cliff said. “It was building steam in 2017 and
certainly last year.” <
— Ioannis PashakisLancaster County tourism sees gain in visitors
Mike and Sharon Reifsnyder stand in the hop yard of their West Pennsboro Township
farm. They began growing the crop in 2017 in a bid to make locally grown hops more
available. PHOTO/MARKELL DELOATCH
6
www.CPBJ.com
Central Penn Business Journal
JUNE 21, 2019
OPINION
GUEST VIEWAt risk: A win for health care over big tobacco
A lot has changed since 1998, the year
that Pennsylvania and 45 states stood up
to big tobacco and helped create the To-
bacco Settlement Fund, or TSF. We may
have moved on from CD-
ROMs, dial-up internet
and the Y2K-bug frenzy.
But a few things have
stood the test of time:
Pokémon, “Toy Story”
and Pennsylvania’s com-
mitment to keeping the
core mission of the TSF
dedicated to health care.
It took the 46-state co-
alition years of fighting with major tobacco
companies in order to come to the 1998
Master Settlement Agreement; the funds
weren’t distributed in Pennsylvania until
the Tobacco Settlement Act of 2001.
Throughout that process, The Hospital
and Healthsystem Association of Pennsyl-
vania and the commonwealth’s hospitals
played a big role in ensuring that money
was preserved for health care — not to fill
one-time budget holes or fund other proj-
ects. We worked with health educators, re-
searchers and provider groups to find the
right balance for everyone.
Since Pennsylvania hospitals first began
receiving this money, it has been used to:
• Help people quit using tobacco prod-
ucts• Provide access to health care for ev-
eryone, regardless of their insurance or
health status• Fund research to cure diseases like
cancer, and improve the health of all
Pennsylvanians• Support financially fragile rural hos-
pitals, which serve large proportions of
vulnerable patients
• More recently, help hospitals address
the opioid crisisSpecifically, during fiscal year 2017–
2018, Pennsylvania’s hospitals received
$28.5 million through the TSF at the state
level, which is then matched by the federal
government to total approximately $60
million. This money goes to cover the cost
of caring for the uninsured and underin-
sured.Pennsylvania also received more than
$44 million for CURE grants during the
fiscal year 2014–2015. The grants help
universities, hospitals and research orga-
nizations partner to unlock solutions for
cancer, ways to improve the quality and
outcomes of health care, and how to ad-
dress community health issues.
This year, these hospital dollars and re-
search funds could be at risk.
Gov. Tom Wolf’s budget plan kept the
TSF whole, but we are concerned that this
year some lawmakers want to use tobacco
dollars to pay state debt. You see, during
the 2017–2018 state budget process, the
General Assembly authorized borrowing
against $1.5 billion in future TSF payments
to balance the state’s budget. The bond
payments now are due, to the tune of $115
million during this budget.
Some of the reasons that TSF money
went directly to hospitals to fund uncom-
pensated care is because they are under-
paid by the safety-net payer, Medicaid,
which a recent analysis indicates reim-
burses at 81 cents on the dollar.
There are no hospitals or hospital staff
that treat only the uninsured or patients
insured by Medicaid, and Pennsylvania
doesn’t have a public hospital system. As
a result, the hospital community treats all
patients, regardless of the type of insur-
ance they have — and serves as the safety
net for the underinsured and uninsured.
Even with the improvement in the insured
rate through the Affordable Care Act and
Medicaid expansion, we still have people
who are uninsured and need help.
Our hospitals rely on these funds to
make sure they can stay open and contin-
ue to treat everyone. The state has options
to balance its budget — options that don’t
jeopardize the already stressed financial
situations of many of Pennsylvania’s hos-
pitals.More than a third of Pennsylvania’s
hospitals operated in the red last fiscal
year. Among that group, more than three-
quarters have been operating in the red
for the last three fiscal years. Now, more
than ever, these hospitals are relying on
the enduring promise that the TSF will be
there to help them continue to stay open,
remain financially stable and treat every
patient who walks through their doors.
Trends may come and go, but the Penn-
sylvania hospital community’s mission
remains focused on health care. We call on
the legislature to make sure it remains the
mission of the TSF, too. Don’t rob patient
care to fill budget gaps.•
Andy Carter is president and CEO of The
Hospital and Healthsystem Association of
Pennsylvania in Harrisburg.
AndyCarter
A strong wellness program can be a
differentiator for recruitment, reduce the
cost of health care benefits and help build
a team atmosphere based around healthy
choices. However, communicating the
benefits and program elements of a well-
ness initiative can be hard to navigate. Hu-
man resources and cor-
porate leadership need to
walk a fine line – avoiding
sounding paternal, mor-
alistic or even too per-
sonal while empowering
employees and spurring
participation.How a company com-
municates can make a big
difference. It can boost
enrollment in the wellness strategy and
create more engagement among employ-
ees. Those who are engaged at work will go
the extra mile and demonstrate increased
productivity, which shows up in a compa-
ny’s profitability, turnover numbers, safety
incidents and quality.
Communication is key for an employee
health and wellness program and for a
business overall. Looking to a professional
communicator for ideas and best practices
will help streamline communications sur-
rounding such a program and lead to more
engaged, healthier employees.
What can you do?
• See things from the employees’ per-
spective. How will the wellness program
components benefit them? Why should
they care? Does it affect their work life or
home life? Zero in on key factors affecting
employees and highlight the benefits of
healthy choices.
• Avoid communicating to staff as if
they are marketing targets. Trust them
and communicate with them as if they
are “one of us,” instead of “one of them.”
Use “we” and communicate from a team
perspective, rather than a top-down
standpoint. • Talk about the rewards – not only for
their personal lives, but rewards of the
program. What’s in it for them can be a
powerful motivator to expand participa-
tion. That participation, in turn, can build
a team atmosphere and lead to higher
engagement. • Consider health and wellness ambas-
sadors. Peer-to-peer communication is
powerful and partnering with passionate
team members to communicate can re-
move the paternalistic factor.
• Connect the dots for employees to the
bigger corporate picture. Participation in
wellness programs has the potential to de-
crease company health benefit costs over-
all, which in turn could make a difference
in employees’ premium or out-of-pocket
health care costs.
• Remove jargon, whether health care
or HR wording that might not be easily un-
derstood. Remember, when jargon is used,
it may mean the employees are unlikely to
understand the message.
• Avoid populating emails or messages
with large amounts of information. People
digest details in small chunks, so consider
an ongoing campaign to share bits and
pieces of information, or a web page to
view the full information when employees
are interested and have time.
• Have a sense of humor when commu-
nicating. Loosening up a formal approach
can go a long way to creating engagement
with the communication and getting on
board with the program.
• Make it a two-way conversation. Ask
employees what program components
they’d like to see. Find out what might mo-
tivate them to participate. Ask for ideas on
communicating the details to staff.
• Use social channels to help spread
the word. Whether its an internal social
tool such as Slack or Yammer or a closed
group on Facebook or LinkedIn, encour-
age employees to share pictures of their
healthy choices and/or program partici-
pation. Build a little competition between
company segments and offer content
meant to engage the group – ask ques-
tions, post a quiz or host a ‘meet this goal’
challenge.
• Bring creative ideas to the effort.
Consider interesting program elements to
up the ante of interest and participation.
Think about bringing in a local chef to of-
fer a cooking class, having a local farm
stand bring in their fresh produce regu-
larly or bring in a gardening expert to offer
a hands-on workshop for growing veg-
etables or herbs. At GRIT, team members
in the wellness program are walking miles
(via a step tracker) to earn a free airplane
ticket to anywhere in the world. The more
creative and out-of-the-box the program,
when paired with easy ways to participate,
the more people will want to take part.
• Stay diverse with your communica-
tions focus. If there is a large subset of
staff who bike to work, that’s great, but if
that’s all communications are about, the
company risks losing support from other
parts of the employee base. The same goes
for any topic: if it’s strictly about one thing,
the business might lose the interest of its
whole audience.
Internal communications centered around
health and wellness can make or break pro-
gram participation. Get together with HR,
leadership and a few employees to brain-
storm the best ways to get the message out.
•
Julie Lando is the owner and president of GRIT
Marketing Group, a marketing and communica-
tions firm with offices in York and Lancaster.
GUEST VIEWHealth and wellness communications can be engaging
JulieLando
6 www.CPBJ.com • Central Penn Business Journal • 717-236-4300 JUNE 14, 2019
By Stacy WescoeBridgeTower Media
Stefanie Angstadt started making cheese as a hobby soon after graduating from col-lege in 2008.
After a few years she knew it was some-thing she wanted to do full time.
She opened Valley Milkhouse in a former dairy farm in Oley in 2014 and began to manufacture and sell her cheeses profes-sionally.
Not a dairy farmer, herself, she partnered with other small Berks County dairies to buy fresh warm milk “straight from the udder.”
Her cheeses — mostly a mix of softer and aged styles — were a hit.
“We make everything by hand. It’s very good cheese so there is a demand,” Angstadt said.
In fact, demand often outpaced her sup-ply. Nonetheless, she struggled with the lo-gistics of getting the cheese she was making to the people who wanted it.
While around 80 percent of the cheese she makes is sold wholesale to markets and restaurants, profits were much higher on the 20 percent of the product she was selling at her farm stand and the two farmers markets she attends, the Easton Farmers Market in downtown Easton and one in Philadelphia.
“The question was, how do we reach these people who want to buy our cheese without standing there at a farmers market all day — sometimes in the rain — hoping the right people will come buy it?” she said.
Organizing principalIn 2016, as fate would have it, an old
friend of Angstadt’s, Alex Jones, a prominent organizer of commu-nity-supported agri-culture programs in the Greater Philadel-phia area, had just left a job with a CSA.
In a typical CSA, a group of farmers connect with a group of consumers who want to buy fresh, local produce. They sell shares of their fu-ture crop to the con-sumers, who then pick up weekly or monthly boxes of the farmers’ latest crops, sharing both the risk and the rewards of the farmers’ season and giving those farmers a more reliable source of income.
“My job was to buy products from dozens of local farmers,” Jones said.
She was looking to take her CSA skills and use them in a new way. She thought of Angstadt and another cheesemaker she had met in her old job: Sue Miller of Birchrun
Hills Farm in Chester County.Jones pitched the idea of using the CSA
format to develop a new way of selling craft cheese to cheese fans. That led Jones, Ang-stadt and Miller in 2016 to create the Collec-tive Creamery CSA, based out of Angstadt’s Oley creamery, with Jones as the operations manager and Angstadt and Miller as the two primary cheese makers.
“We thought between the three of us, we could pool our resources and move beyond farmers markets,” Angstadt said.
According to Jones, the trio didn’t invent the idea of a cheese-based CSA. But, she said, “A cheese CSA is still pretty unique.”
Jones said it also makes sense.“You can get subscriptions for anything
today — dog products, beauty products —why not cheese?” she said.
A profitable boostThe Collective Creamery is now heading
into its third year. And while it is still just a small part of each of the cheesemakers’ business, it is an important one.
By eliminating the middleman, the chee-semakers get more of the profit.
Angstadt said her profit margin is gener-ally about 15 percent to 20 percent on the roughly $150,000 in gross sales she has in a year. That makes it a challenge to maintain a capital-intensive operation. Anywhere she can improve the profit margin is a boost.
Profits on the CSA vary from month to month, but she said they tend to average at the higher end of her overall profits.
The current CSA package from the Col-lective Creamery ranges from $180 for a once-a-month pickup of two pounds and four varieties of cheese for four months
to $280 for a twice-monthly pickup of one-and-a-half pounds and three varieties of cheese for four months. CSA packages gen-erally run from five to six months. The current package is shortened since the current CSA season has already begun.
Customers pick up their orders at participating loca-tions. Most are busi-nesses that focus on
local craft foods and products like farm stands or craft brewers, which support “buy local” efforts.
Having a variety of pickup locations in the region helps the Collective’s members spread their cheese sales farther than they could on their own.
Subscriptions can be picked up in two Berks County locations — Hidden River
Brewing Co. in Douglasville and Covered Bridge Farmstand in Oley — and at one location in the Lehigh Valley — Bonn Place Brewing Co. in Bethlehem. Other pickup locations are in the Chester County and Philadelphia areas.
By having a wider client base, the chee-semakers also are able to offer more variety. Angstadt and Miller rotate between six varieties of cheese, including Angstadt’s Witchgrass, her version of a French Valen-cay cheese, and Miller’s Clipper, an aged raw-milk cheese. They also reach out to other cheesemakers in other regions, hop-ing to include their specialty craft cheeses in the CSA to give customers more options.
For example, Miller is currently work-ing with a sheep farmer to blend sheep and cow milk together to make a creamy Camembert-style cheese.
Ultimately, their goal is to turn cheese lovers into die-hard cheese fans.
“We want to cultivate the cheese culture in this area like it is in Europe. We don’t want people to see cheese as a guilty pleasure, but as a food you eat every day,” Angstadt said. “This is a way to grow the cheese community.
“People don’t see fine cheese as a neces-sity,” added Jones. “When they go to the gro-cery store they feel they have to get produce and bread … we want them to think of fine cheese like that, not as a luxury.”
Miller sees the craft cheese industry growing in much the same way the craft beer industry has developed and grown, with those in the industry working cooperatively instead of competitively to boost the entire industry by sharing tips and efforts.
“It’s the whole ‘a rising tide raises all ships’ kind of thing,” she said. “We all benefit from a stronger cheese industry.”
Jones said the trio is focused on being a regional leader in the craft cheese industry. They aren’t planning any major expansion.
But they are on the lookout for more pickup locations along their current route and for pockets of cheese lovers who may want to get in on their offerings.
“We have to be lean and use the resources we have,” Jones said.
One secondary benefit to the women’s local craft cheese making is the small boost it gives to the region’s dairy farmers, which Angstadt said are struggling with low prices on the commodities market.
She said there is a dairy crisis across the nation.
According to the National Family Farm Foundation, America has lost over half its dairy farmers in just the last 16 years, as wholesale dairy prices have dropped below 1970 prices.
“Because of the quality I demand, I pay a premium for the milk,” she said.
Her sources include Spring Creek Farm in Wernersville, an organic dairy farm.
Greg Stricker, a partner in Spring Creek, said he pays special attention to the milk he produces for Angstadt.
“I always try to make the highest-quality milk, but we try to concentrate on making a milk that is higher in protein and butter fat to make her cheeses,” Stricker said.
Stricker said the extra money a cheese-maker like Angstadt is willing to pay repre-sents a needed boost for small farms like his.
“It’s a huge benefit to us when a local business like that uses our product,” he said. “It’s essential to find someone making a higher-end product to compete.” <
DAIRY GODMOTHERS
Specialty cheese biz taps into local dairies
From left, Sue Miller, Stefanie Angstadt and Alex Jones brought together their collective talents to form the Collective Creamery CSA in 2016. PHOTO/SUBMITTED
Honey-Bell is a brie-style cheese made by Stefanie Angstadt in her Oley creamery. PHOTO/SUBMITTED
“You can get subscriptions for anything today — dog
products, beauty products — why not cheese?”
— Alex Jones, Collective Creamery CSA
JUNE 21
, 2019
717-23
6-430
0
•
Cent
ral Pen
n Bus
iness
Journ
al
•
www.CPBJ.c
om
7
Accord
ing
to th
e as
soci
atio
n, dro
nes
will
offer
$82
.1 b
illio
n in ec
onomic
ben
efits
and c
reat
e 10
0,00
0 new
jobs
in th
e U
nited
Stat
es a
lone
by 202
5. Th
e as
soci
atio
n’s go
al
is to
enco
urage
sta
te l
eader
s to
support
the
devel
opmen
t of a
dro
ne in
dustry
– o
r
unman
ned a
ircra
ft sy
stem
s, as
they
are
more
form
ally
know
n – bec
ause
other
stat
es
alre
ady a
re d
oing
so.
For exa
mple
, New
York
is p
utting
up $30
mill
ion to
pay
for a
50-
mile
unm
anned
air
corr
idor b
etw
een S
yrac
use a
nd Rom
e, th
e
asso
ciat
ion sa
id. O
ther
stat
es h
ave
becom
e
feder
al t
est
sites
for
the
drone
indust
ry,
while
oth
ers
have
been j
oinin
g re
gional
partn
ersh
ips t
o dev
elop in
itiat
ives
. As e
ach
day p
asse
s, Pen
nsylv
ania
seem
s to be f
allin
g
furth
er b
ehin
d in d
evel
oping
a dom
estic
drone
indust
ry, o
bserv
ers s
aid.
For now
, th
e as
soci
atio
n isn
’t as
king
Pennsy
lvan
ia’s
lead
ers
for
much
– e
xcep
t
to b
e aw
are
of what
is g
oing
on and to
offer
support
as i
deas
devel
op, se
vera
l peo
ple
said
. One
goal
is to
cre
ate
a w
orkin
g gr
oup
with
in th
e st
ate
avia
tion c
aucu
s –
a le
gis-
lativ
e gr
oup – to
dev
elop a
road
map
that
would
“id
entif
y fu
nding
opportuniti
es t
o
support
criti
cal d
rone
infra
stru
cture
,” th
e
asso
ciat
ion sa
id in
a fa
ct sh
eet.
The a
ssoci
atio
n isn’t
aski
ng for n
ew re
gu-
latio
ns, poin
ting o
ut that
dro
nes ar
e reg
ulat-
ed b
y th
e Fed
eral
Avi
atio
n Adm
inist
ratio
n,
or FAA, w
hich c
ontrols
U.S. a
irspac
es a
nd
alre
ady
require
s com
mer
cial
dro
ne oper
a-
tors
to g
et a
lice
nse.
But that
does
n’t m
ean th
ere
is no ro
om
for
actio
n on t
he st
ate
leve
l. In
Oct
ober
2018
, Pen
nsylv
ania
law
mak
ers
passe
d Act
78, w
hich li
mits
the
abili
ty o
f munic
ipal
i-
ties
to r
egula
te u
nman
ned a
ircra
ft unle
ss
auth
orized
by t
he st
atute
.
Local
juris
dictio
ns ofte
n move
to p
ass
ordin
ance
s that
can in
terfe
re w
ith co
mm
er-
cial
oper
ators
, sai
d Dav
id D
ay, e
xecu
tive
vice
pre
siden
t at
Key
stone
Aeria
l Surv
eys
based
in P
hiladel
phia. Th
at m
akes
educa
-
tion cr
itica
l, he
added
.
Keyst
one does
work
nat
ionw
ide
and h
as
found th
at so
me
offici
als i
n stat
es –
such
as
New
York
and N
ew Je
rsey
– ar
e m
ore aw
are
of iss
ues f
acin
g th
e dro
ne in
dustry
than
those
in P
ennsy
lvan
ia. Th
e ad
voca
cy d
ay
was
an e
ffort to
chan
ge th
at, t
oo, h
e sa
id. I
t
also
is h
oped th
at P
ennsy
lvan
ia’s
gove
rn-
men
t age
ncies
will
incr
easin
gly
adopt t
he
tech
nologi
es,
as a
genci
es i
n oth
er s
tate
s
have,
Day
added
.
The
asso
ciat
ion m
ainta
ins t
hat 3
6 out o
f
the
50 s
tate
s hav
e tra
nsporta
tion d
epar
t-
men
ts t
hat f
und cen
ters
or
progr
ams
for
drone
operat
ions.
PennD
OT,
it s
aid, i
s not
among
those
that
hav
e in
itiat
ed o
utsid
e
progr
ams.
Alexi
s Cam
pbell,
PennD
OT p
ress
secr
e-
tary
, sai
d Pen
nDO
T has
an a
ctiv
e in
tern
al
drone
progr
am a
nd has
bee
n flyi
ng dro
nes
for s
ever
al ye
ars.
“We’
ve r
ecen
tly a
dvance
d our
operat
or
train
ing
and c
ertifi
catio
n pro
gram
and a
re
curr
ently
enga
ged w
ith a
pilo
t pro
gram
as-
sess
ing e
ffici
enci
es fo
r the u
se o
f dro
nes fo
r
3D m
odelin
g of s
tock
piles,
exca
vatio
ns and
road
way
slid
e ar
eas,”
she
said
in a
writ
ten
resp
onse to
ques
tions.
Flyin
g into
new ro
les
Seve
ral a
ttendee
s at
the
June
11 e
vent
said
they
thin
k st
ate
lead
ers
will
be
sup-
portive
of i
deas t
o exp
and d
rone
progr
ams
both w
ithin
sta
te a
genci
es a
nd with
com
-
mer
cial
applic
atio
ns once
they
under
stan
d
the
potentia
l.
Task
s such
as b
ridge
insp
ectio
ns or a
eria
l
surv
eys
that
once
took
wee
ks t
o conduct
can n
ow b
e done
in a
day
or s
o, D
ay s
aid.
Farm
ers,
utiliti
es an
d oth
ers h
ave s
een h
ow
drones
can re
duce th
e cost
s of p
roje
cts a
nd
insp
ectio
ns. Th
ey a
lso h
ave
wei
ghed
the
li-
abili
ty ri
sks a
nd real
ized
they
are
bet
ter o
ff
using
drones
.
Gove
rnm
ents
, how
ever
, see
m to
hav
e a
higher
hurd
le t
o ove
rcom
e w
hen li
abili
ty
conce
rns a
re ra
ised
, Day
said
.
Seve
ral e
xper
ts n
oted th
e co
ncern
s ca
n
be ea
sed o
nce t
he optio
ns ar
e ca
refu
lly
wei
ghed
. For e
xam
ple, t
he ris
ks to
surv
ey a
utility
line t
raditi
onally
would
invo
lve w
ork-
ers
using
ladder
tru
cks
to e
xam
ine
high-
volta
ge w
ires,
whic
h is d
ange
rous w
ork th
at
could
take
wee
ks. N
ow, d
rones
with
cam
-
eras
can
insp
ect t
he sa
me
line
in a
frac
tion
of the
time
– an
d with
out putti
ng peo
ple in
harm
’s w
ay.
As peo
ple b
ecom
e m
ore a
war
e of h
ow
drones
can b
e use
d, the
indust
ry h
as ta
ken
off, Day
and o
ther
s sai
d.
Keega
n Flahiv
e is a
rem
ote p
ilot f
or Arg
os
Unm
anned
Aer
ial S
olutio
ns bas
ed in
Liti
tz.
When
the
com
pany
was
founded
in 2
015,
it did
a lo
t of w
ork w
ith re
al e
stat
e co
mpa-
nies t
hat w
ante
d aer
ial v
iew
s of p
roper
ties,
Flahiv
e sa
id. Th
e co
mpan
y now
does
work
for a
num
ber o
f diff
eren
t clie
nts, i
ncludin
g
const
ruct
ion c
ompan
ies,
utiliti
es a
nd gov-
ernm
ent a
genci
es.
The
opportuniti
es fo
r cre
atin
g new
jobs
and busi
nesse
s ar
e va
st,
said
Alber
t R.
Sarv
is, a
n ass
istan
t pro
fess
or of g
eosp
atia
l
tech
nology
at H
arris
burg U
niver
sity
of Sci
-
ence
and T
echnolo
gy. H
U h
as a
dapte
d its
geosp
atia
l pro
gram
s to
incl
ude th
e use
of
drones
and h
as sp
onsore
d sum
mer
cam
ps
for
studen
ts i
n hig
h sch
ool an
d mid
dle
school t
o enco
urage
inte
rest
in th
e tec
hnol-
ogy, S
arvi
s sai
d.
Oth
ers p
ointe
d out that
drones
have b
een
used in
the fi
lm an
d tele
visio
n indust
ries,
as
wel
l as i
n surv
eyin
g ra
il lin
es a
nd in p
olice
and e
mer
gency
applic
atio
ns, su
ch a
s riv
er
resc
ues. O
ne st
ory to
ld d
uring
the
June
11
even
t was
how
cattl
e had
ruin
ed a
portion of
a fa
rmer
’s cr
ops. A d
rone w
as ab
le to
ass
ess
the
tota
l dam
age,
whic
h hel
ped ju
stify
the
insu
rance
clai
m.
Then
ther
e ar
e th
e sp
in-o
ff busin
esse
s.
Ryan B
oswel
l is
the
Philadel
phia-b
ased
sale
s m
anag
er fo
r Phas
eOne
Indust
rial,
a ca
mer
a co
mpan
y bas
ed in
Colora
do.
PhaseO
ne ca
mer
as ca
n be outfi
tted on
vario
us dro
nes to
do a
var
iety
of w
ork fo
r
gove
rnm
ents
, quar
ry o
perat
ors a
nd util
ity
com
panie
s, am
ong oth
ers,
Boswel
l sai
d.
Day
sai
d the
drone
indust
ry i
s co
m-
petiti
ve in
that
anyo
ne ca
n buy
a dro
ne fo
r
around $
500
and s
et u
p shop.
How
ever
,
com
mer
cial
oper
ators
are
require
d to ta
ke
FAA tr
ainin
g to
bec
ome
a lic
ense
d rem
ote
pilot,
he an
d oth
ers s
aid.
At Key
stone,
Day
sai
d, pric
es c
an ra
nge
depen
ding
on the
job a
nd the
loca
tion. A
day of a
eria
l cam
era w
ork w
ith a
licen
sed re
-
mote
pilo
t mig
ht cost
about $
2,00
0 in
som
e
high-d
ensit
y ar
eas i
n New
York
or N
ew Je
r-
sey a
nd per
haps a
bout $1,
000 e
lsew
here.
<
DRONEco
ntinu
ed fr
om pa
ge1
David H
eath, d
irect
or of t
he PA D
rone A
ssocia
tion, p
repare
s to m
ake rem
arks a
t Dro
ne Advoca
cy D
ay June 11
in H
arrisb
urg. H
eath and o
ther
supporte
rs hope to
encoura
ge state
leaders
to su
pport th
e growin
g drone in
dustry
. P
HOTO/T
HOMAS A
. BARST
OW
“We’v
e rec
ently
advan
ced
our oper
ator t
rain
ing an
d
certi
ficatio
n progra
m an
d
are c
urrently
engag
ed w
ith
a pilo
t pro
gram
asse
ssin
g
efficie
ncies f
or the u
se of
drones
for 3
D modeli
ng of
stock
piles,
exca
vatio
ns and
road
way sl
ide a
reas
.”
Alexis
Cam
pbell
, Pen
nDOT p
ress
se
creta
ry
JUNE 14, 2019
www.CPBJ.com
Central Penn Business Journal
13
NEWSMAKERSPromotions, appointments, hires
ACCOUNTINGChambersburg-based Rotz and
Stonesifer named Dennis Shindle
senior manager. He provides tax,
consulting and financial state-
ment services to closely held
companies. He is a CPA and a graduate of Shippens-
burg University. ARCHITECTURE/ENGINEERING
Lancaster-based RGS Associ-
ates named Jake Krieger proj-
ect landscape architect. He has
a bachelor’s degree from Temple
University. Matthew Fauth was
named a computer aided drafting
and design designer. He also is a
sergeant in the National Guard. He
has an associate degree from York
Technical Institute. Upper Dublin Township, Mont-
gomery County-based McMahon
Associates Inc. named Christo-
pher K. Bauer an associate. He is
general manager of the Camp Hill
office. He has more than 20 years
of project management and trans-
portation engineering experience
and has helped municipalities
through their responsibilities as
local project sponsors on state
and federally funded projects. He
also serves municipalities’ day-
to-day traffic consulting needs.
He is a professional engineer and
professional traffic operations
engineer. Swatara Township-based Skelly
and Loy named LeShelle Smith
marketing spe-cialist. She will be
responsible for graphics coordi-
nation, including preparation of
brochures, charts and exhibit ma-
terials. She will assist with the development of
special marketing and public rela-
tions programs, communications
and media plans and ensuring
that the website is current and
consistent. She has a degree from
Elizabethtown College.
BANKING/FINANCE
Lower Paxton Township-based
Centric Bank named Patricia A.
Kuhn assistant manager of the
Silver Spring
Township Finan-cial Center. She
will cultivate new
customer rela-tionships, man-
age the internal
sales process,
maintain the
branch’s operational proficiency
and mentor her financial center
team. Most recently, she was a cor-
porate social responsibility super-
visor and head teller II with First
National Bank. She has a bach-
elor’s degree from York College.
Lower Allen Township-based
Members 1st Federal Credit
Union named
Alma Jimenezbranch manager
of the location
inside the Gi-ant Foods store
on East Market
Street, York. She
was a branch
manager for PNC Bank. Manheim Township-based
Ambassador Advisors LLC named
Christopher R. Coolidge chief
investment of-ficer. He leads
the wealth man-agement depart-
ment and works
with various oth-er departments.
He is a chartered financial analyst
charterholder. Manheim Township-based
RKL Wealth Management LLC
named William M. Onorato a
senior wealth
strategist. He will
advise high-net-worth families
on multigenera-tional planning,
legacy planning,
business succes-sion and estate
planning. He has 25 years of es-
tate planning and wealth strategy
experience. He has a bachelor’s
degree and an MBA from Loyola
College and a law degree from the
University of Baltimore. Millersburg-based Mid Penn
Bank named Julie A. Bramlitt
financial adviser for Mid Penn
Financial Services. She will help
clients prioritize, organize and
simplify their financial matters
with customized financial solu-
tions. She has 25 years of banking
and financial services experience
and was a financial adviser with
Smoker Wealth Management.
She has bachelor’s and master’s
degrees from Ashford University.
Laura J. Melfi was named senior
vice president and cash manage-
ment officer with Mid Penn’s First
Priority Bank division. She will be
based in Chester County and con-
tribute to deposit growth through
business development activities.
She will also generate fee income
through cash management prod-
ucts and services, and expand and
retain customer relationships. She
has 43 years of financial services
experience. CONSTRUCTIONLancaster-based
Wohlsen
Construction Co. named Manuel
Maza project
manager and es-timator. He was
project engineer.
He has a bache-lor’s degree from
Millersville Uni-versity.
York-based Wagman Construc-
tion Inc. named Joe Corson direc-
tor of business development for
Maryland. He will
expand the firm’s
participation in
o p p o r t u n i t i e s
and enhance
client relation-ships throughout
Maryland. He has
30 years of con-struction industry experience. He
has a bachelor’s degree from the
University of Baltimore. EDUCATIONMillersville University named
John Cheek director of web and
creative services. He will over-
see the creative
production op-eration and serve
the university’s
marketing needs,
focusing on un-dergraduate and
graduate admis-sions, advance-
ment and the president’s office.
He will also oversee design aspects
of the school’s website. He was
creative director of Schiffer Pub-
lishing. He has a bachelor’s degree
from Millersville. GOVERNMENT Harrisburg-based Pennsyl-
vania Public Utility Commis-
sion named Amy S. Goldman
of Philadelphia and Matthew
Hrivnak of Cumberland County
members of the Pennsylvania
Telecommunications Relay Ser-
vice Advisory Board. Goldman
has been a public member of the
board. She is a speech-language
pathologist, has conducted
trainings on the importance of
telecommunications for those
with disabilities and has been
involved with the administra-
tion of Pennsylvania’s telecom-
munications device distribution
program. Hrivnak will represent
the PUC’s Bureau of Consum-
er Services on the board. He
is manager of compliance and
competition in the bureau’s pol-
icy division. Harrisburg-based State Civil
Service Commission named Te-
resa Osborne of Lackawanna
County a commissioner. She was
secretary of the Pennsylvania De-
partment of Aging. HEALTH CARE East Pennsboro Township-
based Geisinger Holy Spirit
named Dr. Ming Jang a member
of Geisinger Ho-ly Spirit Primary
Care. He will see adult patients
and specialize in geriatric care.
He was a clinical assistant profes-
sor of medicine in the division of geriatric medi-
cine at the University of Pennsyl-
vania’s Perelman School of Medi-
cine. He has a medical degree
from Drexel University College
of Medicine. HOSPITALITYAbbottstown, Adams County-
based Hanover Country Club
named John Danehy manager.
LAW East Hempfield Township-
based Russell, Krafft & Gruber
LLP named Ju-lia G. Vanasse a
member of the family law prac-
tice group. For nearly 20 years,
she was a Lan-caster County
divorce master, and she has 30 years of combined
family law experience. She has a
bachelor’s degree from the Col-
lege of William and Mary and a
law degree from Dickinson School
of Law.
Susquehanna Township-based
Mette Evans & Woodside named
Matthew D. Co-ble a sharehold-
er. He represents
insurance com-panies, fraternal
benefit societies,
insurance pro-ducers and third-
party administra-tors in insurance regulatory, trans-
actional and litigation matters.
MARKETINGLancaster-based Godfrey
named Luke Weidner an asso-
ciate creative director. He will
oversee message unification and
brand consisten-cy and align cre-
ative resources with project and
account needs to ensure efficien-
cy. Most recent-ly, he was the
design manager for Artisanal Brewing Ventures.
Weidner has a bachelor’s degree
from Penn State. NONPROFITSPhiladelphia-based Pennsyl-
vanians for Modern Courts named
retired Judge Lawrence
F. Stengel a board
member. He is a shareholder
with Manheim Township-based
Saxton & Stump and former chief
judge for the Eastern District of
Pennsylvania. PUBLIC AFFAIRSHarrisburg-based Triad Strate-
gies LLC named Rob Ghormoz
a senior associate in the govern-
ment affairs practice. He was a
senior adviser to Gov. Tom Wolf’s
re-election campaign and led his
2019 inauguration. He has a bach-
elor’s degree from Penn State.
SENDING NEWSMAKERS
Send announcements concerning
promotions and newly hired
personnel to [email protected].
Save photos at 300 dpi as TIFF
or JPG files. Please do not embed
photos in word documents. Photos
sent through the mail will not be
returned. Releases should include
the municipality in which the
company is located.
Shindle
Krieger
Fauth
Smith
Kuhn
Jimenez
Coolidge
Onorato
Bramlitt
Melfi
Maza
Corson
Cheek
Jang
Vanasse
Coble
Weidner
Stengel
8
www.CPBJ.com
Central Penn Business Journal
JUNE 7, 2019
OPINION
If yours is like many of the
small businesses I’ve studied, the
price you quote
for your prod-
ucts or services
is determined
by a simple for-
mula, based on
your estimated
costs. Feed in
your costs and
your desired
gross margin
and presto, out comes the price.
There’s just one problem
: price
has nothing to do with cost.
When I tell m
y clients their
prices should have nothing to do
with their costs, they usually look
at me as if I have suddenly sprout-
ed a third eye in my forehead. Af-
ter all, they’ve been doing that for
(fill in the blank) years and it has
worked, for the most part.
That m
ay be true, but in do-
ing so they are probably missing
opportunities to increase profits
on some products or services, or
to gain market share with others.
Those two things are what pricing
strategy is about.
When a business creates a
budget, it estimates sales rev-
enue, costs, and a desired gross
margin that will cover overhead
and produce a budgeted profit.
Looking at the budgeted profit
and loss statement, it is easy to
fall into a trap of thinking, “If we
can just get every sale for the es-
timated cost plus gross m
argin,
we’ll be right on target.” It sounds
simple and scientific, doesn’t it?
The problem
is that what buy-
ers are willing to pay has nothing
to do with the sellers’ costs. You
don’t believe that? I’ll give you
two scenarios.
I wear a Timex Ironm
an
watch that I can buy for about
$35 from a num
ber of retailers.
It is a very accurate watch with a
quartz movem
ent and some very
nice features. “Casual” quartz
watches from Gucci m
ade with
similar m
aterials sell for $275 to
$350. Trust me – I know m
anufac-
turing – there is no possible way
to explain that price differential
based on manufacturing costs.
That’s why you can buy fake
Gucci watches for less than my
Timex on the street. Th
e differ-
ential is totally due to the cachet
of the Gucci brand. The price
is what the market will bear,
the value the buyer puts on the
product. Suppose you have two identi-
cal machines, except one is paid
for and you took out a big loan
for the second one. The per-
son who runs it is a long-time
employee, who m
akes a higher
wage than the guy running the
paid-off machine. Th
e cost of the
second machine is higher than
the cost of the first. Do you be-
lieve you can get a different price
for a product based on which
machine you decide to use? Of
course you can’t.
Pricing is both strategic and
tactical. Working with com
pa-
nies to improve profitability, we
have adopted a strategy of slowly
raising prices above what we
get with the magic form
ula until
customers push back. W
e often
end with prices at a higher, more
profitable level for many, but not
all customers. It’s the custom
er,
not the formula that determ
ines
the best price.
We have experim
ented tactically
with what the market will bear for
change notices, usually much high-
er margins than for the original
orders. In that case the customer is
a captive audience. But sometim
es
we ease up on the change adjust-
ment, and let the custom
er know it
to build good will.
We have som
etimes reduced
prices below the magic form
ula
to build market share or capture
a new account. If the new busi-
ness is incremental, it is all good
on the bottom line.
The m
agic formula gives you
a nice target, but don’t fall into
the trap of thinking that is your
best price.
•
Richard Randall is founder and
president of management-con-
sulting firm New Level Advisors
in Springettsbury Township, York
County. Email him at info@newleve-
ladvisors.com.
In his budget address, Gov. Tom W
olf
stated to applause, “This proposal asks for no
new taxes. Not one dime. Not one penny.”
Yet, as the General Assembly com
bs through
the governor’s proposal, we find that there
are, in fact, tax increases.
One specific tax being proposed by the ad-
ministration is a “double tax” on am
bulatory
surgical centers (ASCs) like
the ones in my district.
ASCs are convenient
health care facilities run
by physicians that provide
same-day surgical and di-
agnostic care for focused
care needs, such as eye
surgeries, colonoscopies,
spine and joint procedures,
and more. Th
ere are 234
Medicare-certified ASCs in Pennsylvania.
The governor expects to take $12.5 m
illion
from these innovative surgical centers, which
is income they would otherwise put toward the
incredible services they provide at lower costs
to patients. ASCs already pay income, sales
and property taxes, as opposed to general hos-
pitals, which do not pay these same taxes.
The governor is correct when he says there
are no “new” taxes in his proposal, as he tried
and was unsuccessful in getting this ASC tax
passed through the General Assembly last
year. It is my hope that the House Republican
Caucus, along with the Pennsylvania Medical
Society and other medical-service advocates,
will prove once more that this tax would be
detrimental to Pennsylvania surgery patients.
First, this tax would cause ASCs to be un-
able to afford state-of-the-art equipment.
Such equipment allows them
to have higher
productivity and healthier patients, but under
this tax plan, this customer care m
ight no lon-
ger be possible.
Another advantage of surgical centers is
that their nurse-to-patient ratios are generally
lower than at general hospitals. These nurses
are trained in one or a few specialized surgical
procedures. This system
ensures that patients
receive the best care possible with the same
nurses caring for them throughout their treat-
ment.Smaller facilities also help surgical hospi-
tals protect patients from spreading infections
among each other. Th
is large reduction in
nosocomial infections is critical in a surgical
environment.
Not only are patients better cared for at
ASCs, but they face lower costs at these cen-
ters than they do at general hospitals. Medic-
aid patients face 50 percent lower costs and
patients with comm
ercial insurance plans
pay as low as 25 percent the costs of a hospi-
tal-based visit.
In addition to saving patients money, these
practitioners also save Medicare $2.3 billion
a year on just the 120 most-com
mon proce-
dures that Medicare patients receive, accord-
ing to UC Berkeley.
UC Berkeley noted in a recent study that
in 2015, Pennsylvania ASCs saved Medicare
$32.6 million on cataract procedures, $1.3
million on upper GI procedures and $6.9 m
il-
lion on cystoscopy procedures.
If the Wolf adm
inistration’s tax proposal
were to be enacted, the Pennsylvania Am-
bulatory Surgery Association, along with a
coalition of state medical societies, warn that
up to 25 percent of these centers may need
to close – pushing thousands of patients into
costly general hospitals and forcing centers to
withdraw from M
edicaid.
This is the very problem
that ASCs were at-
tempting to solve.
This ASC tax would be a blow to com
peti-
tion and innovation in health care. By tying
the invisible hand of the free market in health
care with burdensome taxes, we get less
health and less care.
Another tax on these ASCs would not only
cost the state Medicaid system
, it may even
cost lives.I urge m
y colleagues in the Pennsylvania
House and Senate to vote against this proposal
and I urge Gov. Wolf to visit an ASC like W
est
Shore Endoscopy in Cumberland County to
learn about the progress that is being made by
these entrepreneurial physicians and nurses.
As I meet with physicians and patients in
my district, such as those at W
est Shore En-
doscopy, I have been amazed at the benefits
of their innovative approach.
We all can relate to the phrase, “Surgery is
only minor if it happens to som
eone else.”
Nobody wants to be told they need surgery
and they especially do not want an unpleas-
ant surgery experience.
Thanks to ASCs, thousands of Pennsyl-
vanians have been given a convenient and
quality outpatient experience with positive
outcomes and speedy recovery in the com
fort
of their own homes. A double tax on these
centers would not only be devastating to the
many hardworking physicians in our com
-
monwealth but their patients as well.
For the sake of the health and wellness of
our comm
onwealth, I hope my colleagues in
Harrisburg listen to our physicians and their
patients and reject this tax. •
State Rep. Greg Rothman (R) represents the 87th
House District, which is in Cumberland County.
Proposed tax could harm specialty surgical centers
A formula for profit – or for missing out?
GUEST VIEW
THE WHITEBOARD
Richard
Randall
StateRep.
Greg Rothman
If there’s one constant in health
care, it’s change. UPMC’s invest-
ment in southcentral Pennsylvania
has brought positive change to
our region, including new, highly
specialized services, thousands of
new providers and leading-edge
technology to treat the most
advanced diseases. However, even
positive change can cause confu-
sion. I’d like to take a moment to
clarify a question involving health
insurance plans accepted at UPMC
Pinnacle. UPMC Pinnacle hospitals and
outpatient clinics continue to
accept most major insurance
plans, including Aetna, Capital Blue
Cross, Highmark and UPMC Health
Plan for all services. Changes in the
relationship between Highmark
and UPMC in the greater
Pittsburgh and Erie areas will not
affect the relationship between
UPMC Pinnacle and Highmark.
We look forward to continuing
to care for all of our patients in
2019 and beyond. To learn more
about full, in-network access to
UPMC doctors and hospitals, call
our toll-free help line at 1-833-
879-5013 or visit UPMC.com/
Choice2019. Philip W. Guarneschelli,
President and CEO
UPMC Pinnacle
TO THE EDITOR
8 www.CPBJ.com Central Penn Business Journal MAY 31, 2019OPINIONGUEST VIEW
Latest census data reveals trends to watchThe U.S. Census Bureau recently re-
leased new population estimates that account for and compare the resident population for counties between April 1, 2010 and July 1, 2018. The outcome? There are shifts in population taking place across the nation that may differ from what you might assume. Here are the highlights at a national and local level.
What’s happening locally?Cumberland, Dauphin, Lancaster and
York experience consis-tent growth. The most notable trend between 2010 and 2018 in Central Pennsylvania is that these counties all experienced consistent growth year-over-year. Moreover the growth was fairly even over the last eight years.
Another trend worth noting is that the counties have main-tained the same order of ranking based upon population for eight-plus years. For example, in 2010 the counties in order of smallest population to largest were Cum-berland, Dauphin, York and Lancaster. This is the same ranking we see in 2018,
and every year in between.Lancaster remains the largest and fast-
est-growing county. At 984 square miles, it also is the largest of the four counties. Between 2010 and 2018 it experienced the largest numeric growth at 24,112 people. No. 2 in numeric growth was actually the smallest of the four counties, Cumberland County, which grew by 16,017 people. York County grew by 13,301 people and Dauphin County grew by 8,997 people.
What’s happening nationally?The census data confirmed that coun-
ties with the largest numeric growth are located in the south and the west. In fact, Texas claimed four out of the top 10 spots. Looking at population growth by metropolitan area, Dallas-Fort Worth-Arlington, Texas had the largest numeric growth, with a gain of 131,767 people, or 1.8 percent in 2018. Second was Phoenix-Mesa-Scottsdale, Arizona, which had an increase of 96,268 people, or 2.0 percent. The cause of growth in these areas is migration, both domestic and international, as well as natural increase. In Dallas, it was natural in-crease that served as the largest source of population growth. For Phoenix it was
migration.The fastest growth occurred outside
of metropolitan areas. Surprisingly, no new metro areas moved into the top 10 largest areas. Of the 390 metro areas in the U.S., (including the District of Co-lumbia and Puerto Rico), 102, or 26.2 percent experienced population decline in 2018. The five fastest-shrinking metro areas (excluding Puerto Rico) were Charleston, West Virginia (-1.6 percent); Pine Bluff, Arkansas. (-1.5 percent); Farmington, New Mexico (-1.5 percent); Danville, Illinois (-1.2 percent); and Watertown-Fort Drum, New York (-1.2 percent). The population decreases were primarily due to negative net domestic migration.
North Dakota was home to the fastest-growing county. Among counties with a population of 20,000 or more, Williams County, North Dakota, claimed the top spot as the fastest-growing by percent-age. This county’s population rose by 5.9 percent between 2017 and 2018 (from 33,395 to 35,350 people). The rapid growth Williams County experienced was due mainly to net domestic migration of 1,471 people in 2018. The county also ex-perienced growth between 2017 and 2018
by natural increase of 427 people and in-
ternational migration of 52 people.
There is more growth than decline. Out
of 3,142 counties, 1,739 (or 55.3 percent)
gained population between 2017 and 2018.
Twelve counties (0.4 percent) experienced
no change in population, and the remain-
ing 1,391 (or 44.3 percent) lost people.
Between 2010 and 2018, a total of 1,481 (or
47.1 percent) counties gained population
and 1,661 (or 52.9 percent) lost popula-
tion. Though there has been more growth
than decline overall, the numbers indicate
that this can easily shift year over year.
A deeper dive into the census data
reveals several demographic changes
impacting commercial real estate develop-
ment: household formations, aging baby
boomers, growing millennials, women
in the workforce and migration toward
the South. Today’s demographic changes
present challenges for commercial real
estate developers, but they also offer lu-
crative opportunities to firms creatively
adapting to new demands.•
Mike Kushner is the owner of Omni Realty Group, a real estate firm in Harrisburg. He can be reached through www.omnirealtygroup.com�
Mike Kushner
2018 was a banner year for mergers and acquisitions. Global M&A activity was the second highest on record, with deals totaling $2.72 trillion. Looking ahead, 76 percent of top executives at U.S. compa-nies expect to close more deals this year than last, and a majority predict these deals will be larger, according to a report from Axios. These compa-nies, and others around the globe, turn to M&A deals to increase market share and improve their business models.
Throughout the M&A process, executives are hyper-focused on company synergies and big-picture goals. As a result, one very important fac-tor often goes overlooked – the employer’s retirement plans. There are many details to consider when acquiring a company. Understanding the seller’s retirement plan and how it will fit within the current ben-efit structure is vital to success.
If retirement plans are not considered upfront, executives may learn that the ac-quired company has an underfunded pen-sion plan – which can be a deal breaker – or that the seller’s 401(k) plan does not meet compliance standards.
So, if you’re planning a merger or acqui-sition, consider the retirement plans now to avoid a headache later on.
If the transaction is a stock acquisi-tion – where the buyer takes full owner-ship of the selling company – the buyer then assumes all of the seller’s liabilities, including its retirement plan. The buyer has three options for how to handle the acquired company’s retirement plan. It can either maintain its own plan and the seller’s plan separately, terminate the seller’s plan, or merge the seller’s plan into its own plan.
If the buyer decides to maintain both plans, the newly acquired employees can either be offered the same benefits they had previously, or a new formula for their employer benefits. Maintaining both plans can provide employees continuity of ben-efits with no impact to the buyer’s retire-ment plan. However, operating multiple plans can be burdensome and expensive, and nondiscrimination testing is needed if employees are receiving different benefit packages.
If the buyer is going to terminate the seller’s plan, this decision should be made and the process initiated before the com-panies merge. If the acquired company’s 401(k) is terminated after the transaction, the seller’s employees will face a one-year
restriction before being able to join the buyer’s 401(k) plan, losing out on a full year of tax-efficient savings and employer contributions.
The main advantages of termination are that employees can be integrated into the buyer’s plan with one benefit structure for all; there is only one plan to maintain; and the risk of any liability transfer into the buyer’s existing plan is avoided. The downside is that the employee accounts become immediately accessible. So, if not rolled over into an IRA or other retirement plan, employees could squander retire-ment assets and face penalty taxes for early distribution.
The final option – merging the seller’s and buyer’s plans – requires that both plans be the same type and have a similar plan design. This option can be efficient and cost-effective – one benefit structure, one plan to operate – and it also avoids the negatives of plan termination.
The risk associated with merging are the unknown factors of the seller’s plan. Has it always operated in compliance with all the complex rules associated with retirement plans? If not, the buyer’s plan would be at risk.
Before deciding how to handle the sell-er’s retirement plan, the buyer will need to perform exhaustive due diligence. This
includes confirming past operational and procedural compliance, making sure all plan documents are up-to-date, and con-firming general compatibility between the plans. Examples include reviewing non-discrimination testing results from recent years, the seller’s fiduciary oversight prac-tices, administrative operations such as distributions, payroll and loan processes, and fulfillment of government reporting requirements.
Many companies partner with an out-side consultant to conduct a thorough benefit plan review and help determine the best option. When experts are engaged from the start, they can help ensure the transition is smooth and employees have a clear understanding of the benefits with their new employer.
An organization’s retirement plan should be a consideration from the early stages of an M&A. Though the evaluation process can be lengthy, it’s better to an-ticipate issues that could arise, instead of realizing them in the midst of the merger when it might be too late.
•John Jeffrey is a consulting actuary, specializing in retirement plan consulting and post-employ-ment health care benefits, for Conrad Siegel, which is based in Susquehanna Township, Dauphin County.
GUEST VIEW
Retirement plans should be piece of M&A puzzle
JohnJeffrey
JUNE 7, 2019
717-236-4300•
Central Penn Business Journal•
www.CPBJ.com
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By Jason Scott
Expecting a record year for lending and
more growth, the Lancaster-based Commu-
nity First Fund has been adding staff and
restructuring its executive team.
The nonprofit economic development or-
ganization recently hired Michael Carper, the
former CEO of the Housing Development
Corp. MidAtlantic, to be its chief credit officer.
Community First Fund also contracted with
a finance expert from Chicago to serve as CFO
until it hires someone to the post full-time.
“We’re adding and growing dramatically,”
said Dan Betancourt, the organization’s presi-
dent and CEO.
Community First Fund provides financ-
ing for small businesses, affordable housing
projects and nonprofit organizations located
in low-income communities and serving dis-
advantaged groups, including Latino and Af-
rican-American entrepreneurs. And the need
for services is rising.
The organization, which started out serving
Lancaster, now covers 15 counties in Central
Pennsylvania, the Lehigh Valley and suburban
Philadelphia. Its staff has grown from 20 to 40
over the past five years and it is making more
direct loans to businesses, with volume rising
from about $10 million to $30 million in the
past three years.
The nonprofit also has opened new loan offic-
es in Allentown and Philadelphia where it would
like to add more people to expand lending.
“We expect to go deeper into markets we are
in,” Betancourt said.
But depth, he said, requires a bigger team.
That starts at the executive level.
In addition to adding new execs, the non-
profit has made some internal promotions.
COO Joan Brodhead was recently named se-
nior executive vice president and chief strategic
initiatives officer, while senior vice president of
lending James Buerger was elevated to execu-
tive vice president and chief lending officer.
Community First also has hired staff to work
under each of the C-suite executives.
The growth comes at a time when Commu-
nity First has been positioning itself as a go-to
resource for investors and developers inter-
ested in the federal opportunity zone program,
in which investors can get a tax break on capi-
tal gains by investing in projects in qualified
distressed areas, dubbed opportunity zones.
The investments typically will flow through
what are known as qualified opportunity funds.
Community First has been working to develop
such funds, which could work in combination
with other state and federal incentives.
Among the most notable of those is the
New Markets Tax Credit program, a federal tax
credit program operated by the U.S. Treasury
Department that helps support large urban
redevelopment projects.
Community First is one of two local orga-
nizations that can apply for those federal tax
credits.
The other — Harrisburg-based Common-
wealth Cornerstone Group, a subsidiary of
the Pennsylvania Housing Finance Agency
(PHFA) — recently was awarded $55 million
in the latest round of funding.
Community First was shut out but hopes
its clients still can take advantage of the in-
centives.
“We plan to work with clients and try to
help them find an allocation through another
organization,” Betancourt said.
Community First and Commonwealth Cor-
Pictured, clockwise from bottom left, is Community First Fund’s executive team: Dan
Betancourt, president and CEO; Mike Carper, chief credit officer; James Buerger, executive
vice president and chief lending officer; and Joan Brodhead, senior executive vice president
and chief strategic initiatives officer. PHOTO/SUBMITTED
Tax credit plan
After being shut out in the last fund-
ing round in 2017, Central Pennsylvania will
receive a share of 2018 tax credits under a
new round of funding from a federal program
designed to support large urban redevelop-
ment projects: the New Markets Tax Credit.
The U.S. Treasury Department last month
awarded $55 million in tax credits to the
Pennsylvania Housing Finance Agency’s
Commonwealth Cornerstone Group, based in
Harrisburg.
Commonwealth Cornerstone’s executive
director Charlotte Folmer said the funding
will help the nonprofit tackle a hefty pipeline
of projects seeking funding.
“We have over 40 projects requesting
over $700 million,” she said, noting that the
requests come from across the common-
wealth.
Folmer said she hopes the tax credits will
be able to support about seven projects this
year — likely mixed-use, commercial and
community service projects — with a focus on
those that exceed $5 million.
Developers often have to spend more
money to buy and fix up vacant and blighted
properties than they can expect to get back
in rental rates once construction is complet-
ed. The New Markets program takes private
equity from investors, usually banks, and
turns that money into gap financing to help
developers offset some of the construction
costs and keep rents in line with what a local
real estate market can support.
The investors receive tax credits in return,
which count against their federal income
taxes.Investors can receive credits totaling 39
percent of their investment. They can use the
credits over seven years as such: 5 percent
per year for the first three years and 6 per-
cent for the next four years.
Folmer said it will be several weeks until
Commonwealth Cornerstone receives its
federal allocation, the organization’s eighth.
The previous seven allocations have helped
fund 38 developments in the state, including
the Hamilton Health Center in Harrisburg,
Lancaster’s Keppel Building and the renova-
tion of Gettysburg’s Schmucker Hall.
In the meantime, officials are narrowing
down mixed-use and commercial projects
across the state that could receive the tax
credits. Part of that selection process could
include working with Lancaster-based
Community First Fund, which did not receive
tax credits this year but has its own backlog
of projects.
The two midstate nonprofits have part-
nered on tax-credit projects in the past,
including the redevelopment of the former
Bulova building in Lancaster. Commonwealth
Cornerstone poured $10 million in tax cred-
its into the project, while Community First
added another $8 million.
Folmer said project announcements could
come this fall.
Community First Fund
expanding executive team
please see EXPANDING page 7
ECONOMIC DEVELOPMENT
Craft-beer boom spurs local hops farmers
they are marketing targets. Trust them
and communicate with them as if they
are “one of us,” instead of “one of them.”
Use “we” and communicate from a team
perspective, rather than a top-down
standpoint. • Talk about the rewards – not only for
their personal lives, but rewards of the
program. What’s in it for them can be a
powerful motivator to expand participa-
tion. That participation, in turn, can build
a team atmosphere and lead to higher
engagement. • Consider health and wellness ambas-
sadors. Peer-to-peer communication is
powerful and partnering with passionate
team members to communicate can re-
move the paternalistic factor.
• Connect the dots for employees to the
bigger corporate picture. Participation in
wellness programs has the potential to de-
crease company health benefit costs over-
all, which in turn could make a difference
in employees’ premium or out-of-pocket
employees what program components
they’d like to see. Find out what might mo
tivate them to participate. Ask for ideas on
communicating the details to staff.
• Use social channels to help spread
the word. Whether its an internal social
tool such as Slack or Yammer or a closed
group on Facebook or LinkedIn, encour
age employees to share pictures of their
healthy choices and/or program partici
pation. Build a little competition between
company segments and offer content
meant to engage the group – ask ques
tions, post a quiz or host a ‘meet this goal’
challenge.
Craft-beer boom spurs local hops farmers
Stefanie Angstadt started making cheese
Hills Farm in Chester County.Jones pitched the idea of using the CSA
format to develop a new way of selling craft cheese to cheese fans. That led Jones, Ang-
Specialty cheese biz taps into local dairies
Craft-beer boom spurs local hops farmers
A strong wellness program can be a
differentiator for recruitment, reduce the
cost of health care benefits and help build
a team atmosphere based around healthy
choices. However, communicating the
benefits and program elements of a well-
ness initiative can be hard to navigate. Hu-
man resources and cor-
porate leadership need to
spective. How will the wellness program
components benefit them? Why should
they care? Does it affect their work life or
home life? Zero in on key factors affecting
employees and highlight the benefits of
healthy choices.
• Avoid communicating to staff as if
they are marketing targets. Trust them
and communicate with them as if they
are “one of us,” instead of “one of them.”
Use “we” and communicate from a team
perspective, rather than a top-down
standpoint.
Stefanie Angstadt started making cheese as a hobby soon after graduating from col-
After a few years she knew it was some-thing she wanted to do full time.
She opened Valley Milkhouse in a former dairy farm in Oley in 2014 and began to
cheese to cheese fans. That led Jones, Angstadt and Miller in 2016 to create the Collec-tive Creamery CSA, based out of Angstadt’s Oley creamery, with Jones as the operations manager and Angstadt and Miller as the two primary cheese makers.
“We thought between the three of us, we could pool our resources and move beyond farmers markets,” Angstadt said.
According to Jones, the trio didn’t invent the idea of a cheese-based CSA. But, she said, “A cheese CSA is still pretty unique.”
Jones said it also makes sense.“You can get subscriptions for anything
today — dog products, beauty products —
cial
oper
ators
, sai
d Dav
id D
ay, e
xecu
tive
vice
pre
siden
t at
Key
stone
Aeria
l Surv
eys
based
in P
hiladel
phia. Th
at m
akes
educa
tion cr
itica
l, he
added
.
Keyst
one does
work
nat
ionw
ide
and h
as
found th
at so
me
offici
als i
n stat
es –
such
as
New
York
and N
ew Je
rsey
– ar
e m
ore aw
are
of iss
ues f
acin
g th
e dro
ne in
dustry
than
those
in P
ennsy
lvan
ia. Th
e ad
voca
cy d
ay
was
an e
ffort to
chan
ge th
at, t
oo, h
e sa
id. I
t
also
is h
oped th
at P
ennsy
lvan
ia’s
gove
rn
men
t age
ncies
will
incr
easin
gly
adopt t
he
tech
nologi
es,
as a
genci
es i
n oth
er s
tate
s
have,
Day
added
.
After a few years she knew it was something she wanted to do full time.
She opened Valley Milkhouse in a former dairy farm in Oley in 2014 and began to
farmers markets,” Angstadt said.According to Jones, the trio didn’t invent
the idea of a cheese-based CSA. But, she said, “A cheese CSA is still pretty unique.”
Jones said it also makes sense.“You can get subscriptions for anything
today — dog products, beauty products —
A strong wellness program can be a
spective. How will the wellness program
Craft-beer boom spurs local hops farmers
Jeff Musselman, head brewer at the
Millworks in Harrisburg, said the local
market has struggled to check all three
buckets. Most local hop farms are growing
on one or two acres and not pelletizing.
“The vast majority of local hops are
brewed in late summer or early fall for
wet-hop beers,” he said. “That has been
the big limitation.”
The Millworks and other breweries said
they would like to buy more local hops
year round, especially pelletized hops, to
support farmers.
“I think brewers absolutely want to use
it,” Musselman said, noting the differences
in smell and taste between East and West
Coast hops.
But Musselman said he expects local
hops would cost more than those from
larger West Coast suppliers, given the
lower hop volumes at local farms. Nev
Mike and Sharon Reifsnyder stand in the hop yard of their West Pennsboro Township
farm. They began growing the crop in 2017 in a bid to make locally grown hops more
Promotions, appointments, hirescompanies. He is
a CPA and a graduate of Shippens-
burg University. ARCHITECTURE/ENGINEERING
Lancaster-based RGS Associ-
ates named Jake Krieger proj-
ect landscape architect. He has
a bachelor’s degree from Temple
University. Matthew Fauth was
named a computer aided drafting
and design designer. He also is a
sergeant in the National Guard. He
has an associate degree from York
Technical Institute. Upper Dublin Township, Mont
gomery County-based McMahon
assistant manager of the
Township Financial Center. She
will cultivate new
customer rela-tionships, man-
age the internal
sales process,
maintain the
branch’s operational proficiency
and mentor her financial center
team. Most recently, she was a cor-
porate social responsibility super-
visor and head teller II with First
National Bank. She has a bach-
elor’s degree from York College.
Lower Allen Township-based
Members 1st Federal Credit
Union named
Alma Jimenezbranch manager
of the location
inside the Gi-ant Foods store
on East Market
Street, York. She
was a branch
manager for PNC Bank.
with customized financial solu-
tions. She has 25 years of banking
and financial services experience
and was a financial adviser with
Smoker Wealth Management.
She has bachelor’s and master’s
degrees from Ashford University.
Laura J. Melfi was named senior
vice president and cash manage-
ment officer with Mid Penn’s First
Priority Bank division. She will be
based in Chester County and con-
tribute to deposit growth through
business development activities.
She will also generate fee income
through cash management prod-
ucts and services, and expand and
retain customer relationships. She
has 43 years of financial services
experience. CONSTRUCTION
lishing. He has a bachelor’s degree
from Millersville. GOVERNMENT Harrisburg-based Pennsyl-
vania Public Utility Commis-
sion named Amy S. Goldman
of Philadelphia and Matthew
Hrivnak of Cumberland County
members of the Pennsylvania
Telecommunications Relay Ser-
vice Advisory Board. Goldman
has been a public member of the
board. She is a speech-language
pathologist, has conducted
trainings on the importance of
telecommunications for those
with disabilities and has been
involved with the administra-
tion of Pennsylvania’s telecom-
munications device distribution
program. Hrivnak will represent
the PUC’s Bureau of Consum
er Services on the board. He
is manager of compliance and
competition in the bureau’s pol
Mette Evans & Woodside named
Matthew D. Coble a sharehold
er. He represents
insurance companies, fraternal
benefit societies,
insurance producers and third-
party administrators in insurance regulatory, trans
actional and litigation matters.
MARKETING
Shindle
Krieger
Fauth
Kuhn
Jimenez
Bramlitt
Melfi
buckets. Most local hop farms are growing
on one or two acres and not pelletizing.
“The vast majority of local hops are
brewed in late summer or early fall for
wet-hop beers,” he said. “That has been
The Millworks and other breweries said
they would like to buy more local hops
year round, especially pelletized hops, to
“I think brewers absolutely want to use
it,” Musselman said, noting the differences
in smell and taste between East and West
Coast hops.
But Musselman said he expects local
hops would cost more than those from
larger West Coast suppliers, given the
lower hop volumes at local farms. Nev
farm. They began growing the crop in 2017 in a bid to make locally grown hops more
• Avoid communicating to staff as if
they are marketing targets. Trust them
and communicate with them as if they
are “one of us,” instead of “one of them.”
Use “we” and communicate from a team
it may mean the employees are unlikely to
understand the message.
• Avoid populating emails or messages
with large amounts of information. People
digest details in small chunks, so consider
an ongoing campaign to share bits and
pieces of information, or a web page to
view the full information when employees
are interested and have time.
• Have a sense of humor when commu
nicating. Loosening up a formal approach
can go a long way to creating engagement
with the communication and getting on
board with the program.
paid by the safety-net payer, Medicaid,
which a recent analysis indicates reim
burses at 81 cents on the dollar.
There are no hospitals or hospital staff
that treat only the uninsured or patients
insured by Medicaid, and Pennsylvania
doesn’t have a public hospital system. As
a result, the hospital community treats all
patients, regardless of the type of insur
ance they have — and serves as the safety
net for the underinsured and uninsured.
Even with the improvement in the insured
spective. How will the wellness program
components benefit them? Why should
they care? Does it affect their work life or
home life? Zero in on key factors affecting
employees and highlight the benefits of
• Avoid communicating to staff as if
they are marketing targets. Trust them
• Remove jargon, whether health care
or HR wording that might not be easily un
derstood. Remember, when jargon is used,
it may mean the employees are unlikely to
understand the message.
• Avoid populating emails or messages
Health and wellness communications can be engaging
was
an e
ffort to
chan
ge th
at, t
oo, h
e sa
id. I
t
also
is h
oped th
at P
ennsy
lvan
ia’s
gove
rn
men
t age
ncies
will
incr
easin
gly
adopt t
he
tech
nologi
es,
as a
genci
es i
n oth
er s
tate
s
have,
Day
added
.
The
asso
ciat
ion m
ainta
ins t
hat 3
6 out o
f
the
50 s
tate
s hav
e tra
nsporta
tion d
epar
t
men
ts t
hat f
und cen
ters
or
progr
ams
for
drone
operat
ions.
PennD
OT,
it s
aid, i
s not
among
those
that
hav
e in
itiat
ed o
utsid
e
progr
ams.
Alexi
s Cam
pbell,
PennD
OT p
ress
secr
e-
tary
, sai
d Pen
nDO
T has
an a
ctiv
e in
tern
al
drone
progr
am a
nd has
bee
n flyi
ng dro
nes
for s
ever
al ye
ars.
“We’
ve r
ecen
tly a
dvance
d our
operat
or
off, Day
and o
ther
s sai
d.
Keega
n Flahiv
e is a
rem
ote p
ilot f
or Arg
os
Unm
anned
Aer
ial S
olutio
ns bas
ed in
Liti
tz.
When
the
com
pany
was
founded
in 2
015,
it did
a lo
t of w
ork w
ith re
al e
stat
e co
mpa
nies t
hat w
ante
d aer
ial v
iew
s of p
roper
ties,
There are no hospitals or hospital staff
that treat only the uninsured or patients
insured by Medicaid, and Pennsylvania
doesn’t have a public hospital system. As
a result, the hospital community treats all
patients, regardless of the type of insur
ance they have — and serves as the safety
net for the underinsured and uninsured.
Even with the improvement in the insured
spective. How will the wellness program
components benefit them? Why should • Remove jargon, whether health care
or HR wording that might not be easily un
derstood. Remember, when jargon is used,
it may mean the employees are unlikely to
Health and wellness communications can be engaging
• Make it a two-way conversation. Ask
employees what program components
they’d like to see. Find out what might mo
tivate them to participate. Ask for ideas on
communicating the details to staff.
• Use social channels to help spread
the word. Whether its an internal social
tool such as Slack or Yammer or a closed
group on Facebook or LinkedIn, encour
age employees to share pictures of their
healthy choices and/or program partici
pation. Build a little competition between
parts of the employee base. The same goes
for any topic: if it’s strictly about one thing,
the business might lose the interest of its
whole audience.
In his budget address, Gov. Tom W
olf
stated to applause, “This proposal asks for no
new taxes. Not one dime. Not one penny.”
Yet, as the General Assembly com
bs through
the governor’s proposal, we find that there
are, in fact, tax increases.
One specific tax being proposed by the ad
ministration is a “double tax” on am
bulatory
surgical centers (ASCs) like
the ones in my district.
ASCs are convenient
health care facilities run
by physicians that provide
same-day surgical and di-
agnostic care for focused
care needs, such as eye
surgeries, colonoscopies,
spine and joint procedures,
and more. Th
ere are 234
Medicare-certified ASCs in Pennsylvania.
The governor expects to take $12.5 m
illion
from these innovative surgical centers, which
is income they would otherwise put toward the
incredible services they provide at lower costs
to patients. ASCs already pay income, sales
and property taxes, as opposed to general hos-
pitals, which do not pay these same taxes.
The governor is correct when he says there
are no “new” taxes in his proposal, as he tried
and was unsuccessful in getting this ASC tax
passed through the General Assembly last
year. It is my hope that the House Republican
Caucus, along with the Pennsylvania Medical
Society and other medical-service advocates,
will prove once more that this tax would be
detrimental to Pennsylvania surgery patients.
First, this tax would cause ASCs to be un-
able to afford state-of-the-art equipment.
Such equipment allows them
to have higher
productivity and healthier patients, but under
a year on just the 120 most-com
mon proce
dures that Medicare patients receive, accord
ing to UC Berkeley.
UC Berkeley noted in a recent study that
in 2015, Pennsylvania ASCs saved Medicare
$32.6 million on cataract procedures, $1.3
million on upper GI procedures and $6.9 m
il
lion on cystoscopy procedures.
If the Wolf adm
inistration’s tax proposal
were to be enacted, the Pennsylvania Am
bulatory Surgery Association, along with a
coalition of state medical societies, warn that
up to 25 percent of these centers may need
to close – pushing thousands of patients into
costly general hospitals and forcing centers to
withdraw from M
edicaid.
Proposed tax could harm specialty surgical centers
it may mean the employees are unlikely to
understand the message.
• Avoid populating emails or messages
with large amounts of information. People
digest details in small chunks, so consider
an ongoing campaign to share bits and
pieces of information, or a web page to
view the full information when employees
are interested and have time.
• Have a sense of humor when commu
nicating. Loosening up a formal approach
can go a long way to creating engagement
with the communication and getting on
board with the program.
paid by the safety-net payer, Medicaid,
which a recent analysis indicates reim
burses at 81 cents on the dollar.
There are no hospitals or hospital staff
that treat only the uninsured or patients
insured by Medicaid, and Pennsylvania
doesn’t have a public hospital system. As
a result, the hospital community treats all
patients, regardless of the type of insur
ance they have — and serves as the safety
net for the underinsured and uninsured.
Even with the improvement in the insured • Remove jargon, whether health care
or HR wording that might not be easily un
derstood. Remember, when jargon is used,
it may mean the employees are unlikely to
Health and wellness communications can be engaging
• Make it a two-way conversation. Ask
employees what program components
they’d like to see. Find out what might mo
tivate them to participate. Ask for ideas on parts of the employee base. The same goes
for any topic: if it’s strictly about one thing,
tained the same order of ranking based upon population for eight-plus years. For example, in 2010 the counties in order of smallest population to largest were Cum-berland, Dauphin, York and Lancaster. This is the same ranking we see in 2018,
or 2.0 percent. The cause of growth in these areas is migration, both domestic and international, as well as natural increase. In Dallas, it was natural increase that served as the largest source
The problem
is that what buy
ers are willing to pay has nothing
to do with the sellers’ costs. You
don’t believe that? I’ll give you
two scenarios.
In his budget address, Gov. Tom W
olf
stated to applause, “This proposal asks for no
new taxes. Not one dime. Not one penny.”
Yet, as the General Assembly com
bs through
the governor’s proposal, we find that there
One specific tax being proposed by the ad-
ministration is a “double tax” on am
bulatory
this tax plan, this customer care m
ight no lon
ger be possible.
Another advantage of surgical centers is
that their nurse-to-patient ratios are generally
lower than at general hospitals. These nurses
are trained in one or a few specialized surgical
procedures. This system
ensures that patients
receive the best care possible with the same
Proposed tax could harm specialty surgical centers
The problem
is that what buy
ers are willing to pay has nothing
to do with the sellers’ costs. You
don’t believe that? I’ll give you
Mike Kushner is the owner of Omni Realty
percent between 2017 and 2018 (from 33,395 to 35,350 people). The rapid growth Williams County experienced was
adapting to new demands.•
Mike Kushner is the owner of Omni Realty
For subscription information and questions, please call
Michele Engle, Carley Lucas,
By Jason Scott
Expecting a record year for lending and
more growth, the Lancaster-based Commu
nity First Fund has been adding staff and
restructuring its executive team.
The nonprofit economic development or
ganization recently hired Michael Carper, the
former CEO of the Housing Development
Corp. MidAtlantic, to be its chief credit officer.
Community First Fund also contracted with
a finance expert from Chicago to serve as CFO
until it hires someone to the post full-time.
“We’re adding and growing dramatically,”
said Dan Betancourt, the organization’s presi
dent and CEO.
New Markets Tax Credit program, a federal tax
credit program operated by the U.S. Treasury
Department that helps support large urban
redevelopment projects.
Community First is one of two local orga
nizations that can apply for those federal tax
credits.
Pictured, clockwise from bottom left, is Community First Fund’s executive team: Dan
Betancourt, president and CEO; Mike Carper, chief credit officer; James Buerger, executive
vice president and chief lending officer; and Joan Brodhead, senior executive vice president
PHOTO/SUBMITTED
We all can relate to the phrase, “Surgery is
Community First Fund
expanding executive teamECONOMIC DEVELOPMENT
percent between 2017 and 2018 (from 33,395 to 35,350 people). The rapid growth Williams County experienced was
This is the same ranking we see in 2018,
or 2.0 percent. The cause of growth in these areas is migration, both domestic and international, as well as natural increase. In Dallas, it was natural increase that served as the largest source
this tax plan, this customer care m
ight no lon
ger be possible.
Another advantage of surgical centers is
that their nurse-to-patient ratios are generally
lower than at general hospitals. These nurses
are trained in one or a few specialized surgical
procedures. This system
ensures that patients
Proposed tax could harm specialty surgical centers
We all can relate to the phrase, “Surgery is
Michele Engle, Carley Lucas,
ECONOMIC DEVELOPMENT
this tax plan, this customer care m
ight no lon
ECONOMIC DEVELOPMENT
this tax plan, this customer care m
ight no lon
ger be possible.
ECONOMIC DEVELOPMENT
ger be possible.
Another advantage of surgical centers is
ECONOMIC DEVELOPMENTAnother advantage of surgical centers is
that their nurse-to-patient ratios are generally
ECONOMIC DEVELOPMENTthat their nurse-to-patient ratios are generally
lower than at general hospitals. These nurses
ECONOMIC DEVELOPMENTlower than at general hospitals. These nurses
are trained in one or a few specialized surgical
ECONOMIC DEVELOPMENTare trained in one or a few specialized surgical
Proposed tax could harm specialty surgical centers
ECONOMIC DEVELOPMENT
Proposed tax could harm specialty surgical centers
ECONOMIC DEVELOPMENT
• Total access to Long Island Business News List Database*
• Unlimited downloads
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Expecting a record year for lending and
more growth, the Lancaster-based Commu
nity First Fund has been adding staff and
restructuring its executive team.
The nonprofit economic development or
ganization recently hired Michael Carper, the
former CEO of the Housing Development
Corp. MidAtlantic, to be its chief credit officer.
Community First Fund also contracted with
a finance expert from Chicago to serve as CFO
until it hires someone to the post full-time.
“We’re adding and growing dramatically,”
said Dan Betancourt, the organization’s presi-
dent and CEO.
Community First Fund provides financ-
ing for small businesses, affordable housing
projects and nonprofit organizations located profit has made some internal promotions.
COO Joan Brodhead was recently named se-
nior executive vice president and chief strategic
initiatives officer, while senior vice president of
lending James Buerger was elevated to execu-
tive vice president and chief lending officer.
New Markets Tax Credit program, a federal tax
credit program operated by the U.S. Treasury
Department that helps support large urban
redevelopment projects.Pictured, clockwise from bottom left, is Community First Fund’s executive team: Dan
Betancourt, president and CEO; Mike Carper, chief credit officer; James Buerger, executive
vice president and chief lending officer; and Joan Brodhead, senior executive vice president
and chief strategic initiatives officer. PHOTO/SUBMITTED
expanding executive team
Expecting a record year for lending and
more growth, the Lancaster-based Commu-
nity First Fund has been adding staff and
restructuring its executive team.
The nonprofit economic development or-
ganization recently hired Michael Carper, the
former CEO of the Housing Development
Corp. MidAtlantic, to be its chief credit officer.
Community First Fund also contracted with
a finance expert from Chicago to serve as CFO
until it hires someone to the post full-time.
New Markets Tax Credit program, a federal tax
Pictured, clockwise from bottom left, is Community First Fund’s executive team: Dan
Betancourt, president and CEO; Mike Carper, chief credit officer; James Buerger, executive
vice president and chief lending officer; and Joan Brodhead, senior executive vice president
and chief strategic initiatives officer. PHOTO/SUBMITTED
SUBSCRIBE TODAY!CALL 877-615-9536 OR VISIT
[email protected] a Print & Digital Subscriber? Call to upgrade - NOW!
www.libn.com
ment.Smaller facilities also help surgical hospi
tals protect patients from spreading infections
among each other. Th
is large reduction in
care needs, such as eye
surgeries, colonoscopies,
spine and joint procedures,
Medicare-certified ASCs in Pennsylvania.
The governor expects to take $12.5 m
illion
from these innovative surgical centers, which
is income they would otherwise put toward the
practitioners also save Medicare $2.3 billion
a year on just the 120 most-com
mon proce
dures that Medicare patients receive, accord
ing to UC Berkeley.
UC Berkeley noted in a recent study that
StateRep.
Greg Rothman
procedures. This system
ensures that patients
receive the best care possible with the same
nurses caring for them throughout their treat
ment.Smaller facilities also help surgical hospi
AUDIENCE DEVELOPMENT
For subscription information and questions, please call
By Jason Scott
UC Berkeley noted in a recent study that
in 2015, Pennsylvania ASCs saved Medicare
$32.6 million on cataract procedures, $1.3
million on upper GI procedures and $6.9 m
il
vanians have been given a convenient and
of their innovative approach.
We all can relate to the phrase, “Surgery is
only minor if it happens to som
eone else.”
Nobody wants to be told they need surgery
and they especially do not want an unpleas
ant surgery experience.
Thanks to ASCs, thousands of Pennsyl
Community First Fund
expanding executive teamECONOMIC DEVELOPMENT
ment.
procedures. This system
ensures that patients
receive the best care possible with the same
nurses caring for them throughout their treat
ment.Smaller facilities also help surgical hospi
doscopy, I have been amazed at the benefits
of their innovative approach.
We all can relate to the phrase, “Surgery is
For subscription information and questions, please call
, Cathy Hirko
Mariah Chuprinski
AUDIENCE DEVELOPMENT
By Jason Scott
Medicare-certified ASCs in Pennsylvania.
The governor expects to take $12.5 m
illion
from these innovative surgical centers, which
tals protect patients from spreading infections
among each other. Th
is large reduction in
nosocomial infections is critical in a surgical
environment.
Not only are patients better cared for at
ASCs, but they face lower costs at these cen
ters than they do at general hospitals. Medic
aid patients face 50 percent lower costs and
patients with comm
ercial insurance plans
pay as low as 25 percent the costs of a hospi
tal-based visit.
In addition to saving patients money, these
practitioners also save Medicare $2.3 billion
a year on just the 120 most-com
mon proce-
dures that Medicare patients receive, accord-
ing to UC Berkeley.
UC Berkeley noted in a recent study that
in 2015, Pennsylvania ASCs saved Medicare
$32.6 million on cataract procedures, $1.3
million on upper GI procedures and $6.9 m
il
Rep.
Greg Rothman
Smaller facilities also help surgical hospi
tals protect patients from spreading infections
among each other. Th
is large reduction in
nosocomial infections is critical in a surgical
Not only are patients better cared for at
ASCs, but they face lower costs at these cen
ters than they do at general hospitals. Medic-
aid patients face 50 percent lower costs and
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bulatory Surgery Association, along with a
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THE SUFFOLK LAWYER - April 2020 19
OF THE SUFFOLK COUNTY BAR ASSOCIATION
SUFFOLK ACADEMY OF LAWApril CLE Programs: Webinars Coming Up!
Welcome to our New Offi cers!The Academy is proud to welcome six new
Offi cers. Offi cers of the Academy help to guide and govern the Academy’s CLE programming and fi nancial stability. Typically Offi cers en-gage in the conceptualization, planning, organi-zation and presentation of Academy-sponsored programs, both in the fi eld of Continuing Legal Education (CLE) and in the promotion of public awareness and understanding of the legal sys-tem and the legal profession.
Mitchell T. Borkowsky – Law Offi ces of Mitchell T. Borkowsky
Michael G. Kruzynski – Court Attorney, Referee/ADR Coordinator, Supreme Court, Suffolk County
Chad H. Lennon – Veterans and Service Members Rights Clinic at Touro Law Center
Jennifer Ann Mendelsohn – Support Magis-trate, Family Court, Suffolk County
Laurette D. Mulry – Attorney in Charge, Le-gal Aid Society of Suffolk County, Inc.
Philip J. Siegel – Siegel & Sitler, PLLC
Let’s Be Social!FIND US HERE
AbsenteesTuesday, April 7, 202012:30 p.m. - 1:30 p.m.1.0 Professional Practice$25
Join us for this one-hour intermediate program about rules and procedures governing absentees and what to do if there is one in an Estate or Trust.
You will learn about absentees in general; administering the estate of an absentee; distributing the estate of an absentee; absentees versus declarations of death; review of cases of interest and issues raised.
Faculty:Marc S. Bekerman, Esq.
Veterans Treatment Court In Criminal CasesTuesday, April 14, 202012:30 p.m. – 1:30 p.m., via ZoomMCLE: 1 Diversity
Veterans Treatment Courts began in Buffalo, New York by Judge Robert Russell in 2008. There are over 460 Veterans Treatments Court as of 2016. Suffolk County has one of the leading Veterans Treatment Courts in the country and has the largest population of veterans in New York State. An attorney who practices in Suffolk County will likely come across a veteran or service member in their practice. This program will give attorneys a better understanding of how the program works and how to determine if the court is in the best interest of their client including how the client is accepted and program expectations.
Faculty and Program Coordinator:Chad Lennon, Esq., Veterans and Servicemembers’ Rights’
Clinic, Touro Law Center
Guidance To Notaries Concerning Executive Order 202.7Friday, April 17, 202012:30 p.m. – 1:30 p.m., via Zoom1.0 Professional Practice
In response to the COVID-19 (Novel Coronavirus) public health emergency, on March 19, 2020 Governor Cuomo signed Executive Order 202.7, which authorizes notary publics to offi ciate documents remotely. Specifi c procedures must be followed to remotely notarize a document. This program will familiarize you with important details about what is allowed, what is required and how real estate closings are currently being conducted in this environment.
Faculty:Michael J. Isernia, Esq., BE, MBAPaul Bugoni, Esq., Vice President and Senior Underwriting
Counsel, at WFG National Title Insurance Company
ABC’s of TrustsTuesday, April 21, 202012:30 p.m. – 2:00 p.m., via Zoom1.5 Professional Practice
Course Description: To trust or not to trust. Anyone with assets should consider how their assets will be distributed to their heirs and a key tool for an estate plan is a trust. This program will teach you the basics of trusts including, why create a trust?; different types of trusts; advice counsel can give to testator/grantor to choosing the right trustee; elements of a trust including Supplemental Needs Trusts.
Speakers:Scott McBride, Esq., Court Attorney, Suffolk Surrogate’s
Court; Kurt Widmaier, Esq., Russo, Karl, Widmaier & Cordano
PLLC, Richard Weinblatt, Esq., Haley, Weinblatt & Calcagni, LLP
Social Media In The WorkplaceFriday, April 24, 202012:30 p.m. – 1:30 p.m., via Zoom1.0 Professional Practice
Over the last couple of decades, the internet and social media have brought signifi cant changes to the workplace. Employers and employees fi nd each other online, and workforces are more mobile, diverse and dispersed. At the same time, the transition to an information economy has changed the nature of work. Companies make greater use of temporary workers and outsourcing. These changes have both increased the importance of identifying and protecting confi dential information and made it more challenging to do so. This course will help attendees identify and advise clients on the challenging legal issues accompanying these changes in the workplace. This course will help you to understand the legal issues associated with use of the internet and social media for recruiting and screening applicants as well as legal issues associated with the use of the internet and social media in the context of the workforce.
Faculty:Lisa Renee Pomerantz, Esq.
Fraudulent ConveyancesTUESDAY, APRIL 28, 202012:30 p.m. – 1:30 p.m., via Zoom1.0 Professional Practice
After nearly 95 years, on December 6, 2019, Governor Cuomo signed the Uniform Voidable Transfer Act (“UVTA”) into law. New York was one of the last states operating under the more antiquated Uniform Fraudulent Conveyances Act. The UVTA modernizes Article 10 of the Debtor and Creditor law and brings it closer in line to comparable provisions of the U.S. Bankruptcy Code. Among other things, the UVTA brings New York’s defi nitions of voidable transfers in line with twenty-fi rst century nomenclature (i.e., from “fraudulent” transfers to “voidable” transfers), will result in clarify and uniformity on the choice of law, defi nition of insolvency, and the burdens of proof in prosecuting and defending voidable transactions. The UVTA is effective with respect to transfers made and obligations incurred on and after April 4, 2020.
This program will compare and contrast the former Article 10 of the Debtor and Creditor Law, the UVTA and the comparable provisions of the Bankruptcy Code.
Faculty:David A. Blansky, Esq., Partner, LaMonica Herbst &
Maniscalco, LLP
A VeRy SPecIAL THANK yoU To oUR ANNUAL SPoNSoRS
Tradition Title Agency, Inc.
THE SUFFOLK LAWYER - April 202020
bearers have had to endure, and I feel grateful that in my life I have not had to endure worse than the coronavirus. There is no minimizing the impact of this pandemic upon our live-lihoods, our economy, our way of life and, most importantly, our health. There is no minimizing the loss of even one life. That is a tragedy that no one should have to bear, and which we must strive to avoid. If it means we need to socially distance ourselves, give up our normal routines, and hunker down at home, it is a small price to pay to stem the tide of this rapacious virus. All of which I re-mind myself as I scour the shelves of Costco for 3 hours, traipse all over Suffolk County
searching for that elusive 4-pack of toilet pa-per (I have given up on the hunt for Purell), and sing Happy Birthday to myself twice as I wash my hands.
For the foreseeable future, the Bar Associ-ation will be closed to the public. Although our attorneys are always welcome. We are still functioning with our staff at limited times, and we will not always be open. We have had to cancel or postpone many events that I know we have all looked so forward to. We have canceled our CLE seminars through March, and beyond, and are postponing other meetings. As unfortunate as that is, it is more important that we focus on staying healthy.
Of course, our terrific staff, with Executive Director Sarah Jane LaCova at the helm, is keeping us functioning and abreast of all we need to accomplish.
When I began my year as president of this illustrious bar association last June, I asked you all to Do One Thing. So many of you have risen to the challenge and so graciously volunteered your time, expertise and good-will to do just that. I have been overwhelmed with the outpouring of effort and commit-ment from you all. This bar association is tru-ly a place to call home. We strive to be that home for you as we navigate through these trying times. To that end, if you have any
questions or concerns, please do not hesi-tate to contact the bar association or myself. We are here for you. A calamity like this can bring out the worst in people or the best in people. I have certainly seen the best. I do be-lieve we will come out of this stronger and better as individuals and as a nation. Togeth-er we can do what we could never do alone.
You can still do one thing through this health crisis. Take care of yourselves, think of others, appreciate what we have and love your family and friends (from a distance of six feet).
Be well and stay healthy,
President’s Message (Continued from page 1)
A Focus on Hospital Law — COVID – 19 and Your Clients (Continued from page 1)ligation of the providers to seek payments of those shares directly from the member-pa-tients. The emergency regulations prohib-it providers from charging copayments and billing patients for the deductible and coin-surance amounts the patients are required to pay. Good news for patients. Problematic for providers. Payer systems are designed to de-duct patient shares and it is uncertain at this early stage just how successful payers will be in “tweaking” their systems to include what otherwise would be the excludable pa-tient portions when they entertain provider claims for COVID-19 related services. This presumes, of course, that payers actually will pay those portions and not simply interpret the emergency regulations to mean that the patients can’t be charged.
Next, DFS temporarily has suspended cer-tain concurrent (in hospital) clinical utiliza-tion reviews for medical necessity and pro-vider admission notification requirements for 90 days from the date of the Circular Letter effecting same (Insurance Circular Letter No. 8 March 20, 2020). DFS also suspended pre-authorization clinical reviews for scheduled
surgeries or admissions (health insurers and plans may retrospectively review these ser-vices when the emergency regulations sun-set.) Your client’s health plan should pay claims from in-network hospitals that are otherwise eligible for payment without first reviewing the claims for medical necessity, and to the extent necessary, request informa-tion to perform a retrospective review, rec-oncile claims and make any payment adjust-ments only after 90 days from the date of the letter, subject to further regulatory evaluation as the COVID-19 situation develops.
DFS is suspending preauthorization re-quirements for home healthcare services fol-lowing an inpatient hospital admission. Plans may review home healthcare services for medical necessity concurrently or retrospec-tively but not in advance.
DFS is also suspending preauthorization requirements for inpatient rehabilitation ser-vices following a hospital admission.
Finally, skilled nursing facilities may not deny admission of a patient or readmission of a resident solely based on a confirmed or sus-pected diagnosis of COVID-19. The nursing
home also may not require that a hospitalized resident who is medically stable to return be tested for COVID-19. Importantly, to avoid the not infrequent occurrence of a delay due to disagreements between the hospital at-tending and the nursing home medical offi-cer over a patient’s condition, any hospital-ized resident is deemed appropriate for return to the nursing home upon a determination by the hospital physician that the resident is medically stable for return.
For Medicare Advantage plans and Medi-care Part D prescription plans (which, after all, are privately run by health insurers on a risk basis) CMS issued guidance, not man-datory requirements, allowing them to waive cost sharing for COVID-19 tests and treat-ments in doctor’s offices or emergency rooms and services delivered via telehealth, remove prior authorization requirements, waive pre-scription refill limits and relax restrictions on home or mail delivery of prescription drugs. In states where the governors have declared an emergency, Medicare Advantage plans must however immediately cover services at out-of-network providers at the in-network
cost-sharing rate and waive gatekeeper refer-ral requirements.
For any clients who may pay for their health care through so-called “high-deduct-ible plans” funded by “health savings ac-counts” the IRS has issued guidance that em-ployers also may waive cost-sharing amounts for COVID-19 testing and treatment prior to a covered member meeting an annual deduct-ible. This is all optional, however; each indi-vidual plan may or may not implement any of this.
For health care providers of all kinds, pa-tient care always comes first. We’ll figure out the rest of it once the emergency passes.
Note: James Fouassier, Esq. is a staff as-sociate with the Department of Managed Care at Stony Brook University Hospital, Stony Brook, New York and former Co-Chair of the Association’s Health and Hospital Law Committee. His opinions are his own. He may be reached at: [email protected]
Similarly, when a prospective purchaser attempted to use the impossibility of perfor-mance defense based on the loss of nearly of all of his personal assets as a result of the Bernie Madoff scandal, the court found that the default should not be excused and that the seller was entitled to retain the purchaser’s down payment as liquidated damages for the breach.9
In a case concerning an executive order, the Appellate Division, First Department dealt with a company that had purchased insurance against an air traffic controller’s strike that would disrupt its necessary distri-bution chain.10 The policy provided that there would be no liability to the carrier unless the strike continued for seven days.11 When a strike eventually occurred, it was unforesee-ably terminated by declaration of President Reagan firing all of the air traffic controllers three days after the strike began.12 Although the court found that there have been circum-stances where governmental acts have truly made performance impossible, and that there was no way that the company could have rea-sonably anticipated that the president would end the strike by firing all of the air traffic
controllers, the facts here did not constitute a sufficient impossibility of performance de-fense.13 Instead, the court relied on a strict interpretation of the contractual provision as written: three is less than seven.14
This is not to say that there is not law to sup-port the use of the defense when an action truly renders performance impossible. The Appel-late Division, First Department also dealt with a transportation company that had contracted with the City of New York to furnish, among other things, tugboat services for sanitation barges.15 Subsequently, there was a portwide strike and there was no practical way for the company to provide the contracted for tug-boat services to the city.16 As a result, the court found that the transportation company may not be liable to the city for its failure to provide the services as result of the impossibility of its per-formance and it reversed the trial court’s grant of summary judgment in favor of the city.17
Finally, in a case arising from the tragedy that took place on Sept. 11, 2001, a court held that the untimely cancellation of an African safari could be excused by the impossibility of performance defense based on a claim that timely communicating the cancellation from
Staten Island was impossible in the immedi-ate aftermath of the terrorist attacks.18
Ultimately, the underlying facts leading to the assertion of an impossibility of perfor-mance defense will be determinative as to its potential success. It seems clear that the fi-nancial consequences of the COVID-19 pan-demic will not, standing alone, be enough to excuse performance. However, if the perfor-mance is truly rendered impossible by the closure of a business that cannot operate as a result of the governor’s stay-at-home or-der, then it may be possible that contractual performance will be excused, or, at the very least, the time to perform tolled until perfor-mance is no longer impossible.
Note: Jarrett M. Behar, a partner of the firm Certilman Balin Adler & Hyman, LLP, practices in the areas of commercial litiga-tion, real estate development and construc-tion law. He is the co-chair of the Suffolk County Bar Association Transactional and Corporate Law Committee, an Officer and Associate Dean of the Suffolk Academy of Law and the Vice-President of the Commack Union Free School District Board of
Education. For additional information con-cerning this article, please feel free to contact Mr. Behar at [email protected].
1. See Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900, 902 [1987].2. See id.3. See id.4. See id. (citing, inter alia, 407 E. 61st Garage v. Savoy Fifth Ave. Corp., 23 N.Y.2d 275 [1968]).5. See <https://www.nytimes.com/article/corona-virus-timeline.html>6. See RW Holdings, LLC v. Mayer, 131 A.D.3d 1228, 1229 [2d Dep’t 2015]. 7. See id.at 1230.8. See id. (citing Pleasant Hill Developers, Inc. v. Foxwoods Enters., LLC, 65 A.D.3d 1203, 1206 [2d Dep’t 2009]).9. See Sassower v. Blumenfeld, 24 Misc.3d 843, 845-46 [Sup. Ct. Nassau County 2009]. 10. See Metpath Inc. v. Birmingham Fire Ins. Co. of Penn., 86 A.D.2d 407, 408 [1st Dep’t 1982]. 11. Id. at 409-410. 12. Id. at 408.13. See id. at 411-413. 14. See id. at 413-414.15. See City of N.Y. v. Local 333, Marine Division Int’l Longshoreman’s Assoc., 79 A.D.2d 410, 411 [1st Dep’t 1981].16. Id. at 413. 17. See id. at 414.18. See Bush v. ProTravel Int’l, Inc., 192 Misc.2d 743, 7753-754 [Sup. Ct. Richmond County 2002].
Contract Law (Continued from page 6)
THE SUFFOLK LAWYER - April 2020 21
served upon the alleged decedent by pub-lication (the citation will only be required to be served upon the alleged decedent and those other persons determined to be neces-sary by the court); a Guardian ad Litem will be appointed for the alleged decedent and a hearing will be held by the court.
Unlike the appointment of a temporary administrator, if relief is granted under this statute, the alleged decedent will be de-clared to be dead and the persons interest-ed in his or her estate can proceed accord-ingly. As such, it may be appropriate as part of the petition to seek either the probate of the alleged decedent’s Last Will and Testa-
ment or the appointment of an administrator for the alleged decedent’s estate. If such is not requested in the petition, additional pro-ceedings in the Surrogate’s Court may be commenced based upon the fi nding of death entered by the court in the proceeding pur-suant to EPTL § 2-1.7. Of course, in seeking such additional relief in the petition, there may be additional persons who may become interested parties in the proceeding.
Some of the implications of a declaration of death that are not presented by the ap-pointment of a temporary administrator in-clude: Probate of the alleged decedent’s will; distribution of the alleged decedent’s prop-erty under intestacy; allowing property to pass to surviving joint tenants where the al-leged decedent owned property jointly with rights of survivorship; allowing property to pass to named benefi ciaries by operation of law; allowing the acceleration of a life estate in property to permit the next estate to suc-ceed to the property; if the alleged decedent owned shares of a corporation subject to a buy-sell agreement on the death of one of the
shareholders, permitting the other sharehold-ers to purchase his shares under the agree-ment; and permitting the commencement of certain judicial proceedings that may other-wise be unavailable such as a cause of action for the person’s wrongful death.
If a person declared dead under EPTL § 2-1.7 returns alive, the court can vacate the fi nding of death and revoke the Letters of Administration issued to his or her fi ducia-
ry (or the Letters Testamentary as the case may be). The returning person’s property rights are governed by SCPA § 911, which as discussed in the prior article says that if the court has ordered distribution of the ab-sentee’s assets and terminated the absentee’s rights in his property, the absentee cannot bring an action for its return.
There are differences between proceed-ing under SCPA Article 9 as an absentee and proceeding pursuant to EPTL§ 2-1.7 seeking a declaration of death. As such, there are factors which may need to be tak-en into consideration.
One consideration is that the proofs re-quired for relief under EPTL §2-1.7 are more stringent than the proofs required for the appointment of a temporary administra-tor under SCPA Article 9. As such, a prac-titioner should assess whether the proofs at hand are likely to obtain relief under EPTL §2-1.7. One alternative may be for the peti-tioner to seek appointment under Article 9 as temporary administrator to handle the ab-sentee’s affairs while he or she accumulates the necessary proofs to seek the declaration of death of the missing person.7
The administration of property of a per-son who disappears can be complicated. The Surrogate’s Court is an appropriate venue for two different proceedings depending on the type of relief sought, whether to proceed for the appointment of a temporary adminis-trator to administer the property of the estate of the missing person as an absentee or to seek a declaration of death for the absentee
and the consequences thereof.
Note: Kera Reed is the co-chair of the Surrogate’s Court Committee and the Supervising Attorney in the Trusts and Estates Department at Burner Law Group, P.C.
1. A separate section allows the distribution of a decedent’s estate after three years and a diligent search by presuming that missing distributees predeceased the decedent without issue. See SCPA § 2225. 2. EPTL § 2-1.7(c) recognizes that other statutes may have their own presumption-of-death pro-visions such as Real Property Actions and Pro-ceeding Law §§991, 1391 (presumption of death of heirs in actions for partition of real property and mortgage foreclosure) (25 years); §1211(3) (presumption of death of co-tenant) (7 years). 3. If there is another explanation for the absence, relief under EPTL § 2-1.7 will likely be denied. See Matter of Kutner, 57 A.D.2d 697, 395 N.Y.S.2d 540 (4th Dep’t 1977). 4. In 2000, the legislature added the last clause of subparagraph (a), which allows the Court to set the date of death earlier than three years from the disappearance in response to Matter of Cosentino, 177 Misc.2d 629, 676 N.Y.S.2d 856 (Surrogate’s Court, Bronx County 1998.5. One recent example of note of specific peril was the September 11th attack on the World Trade Center. Expedited procedures were im-plemented to provide death certificates for the victims if certain criteria were met, but EPTL § 2-1.7 remained available to seek a declaration of death if the criteria were not met. See In Matter of LaFuente, 191 Misc.2d 577, 743 N.Y.S.2d 678 (Surrogate’s Court, Dutchess County 2002).6. See Matter of Downes, 136 Misc.2d 1031, 518 N.Y.S.2d 558 (Surrogate’s Court, Suffolk County 1987).7. See Matter of Feng, N.Y.L.J., June 22, 2011, at 26, col. 6 (Surrogate’s Court, Queens County)
Surrogate (Continued from page 4)
the disputed expert testimony and that gener-al acceptance of scientifi c principals did not require the testimony of an expert at trial. The expert testimony proposed by the plaintiff re-garding DTI was not yet generally accepted in neurology for the use in clinical treatment of individual patients. It could not therefore, be presented before a jury.
Honorable William B. Rebolini
Motion to disqualify denied; law fi rm had not represented defendant with regard to sale of subject property or other transactions re-garding the subject property.
In Andre Gera and Gera Realty LTD v. KA & B Properties Inc., Robert O’Connor, Ka-tia O’Connor, Breana O’Connor, Alida Con-sole a/k/a Alida Lang, individually and d/b/a KA & B Properties and Foreclosure Experts USA, KA & B Properties and Foreclosure Experts USA, Index No.: 621640/2019, de-cided on Feb. 19, 2020, the court denied the defendant, Robert O’Connor’s motion for an order prohibiting the Law Offi ces of John B. Zollo, P.C. from representing the plaintiffs. Here, defendant argued that the law fi rm had represented him on several matters in the past, without further explanation. In opposi-tion, the law fi rm conceded that it represent-ed certain “LLCs, of which Mr. O’Connor was a member, in the purchase of certain real properties…” Defendant, O’Connor had not alleged that the law fi rm represented him in connection with the sale of the subject real property or any other transactions involving the subject real property that are alleged in the complaint or the purported counterclaim
of defendant O’Connor. Accordingly, the court denied the motion to disqualify.
Motion to dismiss amended complaint granted; plaintiff received the full policy limits.
In Robyn Cannariato and Michael Anerel-la, individually and as Members of and on behalf of 28 Baycrest Drive, LLC v. Nation-al General Insurance Company, Helmsmann Insurance Agency, LLC, Gregory H. DiPen-ta, and Liberty Mutual Insurance Company, Index No.: 623302/2018, decided on Jan. 10, 2020, the court granted the defendants’ mo-tions to dismiss the amended complaint.
In rendering its decision, the court noted that based upon the undisputed facts and the express terms of the insurance agreement, plaintiffs’ breach of contract claims was dis-missed as a matter of law. Plaintiff received the full policy limits covering the subject premises and its contents. Plaintiffs could not now rewrite the policy and eliminate the ap-plicable limits of liability. On another note, with regard to 28 Baycrest, the court noted that it was not a party to any contracts or any transactions herein, and thus, it had no stand-ing to allege claims against any of the defen-dants. Specifi cally, the court pointed out that 28 Baycrest was never involved in their in-surance policy application process, was nev-er a client of defendants DiPenta or Helms-mann and never made a request for insurance coverage. Since plaintiff 28 Baycrest could not allege claims against the defendants and the policy had been exhausted, plaintiffs’ re-quest to reform the policy to add 28 Baycrest as an additional insured was futile.
Honorable Carmen Victoria St. George
Motion for summary judgment as to lack of informed consent granted; moving defen-dants did not perform the subject surgery.
In Cristopher Canterino, as executor of the estate of Stephanie Canterino, deceased, and Christopher Canterino, individually v. James N. Romanelli, M.D., James N. Romanel-li, M.D., P.C., North Shore Plastic Surgery, P.C., North Shore Amsurgery, P.C., Roberta A. Bianco, D.O., Roberta A. Bianco, D.O., P.C., Ferdinand Deblasio, M.D. a/k/a Fred Deblasio, Jr., M.D. and Huntington Hospital, Index No.: 612738/2015, decided on Sept. 30, 2019, the court granted the branch of the motions by defendants Dr. Bianco and her practice, as well as Dr. DeBlasio and Hun-tington Hospital.
In rendering its decision, the court noted that Dr. Bianco’s expert did not address this cause of action. At oral argument of the in-stant motion, the issue of informed consent was not raised by the plaintiff or the defen-dant; instead, the issue was narrowed by the court to the essential questions as to whether Dr. Bianco should have cleared plaintiff for the surgery. Since Dr. Bianco did not perform the surgery and that the only consent for the surgery was signed between the decedent and Dr. Romanelli’s offi ce, the court dismissed the lack of informed consent as to Dr. Bianco and her practice. With regard to the summary judgment motions of defendants Dr. DeBla-sio and Huntington Hospital as to the cause of action for lack of informed consent, for the same reasons, that the court granted summa-ry judgment dismissal on that cause of action
as to Dr. Bianco and her practice, the court granted summary judgment and dismissed the cause of action for lack of informed con-sent as to Dr. DeBlasio and Huntington Hos-pital.
Note: Elaine Colavito graduated from Touro Law Center in 2007 in the top 6% of her class. She is a partner at Sahn Ward Coschignano, PLLC in Uniondale. Ms. Colavito concentrates her practice in matri-monial and family law, civil litigation, immi-gration, and trusts and estate matters. She is the immediate past president of the Nassau County Women’s Bar Association.
Bench Briefs (Continued from page 6)
The administration of property of a person who disappears can be complicated. The Surrogate’s Court is an appropriate venue for two different proceedings depending on the type of relief sought, whether to proceed for the appointment of a tempo-rary administrator to administer the property of the estate of the missing person as an absentee or to seek a declaration of death for the absentee and the consequences thereof.
STAY UP TO DATE ON THE GO WITH
THE SUFFOLK LAWYER - April 202022
all income a debtor received during the six-month period prior to filing had to be includ-ed in the income calculation for Chapter 7 eligibility purposes or Chapter 13 dispos-able income calculations. The CARES Act excludes any government coronavirus pay-ments from being treated as income for the means test.
Existing Chapter 13 CasesMany debtors in existing Chapter 13 cases
will fall behind with their monthly plan pay-ments and post-petition mortgage payments. Previously, when debtors fell behind because of some short-term financial setback or de-crease in income, they were able to bring a motion to modify their plan post-confirma-tion to either increase the remaining pay-ments to incorporate the missed payments, or if the situation permitted it, to decrease their remaining payments. However, under no cir-cumstance was a debtor permitted to extend the plan past the maximum five-year period.
The CARES Act explicitly permits exist-ing debtors to modify confirmed plans based on a material financial hardship related to the coronavirus pandemic and also permits them to extend payments for up to seven years after the initial payment was due. The additional two years will enable many ex-isting Chapter 13 debtors to soften the blow of being out of work for a period of time. It is anticipated that the court and trustees will develop a process to make post-petition modifications as easy as possible for those who need them.
Chapter 11 cases for small business debtors
On Feb. 19, 2020, the Small Business Reorganization Act became effective. This created a brand new type of bankruptcy,
Subchapter V (or 5), which was enacted to reduce the cost and expense for small busi-nesses who sought to reorganize. It was lim-ited to those debtors whose debts did not ex-ceed $2.7 million. (This was the topic of last month’s column.) Subchapter V debtors are able to take advantage of special streamlined reorganization procedures and simpler con-firmation standards.
The big news is that the CARES Act great-ly expands Subchapter V eligibility by in-creasing the debt limit to $7.5 million for a period of one year. This should enable a much greater number of businesses and indi-viduals to avoid the more costly and more in-volved standard Chapter 11 proceeding. We should therefore expect to see a flood of these new cases.
The new Subchapter V eliminates some of the more involved procedures required by traditional Chapter 11 filings, such as disclo-sure statements, and provides some of the ex-pedited procedures utilized by consumers in Chapter 13 cases, which are centered around a payment plan.
ForeclosuresThe CARES Act prohibits most foreclo-
sure activity on federally backed mortgage loans for a 60-day period beginning March 18, 2020. Mortgage servicers may not initiate any judicial or nonjudicial foreclosure pro-cess, move for a foreclosure judgment, order a sale, or execute a foreclosure-related evic-tion or foreclosure sale.
In addition, the Act provides up to one year of forbearance for borrowers under federal-ly backed mortgages who have experienced financial hardship related to the COVID-19 pandemic. During a period of forbearance, no fees, penalties, or interest shall accrue on the borrower’s account beyond the amounts
scheduled or calculated as if the borrower made all contractual payments on time and in full under the terms of the mortgage contract.
These provisions only apply to federally backed mortgages which cover about two-thirds of all mortgages. Federally backed mortgages include those purchased or secu-ritized by Fannie Mae or Freddie Mac; or in-sured by the Federal Housing Administration or the U.S. Department of Veterans Affairs.
It should be noted that during the week of March 16, 2020, which predated the signing of the CARES Act, the District Administra-tive Judge for each New York state county, including Nassau and Suffolk, issued an Ad-ministrative Order which indicated that un-til rescinded, no foreclosure auctions shall be held. A few days later, on March 20, 2020, Gov. Andrew Cuomo issued Executive Order 202.8 which mandated that there shall be no “foreclosure of any residential or commercial property for a period of ninety days.”
In addition, on March 22, 2020, the New York Office of Court Administrator’s Order No. 78 directed court clerks not to accept fil-ings in non-essential cases “until further or-der.” Since foreclosure cases are deemed non-essential cases, this means that lenders may not file any new foreclosure cases until the Court Administrator rescinds that order.
Accordingly, based on how devastating coronavirus is affecting New York right now, it is highly likely that there will not be any foreclosure activity of any kind for a good number of months.
Mortgage forbearanceThe CARES Act permits borrowers with
federally backed residential mortgage loans to request a forbearance from making pay-ments for up to 180 days, with the ability to request an extension for an additional 180-day period. It is also anticipated that all ma-jor lenders will eventually offer various pro-grams to enable their borrowers suffering from COVID-19 financial hardship to work out arrangements to satisfy mortgage arrears.
In addition, on March 24, 2020, the New York State Department of Financial Services issued an emergency law (New Part 119 to 3 NYCRR — Emergency Relief for New Yorkers Who Can Demonstrate Financial Hardship As a Result of Covid-19), effective to April 20, 2020 and any subsequent renew-al period. This law establishes a “COVID-19 Relief Program.” Regulated entities must make “widely available” to New York bor-rowers demonstrating financial hardship caused by COVID-19, a forbearance of 90 days. Federally guaranteed and GSE loans are exempted. The law requires that within 10 business days, regulated institutions must provide an application process for borrowers. Regulated institution means any New York regulated banking organization as defined under New York Banking Law and any New York regulated mortgage servicer entity sub-ject to the authority of the department.
Student loansThe Act also provides relief to individu-
als with student loans by giving them a six-month payment holiday.
Staying up to date with bankruptcy court procedures
As the pandemic initially swarmed New York in mid-March, our courts and the Office
of the U.S. Trustee began posting COVID-19 guidelines, protocols, emergency procedures and administrative orders which, for a peri-od of time, changed almost daily as the situ-ation worsened. All Bankruptcy Court hear-ings, if they were not already automatically adjourned, were to be held telephonically as the courts closed to almost all visitors and at-torneys. Hearings on motions, which are or-dinarily required, were dispensed with unless a party insisted. Almost any motion could be adjourned upon request by any party.
The Bankruptcy Court for the Eastern Dis-trict of New York website (nyeb.uscourts.gov) contains up-do-date details of emergen-cy COVID-19 protocols. Each bankruptcy judge has his or her own COVID-19 emer-gency procedures. Counsel should check the website regularly to see if there are any new updates. The court has also been sending email updates to ECF registered attorneys.
Staying up to date with Supreme Court procedures
The New York Unified Court System web-site (nycourts.gov) also contains current up-dates regarding the state courts’ COVID-19 policies and procedures.
Trustees and 341 HearingsMichael Macco, one of the two Chapter 13
standing trustees in our district, and his sig-nificant other, Lynn, were both hospitalized with coronavirus. On behalf of the bankrupt-cy bar, we wish them a speedy recovery.
On March 17, 2020, the U.S. Trustee is-sued a notice that all 341 hearings scheduled through April 10, 2020, would be automat-ically adjourned to a future date not yet de-termined. Based on the grim current state of the pandemic in New York, it is highly likely that the U.S. Trustee will extend the adjourn-ments to all hearings through at least the end of April.
It is anticipated that the U.S. Trustee will develop new protocols and procedures to en-able trustees to conduct meetings of creditors with little or no actual face-to-face contact. In the past, trustees permitted some hospi-talized, incarcerated or homebound debtors to appear telephonically. Perhaps such tele-phonic hearings or video conferencing will replace in-person appearances at the court-house for section 341 hearings until the coro-navirus situation is under control.
We are all in this together. The court’s various emergency procedures are all de-signed to keep people safe and prevent the spread of the virus. At some point we will return to normalcy; however, this may take some time. Those who are bankruptcy and foreclosure defense attorneys have the abil-ity to help many Long Islanders overcome some of the tragic consequences of corona-virus and get a fresh new financial start or prevent foreclosure.
Note: Craig D. Robins, a regular colum-nist, is a Long Island bankruptcy and fore-closure defense lawyer who has repre-sented thousands of consumer and busi-ness clients during the past 33 years. He has offices in Melville, Coram, and Valley Stream. (516) 496-0800. He can be reached at [email protected]. Please visit his Bankruptcy Website: www.BankruptcyCanHelp.com and his Bankruptcy Blog: www.LongIslandBankruptcyBlog.com.
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THE SUFFOLK LAWYER - April 2020 23
Appeals, “Postmates food delivery drivers are not the company’s employees because the ser-vice simply connects couriers to customers.”3
Postmates, like many other application based services, argued that the computer/phone application is just “a matching sys-tem…a mechanism for people who want things to be delivered to find people who are willing to make those deliveries.” While the decision addresses the case of Luis A. Vega, “Postmates and other platform companies, like Uber and Lyft, face mounting legal and legislative challenges to a core aspect of their business model: the classification of drivers connected to customers as self-employed en-trepreneurs, rather than employees.” Indeed, like outsourcing labor to sweatshops outside of the United States, that recurrent business model relies on avoiding paying employee benefits and taxes.
States and other municipal entities are push-ing back against the free ride that these en-trepreneurial exceptors have obtained so far: a glut of workers essential to their business without having to pay those pesky perks oth-erwise mandated by law. Indeed, “[a] similar battle between Uber and regulators in New Jersey spotlights the possible financial im-plications [which resulted in] a $650 million bill for unpaid employment and temporary disability taxes, finding that the company has been misclassifying workers as independent contractors.” It is likely that reasonable regu-lation would, among other things, have avoid-ed the need for New York Court of Appeals to hear In the Matter of the Claim of Luis A. Vega v. Postmates Inc.
2020: Redefining employee- employer relations
Postmates’ couriers are entitled to unem-ployment benefits. “New York’s Court of Ap-peals has reinstated a 2015 decision determin-ing that couriers for on-demand delivery app Postmates should be classified as employees, making them eligible for unemployment in-surance at a time when the U.S. is seeing re-
cord job losses due to the coronavirus pan-demic.”4 Although it is hard to imagine a lack of work for these persons during the shelter-in-place orders currently in place throughout the world, such “delivery app[s]” require a certain level of quality control mostly guided by user ratings.
These formidable frontline favorites among those vulnerable, stuck at home or confined to their couch are run by gig workers. “Typically, gig workers are classified as independent con-tractors, which means they are ineligible for unemployment benefits or healthcare.” The legal fiction coupled with the side hustle slo-gan was that these “gig workers” were able to make their own hours while driving for a “delivery app.” From food and booze to peo-ple and papers, courier services are not new to New York while the idea that one could re-move the independent contractor label was a novel idea.
The Matter of Luis A. Vega5 upholds the decision of the Unemployment Insurance Appeals Board by substantial evidence, find-ing that “Postmates exercised control over its couriers sufficient to render them employees rather than independent contractors operat-ing their own businesses.”6 Of course, the le-gal fiction that allowed this system to operate was that the level of control was “incidental” and that these gig workers “were free to cre-ate their own customer following.”7 The stark reality, however, “is to get the delivery done and get paid by Postmates. There is no value in an independent relationship with any one customer since it will not lead to economi-cally beneficial future business.”8 Citing the United States Census Bureau and the United States Bureau of Labor Statistics, Judge Ri-vera concurred in the result but admonished the gig worker exception.
Judge Jenny Rivera explained the history of New York’s Unemployment Law and made clear that “[a]lthough the legislature has not defined the term “employee,” it has designat-ed certain workers as such…and authorized the Commissioner of Labor to determine eli-
gibility for unemployment insurance benefits for all other workers.”9 Judge Rivera’s con-currence thoroughly explains how the result in is accord with agency law, employment law and the establishment of an employer-employ-ee relationship.
While concurring in the result, Judge Jen-ny Rivera “reach[ed] that conclusion [con-sidering] the extent to which an employer prevents worker entrepreneurialism and the worker’s exercise of entrepreneurial control over important business decisions.”10 Judge Rowan D. Wilson, dissenting, focused on the failure of the legislature to act in this new era of technology.
“A world where work looks much different”
Judge Wilson, dissenting, brings clarity to the staggering statistics cited by Judge Rivera in addressing what appears to be the new re-ality. If Judge Rivera described the proverbial elephant in the room, Judge Rowan D. Wilson hoisted it out and set up a spotlight — we need legislation to address the gig worker economy.
The year is 2020. We live in the 21st Century. While couriers, curbside delivery and dating have an “app for that” our New York Legislature needs to create legislation and assist the courts. Judge Rowan D. Wil-son bemoans this in his dissent: “[w]hether, to what degree, and on what basis we wish to provide unemployment benefits to Post-mates couriers generally, or to other workers in the gig economy, is a policy question best left to the Legislature.”11
As the demand for these “essential” ser-vices have skyrocketed, we bear witness to the unionization and growing advocacy of the gig workers who make these applications function and who are starting to demand accountabili-ty and benefits. Rideshare Drivers United has been striking12 while www.gigworkersrising.org touts that “Uber and Lyft drivers need a fair share.” While California has witnessed the passage of legislation entitling these work-ers to benefits and allowing “millions of new
workers [the] right to join labor unions,” New York has remained stagnant although the im-primatur of injustice remains.
Note: Named a SuperLawyer, Cory Morris is admitted to practice in NY, EDNY, SDNY, Florida and the SDNY. Mr. Morris holds an advanced degree in psychology, is an adjunct professor at Adelphi University and is a CASAC-T. The Law Offices of Cory H. Morris focuses on helping individuals facing addiction and criminal issues, acci-dents and injuries, and, lastly, accountabil-ity issues.
1. NYS Attorney General, March 26, 2020 Press Release, Attorney General James Scores Major Win for ‘Gig’ Workers with Victory in Postmates Case, NYS Attorney General (last access on March 30, 2020), available at: https://on.ny.gov/2vVpAjE.2. AO/78/20, Administrative Order of The Chief Administrative Judge of The Courts: Essential Proceedings, dated March 22, 2020, available at: https://www.nycourts.gov/whatsnew/pdf/AO-78-2020.pdf.3. Karl Hardy, Postmates Fights Driver’s Employee Status in New York Court, Bloomberg Law (Feb-ruary 11, 2020), https://bit.ly/3avm6Uf. 4. Jay Peters, Postmates couriers are eligible for unemployment benefits, rules New York appeals court, The Verge (March 27, 2020), https://bit.ly/3dHSJQn.5. In the Matter of the Claim of Luis A. Vega v. Postmates Inc., No. 13 (New York Court of Ap-peals, March 26, 2020), available at: https://www.nycourts.gov/ctapps/Decisions/2020/Mar20/13o-pn20-Decision.pdf (“Postmates”).6. Id. at P. 6.7. (citing Matter of Yoga Vida NYC, Inc., 28 N.Y.3d 1013, 64 N.E.3d 276, 41 N.Y.S.3d 456 (2016)). 8. Postmates, supra (J. Rivera, concurring in result), P. 16.9. Id. at P. 6 (citations omitted).10. Id. at P. 18.11. Postmates, supra (J. Wilson, dissenting), P. 23.12. Lauren Kaori Gurley, Gig Workers Are Form-ing the World’s First Food Delivery App Unions, VICE (October 9, 2019, https://bit.ly/2wPeCg1; Alexia Fernández Campbell, Gig workers’ win in California is a victory for workers everywhere, Vox (September 11, 2019), https://bit.ly/39qS4ja.
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THE SUFFOLK LAWYER - April 202024
Tax (Continued from page 10)rately filed, any other forms that are due at the same time as the partnership’s tax return. This failure may very well result in the im-position of penalties.
“Not again” Let’s assume the partnership figures out
that the fiscal tax year chosen by a deceased partner’s Estate will require a change in the partnership’s own tax year. Let’s also assume that the partnership acts accordingly.
The Estate remains a partner of the fiscal year partnership, at least for tax purposes,16 until the administration of the Estate is com-pleted. At that point, the Estate will distribute the decedent’s partnership interest as directed by the latter’s will or trust.17
Because the beneficiaries of a decedent’s Estate will almost certainly be individuals who use the calendar year as their taxable year, the partnership may experience anoth-er “new” majority interest taxable year, but will it again have to change its own required taxable year?
In general, the answer is yes. However, be-cause the partnership was required to change to a new majority interest taxable year when the Estate selected its fiscal year, then no fur-ther change in the partnership’s taxable year will be required for either of the two years following the year of the change;18 mean-ing, if the Estate’s distribution of the partner-
ship interests occurs beyond this “safe” peri-od, the partnership may be required to again change its taxable year, based upon the tax-able years of the beneficiaries.
Avoid surprisesCan a partnership and its partners devel-
op a plan, or a framework, for anticipating and dealing with the issues posed above? Of course they can. Well, they can at least try.
For example, the partnership agree-ment may require that the part-ners make their estate plans known to the partnership’s management team. It may also require that all proposed trans-fers of a partnership interest be reported to the partnership, whether or not such transfers are “permitted transfers” under the terms of the agreement.
The partnership agreement may also re-quire that the Estate keep the partnership’s management team informed of the Estate’s plans for selecting a taxable year. Query whether it would be appropriate to require that the partnership’s consent be obtained be-fore such a taxable year is chosen, or that the Estate demonstrate that the proposed taxable year will not require a change of the partner-ship’s own taxable year?
Finally, it may behoove everyone con-cerned, even without regard to the issue of the taxable year, if the partnership were sim-
ply required to redeem the Estate’s interest.20
Note: Lou Vlahos, a partner at Farrell Fritz, heads the law firm’s Tax Practice Group. Lou can be reached at (516) 227- 0639 or at lvlahos@farrellfritzcom.
1. IRC Sec. 706(c)(2)(A). The partnership’s tax-able year does not close as a result of the death of a partner. Reg. Sec. 1.706-1(c)(1). 2. Reg. Sec. 1.742-1. See also IRC Sec. 1014, Sec. 752, Sec. 753, and Sec. 691. 3. IRC Sec. 754, Sec. 743. The adjustment only occurs with respect to the transferee partner (the Estate). 4. IRC Sec. 1(e), Sec. 641 et seq. 5. The formerly revocable or living trust that be-came irrevocable upon the grantor-partner’s death. 6. IRC Sec. 644. There is an exception to this rule for “qualified revocable trusts” under IRC Sec. 645. 7. As distinguished from the “Estate” as defined herein.8. There is no rule comparable to IRC Sec. 644 that applies to estates. As a new taxpayer, the estate must determine when its taxable year will end. In general, the estate chooses its taxable year when it files its first income tax return (IRS Form 1041). The estate’s first taxable year may be any period of twelve months or less that ends on the last day of a month. 9. From Hamlet’s soliloquy on suicide: “To die, to sleep, to sleep perchance to dream: Ay, there’s the rub. For in the sleep of death, what dreams may come.” 10. IRC Sec. 645. The trust must be a qualified revocable trust. Sec. 645(b)(1). 11. IRC Sec. 645(b)(2) defines the applicable date as follows: if no estate tax return (IRS Form 706) is required to be field, it is the date which is two years after the date of death; if such a return is
required to be field, it is the date which is six months after the date of the final determination of estate tax liability. 12. For example, assume a partnership’s required taxable year ends December 31. One of the partners dies on October 10, 2020. The part-ner’s death does not, by itself, change or close the partnership’s taxable year. The deceased partner’s estate chooses a fiscal year that ends on September 30; thus, its first tax year will run from October 11 2020 through September 30, 2021. Assume that the estate’s selection of a fiscal year causes a change in the partnership’s required majority interest taxable year from one ending December 31 to one ending on September 30. The partnership will have to file a short period return for the period beginning January 1, 2021 and ending September 30, 2021. 13. Reg. Sec. 1.706-1(b)(8); IRC Sec. 443; Reg. Sec. 1.443-1. Basically, a closing of the books. 14. Which may also include extensions of the time prescribed for filing.15. Depending upon the election, the automatic relief provision under Reg. Sec. 301.9100-2 may not be available. 16. Its status as a matter of state law may be that of a mere economic interest holder. It also may be that the Estate has only those partner-related rights that are necessary for settling the dece-dent’s estate or administering their property. See, e.g., NY’s LLCL, Sec. 608. 17. Don’t forget that the distribution may carry out the estate’s DNI. IRC Sec. 662. 18. IRC Sec. 706(b)(1)(4)(B). 19. This is not unusual in the case of S corpora-tions and their shareholders, where it is impera-tive that the corporation’s shares not be trans-ferred to persons who are not qualified to own such shares. See IRC Sec. 1361(b), (c), (d) and (e).
make application for relief from the judgment or order directing payment prior to the accrual of the arrears, in which case the facts and circumstanc-es constituting such good cause shall be set forth in a written memorandum of decision.
While there is a “good cause” exception al-lowing the reduction or annulment for “any other arrears” accrued prior to a party’s ap-plication to modify, there is no “good cause” exception for child support arrears. The Sec-ond Department has consistently held that the trial court does not have the authority to modify support arears accrued prior to a party’s application for same, even if the par-ty shows good cause for failing to make an application for relief from the judgment or order of support prior to the accrual of ar-rears. See, Moore v. Abban, 72 A.D.3d 970, 899 N.Y.S.2d 362 (2nd Dept. 2010) where the support magistrate concluded, in essence, that because it was unjust and inappropriate to impose any child support obligation upon the mother (see Family Ct. Act § 413[1][g] ), she was entitled to have her support obli-gation terminated nunc pro tunc to the date of the original support order and to have her arrears vacated accordingly. However, the Second Department held that the Fami-ly Court could not reduce or vacate the ar-rears which accrued prior to the date of the mother’s petition, regardless of whether the mother had good cause for having failed to seek modification of the child support order prior to their accumulation. Moore at 365. This is even so where requiring the party to pay the arrears will result in a grievous in-justice. (see Family Ct. Act § 451; Matter of Dox v. Tynon, 90 N.Y.2d 166, 173–174, 659 N.Y.S.2d 231, 681 N.E.2d 398; Matter of
Wrighton v. Wrighton, 23 A.D.3d 669, 670, 805 N.Y.S.2d 101; Matter of Jenkins v. McK-inney, 21 A.D.3d 558, 799 N.Y.S.2d 904; Matter of Barrow v. Kirksey, 15 A.D.3d 801, 790 N.Y.S.2d 278).
While this rule may appear to be absolute, arrears that accrue prior to a party’s applica-tion to modify their support obligation have been vacated in limited cases, such as where it is impossible for the party to pay support or to move to be relieved from the obligation to pay support, for medical reasons. See, Com-missioner of Social Services v. Grant, 154 Misc. 2d. 571 (NY County 1992)(where the court found that, “if it was impossible for the respondent to pay child support and impos-sible for him to move for relief from the or-der, the hearing examiner may relieve him of responsibility for child support from the date it became impossible for respondent to act. Impossibility of performance should not be confused with “good cause” to excuse spou-sal support. FCA § 451. Good cause is a con-siderably lower standard. Indeed, this hearing examiner found good cause to vacate spou-sal support arrears”). The subsequent cases that have rejected this analysis have distin-
guished that the payor did not present any ev-idence of fraud or demonstrate any inability on his part to seek modification of the child support orders, which might warrant a finding that enforcement of the judgment against him would result in grievous injustice (see Matter of Commissioner of Social Servs. [Rosa Lid-ia T.] v. Luis Alonso G., supra; Gaudette v. Gaudette, 263 A.D.2d 626, 628, 692 N.Y.S.2d 839; Matter of Reynolds v. Oster,192 A.D.2d 794, 795, 596 N.Y.S.2 545; Matter of Com-missioner of Soia Servs. v. Grant, 154 Misc.2d 571, 574, 585 N.Y.S.2d 961).
Significantly, Judge Marks’ March 22, 2020 Administrative Order expressly refer-ences Governor Cuomo’s Executive Order which “suspend[ed] statute of limitations in legal matters.” Specifically, Executive Order 202.8 provides as follows:
“any specific time limit for the com-mencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the crim-inal procedure law, the family court act, the civil practice law and rules,
the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.”
How, if at all, does Executive Order 202.8 affect the retroactivity for calculating child support arrears if a party cannot file a modifi-cation petition? Will the trial courts treat the retroactive application date as a tolled “time limit” for the filing and, thereby, allow mod-ification of child support arrears that may accrue prior to a party’s actual filing for a downward modification?
With this uncertainty, what can we do to limit our client’s exposure? If an attorney is representing the support recipient, serve the modification petition, or, at a minimum, a notice of an intent to file a downward mod-ification application with the change of cir-cumstances. If there is not an attorney on the other side, provide the modification peti-tion or notice to the support recipient direct-ly via regular mail, certified return receipt, and e-mail, with read receipt, if possible. The idea is to provide notice as soon as pos-sible. Fortunately, the Suffolk County Fam-ily Court is accepting filings via e-mail at: [email protected].
Stay safe and healthy. We will all get through this together.
Note: Jeffrey L. Catterson is a partner at Barnes, Catterson, LoFrumento & Barnes, LLP, with offices in Garden City, Melville and Manhattan and practices primarily in matrimonial and family law. He can be reached at [email protected] and (516)222-6500.
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THE SUFFOLK LAWYER - April 2020 25
meet the requirements of 18 NYCRR 358-2.2 Often the IADs contain little or no clin-ical rationale for the denial or reduction and the advocate can argue they have not met the Mayer v. Wing requirement. Did the notice contain specified justification for reducing hours as required by MLTC Policy 15.09 and MLTC Policy 16.06?
The basis of most adverse determinations is “not medically necessary.” New York does not have a mandated definition of medical necessity, but a typical plan definition is that medically necessary means care that is effec-tive, appropriate and necessary to treat or di-agnose a beneficiary’s illness or injury. Did the plan state which medical documents it re-lied upon to make that determination? Argue the service is medically necessary for this particular individual; attack their determina-tion of lack of medical necessity. Is the ser-vice appropriate based on potential benefits and harm to the individual? Is the determina-tion based on appropriate scientific evidence, professional standards in improving out-comes? Did the plan fail to consider medical evidence furnished by the appellant? Contact the beneficiary’s provider and tell them you are assisting their patient with the home care benefits. Often, they are appalled at the de-nials and will provide the advocate with the requested documentation.
Did the plan fail to provide a full and fair review to the appellant? Argue that the de-cision is arbitrary and capricious without consideration of the individual’s needs ( 42 CFR Subpart D Section 438.210 states the plan “may not arbitrarily deny or reduce the amount, duration or scope of a required ser-vice solely because of diagnosis, type of ill-ness, or condition of the beneficiary”). Use the plan’s own records to appeal. Carefully review the UAS, which was performed by a registered nurse. The nurse often makes notes that are in direct contradiction to the plan’s
adverse determination. The internal appeal can be expedited/fast tracked if the benefi-ciary’s condition warrants and the plan will make a decision in 72 hours. For all other ap-peals, the plan has 30 days in which to make a decision on the appeal. The appeal cannot be reviewed by the same re-viewer who made the initial adverse determination.
If the MLTC then upholds their decision, they will send a Final Adverse Determina-tion. At this point, the bene-ficiary may either request a fair hearing (pursuant to 42 CFR Subpart F, Section 438.400) or submit an external appeal (pursuant to Article 49 NYIL) or choose to do both. The beneficia-ry has 120 days to request the fair hearing (previously it was 60 days). It must request the Fair Hearing within 10 days of the notice for Aid Continuing. The beneficiary has four months from the date of the FAD to request an external appeal.
External appealsExternal appeals are decided by a third-par-
ty independent reviewer, under contract with the state. The standard of review used for medical necessity is whether a health plan acted reasonably, with sound medical judg-ment, in the best interest of the patient. In-dependent reviewers are required to consider current research on evidence-based practice guidelines, nationally accepted clinical stan-dards and peer-reviewed medical literature, in addition to the health plan’s internal rules. An expedited review is available if the ben-eficiary’s condition is dire and if the treating physician attests that an expedited review is necessary. For an expedited review, a deci-sion is made in 72 hours and 30 days for a standard review.
Fair hearing or external appeal? Which should the advocate choose? Ob-
viously, if aid continuing is needed, a fair hearing must be requested within 10 days of the FAD. Alternatively, if the situation is dire, an expedited external appeal should
be submitted for a rapid re-sponse. But it is possible to receive a favorable external appeal decision within the timeframe to request a fair hearing, thereby obviating the need for a fair hearing. In the event the advocate files both an external ap-
peal and has a fair hearing, its decision will prevail. Therefore, if a favorable decision is obtained by the external appeal, then the advocate would withdraw the fair hearing request prior to a hearing. If the fair hearing is scheduled before the external appeal de-cision is issued, adjournment of the hearing may be considered.
External appeal is an important avenue for an advocate when the denial is based on “not medically necessary.” Availability of a re-view of the decision by an independent med-ical expert in a related field, not employed by the plan and a definitive medical standard make the external appeal attractive. In fact, in New York state, it is estimated that about 40 to 50 percent of plan denials are reversed on external appeal. Based on personal expe-rience, reversals are most likely higher for MLTC plan appeals. Additionally, decisions are made and received quickly — within 72 hours of an expedited appeal or 30 days of a standard appeal.
Next, consider what is being appealed and who has the burden of proof. The party try-ing to change the status quo has the burden of proof, meaning the responsibility to show the ALJ that the change is correct. For example, for a denial of a requested service, the appel-
lant has the burden of proof and the plan does not need to provide any evidence. For a re-duction or discontinuation, if the plan is in vi-olation of a regulation, a hearing may be the best venue for adjudication. When it is your client’s burden, you may have to think cre-atively about documents you need to support the case. An external appeal allows the advo-cate to cite to peer reviewed medical sourc-es (which may be submitted with the appeal), evidenced-based practice, the beneficiary’s specific needs e.g., progression of a chron-ic condition and any and all input from the treating provider. Additionally, if the internal appeal previously submitted was fully devel-oped, then the advocate usually only needs to make minor edits to specifically address the FAD. Usually though, the FAD is simply a rehash of the IAD.
Lastly, the process to submit an external appeal is straightforward and on paper only. The advocate will submit a consent, a HI-PAA release, the appeal, the FAD and any supporting medical documents. If an expe-dited appeal is requested, then a physician’s attestation is also submitted. The appeal is submitted to the Department of Financial Services through their website. Once a case number is assigned, the advocate can contin-ue to submit any additional documents. DFS will notify the advocate if they need any ad-ditional information. The decision is then sent out via email within the timeframe noted above.
Note: Denise Snow, JD, RN, Esq. is an as-sociate professor at Stony Brook University, School of Nursing. She is an adjunct at Touro Law where she teaches Health Law and is in private practice. She is a past co-chair of the Association’s Health and Hospital Law Committee. Her opinions and comments are her own. She may be reached at [email protected]
FOCUS ON
Health And Hospital Law
SPECIAL EDITION
Family (Continued From Page 15)
Transactional (Continued from page 12)franchisee opportunities grows, loca-tions are always in demand. Any suc-cessful chain can always fill an empty store with a franchisee, so the poten-tial for many years of income exists or if the tenant allows the lease to expire, then your client is left with an improved ready to occupy structure.
• The rental schedule and remaining term are set for the next 10 years. The trans-actional attorney must carefully review both the remaining term and rental schedule, particularly when financing, as the loan term should at least be equal to the remaining GRL term, and lease payment equal to a certain percentage of the Debt Service (monthly mortgage payment). While the term and options to extend are usually straight forward, the rent schedule will either contain fixed, consumer price (CPI) or other in-dex to set rental increases or a sophis-ticated GRL may contain a rent “reset” clause. Where an underdeveloped area is now becoming desirable and proper-ty values rising, it may be advisable to negotiate GRL with a “reset” clause in
order to capture an appreciating proper-ty market.
• If financing is contemplated, it is impera-tive that the GRL provide for the tenant’s cooperation in executing a Subordination Non Disturbance Estoppel Agreement (SNDA). In fact, if the tenant is a national chain, it will likely have previously expe-rienced the financing routine and may in fact have its approved “form” SNDA for review in advance.
• The GRL should also obligate the tenant to any occupancy and or other use permits and to make sure same are current as any expiration of same could prove detrimen-tal to the business and the continued rent-al payment.
• One additional provision in the GRL, conditioned on any termination of the franchise agreement with the termination of any sublease. Thus, if the subtenant (franchisee) were to be terminated, the sublease would terminate and the proper-ty revert back to the tenant (franchisor). A strong national brand makes such a provi-sion a non-factor as the GRL remains in full force and effect.
• Lastly, the GRL obligates the tenant to occupy and maintain the property. It is likely the franchisor has constructed this facility as per the plans and specifica-tions used in their normal building prac-tices and that the tenant continues to be responsible for any building repairs, ren-ovations or other upgrades.
Obligating the tenant to maintain the structure and property lessens the need for a building inspection and translates into a PSA in which the usual representations as to me-chanical systems are nonexistent. After all, the operation of the property has been exclu-sively under the control of the tenant since day one so the usual plumbing, heating and electrical systems being in working order are conspicuously but not unexpectedly absent from the PSA.
Despite such limitations, when the trans-action is analyzed “unimproved” (remember the franchisor has built the structure) land is all that is being sold, so focusing on title, es-crow and conducting further due diligence is where additional efforts are concentrated. In furtherance of this effort, a review of zoning covenants and other planning board minutes
or conditions should be undertaken to ensure that a reverter of a non-permitted use or other forfeiture of a special permit does not jeopar-dize the continued operation.
Of course, not every property purchased is subject to the GRL of a nationally recognized franchisor, but conceptually, a steady stream of income is produced by a GRL. No need to worry about structural deficiencies, prop-erty insurance or municipal concerns, as with improved property. Just sit back and collect a monthly check, like an annuity.
Note: Irwin S. Izen, is a solo practi-tioner, concentrating on real estate, busi-ness and transactional law. He is the for-mer co-chairman of the Transactional & Corporate Law Committee and is the past co-chairman of the Suffolk County Bar Association Real Property Committee. He represents both individuals and small busi-nesses in purchase and sales, real estate matters and other transactions facing the entrepreneur and maintains his office at 357 Veterans Memorial Highway, Commack, New York 11725 and can be reached via email at [email protected].
THE SUFFOLK LAWYER - April 202026
volves court attendance, delays, document execution and other efforts. Yet, all these bur-dens are dwarfed by the exposure created by element (3) of a self-help eviction.
Beyond element (3)’s express exposure, it’s incidental exposure creates additional risk. Under self-help eviction, there is addi-tional risk with respect to the disposition of the tenant’s personal property. A “landlord is responsible for the cost of storing the proper-ty for a reasonable period until it is claimed by the tenant.” Wilson v. CRL Mgm’t, Inc., 14 Misc.3d 231, (Rochester City Ct. 2006). Breaching this responsibility exposes the
landlord to claims of conversion and negli-gent bailment. In contract, a judicial eviction has less risk because where “an eviction is carried out ‘in accordance with a duly issued warrant,’ a landlord is not liable to a tenant for any damage alleged caused by the mar-shal.” Slepoy v. Kliger, (App. Term 2d Dep’t 2d, 11th & 13th Dists. 2009).
Setting aside all these learned risks, the greatest exposure from a self-help eviction is derived from the real world where unlearned participants have power and act unpredict-ably. This exposure was best articulated by the Appellate Term, in Martinez v. Ulloa, 50
Misc.3d 45 (App. Term 2d Dep’t 2d, 11th & 13th Dists. 2015). The Appellate Term ad-vised, in dicta, that “it would not be unusual or improper in appropriate circumstances for a tenant locked out of a premises to seek as-sistance from the police. There is an element of uncertainty associated with resort to self-help…” Should the police be involved, they may act in contravention to the nuances of the law and a landlord could find themselves arrested incident to this uncertain scenario.
Commercial landlords are in business and need to make informed business decisions. Counsel needs to strongly remind such busi-
ness clients of the maxim of ‘just because you can, doesn’t mean you should.’ This maxim is particularly true with respect to self-help evictions.
Note: Andrew M. Lieb is the managing attorney at Lieb at Law, P.C., a law firm with offices in Smithtown and Manhasset. He is a past co-chair of the Real Property Committee of the Suffolk Bar Association and has been the Special Section Editor for Real Property for The Suffolk Lawyer for years.
Real Property (continued from page 11)
when and how agencies can issue final leg-islative rulings. The court agreed, holding that the Agency failed to follow appropriate rulemaking procedure under the APA. In dic-ta, the court went further and suggested that the agency Guidance was erroneous, even if the rulemaking notice and comment statute had been followed.
CIOXX, and every other major record copying company, immediately began reject-ing the patient’s third party attorney requests for medical records under the Hi-Tech Act and sent the attorneys large bills for copying the records at the standard $0.75 per page (in New York) rate. As of this writing, HHS has not appealed the ruling.
So, what should personal injury attorneys do while we await a legislative solution to the CIOXX decision?7 It remains undisputed that individual patients have a right to an electron-ic copy of their medical records at cost. At-torneys should immediately revise their Hi-Tech request letters so that the request clearly comes directly from the patient. The request
should direct that the records be sent in elec-tronic format directly to the patient, instead of to the lawyer’s office. The added com-plication, of course, is that the patient then has to provide access to the electronic copy to his/her attorney. That is, however, a small price to pay to obtain access to the client’s medical records at an affordable rate while we await a more permanent solution.
Note: Michael Glass is a partner in the personal injury law firm of Rappaport, Glass, Levine and Zullo, practicing in the areas of medical malpractice and complex personal injury litigation.
Note: Christopher Glass specializes in plaintiff’s personal injury and medical mal-practice. He currently practices as an as-sociate with Rappaport, Glass, Levine, & Zullo, LLP.
1. See Pub. L. 104-191, title II, §§ 261, 264(a)-(b), 110 Stat. 1936, 2021, 2033 (1996)
2. “(A)ny fee that the covered entity may impose for providing such individual with a copy of such information…if such copy…is in electronic form shall not be greater than the entity’s labor costs in responding to the request for the copy.” 42 USC § 17935(e)(3)}.3. “[I]n the case that a covered entity (a medical health records provider) uses or maintains an electronic health record with respect to protect-ed health information of an individual . . . the individual shall have a right to obtain from such covered entity a copy of such information in an electronic format and, if the individual chooses, to direct the covered entity to transmit such copy directly to an entity or person designated by the individual, provided that any such choice is clear, conspicuous, and specific.” 42 USC Sec 17935(e) (1). The regulation under the statute similar-ly stated: “If an individual’s request for access directs the covered entity to transmit the copy of [PHI] directly to another person designated by the individual, the covered entity must provide the copy to the person designated by the individ-ual.” 45 C.F.R. § 164.524(c)(3)(ii).4. Individuals’ Right under HIPAA to Access their Health Information 45 C.F.R. § 164.524, p. 165. Id.6. Administrative Procedure Act, 5 U.S.C. § 706(2).7. On the legislative front, HSS and CMS recently
issued regulations for public comment under the 21st Century Cures Act. The Cures Act was signed into law during the Obama administration and was meant to accelerate research into cures for various illnesses. Recent final rulemaking proposed by HSS and CMS under the Cures Act would require electronic medical record software companies to make their electronic medical re-cords software more compatible with one another and easier to download into a smartphone appli-cation for patient use. Language in the proposed regulations much like language in the Hi-Tech Act, supports the argument that the patient can require that the electronic medical information be sent to a “designated third party.” The pro-posed regulation does not specifically mention attorneys or attorney requests for records. If approved after public comment, the procedural grounds of the decision within CIOX Health LLC v. AZAR, Case No. 18-CV-00640 would arguably be overturned. However, the more substantive question of whether Department of Health devi-ated from its statutory authority, in promulgating a rule requiring records be directly sent to third parties (including attorneys) at the preferential rate, would still remain an open question. See https://www.healthit.gov/sites/default/files/cures/2020-03/ONC_Cures_Act_Final_Rule_03092020.pdf at p.954-955.
Transactional (Continued from page 16)
untested theory of what might or possibly or could have caused the fire was purely specu-lative and, thus, inadmissible.
Balura v Ethicon, was one of the many massive products liability multi-district liti-gations against the defendants who manufac-tured pelvic mesh products. In this particu-lar action, the plaintiff alleged that a surgical mesh manufactured by the defendants and implanted in her pelvis was defective and had caused injuries. The plaintiff intended to offer the expert testimony of Dr. Margolis, who was not the plaintiff’s treating physician and who otherwise did not examine the plain-tiff. Based on his review of medical records, depositions, and deposition exhibits, coupled with his training and expertise, Dr. Margol-is proffered that “to a reasonable degree of medical certainty, [the plaintiff]’s pelvic in-juries were caused by the defective [mesh].”
The defendants first argued that Dr. Mar-golis’s entire testimony should be excluded because the report was “replete” with cer-tain facts that were not documented in the plaintiff’s medical records and were not ver-balized by the plaintiff. While that fact was undisputed, the court pointed out that Dr.
Margolis did indeed describe many symp-toms that were so identified in the medical records or articulated by the plaintiff in her deposition — a fact which the defendants ig-nored. The court was not convinced that the inclusion of certain inaccurate facts “contam-inated” the reliability of Dr. Margolis’s entire opinion and diagnosis of the accurate facts, especially where the defendants did not chal-lenge Dr. Margolis’s methodology in arriv-ing at his opinion.3 The court went on further to state that it could not conclude that “the good data upon which Dr. Margolis based his report are simply inadequate to support the conclusions reached.” The court thus found that the defendants’ “inaccurate facts” argu-ment went to the weight of the opinion, rath-er than its admissibility; the defendants were free to minimize the weight of such testimo-ny by cross-examining Dr. Margolis about the inaccurate facts.
While the defendants failed to show that Dr. Margolis’s testimony should be exclud-ed in its entirety, they did sufficiently show that his opinion that alleged product defects caused the injuries should be precluded. Dr. Margolis sought to testify that the plaintiff’s
pelvic injuries were specifically caused by the defendants’ product. However, he offered no opinion or explanation as to how the al-leged defect caused the injuries. Lacking that explanation, the crux of the expert opinion was essentially that the “mere presence” of the surgical mesh caused the injury. That was insufficient to establish causation. The court concluded that Dr. Margolis could attribute the plaintiff’s injuries to certain “features” or “characteristics” of the product but he could not testify as to “defects” or opine that de-fects caused the injuries.
Interestingly, the court found that the lack of specificity in Dr. Margolis’s causation opinion did not warrant preclusion of his testimony in connection with the plain-tiff’s non-design defect claims. The plaintiff brought a claim for failure to warn. Because the “defect” in such a claim is the failure to warn itself, Dr. Margolis’s lack of specific-ity was immaterial. Moreover, the court de-termined that the expert’s opinion could help the jury understand the nature and extent of the plaintiff’s injuries, which was essential to her claim. The court similarly found that his testimony attributing the alleged injuries
to the product might bear on the plaintiff’s claim for punitive damages.
Note: Hillary A. Frommer is counsel in Farrell Fritz’s Estate Litigation Department. She focuses her practice in litigation, pri-marily estate matters including contested probate proceedings and contested account-ing proceedings. She has extensive trial and appellate experience in both federal and state courts. Ms. Frommer also represents large and small businesses, financial insti-tutions and individuals in complex business disputes, including shareholder and part-nership disputes, employment disputes and other commercial matters.
1. This case, cited at 16-CV-6845L (DGL)(MWP), 2020 U.S. Dist. LEXIS 27135 (W.D.N.Y. Feb, 18, 2020), is pending in the Western District of New York. 2. This action, case no. 3:19-CV-1372 (LEK/ML), 2020 U.S. Dist. LEXIS 27857 (N.D.N.Y. Feb. 18, 2020), is pending in the Northern District of New York. 3. The court cited to Amorgianos v Nat’l R.R. Passenger Corp., 303 F.3d 256 (2d Cir. 2002), in which the Second Circuit noted that not every mistake in an expert’s report renders the opinion inadmissible.
Commerical Litigation (Continued From Page 13)
THE SUFFOLK LAWYER - April 2020 27
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