THE OFFICIAL PUBLICATION OF THE BROOKLYN BAR …Shelly Werbel Gregory Zenon BROOKLYN BAR ASSOCIATION...

BROOKLYN BARRISTERT H E O F F I C I A L P U B L I C A T I O N O F T H E B R O O K L Y N B A R A S S O C I A T I O N

©2016 Brooklyn Bar Association November 2016 Quarterly VOL. 67 NO. 2

You are cordially invited to attend theBrooklyn Bar Association Foundation, Inc.Annual Dinner, Monday, Dec. 5, 2016; 5:30P.M., to be held at the New York Marriott atthe Brooklyn Bridge Hotel. Black tie pre-ferred. Make your reservation now.

To find out how to become a sponsor,visit www.brooklynbar.org/foundation/annu-al-dinner/2016-annual-dinner-sponsorships.Closing date for sponsorship is Monday,Nov. 30. Your sponsorship must be receivedby this date in order to ensure a listing in thedinner program.

The Brooklyn Bar Association Founda-tion Annual Dinner is always the biggest andthe best Bar Association event in Brooklyn.This year promises to be better than everwith our outstanding honorees.

THE 2016 ANNUAL AWARD RECIPIENTS ARE:

Hon. Martin M. Solomon, Justice, SupremeCourt, Kings County; Hon. Deborah A. DowlingJustice, Supreme Court, Kings County;Domenick Napoletano, Past President2012-2013 Brooklyn Bar Association.

ANNUAL DINNER COMMITTEE

Chair: Aimee L. Richter; Vice-Chairs:Hon. Frank V. Carone, Gregory T. Cerchione,David M. Chidekel, Anthony J. Lamberti,Domenick Napoletano, Armena D. Gayle.

Committee: Daniel Antonelli, Elaine N.Avery, Andrea E. Bonina, RoseAnn C. Bran-da, Steven D. Cohn, Fern J. Finkel, StevenJeffrey Harkavy, David J. Hernandez,Richard Klass, Perry Krinsky, Hemalee Patel,Andrew Rendeiro, Salvatore Scibetta, AnthonyW. Vaughn, Jr.

Chair Emeritus: Hon. Frank R. SeddioOfficers: Hon. Frank R. Seddio, President;Aimee L. Richter, President-Elect; David M.Chidekel, First Vice President; Hon. Frank V.Carone, Second Vice President; Anthony J.Lamberti, Secretary; Armena D. Gayle, Trea-surer; Avery Eli Okin, Executive Director.

Please turn to page 11

The Bar Association Foundation Annual Dinner

RIGHT: The Brooklyn Bar Association Foun-dation gifted recent Brooklyn Law School(BLS) graduate Anthony Beneduce Jr. withthe second annual Hon. Theodore T. JonesJr. Memorial Scholarship during a ceremonyin Brooklyn Heights on Wednesday, Sept. 14.Pictured from left: Avery Eli Okin, Hon. Frank R.Seddio, Aimee L. Richter, Anthony Beneduce Jr.,Rebecca Rose Woodland, Steven D. Cohnand Brooklyn Law School President andDean Nicholas Allard. See page 5.

Brooklyn Eagle photo by Mario Belluomo

BBA Foundation Gifts Recent BLS Grad

With Scholarship

MEET THE BAR LEADERS: Law School at 40 Changed Frank Seddio’s Career

It’s typical for the Brooklyn Bar Association(BBA) to have a highly respected member of thelegal community sitting at the helm. But withHon. Frank Seddio as its president, the BBA hasa bona fide leader with more public service expe-rience in the judicial, electoral and grassroots De-mocratic sectors than just about anyone before.

Where the rubber meets the road — that’swhere you’ll find Frank Seddio, and his careercould have been much shorter had he not madethe decision to go to law school when he wasnearly 40 years old.

“It was in 1986, after Mayor Ed Koch hadwon his third term, and I started thinking aboutwhat I would do after he retired, because I knewthat at that level, you don’t stay on,” said Seddio,who was commissioner of traffic operations forthe Department of Transportation at the time.

“When you are a commissioner in a cityagency and a new mayor comes in, tradition-ally you left and he appointed his own peo-

ple,” Seddio continued. “So I was consider-ing what my future was going to be, and lawschool seemed like the right option; and inthe end, it changed my career significantly.”

Seddio credited Tony Genovesi, the for-mer president of the Thomas Jefferson De-mocratic Club, with being his inspiration forgoing to law school. For four years, he wentto school at night while working for the De-partment of Transportation during the day.After graduating from St. John’s UniversitySchool of Law, Seddio went to work in a pri-vate practice and continued to help the pub-lic through pro bono work.


What’s InsideBrooklyn Bar Association Foundation Gifts Recent BLS Grad with ScholarshipBy Rob Abruzzese, Brooklyn Daily Eagle ..................................... Pg. 1Meet the Bar Leaders: Law School at 40 Changed Frank Seddio's CareerBy Rob Abruzzese, Brooklyn Daily Eagle ..................................... Pg. 1The BarAssociation Foundation Annual Dinner ............... Pg. 1New Members ............................................................................ Pg. 2Legal BriefsBy Avery Eli Okin, Esq., CAE .................................................... Pg. 2Respectfully Submitted:By Hon. Frank Seddio. ................................................................ Pg. 3Tribute to Hon. Harold RosenbaumBy Roger Bennet Adler .................................................................. Pg. 3Medical Malpractice Update By John Bonina, Esq. ...................................................................... Pg. 4The Internal Revenue Service is Trumped By: Dewey Golkin, Esq. ..................................................................... Pg. 5Meet the Bar Leaders: Long Islander Aimee RichterMade Brooklyn Her HomeBy Rob Abruzzese, Brooklyn Daily Eagle ..................................... Pg. 6Roll CallBy Diana J. Szochet, Esq. .............................................................. Pg. 8“Blood in the Water” by Heather Ann Thompson(Pantheon Books, 2016)Reviewed by Roger B. Adler. ....................................................... Pg. 11BBA’s LGBTQ and Young Lawyers Committees Host Event with Brooklyn PrideBy Rob Abruzzese, Brooklyn Daily Eagle .................................... Pg. 12

Visit us at www.brooklynbar.org

Hon. Frank Seddio Brooklyn Eagle file photo by Rob Abruzzese

By: Rob Abruzzese,Brooklyn Daily Eagle

, BROOKLYN BARRISTER NOVEMBER, 2016

JUDICIALRECOGNITION

Brookly Bar Asso iatio Past Preside tHon. Barry Ka ins alo g with BBA for ertrustee Hon. John Leventhal parti ipated ithe Professor Ro ert M. Pitler A ual Pro-gra o Cri i al Law, Pro edure, E ide e& Ethi s hosted y Brookly Law S hool oO to er , 16. Judge Ka i s, a Part eri Aidala, Bertu a & Ka i s PC a d a Ad-ju t Professor of Law at Brookly LawS hool le tured o Sear h a d Seizure. Ap-pellate Di isio Justi e Le e thal spoke oCo fro tatio After Crawford.

Co gratulatio s to BBA e ers Hon.Sylvia O. Hinds-Radi , Asso iate Justi eAppellate Di isio , Se o d Judi ial Depart-

e t a d Hon. De orah Do ling, Supre eCourt – Cri i al Ter who were ho o redat the 4 th A i ersary Awards Di erDa e of The Tri u e So iety, I . o No-e er , 16 at Mari a Del Ray.

Brookly Bar Asso iatio Preside t Hon.Jeffrey Sunshine alo g with for er ChiefAd i istrati e Judge Hon. A. Gail Prudentia d for er Ki gs Cou ty Fa ily Court Su-per isi g Judge Hon. Jane Pearl will efeatured pa el e ers i a City BarI augural Sy posiu — Di or i g a dSeparati g Fa ilies: Tra sfor i g CrisisI to Opportu ites whi h was held at theCity Bar o O to er , 16.

KUDOS AND PROFESSIONAL RECOGNITION

Co gratulatio s to BBA e er TanyaHo son-Willia s, pri ipal at Ho so -Willia s P.C. who was a ed to the firstgroup of Top Wo e i Law y the Editori-al Board of the New York Law Jour al.

Brooklyn Barrister is published by Everything Brooklyn Media, LLC, under the auspices of the Brooklyn Bar Association. For advertising information call (718) 422-7410. Mailing address 16 Court Street, Suite 1208, Brooklyn, New York 11241.Vol. 67 No. 2. November 2016. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published quarterly: September, November, March and May by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association,123 Remsen Street, Brooklyn, New York 11201-4212. Telephone No. (718) 624-0675. Periodical postage is paid in Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changesto the Brooklyn Barrister, 123 Remsen Street, Brooklyn, NY 11201-4212.

BROOKLYN BARRISTER EDITORIAL BOARDAnthony J. Lamberti

Editor-in-ChiefDiana J. SzochetManaging Editor

Aimee L. RichterArticles Editor

Cecilia N. AnekweHon. Bruce M. BalterJaime J. BorerMark DiamondJason EldridgePaul S. Forster

Jason D. FriedmanMichael JaccarinoAnthony LambertiHemalee J. PatelRobert P. SantoriellaMichael Treybich

Glenn VerchickAlexis VigilanteShelly WerbelGregory Zenon

BROOKLYN BAR ASSOCIATION 2016-2017Hon. Frank R. Seddio, PresidentAimee L. Richter, President Elect

David M. Chidekel, First Vice President

Hon. Frank V. Carone, Second Vice PresidentAnthony J. Lamberti, Secretary

Armena D. Gayle, Treasurer

Avery Eli Okin, Esq., CAE: Executive Director

CLASS OF 2017Marianne BertunaJoseph R. Costello

Stefano A. FilippazzoDewey Golkin

Hemalee J. PatelSteven J. Harkavy

Jeffrey Miller

CLASS OF 2018Daniel Antonelli

Hon. Fidel F. Del ValleMichael FarkasJaime Lathrop

Andrew S. RendeiroAnthony W. Vaughn, Jr.

Glenn Verchick

CLASS OF 2019Elaine N. Avery

David J. HernandezAdam KalishRichard Klass

Deborah LashleyJoseph S. Rosato

Pauline Yeung

Roger Bennet AdlerVivian H. AgressArthur L. AidalaAndrea E. BoninaRose Ann C. BrandaGregory T. CerchioneSteven D. CohnHon. Miriam Cyrulnik

Lawrence F. DiGiovannaDavid J. Doyaga, Sr.Andrew M. FallekJoseph H. FarrellAndrew S. FisherEthan B. GerberPaul A. GolinskiDominic Gordano

Gregory X. HesterbergHon. Barry KaminsMarshall G. KaplanMark A. LongoJohn LonuzziJohn. E. MurphyDomenick NapoletanoManuel A. Romero

Barton L. SlavinHon. Jeffrey S. SunshineHon. Nancy T. SunshineDiana J. SzochetRebecca Rose Woodland

TRUSTEES COUNCIL (Past Presidents)

TRUSTEES

Co gratulatio s to BBA e er MariaAragona who was ele ted a d i stalled oSepte er 14, 16 as the Vi e Preside t ofthe Co federatio of Colu ia LawyersAsso iatio . Early i the Su er MariaArago a was ele ted as the Re ordi g Se -retary of the Colu ia Lawyers Asso ia-tio of Ki gs Cou ty.

Brookly Borough Preside t Hon. EricAda s ho ored the Colu ia Lawyers As-so iatio of Brooky at the Italia -A eri aHeritage Cele ratio held o Thursday, O -to er 1 , 16 at the Brookly BoroughHall.

HEARD ON THESTREET

Word has rea hed the Brookly Bar As-so iatio that the Brookly Defe der Ser-i es is ha i g a gala to ark the th A -i ersary of the BDS o No e er 1 , 16

at Willia s urg Sa i gs Ba k, 1 Broad-way, Brookly , New York. A o g the ho -orees for that e e t were the fou di gBoard Me ers, i ludi g... For ti ket a djour al ad i for atio o ta t Da iel Ball at

1 - 4- e t. or e ail hi at:d all@ ds.org.

PROFESSIONAL ANNOUNCEMENTS.

Brookly Bar Asso iatio Me er GeraldArze of Arze & Molli a, LLP has a ou edthe relo atio of the law fir to A e ueU, LL, Brookly , New York 11 , effe ti eSepte er , 16. The telepho e u -

ers re ai the sa e – 1 - 6- 6 Fa1 - 6- .

Brookly Bar Asso iatio You g LawyersSe tio e er Ada Roth has a ou edthat he has take a ew positio as Litigator/ Trial Attor ey with the Washi gto , DCfir of Za pog a, P.C. The fir ’s offi esare lo ated at 1 6 K Street, NW # ,Washi gto , D.C. The fir pho e u -

er is - -66 .

FAMILY MATTERS Leah Chevan, the daughter of BBA Past

Preside t Dia a J. Szo het a d HarryChe a , has ee i du ted i to the U itedStates Na y o Septe er 1, 16. Fol-lowi g the i du tio ere o y at FortHa ilto she shipped out to oot a p atthe Great Lakes Na al Trai i g Statio orthof Chi ago.

Co gratulatio s to BBA Past Preside tArthur L. Aidala a d BBA Trustee MarianneBertuna o the irth of their so ArthurAidala, III o O to er 4, 16.

BEREAVEMENTSThe Brookly Bar Asso iatio e te ds its

deepest sy pathy to the Rose au fa ilyo the passi g of BBA Past Preside t Hon.Harold Rosen au o Septe er 1 ,

16 at the age of . Judge Rose aua for er ADA i Ki gs Cou ty a d the aFederal Ad i istrati e Law Judge for theSo ial Se urity Ad i istratio ser ed asthe BBA Preside t i 1 4- .

The Brookly Bar Asso iatio e te ds itsdeepest sy pathy to Evan M. Gold erg othe passi g of his other Lola Gallo Gold-

erg o O to er , 16. Mrs. Gold ergwas the widow of de eased Ki gs Cou tySupre e Court Justi e Ri hard A. Gold erg.

The Brookly Bar Asso iatio e te ds itsdeepest sy pathy to Hon. Tho as P. Aliottao the passi g of his other Pauli e Aliottao O to er 14, 16.

______________________________

Legal Briefs is o piled and ritten yA ery Eli Okin, Es ., CAE the E e uti e Dire torof the Brooklyn Bar Asso iation and its Foun-dation. Ite s for in lusion in Legal Briefsshould e e ailed to aoki @ rook ly ar.org,fa ed to - - or ailed to the arenter at Re sen “treet, Brooklyn, Ne

York - .

NEW MEMBERSOctober 2016

BRIAN BUCKMIRE

DENIS DAVYDOV

GENESIS FISHER

PHILIP LAVENDER

WAYNE B. MARSH

TODD NEUHAUS

DANIEL NIAMEHR

GUILLERMO SANTIAGO

SYNTYCHE STEPHENSON

MICHAEL TWOMEY

LEGAL BRIEFS

STUDENT MEMBERSKARL ESCHELBACH

Advertise in the Brooklyn Eagle’s LEGAL SERVICES

DIRECTORY.

718-643-9099, EXT 103

Good Day, As I write this column manyevents have occurred which have been benefi-cial to our membership. Our committees arein full swing with the CLEs well underway.The list of committee chairs and members waspublished in our last issue. We are lookingforward to a successful year of activities andevents which will serve you as a member ofthis great organization.

On a happy, note I am pleased to announcethat our Past President Arthur Aidala and hislovely wife Marianne are now the proudparents of one of our future Bar PresidentsArthur Aidala the 3rd, born last week to thiswonderful couple. Congratulations Arthur,may you all enjoy good health and happiness.

Sadly we also offer our condolences andprayers to the family of our District Attorneythe late Kenneth Thompson. D.A. Thomp-son, in the short time he was in office, set anew path for the D.A.’s office which invigor-ated and inspired the staff and practitionerswho were part of our criminal justice system.May he rest in peace knowing that his workwill continue.

Please join me on Wednesday eveningNovember 9th as we welcome Acting DistrictAttorney Eric Gonzalez to the Bar Associationwith a reception sponsored jointly with theKings County Criminal Bar Association. Theevent will begin at 6:30 PM at our Associationhall and refreshments will be served.

The most important event of the season isour Foundation Annual Dinner, scheduled thisyear for December 5th at the Brooklyn MarriottHotel. Our 2106 Annual Award honorees arePast President, Domenick Napoletano; the Hon.Debra Dowling, Justice of the Supreme CourtKings County Criminal Division; and the Hon.Martin Solomon, Justice of the Supreme Court,Kings County Civil Division. Each of these in-dividuals have served our Association and theBrooklyn legal community with great distinc-tion and commitment. We look forward to thiswonderful night of camaraderie which allowsall who attend the opportunity to share specialmoments with their colleauges and friendswhile being nourished on the delights of theculinary splendor of this exemplary facility. Mythanks to President-elect Aimee L.Richter andher committee for the enormous efforts beingmade to insure that this year's event will be thebest ever. It is our hope that we will be joinedby a number of distinguished luminaries who

will also share the evening with us.As we go forward into the New Year many

bar programs and activities are planned whichwe believe will be of interest to the member-ship. Please participate. The Association ishere for its members and you are most wel-come to use the facilities to hold meetings andclient conferences as well as for research andcase preparation. Please reach out to the of-fice if you would like to reserve a third floorconference room for a client meeting..

The Bar Association is an excellent re-source site. Please invite your colleagues tojoin us. You are our best advertisement formembership.

We often hear about Pro Bono work andthe need for practitioners to take on this im-portant endeavor. Please sign up with the Vol-unteer Lawyers Program and offer your serv-ices. This important aspect of our legal fami-ly is too often forgotten. Volunteering servesmany facets of our professional careers. Italso gives us an opportunity to help those inneed who cannot afford the costs of good andqualitive legal counsel.

May you enjoy the Thanksgiving holidayand the many functions we will all be attend-ing in the coming weeks as we celebrate theholiday season.

By: Hon. Frank Seddio

President Hon. Frank Seddio

RESPECTFULLY SUBMITTED—————————————— PRESIDENT’S MESSAGE —————————————

NOVEMBER, 2016 BROOKLYN BARRISTER,

Harold Rosenbaum, a Past President ofthe Brooklyn Bar Association, passedaway on September 15, 2016 in Roswell,Georgia. He leaves a distinguished lega-cy of public service, and a reputationbuilt upon a foundation of integrity.

A lifelong proud Brooklynite, Haroldwas born on June 30, 1923, and so agoodly portion of his early life was spentwhen America was in the deep and harshgrip of the Great Depression.

Harold served in the Navy as a Lt.Commander during World War II, as-signed to the Southwest Pacific Theater.Following his discharge from the mili-tary, he later served as the Commander ofthe Jewish War Veterans. In 1947 hegraduated from St. John's University LawSchool, when it was located on Scher-merhorn Street in downtown Brooklyn.

In 1950, he was appointed to serve asa Kings County Assistant District Attor-ney, and served under four (Myles Mc-Donald, Ed Silver, Aaron Koota, EugeneGold) District Attorneys. When I metHarold back in the Fall of 1970, he al-ready had two decades of prosecutorialservice under his belt. He was Chief ofthe Grand Jury Bureau under then Dis-trict Attorney Eugene Gold. He had pre-viously served under District AttorneyMyles McDonald as confidential Assis-tant District Attorney for “special inves-tigations and police corruption.” He re-portedly participated in the investigationof famed bookmaker Harry Gross, andwas instrumental in the investigation ofBrooklyn based police corruption fueledby gambling payoffs, a scandal which,ultimately, led to Mayor William O'D-wyer's resignation.

During an administrative shakeup, heleft this supervisory post, and while as-signed to the Supreme Court Bureau triedmajor high profile cases with great suc-cess. One of the most prominent caseswas the trial of the Rev. DevernonLeGrand. Brooklynites of a certain agewill recall the presence of women in reli-gious habits soliciting donations at vari-ous street corners and subway entrances.The proceeds taken generated in actuali-ty paid for a Crown Heights mansion lo-

cated at 222 Brooklyn Avenue. LeGranddrove around Brooklyn in a large Cadil-lac, and recruited teenagers who soon be-came virtual concubines in what themedia described as a “House of Evil.”LeGrand was convicted.

Harold served as the Brooklyn BarAssociation President from June 1976 toJune 1977, following Daniel Eisenberg,Esq. (a well regarded local trusts and es-tates lawyer [Eisenberg & Weiss], andwas succeeded by Harold Fisher (Andy'sfamous dad). His service occurred P.T.A.(prior to Avery), and so reliance for theday to day of bar association fell to KellGross, a curmudgeonly but fiercely dedi-cated “old school” Executive Director.

The Annual Dinner then was held atthe Plaza Hotel, and featured Judge SolWachtler as the featured speaker, andLouis Waldman, Esq. as the AnnualAward recipient. The selection of Wald-man as honoree was an interestingchoice. Mr. Waldman served as a vicepresident at the City Bar (1946-1947),and in 1954 as President of the BrooklynBar Association.

Waldman was one of ten Socialistselected to the State Assembly. He wassubsequently expelled from the Assem-bly during the post-World War II “RedScare,” and later attended New York LawSchool, becoming a pro-union laborlawyer.

The monthly programs duringHarold's term were lively and provoca-tive — for instance, the May, 1977monthly meeting focused on the prosecu-tion and defense of “official corruption”cases. The lineup of speakers was elec-tric:

(1) U.S. Attorney David G. Trager(2) James M. LaRossa, Esq.(3) Roy M. Cohn, Esq.

Harold's final Brooklyn Barrister“President's Message” was both focusedupon the prior year, and his commitmentto increase membership and meet mem-bership needs. Harold's time may nolonger be remembered by many, but itwas focused, productive and commend-able. He was clearly one of the most ableever to serve in the Brooklyn District At-torney's Office.

He later served as an AdministrativeLaw Judge (A.L.J.) with the Social Secu-rity Administration. Harold immersedhimself in the medical terms attendant tothe administrative adju-dication of claims forSocial Security disabili-ty claims.

He served as anA.L.J. until he wasaround 90 years old!

Throughout Harold'sprofessional life, thosewho knew him werealways impressed withhis tough minded andlogic driven perform-ance.

As the Chief of theGrand Jury Bureau, hewas charged with thetask of essentially serv-ing as a teacher ofyoung lawyers con-cerning the substantivecriminal law, and howto present a direct case.The tough times of theDepression, and servicein a time of war, madeHarold a serious com-petitor who did not suf-

fer fools gladly. Nonetheless, for oversixty years Harold was a prominentmember of the Brooklyn Bar. May he restin peace.

Tribute to BBA Past President Hon. Harold RosenbaumBy: Roger Bennet Adler


THE FOLLOWING SUMMARY OF SECOND DEPARTMENT

DECISIONS IN MEDICALMALPRACTICE CASES

DECIDED BETWEEN JUNE 1, 2016 AND JULY 31, 2016

WAS PREPARED BYBROOKLYN BAR ASSOCIATION

MEDICAL MALPRACTICE COMMITTEECHAIRMAN JOHN BONINA

Se Dae Yang v New York City Health &Hosps. Corp. 2016 NY Slip Op 04929 (2dDept. 2016).

Defendant moved to dismiss plaintiff’swrongful death claims, on the grounds thatplaintiff’s Notice of Claim was inadequate.Defendant’s motion was denied, with thecourt noting as follows:

General Municipal Law § 50-e(2) setsforth the criteria for the contents of a noticeof claim. In pertinent part, the statute re-quires that the claimant state the nature of theclaim and the time when, the place where,and the manner in which it arose (seeGener-al Municipal Law § 50-e[2]). The purpose ofproviding this information in a timely man-ner is so that the defendant can conduct aproper investigation and assess the merits ofthe claim while the information is still readi-ly available (see O’Brien v City of Syra-cuse, 54 NY2d 353, 359; Steins v Incorpo-rated Vil. of Garden City, 127 AD3d 957,959; DeLeonibus v Scognamillo, 183 AD2d697, 698).

“The Legislature did not intend thatthe claimant have the additional burdenof [*2] pleading causes of action and legaltheories, proper for the pleadings, in thenotice of claim. . . General Municipal Law§ 50-e was not meant as a sword to cutdown honest claims, but merely as a shieldto protect municipalities against spuriousones” (DeLeonibus v Scognamillo, 183AD2d 697, 698, citing Schwartz v City ofNew York, 250 NY 332, 333; see generallyBaker v Town of Niskayuna, 69 AD3d 1016,1017-1018). Accordingly, a claimant neednot state “a precise cause of action in haecverba in a notice of claim” (DeLeonibus vScognamillo, 183 AD2d at 698; see Steins vIncorporated Vil. of Garden City, 127 AD3dat 959; Bartley v County of Orange, 111AD3d 772, 774).

Contrary to the Supreme Court’s de-termination, the plaintiffs’ notice of claimadequately apprised the defendant thatthe claimant would seek to impose liabili-ty under a wrongful death theory of re-covery (cf. Steins v Incorporated Vil. of Gar-den City, 127 AD3d at 959; Crew v Town ofBeekman,105 AD3d 799, 800; see generallyBartley v County of Orange, 111 AD3d at774; Miller v City of New York, 89 AD3d612; Baker v Town of Niskayuna,69 AD3d at1017-1018). Accordingly, the SupremeCourt should have denied that branch of thedefendant’s motion which was pursuant toCPLR 3211(a)(7) to dismiss the cause of ac-tion alleging wrongful death on the groundthat the plaintiffs failed to serve an adequatenotice of claim pursuant to General Munici-pal Law § 50-e.

Monzon v Chiaramonte, 2016 NY Slip Op05124 (2d Dept. 2016).Certificate of Merit re uired in res ipsa case

Plaintiff alleged that defendants departedfrom good and accepted medical practice infailing to diagnose and treat a right kneefracture. Along with the summons and com-plaint, plaintiff’s counsel submitted a certifi-cate pursuant to CPLR 3012-a(c), to the ef-

fect that plaintiff intended to rely solely onthe doctrine of res ipsa loquitur. Defendanthospital moved to dismiss the complaint un-less plaintiff filed and served a proper cer-tificate of merit pursuant to CPLR 3012-a(a)(1). The court granted defendants mo-tion, noting as follows:

The Supreme Court did not err in condi-tionally granting that branch of the hospi-tal’s motion which was to dismiss the com-plaint insofar as asserted against it unlessthe plaintiff filed and served a certificate ofmerit pursuant to CPLR 3012-a(a)(1) with-in 30 days (see Dye v Leve, 181 AD2d 89).Cases such as this, which allege medicalmalpractice for failure to diagnose a condi-tion or to render appropriate treatment, per-tain to the level or standard of care expect-ed of a physician in the community, and donot encompass matters within the ordinaryknowledge and experience of laypersons(see Mosberg v Elahi, 176 AD2d710, affd 80 NY2d 941). The doctrine of resipsa loquitur is therefore not applicable tothis case (see Bin Xin Tan v St. Vincent’sHosp. & Med. Ctr. of N.Y., 294 AD2d 122).This case is not one of the narrow categoryof factually simple medical malpracticecases which require no expert to enable ajury to reasonably conclude that the injurywould not have happened without negli-gence (see Kambat v St. Francis Hosp., 89NY2d 489, 496). The plaintiff was thus re-quired pursuant to CPLR 3012-a(a)(1) tosubmit a certificate of merit declaring thather attorney had reviewed the facts of thecase and consulted with at least one physi-cian knowledgeable regarding the relevantissues in this action, and that the attorneyhad concluded that there was a reasonablebasis for the commencement of the action.

Moore v St. James Health Care Ctr., LLC2016 NY Slip Op 05632 (2d Dept. 2016).

Plaintiff’s claims were dismissed onstatute of limitations grounds, with thecourt noting that when the duty arises fromthe physician-patient relationship or is sub-stantially related to medical treatment, thenthe medical malpractice statute of limita-tions will apply, rather than the three yearnegligence statute of limitations.

Field v Bao, 2016 NY Slip Op 04691 (2dDept. 2016).

Plaintiff’s case dismissed for failure tocomply with discovery orders. Plaintiff’swillful and contumacious conduct was in-ferred not only from failing to respond todefendant’s discovery demands for twoyears, but also from their failure to even op-pose the motion to dismiss.

Henry v Datson., 2016 NY Slip Op 05119(2d Dept. 2016).

In this dental malpractice case, plain-tiff’s motion to strike defendant’s answerfor failure to appear for a deposition despitefive discovery orders was denied.

Meade v Yland, 2016 NY Slip Op 04697(2d Dept. 2016).

Summary Judgment granted — LimitedRole of Consultants

Plaintiff received an epidural steroid in-jection from defendant Dr. Yland, followingwhich she was unable to breathe, and un-able to move any of her extremities or feelanything below the C5-C6 level. An MRIwas taken the same day and interpreted byDr. West, a radiologist, who did not see any-thing to suggest edema from an infarct, cordcontusion, or other process. The MRI was

then reviewed by Dr. Davis, the on callNeurosurgeon, who also felt it showed noevidence of spinal cord compression orhematoma, and no abnormalities indicatingneurosurgical intervention.

The summary judgment motions of de-fendants West and Davis were granted.Plaintiff submitted a physician’s affidavitfrom a radiologist, who stated that West de-parted from accepted practices in failing toorder a diffusion MRI, and a physician’s af-fidavit from a neurosurgeon who stated thatDavis departed from accepted practices byrefusing to come into the hospital and ex-amine the patient in person, instead review-ing the imaging from his home computerand speaking to the emergency room physi-cian over the telephone.

The court nonetheless granted the sum-mary judgment motions of West and Davis,based on their limited duty as consultants.The court held that West’s role was to inter-pret and report upon the MRI film, and hedid not assume a general duty of care to in-dependently diagnose plaintiff’s medicalcondition. Further, the court held thatDavis’ duty as a neurosurgical consult wasto determine whether neurosurgery wasnecessary, which it was not.

Schuck v Stony Brook Surgical Assoc.,2016 NY Slip Op 04195 (2d Dept. 2016).

Summary judgment granted — Plain-tiff’s opposition was conclusory and specu-lative.

Wong v New York City Health & Hosps.Corp., 2016 NY Slip Op 04204

(2d Dept. 2016).

Summary judgment granted. Plaintifffailed to raise a question of fact in opposi-tion.

Gonzalez v Arya, 2016 NY Slip Op 04693(2d Dept. 2016).

Summary judgment denied. Plaintiffpermitted to rely on res ipsa.

Plaintiff underwent a colonoscopy at de-fendant Arya’s office. Six weeks later shewas diagnosed with Hepatitis C. An investi-gation performed by the New York City De-partment of Health discovered that the pa-tient upon whom defendant had performeda colonoscopy immediately before plaintiffwas a known Hepatitis C patient.

Defendant moved for summary judg-ment, and also moved for a Frye hearing,and to preclude plaintiffs’ reliance on theDOH report. The motions were denied, withthe court holding as follows:

In opposition, the plaintiffs relied on thedoctrine of res ipsa loquitur, which is avail-able when (1) the event is of a kind that or-dinarily does not occur in the absence ofsomeone’s negligence; (2) the event iscaused by an agent or instrumentality with-in the exclusive control of the defendant;and (3) the event was not caused by anyvoluntary action or contribution on the partof the plaintiff (see James v Wormuth, 21NY3d 540, 546). “To rely on res ipsa lo-quitur a plaintiff need not conclusivelyeliminate the possibility of all other causesof the injury. It is enough that the evidencesupporting the three conditions afford a ra-tional basis for concluding that it is morelikely than not that the injury was caused bydefendant’s negligence. Stated otherwise,all that is required is that the likelihood ofother possible causes of the injury be so re-duced that the greater probability lies at de-fendant’s door” (Kambat v St. Francis

Hosp., 89 NY2d 489, 494-495 [internalquotation marks omitted]).

The plaintiffs raised a triable issue offact with respect to whether, under the doc-trine of res ipsa loquitur, the Arya defen-dants’ negligence proximately caused theplaintiff’s contraction of hepatitis C. Theplaintiffs, through their expert’s affirma-tion, demonstrated that the transmission ofhepatitis C from one patient to another doesnot occur in the absence of negligence, asthe hepatitis C virus is a blood-bornepathogen that can only be transmitted whenthe blood of one patient is put into the bodyof the other, and that the injured plaintiffdid not contribute to the transmission, asshe was under anesthesia at the time of theprocedure. There is no dispute that the Aryadefendants were in control of the instru-mentality of the transmission of infectionfrom another patient, who had undergonethe procedure immediately before the in-jured plaintiff.

Johnson v Nassau Univ. Med. Ctr., 2016NY Slip Op 04179 (2d Dept. 2016).

In this psychiatric malpractice/suicidecase, the summary judgment motion of adefendant social worker and the clinic atwhich she worked were denied, with thecourt noting that there were conflictingfacts in the record concerning the obliga-tions of the various mental health careproviders who were caring for decedent. Inthis respect the court held as follows:

To prevail on a motion for summaryjudgment in a malpractice action, the defen-dant must make a prima facie showing ei-ther that there was no departure from ac-cepted practice, or that any departure wasnot a proximate cause of the patient’s in-juries (see Matos v Khan, 119 AD3d 909,910). Here, the deposition testimony sub-mitted by Zajac and the Clinic presentedconflicting opinions as to Zajac’s obliga-tions. Despite Zajac’s claim that she owedno duty to telephone the hospital or followup with respect to the decedent’s case,Jaghab testified at his deposition that thesocial workers at the Clinic are “the ones”who telephone a hospital to alert the hospi-tal that a patient is being referred. Sincethere was no direct communication betweenthe Clinic and the hospital, the [*2] fact thatthe decedent had a plan to commit suicidewas not ascertained when Sharoha evaluat-ed him and discharged him from the hospi-tal, at least in part because the decedent ex-pressed no plan to commit suicide. The sub-missions of Zajac and the Clinic failed toeliminate all triable issues of fact as to theirliability (see Faicco v Golub, 91 AD3d 817,818). In light of this determination, it is un-necessary to review the sufficiency of theplaintiffs’ opposition papers (see Winegradv New York Univ. Med. Ctr., 64 NY2d 851,853; Faicco v Golub, 91 AD3d at 818).

Keesler v Small, 2016 NY Slip Op 04912(2d Dept. 2016).

Defendant hospital’s summary judg-ment motion denied on ostensible agencygrounds.

Plaintiffs alleged that defendants Smalland Ratnathicam negligently administeredepidural anesthesia, and then negligentlydelayed in diagnosing and treating plain-tiff’s cauda equina syndrome. Although thecourt noted that these physicians were notemployees of defendant hospital, plaintiffraised a question of fact as to whether thehospital could be vicariously liable for themunder the doctrine of apparent or ostensibleagency.

Medical Malpractice Update



Brooklyn Bar Association Foundation Gifts Recent BLS Grad with Scholarship

By Rob AbruzzeseBrooklyn Daily Eagle

The Brooklyn Bar Association Founda-tion gifted recent Brooklyn Law School(BLS) graduate Anthony Beneduce Jr. withthe second annual Hon. Theodore T. Jones Jr.Memorial Scholarship during a ceremony inBrooklyn Heights on Wednesday.

“You are acknowledging a very specialperson who got his legal education at a veryspecial place in Brooklyn,” said Nicholas W.Allard, president and dean at BLS. “Thisyoung man exemplifies the character andqualities of the over 100,000 people whohave graduated from BLS since 150 yearsago.”

Beneduce was raised by his sister Christi-na and grandfather Guadalupe after the deathof his mother. It was his mother’s dying wishthat he “make something of himself,” whichencouraged him to go to law school. Therehe thrived, was eventually voted by hisclassmates as a commencement speaker andjust recently got a job with the Bronx DistrictAttorney’s Office.

“When he spoke of the promise he madeto his dying mother of making himself wor-thy of her, and what he had gone through tokeep that promise, he inspired us all,” Allardcontinued. “It is incredibly fitting for [Bene-duce] to receive this honor, as AppellateJudge Jones was a beloved and universallyrespected member of our legal community.”

Hon. Frank Seddio, president of theBrooklyn Bar Association, called Beneduce“the real American Dream.”

“We’re so proud to have helped you atthis point in your life,” Seddio said beforejokingly reminding Beneduce that he shouldbe working in Brooklyn rather than theBronx. “Hopefully, the Bronx DA’s Officecould be just a temporary stop. Maybe wecan help you find something in Brooklyn

later on down the road. We’ll talk.”After receiving the scholarship, Bene-

duce recalled working in construction, set-tling up scaffolding prior to law school, andsaid that he could have barely predicted thathis life would bring him to this point.

“I wanted to pursue my dream. BrooklynLaw School gave me the opportunity, and Ijumped at it,” Beneduce said. “I can’t evenexpress how grateful I am. I have taken on

what seems like an insurmountable amountof debt. That never stopped me; I alwayswanted to give back to the community. TheBronx District Attorney is giving me that op-portunity.

“As attorneys, we’re the ones wearingthe white hat, the ones people will look toas a moral compass, and I embrace thatrole and look forward to accomplishing asmuch as I can.”

Brookly Law S hool Dea Nicholas Allard withthe Brookly Bar Asso iatio ’s S holarship Co -

ittee Chair Re ecca Rose Woodland.Clo kwise fro left: Jane LaGennusa, Anthony Beneduce Jr., Michael LaGennusa,Christina Richards, Isa ella Richards a d Christian Richards.

Pi tured fro left: Avery Eli Okin, Hon. Frank R. Seddio, Ai ee L. Richter, Anthony Beneduce Jr., Re ecca Rose Woodland, Steven D. Cohn a d Brookly Law S hool Preside t a dDea Nicholas Allard. Brooklyn Eagle photos y Ro A ruzzese

It has been a long and established principle of taxlaw that a corporation or other entity, (the lender), canmake loans to owners, investors, employees or otherindividuals and entities as long as the loan is proper-ly documented and reflects an appropriate rate of in-terest. The result of such arrangements is that the per-son or entity receiving the loan, (the borrower), paysno income tax on the receipt of the loan principle.The borrower may also be entitled to deduct the in-terest on the loan. The lender is not entitled to a taxdeduction for the disbursement of the loan proceedsand will recognize interest income as required by In-ternal Revenue Service rules.

Donald Trump has apparently taken this kind oftransaction and transformed it into the “Art of theDeal”. When an owner, investor, employee or otherborrower receives a loan instead of a salary or divi-dend, there is no income tax consequence to the bor-rower except for the interest aspects of the loan. If infact the loan is legitimate, it will have to be repaid orunwound by reclassifying it as a dividend, salary orin some other way. Reclassifying the loan would re-sult in tax consequences to the parties.

The timing and nature of the repayment or re-classification of the loan provides the taxpayer withthe unique ability to control the timing of tax conse-quences. This kind of tax strategy is not available towage earners or for that matter most taxpayers.

There are various arguments that can be made bythe IRS which may cause taxpayers to lose sleepover the use of this strategy which is typicallyused to defer, delay or avoid paying income tax.The IRS can argue that this loan is really a dis-guised payment of a salary or dividend. This“Substance Over Form” argument is stronger ifthe facts do not support the existence and serv-icing of a bona fide loan. In most cases, theIRS will audit the taxpayer well after the origi-nation of the loan. The conduct of the taxpayerssubsequent to the loan will weigh heavily onany audit analysis, recommendation and/or as-sessment. In addition, there are various IRSrules regarding related party transactions under

26 U.S. Code Section 267 which may impactthe validity of loan transaction. A pattern ofloans from many entities controlled by the bor-rower, designed to avoid the payment of in-come taxes, would be a wonderful test case forthe IRS to pursue and publicize.

It is reported that Trump has borrowed a lit-tle less than one billion dollars from as many asa dozen entities either directly or indirectlyunder his control and has paid no Federal in-come tax. Trump has indicated that his returnsare under audit. It is clear that this case will testthe limits and extent to which taxpayers canavoid the payment of income tax by the use ofthis simple tax strategy.

By: Dewey Golkin, Esq

The Internal Revenue Service is Trumped


MEET THE BAR LEADERS: Long IslanderAimee Richter Made Brooklyn Her Home

The Brooklyn Bar Association (BBA) isfilled with dedicated members of the legal pro-fession who often come from Brooklyn fami-lies with legal backgrounds. However, Presi-dent-elect Aimee Richter grew up in Long Is-land, didn’t know a single attorney in heryouth and had never set foot in the boroughbefore attending Brooklyn Law School (BLS).

“I’ll never forget the first time I drove toBrooklyn,” Richter recalled. “I was going toBrooklyn Heights, but when I saw the VerrazanoBridge, I got nervous and got off the highway. Iasked someone where I was, and he just laughedand told me to get back on the highway.

“When I finally got to Brooklyn Heights, Icouldn’t believe it,” she continued. “BLS setme up with an apartment on Pierrepont Street,and I just remember driving toward the Prom-enade thinking that this was the most beautifulplace ever. When I got home, I told my moth-er that I was moving to Brooklyn.”

Richter, who originally hails fromCedarhurst, graduated from Lawrence HighSchool before she went to SUNY Albanywhere she majored in psychology. To this day,she doesn’t have a good explanation for whyshe decided to go to law school rather than be-come a psychologist. Even her decision to pickBLS was somewhat random. She had appliedto “all of the local law schools,” includingFordham, Columbia and NYU, but said thatBLS offered her an academic scholarship andan apartment. From that day on, she nevermoved out of the borough, eventually buyingher first and subsequent homes in Brooklyn,where she continues to reside to this day.

Richter landed a coveted summer associ-ate job with a major law firm in her secondyear at BLS. However, the fit wasn’t rightfor her, and she said that she was neverhappy in that atmosphere. Luckily for her,she saw an advertisement for a law clerk po-sition at Goldberg & Cohn, LLP on a bulletin

board at the school in the beginning of herthird year and decided to give it a shot.

“I remember seeing this little, tiny thing on aboard that said, ‘Goldberg & Cohn, law clerk,’”she recalled. “I went in and met Richard [Gold-berg] and Steve [Cohn], and that’s how I met mymentors for the next 10 years.”

After clerking at Goldberg & Cohn for ayear, Richter eventually became an associateand then a partner. Cohn said that he remem-bers Richter for being a sharp young lawyerright out of law school. He recalled a case be-fore Judge Elliot Golden, who was known formaking his decisions prior to his motions day,where Richter actually convinced the judge tochange his decision.

“He was the type of judge who said, ‘Unlessyou can convince me otherwise, this is my deci-sion,’” Cohn said. “Aimee worked really hard,found a Court of Appeals case regarding the issueand managed to use that to leverage the judgeinto changing his mind. It was early on, but I re-member that it showed great insight.”

Richter became a strong matrimonial andfamily law attorney during her 10 years at Gold-berg & Cohn and eventually decided to open herown firm, the Law Offices of Aimee L. Richter.She says she became a more polished attorneyduring a stint at as a partner at Bender, Rosenthal& Richter LLP.

“[Susan Bender] took my rough skills andhelped me to become a trial lawyer,” Richtersaid. “She sent me to Houston for a 10-day mat-rimonial trial advocacy course, and I started sec-ond-seating her during trials.”

Since January, Richter has been with the lawfirm Lee, Anav, Chung, White, Kim, Ruger &Richter LLP, where she helps to run the matri-monial division with Judy White. So far, she isthrilled with how she fits with that firm and itspotential for growth. “I wanted a firm with a part-ner whom I could grow with, and [White] waslooking for the same thing,” Richter said.

In addition to working ather new firm, Richter keepsbusy as a special master ofthe Appellate Division, FirstDepartment, where she han-dles mediations of matrimo-nial and family law appeals.She also gives regular Con-tinuing Legal Educationlectures, co-chairs the BBAFamily Law Section, and isan active member of theNew York State Bar Associ-ation House of Delegates.

She looks forward toJune, when she’ll beginserving as BBA president.“I still feel like a kid, likethat 26-year-old whowalked into the BBAboard-room for the first time, butthen you realize, ‘Oh my

God, I’m an adult,’” Richter said. “You lookback at all of the people that have been the BBApresident, and I’m so in awe — it’s hard to be-lieve that I’ll be one of those people.”

By: Rob Abruzzese,Brooklyn Daily Eagle

Aimee Richter with her husband CharlesMatusiak at the ceremony where Hon. FrankSeddio was sworn in as President of theBrooklyn Bar Association.

Brooklyn Eagle file photo by Mario Belluomo

Aimee Ricther with U.S. Supreme Court JusticeSamuel Alito at the Brooklyn Bar Association inApril 2016. Brooklyn Eagle file photo by Rob Abruzzese

Aimee Richter with her former boss Steve Cohnat the Brooklyn Bar Association’s annual dinnerin 2015. Brooklyn Eagle file photo by Mario Belluomo


While working pro bono, Seddio becamethe council for the West Indian Day Parade, agroup he has worked with for 49 years. Healso did work for the Knights of Columbusand helped to found the original CanarsieVolunteer Ambulance Corps and the Flat-lands Volunteer Ambulance Corps.

Seddio has always been interested inhelping people. He was forced to help hismother raise his five siblings after his fatherleft the family and moved to California whenSeddio was just 11 years old. That need tohelp people extended beyond his family andto the community as he started joining publicservice organizations as a teenager.

“My mother was a very good person whounderstood that it was important to help oth-ers, and she instilled it in me,” he said. “I al-ways liked politics; I used to tell my motherwhen I was 12 or 13 years old that she wouldlive in the West Wing of the White Houseeventually, not knowing it was an office. Wedidn’t get that far, but we didn’t do so bad. Iliked helping people; that’s been the stringthat connects everything.”

Seddio’s public service eventually ledhim to the bench, where he joined the Surro-gate’s Court in Brooklyn in 2005. His time asa judge didn’t last long, however, and he re-signed from the position after less than twoyears because, Seddio said, the position didnot fit his personality.

“I have always had a strong passion for pol-itics, and being a judge, you are politically un-able to be involved,” Seddio explained. “Thatwas very difficult for me. I felt like a cagedlion. I liked the work, but I didn’t enjoy the iso-lation from the things I liked the most.”

Seddio said that he planned to run forCity Council in 2008 after he stepped downas Surrogate’s Court judge, but when MayorMichael Bloomberg extended term limits itthrew a wrench into the plans. Then, in 2011,after Carl Kruger resigned from his office,Seddio expected that then-councilmemberLew Fidler would fill Kruger’s state Senateposition and Seddio could fill Fidler’s coun-cil seat. That plan was also thwarted whenFidler unexpectedly lost his race.

It wasn’t until Vito Lopez resigned follow-ing sexual harassment scandals in office thatSeddio was finally able to become the presidentof the Kings County Democratic Party.

“In 2010, Vito was the county leader,” Sed-dio said. “I played a major role in running thecounty at that time. I was the one who had therelationships with everyone. So when Vitostepped down, I was the natural choice. The re-formers that hated Vito, between the reformersand the ‘regulars,’I managed to get all their sup-port, including from Jo Anne Simon, who wasgoing to run but didn’t.

“The irony is this, if I had stayed as thejudge, I would have been retiring this year.It’s my 70th birthday this year, and if I hadwon the City Council, I wouldn’t have beeneligible to become the county leader.”

Seddio was called a Lopez crony in thenewspapers and by critics, but his leadershipstyle differs from Lopez’s. Where Lopez wasa harsh leader, Seddio is more of a bridgebuilder. Upon becoming county leader, heimmediately opened executive board meet-ings to the press and held more frequentcounty committee meetings. He also elimi-nated the at-large district leaders, which weredesigned to give Lopez more power. Seddioalso reached out to grassroots organizationsthroughout the borough, where Lopez wasmore likely to have made them enemies.

“I don’t have an ego about this stuff,”Seddio said. “I’ve been humbled by my loss-es and I’ve learned that you can’t be a sorewinner or a sore loser.”

Throughout his entire career, Seddio stillis most passionate about the events he holdsin the community where he grew up — Ca-narsie — where he hosts an annual St.Joseph’s Day feast along with his law partnerFrank Carone. At the event, Seddio does allhis own cooking, including his specialtiesthat he learned from his aunt — pasta consarde and eggplant parmesan.

He also goes above and beyond decoratinghis house for Christmas every year and inviteseveryone from the community. More than8,000 people came last year for a special cere-mony. His decorations include seven windowdisplays and more than 100,000 lights.

“Probably the reason I like doing this themost is because I don’t have a need to satisfymy ego,” Seddio said. “Saying that may soundlike I have a big ego, but I really try to neverdo anything that allows my ego to get in theway. What do we gain by being mad at people?If a person beats you in an election, what goodis it to be angry at them? Wouldn’t you ratherhave a relationship with them?”

MEET THE BAR LEADERS: Law School at 40 Changed Frank Seddio’s CareerContinued from page 1

Hon. Frank Seddio (second from right) was given the 2016 Charles A. Rapallo and Justice Antonin Scalia Award by the ColumbianLawyers Association, First Judicial Department in April. Seddio is pictured here with Suzanne J. Adams (left), Mayor Bill de Blasio andPresident of the Columbian Lawyers Marianne Bertuna (right). Brooklyn Eagle file photos by Rob Abruzzese

Hon. Frank Seddio, seen here in the conference room of the Brooklyn Bar Association, credits going to law school at the age of 40for having significantly impacted the direction of his career that has ultimately taken him to the top of the Kings County Democratic Party.

Hon. Frank Seddio, left, with Avery Eli Okin, executive director of the Brooklyn Bar Association.


The Following Attorneys and Counselors-at-Law Were Disbarred by Order of the Appel-late Division, Second Judicial Department:

John H. Cook, admitted as John H. Cook, Jr.(August 3, 2016)On July 28, 2015, the respondent pleadedguilty in the Supreme Court, Queens County, togrand larceny in the third degree, a class Dfelony. Upon the Grievance Committee’s mo-tion, the respondent’s name was stricken fromthe roll of attorneys and counselors-at-law ef-fective July 28, 2015, to reflect his automaticdisbarment upon conviction of a New Yorkfelony.

•••Richard L. Goldman (August 10, 2016)By Judgment of the Supreme Judicial Courtfor Suffolk County, Commonwealth of Mass-achusetts, entered September 3, 2015, the re-spondent was disbarred and his name wasstricken from the roll of attorneys in that state,based upon his affidavit of resignation. Uponthe Grievance Committee’s motion, the re-spondent was reciprocally disbarred, and hisname was stricken from the roll of attorney, inNew York.

•••Debra Ann Purcell-Regis, a suspended attor-ney (August 31, 2016)By decision and order of the Appellate Divisiondated February 4, 2015, the respondent was im-mediately suspended from the practice of lawfor failing to cooperate with an investigation ofthe Grievance Committee with regard to twocomplaints of professional misconduct and theGrievance Committee was authorized to insti-tute and prosecute a disciplinary proceeding.Thereafter, on February 16, 2016, the respon-dent pleaded guilty in Supreme Court, QueensCounty to one count of grand larceny in thesecond degree a class C felony. Upon theGrievance Committee’s motion, the respon-dent’s name was stricken from the roll of attor-neys and counselors-at-law effective February16, 2016, to reflect her automatic disbarmentupon conviction of a New York felony.

•••Bill Tsoumpelis, a suspended attorney (Au-gust 31, 2016)By decision and order of the Appellate Divisiondated March 7, 2016, the respondent was im-mediately suspended from the practice of lawbased upon his failure to cooperate with theGrievance Committee and other uncontrovert-ed evidence of professional misconduct imme-diately threatening the public interest, and theGrievance Committee was authorized to insti-tute and prosecute a disciplinary proceedingagainst the respondent. Unbeknownst to theCourt, the respondent was arrested and, on Jan-uary 15, 2016, pleaded guilty in SupremeCourt, Nassau County, to two counts of grandlarceny in the third degree, a class D felony.Upon the Grievance Committee’s motion, therespondent’s name was stricken from the roll ofattorneys and counselors-at-law effective Janu-ary 15, 2016, to reflect his automatic disbar-ment upon conviction of a New York felony.

•••Damian Pietanza, admitted as Damian J.Pietanza, a suspended attorney (October 12,2016)By opinion and order of the Appellate Divisiondated August 19, 2015, the respondent was sus-pended from the practice of law for a period ofthree years [see Matter of Pietanza,132 AD3d159]. The respondent has now tendered an affi-davit of resignation wherein he acknowledgesthat he cannot successfully defend himself onthe merits against three complaints currentlyunder investigation by the Grievance Commit-

tee, which allege, inter alia, neglect and con-duct involving deceit, fraud and misrepresenta-tion.

The Following Attorneys Were ImmediatelySuspended by Decision and Order of the Ap-pellate Division, Second Judicial Depart-ment:

Mark A. Bonilla (August 12, 2016)On July 25, 2013, the respondent was foundguilty, following a non-jury trial in DistrictCourt, Nassau County, of the crime of officialmisconduct, a class A misdemeanor. On the Ap-pellate Division’s own motion, the respondentwas immediately suspended from the practiceof law as a result of his conviction of a “seriouscrime,” pursuant to Section 90 of the JudiciaryLaw, continuing until further order of theCourt, and the Grievance Committee was au-thorized to institute and prosecute a discipli-nary proceeding against the respondent.

•••John E. Campbell (August 19, 2016)Upon the Grievance Committee’s motion, therespondent was immediately suspended fromthe practice of law, pending the considerationof charges of professional misconduct againsthim, based on a finding that he was guilty ofprofessional misconduct immediately threaten-ing the public interest as a result of his failureto cooperate with the Grievance Committee;his substantial admissions under oath; andother uncontroverted evidence.

•••Alex Constantopes (August 19, 2016)Upon the Grievance Committee’s motion, therespondent was immediately suspended fromthe practice of law, pending the considerationof charges of professional misconduct againsthim, based on a finding that he was guilty ofprofessional misconduct immediately threaten-ing the public interest as a result of his failureto cooperate with the Grievance Committeeand other uncontroverted evidence.

•••Darrell J. Conway, admitted as Darrell JohnConway (August 19, 2016)Upon the Grievance Committee’s motion, therespondent was immediately suspended fromthe practice of law, pending the considerationof charges of professional misconduct againsthim, based on a finding that he was guilty ofprofessional misconduct immediately threaten-ing the public interest as a result of his failureto cooperate with the Grievance Committee;his substantial admissions under oath; andother uncontroverted evidence.

•••Stephen A. Zorn, admitted a Stephen AllenZorn (August 22, 2016)Upon the Grievance Committee’s motion, therespondent was immediately suspended fromthe practice of law, pending the considerationof charges of professional misconduct againsthim, based on a finding that he was guilty ofprofessional misconduct immediately threaten-ing the public interest as a result of his failureto cooperate with the Grievance Committeeand other uncontroverted evidence.

•••Richard J. Barrett, admitted as RichardJohn Barrett (September 16, 2016)Upon the Grievance Committee’s motion, therespondent was immediately suspended fromthe practice of law, pending the considerationof charges of professional misconduct againsthim, based on a finding that he was guilty ofprofessional misconduct immediately threaten-ing the public interest as a result of his failureto cooperate with the Grievance Committeeand other uncontroverted evidence.

The Following Attorneys and Counselors-at-Law Were Indefinitely Suspended by Deci-sion and Order of the Appellate Division,Second Judicial Department:

Richard B. Wolf, admitted as Richard BruceWolf (June 9, 2016)Upon the Grievance Committee’s motion, therespondent was indefinitely suspended fromthe practice of law as a result of his incapacityby reason of mental infirmity or illness.

•••Kyle Thomas Lynch (August 12, 2016)Upon the Grievance Committee’s motion, therespondent was indefinitely suspended fromthe practice of law as a result of his incapacityby reason of mental infirmity or illness.

•••Monroe Y. Mann, Sr., admitted as Monroe Y.Mann (August 12, 2016)Upon the Grievance Committee’s motion, therespondent was indefinitely suspended fromthe practice of law as a result of his incapacityby reason of mental infirmity or illness.

•••Paige Juliet Segrell (September 28, 2016)By decision and order on motion of the AppellateDivision dated February 8, 2016, the respondentwas immediately suspended from the practice of,upon a finding that she was guilty of professionalmisconduct immediately threatening the public in-terest as a result of her failure to cooperate with theGrievance Committee, her substantial admissionsunder oath, and other uncontroverted evidence.Further, the Grievance Committee was authorizedto institute and prosecute a disciplinary proceedingagainst her. The respondent was charged in saiddisciplinary proceeding with, inter alia, failing tofile biennial registration statements with the Officeof Court Administration for the 2010-2011 and2012-2013 biennial registration periods, and fail-ing to cooperate with the legitimate demands ofthe Grievance Committee in connection with itsinvestigation into her professional misconduct.Absent any answer to the charges from the respon-dent, they are deemed established. Under the totali-ty of the circumstances, the respondent was indefi-nitely suspended from the practice of law, effectiveimmediately, until further order of the Court.

The Following Attorneys and Counselors-at-Law Were Suspended by Order of the Appel-late Division, Second Judicial Department:

Charles A. Petitto, admitted as Charles AngeloPetitto, a suspended attorney (August 24, 2016)On August 20, 2014, the respondent pleaded guiltyto 3 counts of a 33-count indictment in theSupreme Court, Kings County. Specifically, hepleaded guilty to one count of strangulation in thesecond degree as a hate crime, a class C felony,and two counts of menacing in the third degree asa hate crime, a class A misdemeanor. The respon-dent entered his plea to the following conditions:he was required to complete a 12-week angermanagement program, perform 60 days of com-munity service, and apologize on the record to thetwo complaining witnesses. On December 15,2014, following his successful completion of theforegoing conditions, the respondent was allowedto withdraw his plea to the count of strangulationin the second degree as a hate crime, and he wassentenced on the two counts of menacing in thethird degree as a hate crime. By decision andorder of the Appellate Division dated June 19,2015, the Grievance Committee was authorizedto institute and prosecute a disciplinary proceed-ing against the respondent. Thereafter, by deci-sion and order dated January 12, 2016, the re-spondent was immediately suspended from thepractice of law, and the Grievance Committee

was authorized to institute and prosecute a sepa-rate disciplinary proceeding against the respon-dent, based on a finding that he was guilty of pro-fessional misconduct immediately threatening thepublic interest as a result of his failure to cooper-ate with the Grievance Committee and uncontro-verted evidence that he had misappropriatedclient funds. Following a disciplinary proceedingbased on the criminal charges (i.e,the disciplinaryproceeding that originally was authorized), the re-spondent was found guilty of engaging in illegalconduct that adversely reflects on his honesty,trustworthiness, or fitness as an attorney. In deter-mining an appropriate measure of discipline, theAppellate Division considered “the nature of thecriminal conduct…particularly, the hate crime el-ement of the respondent’s conviction, and the ab-sence of any credible mitigating factors…” Therespondent was suspended from the practice oflaw for a period of two years, effective immedi-ately, and continuing until further order of theCourt.

•••Alex Rozenzaft (August 24, 2016)Following a disciplinary proceeding, the respon-dent was found guilty of allowing non-attorneys toexercise control over his law practice and failing tomaintain required bookkeeping records for his at-torney escrow account. In determining an appro-priate measure of discipline to impose, the Appel-late Division considered the respondent’s “whole-sale disregard of his duty to supervise his parale-gals and his duty to comply with the disciplinaryrules…” The respondent was suspended from thepractice of law for a period of two years, com-mencing September 23, 2016, and continuing untilfurther order of the Court.

•••Howard Schneider (August 24, 2016)Following a disciplinary proceeding, the respon-dent was found guilty of, inter alia, (1) misappro-priating funds entrusted to him as a fiduciary, in-cident to his practice of law; (2) improperly en-tering into a business transaction with a client[i.e., borrowing funds he was holding for theclient in his escrow account]; and (3) failing tomaintain required bookkeeping records for his es-crow account. Notwithstanding the mitigationproffered by the respondent, the Appellate Divi-sion found that the respondent’s misconduct wasnot isolated. Not only did the respondent fail tomaintain required bookkeeping records, he bor-rowed against funds in his escrow account, albeitwith permission of his client [i.e., Kaufman].“The dangers of this behavior rose dramaticallyonce the respondent took on otherclients, and de-posited funds belonging to those other clients intothe same escrow account. The respondent’s mis-management of his escrow account can only becharacterized as a serious violation of the rulesgoverning the proper maintenance of an escrowaccount. That serious violation, in turn, resulted inthe invasion of funds the respondent was holdingon behalf of clients other than Kaufman” (empha-sis added). In determining an appropriate measureof discipline to impose, the Court took into con-sideration “the special relationship that existedbetween the respondent and Kaufman, both per-sonal and business; the fact that the respondentwas granted permission by Kaufman to borrowagainst the account; the substantial mitigation[proffered]; the fact that the single client whosechecks were returned for insufficient funds waspromptly reimbursed and made whole; and theprotracted nature of the respondent’s failure tomaintain proper records, which [the Court consid-ered] to be an aggravating factor.” Under the to-tality of the circumstances, the respondent wassuspended from the practice of law for a period ofone year, commencing September 23, 2016, andcontinuing until further order of the Court.

Roll Call



THE FOLLOWING SUMMARY OF SECOND DEPARTMENT

DECISIONS IN MEDICALMALPRACTICE CASES

DECIDED BETWEEN APRIL 1, 2016 AND MAY 31, 2016

WAS PREPARED BYBROOKLYN BAR ASSOCIATION

MEDICAL MALPRACTICE COMMIT-TEE CHAIRMAN JOHN BONINA

Matter of Benjamin v Nassau Health CareCorp., 138 AD3d 988 (2d Dept. 2016).

Petitioner’s late notice of claim applica-tion was granted despite the lack of a reason-able excuse. The court noted that theclaimant was an infant, and that the munici-pality had actual knowledge of the essentialfacts constituting the claim by virtue of itspossession of medical records, which de-tailed the delivery and post-delivery care,and established that the delay in serving thenotice claim would not substantially preju-dice the municipality.

Reid v Soults, 138 AD3d 1091 (2d Dept. 2016).In this wrongful death action, plaintiff

was required to turn over a videotape compi-lation of decedent, and also provide an au-thorization for a nonparty’s YouTube ac-count. The videotape contained footage thatwas relevant to plaintiff’s pecuniary lossclaim and decedent’s life expectancy.

Kaous v Lutheran Med. Ctr., 138 AD3d1065 (2d Dept. 2016).

In this birth injury case, plaintiff was re-quired to provide authorizations for her sib-lings’ medical records, and also submit to ge-netic testing. The court stated as follows:

Turning to the defendants’ motions tocompel the production of the demanded dis-covery, the Supreme Court properly deter-mined that the defendants were entitled toperform genetic testing and a physical exam-ination of Sophia. In a medical malpracticeaction, where the physical condition of aparty is in controversy, “any party may servenotice on another party to submit to a physi-cal, mental or blood examination by a desig-nated physician” (CPLR 3121 [a]). Here, thedefendants challenge the plaintiffs’ allega-tion that Sophia’s injuries were caused by thedefendants’ purported malpractice and notFraser Syndrome or any other genetic predis-position. Given that Sophia’s physical andmental condition is in dispute, the SupremeCourt properly granted those branches of thedefendants’ motions which were to permitgenetic testing and a physical examination ofSophia (see LaBossiere v Hudson, 187 AD2d411, 411 [1992]).

In addition, the Supreme Court properlygranted those branches of the defen-dants’ [*3]motions which were for authoriza-tions for the medical records of Sophia’s sib-lings. CPLR 3101 (a) provides for “full dis-closure of all matter material and necessaryin the prosecution or defense of an action.”The terms “material” and “necessary” areliberally construed to further the disclosure“of any facts bearing on the controversywhich will assist preparation for trial bysharpening the issues and reducing delay andprolixity” (Allen v Crowell-Collier Publ.Co., 21 NY2d 403, 406 [1968]; see Reid vSoults, 114 AD3d 921, 922 [2014]). Here,the defendants demonstrated that the sib-lings’ medical records are material and nec-essary by submitting an expert affirmationexplaining that these records would ensurethat Sophia is properly diagnosed and thatthe claimed injuries were not caused by anyother genetic conditions to which she waspredisposed (see Farkas v Orange Regional

Med. Ctr., 97 AD3d 720, 721 [2012]). Ac-cordingly, the court properly determined thatthe plaintiffs were required to provide the de-fendants with authorizations for the releaseof the medical records of Sophia’s siblingsand the pregnancies that resulted in theirbirths, and to produce Sophia for genetictesting and a physical examination

Martinez v Quintana, 138 AD3d 791 (2dDept. 2016).

Summary Judgment Granted - Radiolo-gist cannot opine on causation.

This medical malpractice action is basedupon the allegation that a delay in diagnosinga nondisplaced fracture of one of the plain-tiff’s fingers resulted in, among other things,deformity and arthritis. The appellants estab-lished their prima facie entitlement to judg-ment as a matter of law by presenting expertmedical proof that the plaintiff’s injurieswere not caused by Fong’s alleged failure todiagnose the fracture (see Rivers v Birn-baum, 102 AD3d 26, 43 [2012]; Muniz vMount Sinai Hosp. of Queens, 91 AD3d 612,616 [2012]). In opposition, the plaintifffailed to raise a triable issue of fact with theaffidavit of her expert, Dr. Robert Tantleff, aboard-certified radiologist. Dr. Tantleffopined, based on his review of the X rays andreports, that Fong failed to diagnose theplaintiff’s nondisplaced fracture, that suchfailure was a deviation from good and ac-cepted radiological practice, and that this de-viation proximately caused the plaintiff’s in-juries. While Dr. Tantleff was qualified to ex-press an opinion that Fong’s failure to diag-nose the plaintiff’s nondisplaced fracturewas a deviation from good and accepted ra-diological practice, he established no foun-dation for his opinion with regard to theproximate cause of the plaintiff’s alleged in-juries, which were orthopedic in nature (seeShectman v Wilson, 68 AD3d848 [2009]; Mustello v Berg, 44 AD3d1018 [2007]).

Here, Dr. Tantleff’s opinion as to proxi-mate cause was related to the specialty of or-thopedics, but Dr. Tantleff failed to state anybasis on which he could be found competentto opine in that area. Therefore he was notqualified to render an opinion that Fong’sfailure to diagnose the plaintiff’s nondis-placed fracture proximately caused the al-leged orthopedic injuries (see Bongiovanni vCavagnuolo, 138 AD3d 12 [2d Dept2016]; Shectman v Wilson, 68 AD3d848[2009]; Mustello v Berg, 44 AD3d1018 [2007]). Moreover, his assertion wasspeculative, as he cited to no record evidenceto support his opinion that the plaintiff’s al-leged injuries were due to the undiagnosedfracture (see Bey v Neuman, 100 AD3d581 [2012]; Merritt v Saratoga Hosp., 298AD2d 802, 804-805 [2002]). Accordingly,the Supreme Court should have granted theappellants’ motion for summary judgmentdismissing the complaint insofar as assertedagainst them.

McCarthy v Northern Westchester Hosp.,2016 NY Slip Op 03723 (2d Dept. 2016).

Summary Judgment Granted: Infection develops 29 days after surgery—res ipsa does not apply.

“To rely on res ipsa loquitur, a plaintiffneed not conclusively eliminate the possibil-ity of all other causes of the injury. It isenough that the evidence supporting thethree conditions afford a rational basis forconcluding that it is more likely than not’that the injury was caused by defendant’snegligence” (Kambat v St. Francis Hosp., 89NY2d 489, 494, quoting Restatement [Sec-ond] of Torts § 328 D, Comment E), andother possible causes are “so reduced that the

greater probability lies at defendant’s door”(Kambat v St. Francis Hosp., 89 NY2d at 495[internal quotation marks omitted]). The con-clusion that the event must be of the kind thatordinarily does not occur in the absence ofsomeone’s negligence may be established byeveryday experience, or expert testimony (seeStates v Lourdes Hosp., 100 NY2d 208,212;Kambat v St. Francis Hosp., 89 NY2d at496). Negligence in a medical setting may beestablished by ordinary experience if a foreignobject is left in the body of the patient (seeKambat v St. Francis Hosp., 89 NY2d at 497),or the patient, while anesthetized, experiencesan unexplained injury in an area which is re-mote from the treatment site (see DiGiacomov Cabrini Med. Ctr., 21 AD3d 1052, 1054).

In the instant case, which did not involve aforeign object or an unexplained injury in anarea remote from the treatment site, the plain-tiff relied upon expert testimony to support hisallegation of res ipsa loquitur. The expert at-tempted to rule out sources of infection unre-lated to the defendants, noting that there wasno evidence that the plaintiff, at the time of thesurgery, was infected with salmonella. How-ever, the plaintiff’s expert noted that the de-fendants’ expert stated that there was no evi-dence of a salmonella infection present in thehospital either. The plaintiff’s expert furtherstated that “bone allografts are (or should be),either aseptic (free of pathogenic microorgan-isms) or sterile (free of all microorganisms)”by irradiation with gamma rays, and it was thedefendants’ duty to screen allograft manufac-turers, indicating that yet another party mayhave been responsible. Although the expertstated his opinion that it was more likely thatthe infection came from the operating roomduring the surgery rather than from a contam-inated bone allograft, the thrust of the expert’sopinion was that, but for the surgery, therewould not have been an infection of the surgi-cal wound, and, since the infection should nothave happened, the surgeons and the hospitalwhere the surgery took place must be respon-sible.

However, proof of an injury alone is notproof of res ipsa loquitur (see Johnson v St.Barnabas Hosp., 52 AD3d 286, 288). In sup-port of his cross motion for summary judg-ment on the issue of liability, the plaintifffailed to establish, prima facie, the applicabil-ity of the doctrine of res ipsa loquitur, since hedid not establish that the injury was caused byan agency or instrumentality within the exclu-sive control of the defendants (see Kruck v St.John’s Episcopal Hosp., 228 AD2d 565, 566).In addition, the plaintiff did not raise a triableissue of fact in opposition to the defendants’motions. Accordingly, the Supreme Courtshould have granted the defendants’ separatemotions for summary judgment dismissingthe complaint insofar as asserted againstthem, and properly denied the plaintiff’s crossmotion for summary judgment.

Reid v Soults, 138 AD3d 1087 (2d Dept. 2016).

Following an ATV accident, decedentpresented to defendant hospital and cameunder the care of the defendant physicians.He died nine days later. Plaintiff claimed afailure to properly read CT scans indicatingworsening brain swelling.

The hospital and radiology defendantswere granted summary judgment, as defen-dant Soults, the neurosurgeon, unequivocallytestified that he did not look at the radiologyreports, and instead interpreted the CT scanshimself.

However, defendant Soults’ summaryjudgment motion was denied, as plaintiffsubmitted an expert affirmation to the effectthat the CT scans showed that the decedent’scondition was worsening, that it was a de-parture to discontinue the CT scans and

transfer decedent out of the ICU, and that ifthe CT scans had been continued, the wors-ening condition would have been detectedand the swelling of the decedent’s braincould have been managed.

Shanoff v Golyan, 2016 NY Slip Op 03869(2d Dept. 2016).

Preclusion reversed — plaintiffs’ theorywas readily discernible from the bills ofparticulars and expert disclosures.

After jury selection defendants moved topreclude certain testimony to the effect thatthey negligently failed to place decedent in atelemetry unit postoperatively. The trialcourt granted the motions. Plaintiff then re-quested that the case be marked off the cal-endar. Supreme Court granted that requestwithout striking the note of issue, and per-mitted defendants to file summary judgmentmotions, which were then granted.

The second department reversed, holdingthat Supreme Court should not have granted thepreclusion motions in the first place, as plain-tiffs’ theories were readily discernible from thebills of particulars and expert disclosures. In thisrespect the court held as follows:

The Supreme Court should have deniedthe motions of Bijan Golyan and NorthShore in limine to preclude the plaintiffsfrom presenting testimony at trial that theynegligently failed to place the decedent in atelemetry unit post-operatively to monitorher heart function, as that theory was includ-ed in the plaintiffs’ bills of particulars. Thepurpose of a bill of particulars is “to amplifythe pleadings, limit the proof, and preventsurprise at trial” (Jurado v Kalache,93AD3d 759, 760 [internal quotation marksomitted]; see Contreras v Adeyemi, 102AD3d 720, 722). A bill of particulars in amedical malpractice action “must provide ageneral statement of the acts or omissionsconstituting the alleged negligence” (Toth vBloshinsky, 39 AD3d 848, 849; seeCPLR3043[a][3]; Contreras v Adeyemi,102 AD3dat 722). Here, the plaintiffs’ theory that BijanGolyan and North Shore negligently failed toplace the decedent in a telemetry unit wasreadily discernable from the allegations setforth in the bills of particulars. Thus, the billsof particulars were sufficient to place BijanGolyan and North Shore on notice of thistheory, and satisfy the requirements of CPLR3043(a)(3). Further, the plaintiffs served var-ious expert disclosures setting forth that theirexpert would testify regarding post-operativecare and monitoring in a telemetry unit. Wealso note that the supplemental expert wit-ness disclosure of Bijan Goylan, dated No-vember 9, 2009, as well as the supplementalexpert witness disclosure of Winiarsky andNorth Shore, dated March 15, 2012, indicat-ed that their respective experts were expect-ed to testify that the decedent’s postopera-tive [*3]condition did not indicate or warranta transfer to a telemetry unit. Accordingly,the Supreme Court should have denied thesubject motions in limine. Furthermore,without the preclusion set forth in the orderdated April 12, 2012, Bijan Golyan andNorth Shore should not have been grantedsummary judgment dismissing the complaintinsofar as asserted against them.

Meneses v Riggs, 138 AD3d 700 (2d Dept. 2016).

CPLR 4401 dismissal at the close of plain-tiff’s case reversed.

Dismissal at the close of plaintiffs’ casewas reversed, as plaintiff is entitled to everyreasonable inference which can be drawn fromthe facts presented at trial, and the court mustconsider such facts in a light most favorable toplaintiff on such a dismissal motion.

Medical Malpractice Update


Eliot F. Bloom (September 21, 2016)Following a disciplinary proceeding, the re-spondent was found guilty of engaging in animproper conflict of interest and neglecting alegal matter entrusted to him. In determining anappropriate measure of discipline to impose,the respondent contends that the subject mis-conduct occurred 10 years ago; that it did notinvolve venality; and that it “resulted in noharm to anyone.” However, the Court consid-ered the Special Referee’s finding that the re-spondent’s failure to act “prejudiced hisclients.” Further, the Court found that a sub-stantial factor in aggravation was the respon-dent’s prior disciplinary history, as follows: (1)censured by the Appellate Division, SecondDepartment for falsely notarizing two authori-zations in connection with the return of aclient’s bail, which were filed with the NassauCounty Court [see Matter of Bloom, 99 AD3d69]; (2) admonished by the Grievance Commit-tee for engaging in conduct prejudicial to theadministration of justice after a court foundhim in contempt for failing to answer an infor-mation subpoena in connection with a defaultjudgment obtained by a court reporting service;(3) admonished by the Grievance Committeefor failing to timely satisfy an arbitration awardrequiring him to refund $10,000.00 in legalfees to a former client in accordance with anorder of the Appellate Division, Second De-partment. The Court imposed sanctions in theamount of $10,000.00 on both the defendant inthat action and the respondent, which findingwas unanimously affirmed by the Appellate Di-vision, First Department, by decision and orderdated June 21, 2012 [see Capetola v Capetola,96 AD3d 612]. Further, the respondent receivedfour Letters of Caution from the GrievanceCommittee for, among other things, his inabili-ty to account for funds on deposit in his attor-ney trust account; his withdrawal from repre-sentation of a client without taking all steps rea-sonably practicable to avoid foreseeable preju-dice to the client; and to ensure that he ade-quately communicate with his clients. Underthe totality of the circumstances, the respondent

was suspended from the practice of law for aperiod of six months, commencing October 21,2016, and continuing until further order of theCourt.

Paul Steinberg (September 21, 2016)Following a disciplinary proceeding, the re-spondent was found guilty of misappropriatingfunds entrusted to him as a fiduciary, incidentto his practice of law, and engaging in conductadversely reflecting on his fitness to practicelaw as well as failing to maintain requiredbookkeeping records for his escrow account. Indetermining an appropriate measure of disci-pline to impose, the Court found that the re-spondent “failed in his obligations as a fiduci-ary by his misappropriation of client funds, is-suance of checks without verification of avail-able correlating funds on deposit, and failure tomaintain a contemporaneous ledger and to re-view his records.” In mitigation, the Courtnoted that the respondent derived no personalbenefit from his failures as a fiduciary; that hereimbursed his client; that he expressed re-morse; and that he has no prior disciplinary his-tory. Under the totality of the circumstances,the respondent was suspended from the prac-tice of law for a period of six months, com-mencing October 21, 2016, and continuinguntil further order of the Court.

Jacqueline Harounian (October 12, 2016)Following a disciplinary proceeding, the re-spondent was found guilty of (1) misappropri-ating funds entrusted to her, incident to herpractice of law; (2) violating her fiduciary re-sponsibility by commingling personal fundswith funds entrusted to her, incident to herpractice of law; (3) violating her fiduciary re-sponsibility by failing to keep funds entrustedto her and belonging to another person, in aspecial account or accounts, separate from anypersonal or business accounts; (4) violating herfiduciary responsibility by failing to keep fundsentrusted to her and belonging to another per-son in a special account, separate from any ac-count the respondent maintained in another fi-duciary capacity; (5) violating her fiduciary re-sponsibility by possessing funds belonging to

another person, incident to her practice of law,and placing those funds into an account thatwas not identified as an “Attorney Special Ac-count,” “Attorney Escrow Account,” or an “At-torney Trust Account;” (6) failing to producebank records; (7) failing to maintain and keeprequired bookkeeping records of all depositsand withdrawals from her accounts, incident toher practice of law; (8) engaging in conduct in-volving dishonesty, fraud, deceit or misrepre-sentation; (9) allowing a non-lawyer to be anauthorized signatory on her firm’s attorney es-crow account; (10) failing to exercise reason-able management or supervisory authority overher law firm’s attorney escrow account; and(11) engaging in conduct that adversely reflectson her fitness as a lawyer based upon the fore-going. In determining an appropriate measureof discipline to impose, the Court consideredthe Special Referee’s finding that “it ap-pears…all of the respondent’s ‘current prob-lems arise from a lack [of] knowledge about es-crow protocol.’” Moreover, the Special Refereefound, in mitigation, inter alia, “the respon-dent’s acknowledgment of her mistakes andsincere remorse for her errors, the remedial ef-fort [undertaken] to educate herself regardingescrow management, her unblemished recordduring 23 years of practice, her service to thelegal and local community, and her excellentreputation.” The Court considered, further, thatthe respondent, inter alia, “failed to fully ap-preciate and understand her obligations as a fi-duciary; failed to maintain [a client’s escrowintact in a] properly designated account;comingled client funds with personal funds;and failed to keep required records.” Under thetotality of the circumstances, the respondentwas suspended from the practice of law for aperiod of one year, commencing November 14,2016, and continuing until further order of theCourt.

The Following Attorneys and Counselors-at-Law Were Publicly Censured by Order ofthe Appellate Division, Second Department:

Robert Prignoli (August 31, 2016)By Order of the Supreme Court of New Jersey,

filed March 4, 2016, the respondent was pub-licly reprimanded for lack of diligence; fail-ing to keep a client informed about the statusof a matter; and failing to promptly deliver toa client or third party any funds the client orthird party was entitled to receive. Upon theGrievance Committee’s motion, the respon-dent was reciprocally censured in New York.

Scott Thomas Roesch (September 28, 2016)On or about May 24, 2014, the respondentwas charged by felony complaint in the Nas-sau County District Court, First District, withcriminal possession of a controlled substancein the fourth degree, a class C felony. On Jan-uary 26, 2015, the respondent pleaded guiltyin the District Court to criminal possession ofa controlled substance in the seventh degree,a class A misdemeanor. By decision and orderdated October 30, 2015, the Appellate Divi-sion, on its own motion, determined that therespondent had been convicted of a “seriouscrime” pursuant to Section 90 of the Judicia-ry Law. However, the Court vacated the re-spondent’s automatic suspension pursuant Ju-diciary Law § 90(f), and authorized theGrievance Committee to institute and prose-cute a disciplinary proceeding. Followingsaid disciplinary proceeding, the respondentwas found guilty of engaging in illegal con-duct that adversely reflects on his honesty,trustworthiness, or fitness as a lawyer, andthat adversely reflects on his fitness to prac-tice law. In determining an appropriate meas-ure of discipline to impose, the Appellate Di-vision considered several factors in mitiga-tion, to wit, the respondent’s compliance withthe conditions imposed in treatment court,which resulted in the dismissal of the criminalcharges against him on January 26, 2016; hissincere statements of remorse; the numerousaffidavits and affirmations attesting to hisgood character; and his previously unblem-ished disciplinary record. Under the totalityof the circumstances, the respondent was pub-licly censured.

Continued from page 8

Roll Call

Diller v Munzer, 2016 NY Slip Op 05553 (2dDept. 2016).Defendant hospital’s summary judgmentmotion denied on ostensible agencygrounds.

In this birth injury case, defendant hospitalmoved for summary judgment, on the groundsthat its employees did not depart from goodand accepted medical practices. The motionwas denied, with the court holding that plain-tiff raised a question of fact as to whether thehospital could be responsible for two attend-ing neonatologists under the doctrine of ap-parent or ostensible agency.

Elmes v Yelon, 2016 NY Slip Op 04904 (2dDept. 2016).

Plaintiff was involved in a motorcycle ac-cident on June 19, 2009 and sustained severeinjuries to his left lower leg, following whichattempts were made to save his left leg, in-cluding consulting with an infectious diseasespecialist on July 6. Ultimately, his left legwas amputated on July 15. Plaintiff claimed,amongst other things, that defendants allowedhis leg to become infected and failed to time-ly consult with an infectious disease special-ist.

Defendants moved for summary judgment,claiming that at no time before July 6 wasplaintiff’s leg infected. The motion was de-

nied, with the court holding as follows:Here, in separately moving for summary

judgment dismissing the medical malpracticecause of action insofar as asserted againstthem, the appellants met their prima facie bur-den by submitting the affidavits of their ex-perts, who opined that the plaintiff’s leg wasnot infected and, thus, that they did not devi-ate or depart from accepted medical practicein not consulting with an infectious diseasespecialist until July 6, 2009 (see Guctas v Pes-solano, 132 AD3d at 633; LeMaire v Kun-cham, 102 AD3d 659, 660; Ahmed v New YorkCity Health & Hosps. Corp.,84 AD3d 709,711). In opposition, however, the plaintiffsraised triable issues of fact. The affirmationsof the plaintiffs’ experts raised triable issuesof fact as to whether the plaintiff’s leg was in-fected, whether the appellants departed fromgood and accepted medical practice by failingto consult with an infectious disease specialistprior to July 6, 2009, and whether this failurewas the proximate cause of the patient’s in-juries (see Guctas v Pessolano,132 AD3d at633; Schmitt v Medford Kidney Ctr.,121 AD3d1088). “Summary judgment is not appropriatein a medical malpractice action where the par-ties adduce conflicting medical expert opin-ions” (Feinberg v Feit,23 AD3d 517, 519; seeGuctas v Pessolano,132 AD3d at633; Schmitt v Medford Kidney Ctr.,121AD3d at 1088). Conflicting expert opinionsraise credibility issues which are to be re-

solved by the factfinder (see Guctas v Pes-solano,132 AD3d at 633; Loaiza v Lam,107AD3d 951, 953; Roca v Perel, 51 AD3d 757,759).

Lacqua v Silich, 2016 NY Slip Op 05628 (2dDept. 2016).

New trial granted to plaintiff — error injudgment charge him properly given.

Plaintiff claimed that defendant failed totimely diagnose a lump in his left breast ascancerous. Following a trial, the jury foundthat defendant did not depart from acceptedstandards of medical practice in not orderingany diagnostic studies or biopsies on January10, 2012. Plaintiff appealed, claiming that anerror in judgment charge was improperlygiven.

The court reversed and ordered a new trial,holding that, under the circumstances of thiscase, the error in judgment charge should nothave been given. Specifically the court held asfollows:

A new trial is nevertheless required be-cause the Supreme Court erred in giving an“error in judgment” charge (PJI 2:150 ¶ 5)over the plaintiff’s objection. “That charge isappropriate only in a narrow category of med-ical malpractice cases in which there is evi-dence that defendant physician consideredand chose among several medically accept-able treatment alternatives” (Martin v Latti-

more Rd. Surgicenter, 281 AD2d 866,866; see Nestorowich v Ricotta, 97 NY2d 393,399;Brault v Kenmore Mercy Hosp., 142AD2d 945). Contrary to the defendant’s con-tention, this case does not present a choice be-tween one of two or more medically accept-able alternative treatments or techniques (seee.g. Beebe v St. Joseph’s Hosp. HealthCtr., 121 AD3d 1536; Lenzini v Kessler,48AD3d 220, 220-221). Rather, the defendanttestified that he diagnosed the decedent, inJanuary of 2002, with a benign condition “thatwas not urgent,” and he neither suspected can-cer nor considered the option of sending thedecedent for further diagnostic testing. Thus,the case presented the jury with the straight-forward question of whether the defendant de-viated from the applicable standard of care indiagnosing the decedent with a benign condi-tion in January of 2002, and the “error in judg-ment” charge was not warranted (see e.g. Van-derpool v Adirondack Neurosurgical Special-ists, P.C., 45 AD3d 1477; Anderson v Houseof Good Samaritan Hosp.,44 AD3d 135).Moreover, under the circumstances presented,the error in giving the charge was not harm-less (compare Nestorowich v Ricotta, 97NY2d at 400-401, and Nelson v Schwartz, 90AD3d 626, 627, with Vanderpool v Adiron-dack Neurosurgical Specialists, P.C., 45AD3d at 1478, and Anderson v House of GoodSamaritan Hosp., 44 AD3d at 141-142). Ac-cordingly, we must reverse the judgment andorder a new trial.

Medical Malpractice UpdateContinued from page 4


In September, 1971 I was then a youngKings County assistant district attorneyworking for Gene Gold, assigned to writ-ing appellate briefs and responding to pre-trial omnibus motions when what we nowknow to be the Attica Prison uprising ex-ploded into the media, and hence publicconsciousness. Located in Western NewYork in rural Wyoming County, the in-mates at this maximum security correction-al facility violently took hostages, and pre-sented a litany of demands to Attica War-den Vincent Mancusi, focused on signifi-cantly reforming prison operation, and in-mate living conditions.

Negotiations with Warden Mancusiwere pressed by a coalition of black andwhite political activists who sought bothsignificant correctional policy change, andfull amnesty for those participating in theprison takeover. A group of well regardedobservers, consisting of New York Timescolumnist Tom Wicker, State Senator JohnDunne (R - Nassau), Assemblyman ArthurEve (D - Erie), and Buffalo Law Schoolprofessor Herman Schwartz were alsoconsulted. Governor Nelson Rockefellersaw such negotiations as a sign of politicalweakness, likely undermining his hopes tocapture the Republican nomination forPresident, and was directly involved inplanning and executing the State's responseto retaking Attica and freeing the prisonguards taken hostage.

In what history powerfully and con-vincingly demonstrates was poorlyplanned and foolishly executed, a coalitionof untrained New York State Police, cor-rections officers, and the National Guardstormed the facility with then Departmentof Correctional Services (D.O.C.S.) Com-missioner Russell G. Osgood, ironically a

Rockefeller hire widely recognized as anoutspoken reformer who, prior to his ap-pointment, had operated the Wisconsin andMassachusetts parole system, succeedingCommissioner Paul McGinnis.

Faced with debilitating prison condi-tions significantly devoid of both sufficientvocational training and educational oppor-tunities, to the point that Attica was moreaccurately “warehousing” rather than reha-bilitating and correcting its inmates, andfrequently not providing sufficient foodand medical services (6.19% of Attica's op-erating budget was allotted to food, .69%to medical supplies, 1.6% to vocationaltraining and academic programs, and1.65% to clothing), Attica was reportedly averitable tinderbox of discontent ready toexplode - and when “ignition” came, ex-plode Attica did!

Heather Ann Thompson, an award win-ning University of Michigan historian, haswritten the definitive account of the AtticaPrison rebellion, the violent retaking, andthe investigations, criminal prosecution,and civil cases which the state's violent“take back” caused. She provides movingportraits of the inmate leaders, the prisonguards, and their families.

That Governor Rockefeller elected notto travel to Attica to make leadership poli-cy decisions may well have been a pro-found error based upon bad advice and adefiant personality, which played out dur-ing the “law and order” days of the pre-Watergate Nixon Administration, when ne-gotiations with hostage taking prisonerswas not a perceived favorable “optic.”

The decision to eschew further negotia-tions with the inmates and outside ob-servers and launch a violent take back in-volving untrained state police, and state

corrections officers armed with pelletspraying shotguns and rifles firing dam-age-enhancing “hollow point” bullets, wasas fatally flawed as the World War I Gal-lipoli campaign was to Anzac and Britishtroops.

Worse still, after firing wildly and bothkilling prisoners and wounding hostagesalike, the imposition of post-takeover vio-lent retribution on the inmates is chilling tocontemplate. Prisoners were sexuallyabused, assaulted, and forced to literallyrun a gauntlet of brutal club swingingguards seeking payback for the takeover.These were surely the equivalent of do-mestic “war crimes” committed by thestate government against its own citizens,contrary to any notion of the meaning ofthe rule of law.

Author Thompson provides deeply per-sonal accounts fair to both inmates andguards, who suffered the most by the state'sdecision making run amuck. Subsequentcriminal investigations by the office ofDeputy State Attorney General Fisher werefollowed by trials of many of the inmatescharged with abduction and homicide.Convictions and acquittals followed. TheAttica team of defense lawyers, consistingof “hard left” National Lawyers' Guildmembers, performed powerfully againstlong odds, confronting pro-governmentjury pools in a community heavily populat-ed with state employees.

The late Court of Appeals JudgeBernard M. Meyer and New York Univer-sity Law School Dean Robert McKay, atthe direction of then Governor HughCarey, issued a report critical of what oc-curred. Later, pardons would be issued byGovernor Carey, closing the criminal pros-ecution phase.

Civil cases, brought by corrections offi-cers and prisoners alike, prompted trials,appeals, and later hard bargaining settle-ment discussions, bringing some smallmeasure of justice to a terrible embarrass-ment after the largest verdict in the UnitedStates District Court for the Western Dis-trict of New York (Elfvin, J.) was vacated(see Blyden v. Mancusi, 186 F. 3d 251 [2ndCir. per Winter, J.]). Under the strong lead-ership of United States District JudgeMichael Telesca, a measure of justicethrough settlements with inmates and thefamilies of corrections officers was found.

As we cast a look back, and ponder thestill staggeringly high recidivism rates ofstate inmates, the obvious question whichwe must confront is whether we havelearned anything from the Attica debacle.For years prisoners have been denied ac-cess to college courses due to federal lawrestricting “Pell Grants.” One would thinkas a matter of simple logic that inmates en-rolled in such classes, busy reading anddiscussing their lessons, would be signifi-cantly less likely to harbor threats to theirguards, and more likely not to recidivatefollowing their release from custody.

If correctional systems had such super-vision as hospitals facing post-operativepatient readmission, they would be deemedfailures, subject to administrative sanc-tions, and forced to close their doors. Withjails, a deadly and flawed “revolving door”of release and remand strongly suggests re-cidivism. We clearly need new approaches,and new services, to achieve smart, effec-tive correctional reform. Sadly, we spendtoo much, plan too little, and pay a tremen-dous price for the failure to effectuate realchange.

Heather Thompson's book is a vividcautionary tale of the cost of hubris. Whenwill we ever learn…?

“Blood in the Water” by Heather Ann Thompson Published by Pantheon Books, 2016

By Roger B. Adler

Directors: ADaniel Antonelli, Elaine M.Avery, Marianne Bertuna, Joseph R. Costello,Hon. Fidel Del Valle, Michael Farkas, Ste-fano A. Filippazzo, Dewey Golkin, Steven J.Harkavy, David J. Hernandez, Adam Kalish,Richard Klass, Deborah Lashley, JaimeLathrop, Jeffrey Miller, Hemalee J. Patel,Andrew Rendeiro, Joseph S. Rosato, AnthonyW. Vaughn, Jr., Glenn Verchick, Pauline Yeung.

Past Presidents: Arthur L. Aidala – Im-mediate Past President; Roger Bennet Adler,Vivian H. Agress, Andrea E. Bonina, RoseAnn C. Branda, Gregory T. Cerchione,Steven D. Cohn, Hon. Miriam Cyrulnik,Lawrence F. DiGiovanna, David J. Doyaga,Sr., Andrew M. Fallek, Joseph H. Farrell,Andrew S. Fisher, Ethan B. Gerber, DominickGiordano, Paul A. Golinski, Gregory X. Hester-berg, Hon. Barry Kamins, Marshall G. Kaplan,Mark A. Longo, John Lonuzzi, John E. Murphy,Domenick Napoletano, Manuel A. Romero,Barton L. Slavin, Hon. Jeffrey S. Sunshine,Hon. Nancy T. Sunshine, Diana J. Szochet,Rebecca Rose Woodland.

The Bar Association Foundation Annual DinnerContinued from page 1

A BOOK REVIEW


By Rob AbruzzeseBrooklyn Daily Eagle

Brooklyn Pride meets on the first Tuesdayof every month, and this past Tuesday, Nov. 1,it was joined by the Brooklyn Bar Association’sLGBTQ and Young Lawyers committees atBogota Latin Bistro on Fifth Avenue.

The networking event was designed to givecross-promotion to each of the three groups,and it seemingly paid off as dozens of lawyersand a few law students participated.

“I’m a little emotional right now becauseI’m not only one of the co-chairs of BrooklynPride, but I’m also an attorney, a graduate ofBrooklyn Law School and a member of theBrooklyn Bar Association’s LGBTQ Com-mittee,” said Mickey Heller, co-chair ofBrooklyn Pride, a prominent LGBTQ organ-ization that produces the borough’s annualpride events.

“When I graduated law school in 1990 andjoined the Brooklyn Bar, I never thought itwould have such a diverse group of people,”Heller continued. “When I joined, it was abunch of older, white men in tailored suits. Thisis great to see.”

Christina Golkin, who founded theLGBTQ Committee a year ago, used the op-portunity to talk about the committee’sprogress over the past year. Members of thegroup are busy working on organizing aContinuing Legal Education (CLE) seminarthat is tentatively scheduled for March 22.They will also be expected to staff a tableduring Brooklyn Pride’s parade in ParkSlope, which will take place in June.

“Last year we had a CLE on employmentdiscrimination within the LGBTQ Commit-tee,” Golkin said. “I’m excited this year be-cause we’re working with Brooklyn Pride,we have some projects in the works with thebar association’s Lawyer Referral Serviceand we’re planning a CLE on second parentadoption in March.”

The Young Lawyers Committee is workingon a CLE seminar in the more immediate future;Jimmy Lathrop and Anthony Vaughn Jr. willconduct a foreclosure lecture on Monday, Nov. 7at the Brooklyn Bar Association at 6 p.m.

“The Young Lawyers are sponsoring aCLE with Jimmy Lathrop on Monday, sothis is a great opportunity to get support forthat so a good crowd attends,” said AdamKalish, co-chair of the Young LawyersCommittee.

“We’ve been doing monthly events whichhave been getting great turnouts, so we’re excit-ed for the future of this committee,” said Kalish.“After tonight, we expect a lot of people to showup and support us and the [Brooklyn Bar Associ-ation] at the CLE we are sponsoring.”

For more information on upcomingCLEs at the Brooklyn Bar Association, visitBrooklynBar.org.

Brooklyn Bar Association’s LGBTQ and Young Lawyers Committees Host Event with Brooklyn Pride

Pictured from left: Jamie Farnam, Adam Kalish, Mickey Heller, Christina Golkin and Josh Levine

Clockwise from top left: Jose Ropeza, Laura Outeda, Matt Porges, Gail Torodashand Daniel Antonelli Brooklyn Eagle photos by Rob Abruzzese From left: Susan Crumiller, Sean Kerley and Carrie Goldberg

From left: Jimmy Lathrop, Frank Francis and Adam Kalish

Krisna Crequé (left) and Rachel Russell

THE OFFICIAL PUBLICATION OF THE BROOKLYN BAR …Shelly Werbel Gregory Zenon BROOKLYN BAR ASSOCIATION...

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