September 2017 iNews Issue 88 - In This Issue:

Trial Tips

Cross Examination of Plaintiff's Medical Consultant
by Frank Scahill
Frank Scahill

Dr. Jerry Lubliner is a favorite expert witness for plaintiffs. He is often called as a consultant, with no treatment given to the plaintiff. He is polished, sincere, exceptionally well spoken, talented and extremely bright. He likes to show he is the smartest guy in the courtroom. A defendant can use that narcissistic trait to their distinct advantage on cross examination. A jury may be charmed and impressed by the direct examinations, but on cross, defense counsel can show his true colors. Take, for example, this recent exchange between Tom Craven of our office and Dr. Lubliner in Kings County before Judge Dawn Jiminez-Salta during a July 2017 trial on a high exposure case with $2.3 Million in coverage and 100% liability against the defendant. 

The plaintiff had a laminectomy and fusion from L3 to the Sacrum in 2011. The plaintiff also had a total left hip replacement in 2011. The plaintiff had a right knee arthroscopy in 2012 and a total right knee replacement in 2015. The plaintiff also had a left carpal tunnel release surgery in 2013. The 60 year old plaintiff was out of work for over 300 days post-accident. This case could have resulted in a verdict above the policy limits. The case settled for $375,000 based on the strength of Tom's cross-examination.  
To set the stage, a jury should know the Doctor's experience in the courtroom and counsel must take the upper hand having the Doctor agree to answer the simplest of questions with a yes or no. Here, Dr. Lubliner could not concede that simple point and made himself look foolish from the start of cross-examination:
Q.   In fact, you have testified in court more than 250 times, correct? 
A.   Over 30 years, correct. 

Q.   Over those 30 years, over those 250 times, you know how the procedure is, right? 
A.   Correct. 

Q.   So if I ask you a yes or no question, you know to give me a yes or no answer, correct? 
A.   I can't answer that question the way you crafted it. 

Q.   If I ask you a yes or no question, please just answer yes or no? 
A.   If I am able to, yes. 

Q.   That was a yes or no question. You didn't give me  just a yes, so my question is this, if I ask you a          yes or no question, can you answer it yes or no? 
A.   I can't answer that question the way you crafted it. 

Q.   If I ask you a straight yes or no question, you can't tell this jury if you can answer yes or no? 
A.   If it is a yes or no question, I will answer yes or no. But if I can't answer yes or no, maybe it is a
       maybe answer, I will have to answer maybe. 
Then on the medicine, Dr. Lubliner, dropped the ball and lost the match by failing to concede the obvious:
Q.   You don't believe that he had a preexisting degenerative condition in his right knee; is that your               testimony?
A.   I can't answer the question the way you crafted it. 

Q.   Yes or no, do you believe that the plaintiff had a preexisting degenerative condition in his knew,            yes or no? 
A.   I can't answer the question the way you crafted it. 

Q.   You can't answer what you believe in? 
A.   I can. You are not allowing me to. 

Q.   It is a yes or no, do you believe -- 
A.   I can't answer the question the way you crafted it. 

Q.   Do you believe that he had a preexisting degenerative condition in his right knee, yes or no?
A.   I cannot answer the question the way you crafted it. 
The transcript attached is worthy of a quick read. Rather than a frontal assault on the expert's medical opinion, which defense counsel could not win, the winning cross examination technique is to take the witnesses' opinion to an extreme and show the absurdity of his position by his failure to concede points which everyone in the room knows is true. The "smartest man in the room" ends up looking much like the emperor with no clothes.

Read the transcript here

Results That Matter

Congratulations to Isaac Dana for a Defense verdict in Kings County on the issue of Damages on August 17, 2017 before Judge Fisher in the case of Gabriel Khaimov v. Isaac Yedid (510118/14).
Congratulations to Tom Craven  for an excellent result in Kings County on July 31, 2017 a high exposure case with $2.3 Million in coverage and 100% liability against the defendant. The case settled for $375,000 based on the strength of Tom's cross-examination.
Congratulations to Zach Nastro for a defense verdict on the issue of liability in Civil Court in Queens County on July 27, 2017 in Delroy McPherson v. Zumiao Zhang (Index no: 4192/16)
Congratulations to Gil Hardy for a defense verdict on the issue of liability on July 21, 2017 in the case of Alexandra Lisboa v. Christine Murphy (Index No: 605240/14)  before Hon. Jack L. Libert in Nassau County.
Congratulations to Matt Peluso for a defense verdict on the issue of liability on July 14, 2017 in Rockland County in the case of Yolaine Toto v. Amanda and Salvatore Pugliese (Index No. 30485/15) before Judge Rolf Thorsen. We tried the case in a summary jury format with parameters of $0-$100,000 and focused on the damages aspect of the case. Matt won the case on liability and the jury never reached the issue of damages.
Congratulations to Eric Flores for a Defense Verdict on liability on June 29, 2017 in New York County before Judge Paul Goetz in NADIA SANTIAGO-FERMIN v. ACROPOLIS DRIVING SCHOOL & CONSULTING CORP. (Index No.: 157283/2014)
Congratulations to Bob Brown for a defense verdict on June 27, 2017 in Suffolk County before Judge Joseph A. Santorelli on the issue of liability in  WILLIAM BREWER v. SERINA L. ROSS, MILTON E. NIELSON, JR., et. al. (Index No. 08616/11)
Congratulations to Gil Hardy for a defense verdict on June 28, 2017 in Nassau County before Judge Thomas Feinman on the issue of liability in HARVEY DUPUY v JAMIE ELYSE GORMAN, MICHAEL GORMAN, et. al. (Index No.: 3742/13)

Congratulations to Andrea Ferrucci for a victory in the Appellate Division First Department on a Bronx case, Cabrera v. Apple Provisions, Inc., 151 A.D.3d 594, 57 N.Y.S.3d 471 (N.Y. App. Div. 2017), decided on June 20, 2017, with a $1,000,000 policy. The Order of Judge Barbato from Bronx County entered July 7, 2016, which granted our motion for summary judgment dismissing the complaint based on plaintiff's inability to establish a serious injury within the meaning of Insurance Law § 5102(d), was unanimously affirmed. Read the decision here.
Congratulations to Andrea Ferrucci for a victory on Appeal in the Appellate Division Second Department on Madtes v. Scher, 151 A.D.3d 1049, 54 N.Y.S.3d 588 (N.Y. App. Div. 2017), decided on June 28, 2017. The appeal was from a jury verdict in favor of the defendants entered on January 21, 2015 in a case Tom Craven won in Queens County before Judge Greco. In affirming the jury verdict the Appellate Court stated, "Contrary to the plaintiff's contention, the verdict in favor of the defendant, finding that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, under the significant limitation of use and permanent consequential limitation of use categories, was not contrary to the weight of the evidence. A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence (see Samouelian v. Amroan, 127 A.D.3d 723, 724, 4 N.Y.S.3d 536; Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184). Where, as here, conflicting expert testimony is presented, the jurors are entitled to accept one expert's opinion and reject that of another expert (see Pyong Sun Yun v. GEICO Ins. Co., 145 A.D.3d 694, 695, 43 N.Y.S.3d 117; Samouelian v. Amroan, 127 A.D.3d at 724, 4 N.Y.S.3d 536; David v. EZ Rate Rental Corp., 298 A.D.2d 353, 751 N.Y.S.2d 376)" Read the decision  here .

Congratulations to our No-Fault Department, led by Dave Tetlak Esq. and Lorraine Fingerhut. With over 1311 cases heard and decided year to date, we have won for our clients decisions at trial, through arbitration and by summary judgment a savings of $2,633,367 representing a 70% favorable decision rate. Remarkable results in a difficult forum! Great work by Dave and Lorraine and our team of attorneys, including Michael Poropat, Chris Fingerhut, Mark Zemick, Peter Caso and Al Galatan. The results above are a product of great teamwork from our staff of paralegals including Sandra Sheridan, Stephanie Cowan, Shari Shaw, Cilene Price, Debra Gerber, Camalish Singh, Janine Cronin, Corinne Kleshefsky, and Jeanine Colon.


Appellate Decisions of Note


A general manager at Glenn Falls Country Club walks into the Pro Shop and takes a swing at the locker room attendant, striking him in his groin. The locker room attendant doubles over in pain; the manager laughed and walked out. The defendant described the contact as accidental and minimal, and stated that the plaintiff gave no indication he had been injured. The plaintiff was seriously injured and required surgical removal of his left testicle. Is a suit between fellow employees for pain and suffering barred by the Worker's Compensation Law? 

No, says the Appellate Division Third Department in a March 2017 opinion in Montgomery v. Hackenburg , 148 A.D.3d 1329, 49 N.Y.S.3d 578 (N.Y. App. Div. 2017).

"There is no dispute that plaintiff and defendant were co-employees, that plaintiff was injured in the course of his employment and that he collected workers' compensation benefits for his injuries. Pursuant to Workers' Compensation Law § 29(6), these benefits are the exclusive remedy for an employee injured "by the negligence or wrong of another in the same employ." Having the same employer is not synonymous with being "in the same employ" and, to be shielded from liability, a defendant "must himself [or herself] have been acting within the scope of his [or her] employment and not have been engaged in a willful or intentional tort" (Maines v. Cronomer Val. Fire Dept., 50 N.Y.2d 535, 543, 429 N.Y.S.2d 622, 407 N.E.2d 466 [1980]; see Hanford v. Plaza Packaging Corp., 2 N.Y.3d 348, 350, 778 N.Y.S.2d 768, 811 N.E.2d 30 [2004] ). Here, there is no indication that plaintiff was involved in any horseplay (compare Briger v. Toys R Us, 236 A.D.2d 683, 683, 653 N.Y.S.2d 199 [1997] ). The differing versions of the event presented by the parties, as well as the two club employees who supported plaintiff's version, raise genuine questions of fact as to whether defendant intended to strike plaintiff and did so in an excessive manner given the sensitive area of impact. Although defendant was not directly disciplined by the club and resigned to take a new position a few months after the incident, a question of fact also remains as to whether the club condoned defendant's actions. As such, we conclude that Supreme Court properly determined that questions of fact existed as to whether defendant acted in a "grossly negligent and/or reckless" manner when he swung the golf club shaft and struck plaintiff, as alleged in the complaint (see Shumway v. Kelley, 60 A.D.3d 1457, 1459, 876 N.Y.S.2d 299 [2009] )."

Read the decision here

Who is Arthur Bogoraz?

Who is Arthur Bogoraz and why did his case reach the Court of Appeals this summer for a decision on New York Insurance Law § 6801(a)(1)?

Arthur Bogoraz was indicted in 2011 for No-Fault Fraud. Two days before he was set to surrender, he fled to the Ukraine. In September 2011 he piloted his own plane from St. Maarten to Puerto Rico where he was apprehended waiting to board a commercial flight to Texas.

New York Attorney General Eric Schneiderman in his announcement of the conviction stated: "In a detailed allocution in June of 2013 before Justice Danny Chun in Kings County Supreme Court, Bogoraz admitted that between July 2006 and December 2010, in Kings County and elsewhere, he defrauded no-fault insurance companies of millions of dollars through a complex scheme involving stolen identities from medical doctors. Bogoraz admitted that as part of his scheme he persuaded radiologists to work with him and promised payment for each MRI they reviewed, interpreted and reported to the insurance companies as a no-fault insurance claim.

Bogoraz admitted that once the doctors agreed to work with him, he exploited his access to their personal information and set up separate radiology corporations without their knowledge or consent. He forged the doctors' signatures on incorporation documents, leases and bank documents. Using their stolen identities, Bogoraz opened and operated multiple radiology corporations, including Sharp Radiology, P.C., Vital Radiology, P.C., Essential Radiology, P.C., Aurora Radiology, P.C., and Oracle Radiology of NY, P.C. Bogoraz then filed no-fault insurance claims and collected the money in bank accounts he established using the doctors' names and personal information, diverting the money to himself. Bogoraz further admitted that in addition to managing the radiology corporations and accounts, he controlled a collections law firm, Greater NY Legal Services, so that he could launder insurance monies. Mr. Bogoraz admitted that through his scheme, over a five-year period, he stole more than $8 million from insurance companies. He then laundered the proceeds, cashing $1 million at check cashing stores and withdrawing more than $500,000 in cash directly from the corporations' bank accounts."

Karine Gevorkyan, the spouse of Arthur Bogoraz, filed suit against Ira Judelson, the bail bondsman, in Federal Court for the return of the $121,000 bail bond premium. When the case reached the Second Circuit, the following question was certified to the Court of Appeals of the State of New York pursuant to 2d Cir. Local R. 27.2 and § 500.27(a) of the New York Rules of Court: "Whether an entity engaged in the "bail business," as defined in NYIL § 6801(a)(1), may retain its "premium or compensation," as described in NYIL § 6804(a), where a bond posted pursuant to NYCPL § 520.20 is denied at a bail-sufficiency hearing conducted pursuant to NYCPL § 520.30, and the criminal defendant that is the subject of the bond is never admitted to bail."

The Court of Appeals held Insurance Law § 6804(a) prohibits a bail bond surety from retaining a premium when the criminal defendant is not released on bail. "In our view, the risk associated with the bail bond is that the principal admitted on bail he will fail to appear and the bail bond will be forfeited (see CPL 540.10). If the posted collateral does not cover the bail bond, the surety may suffer a financial loss. The surety does not incur this risk when the principal is not released and so has no opportunity to jump bail (see Penal Law §§ 215.55, 215.56, 215.57). While the surety assumes a binding obligation to pay the bail upon posting the bail bond, no risk attaches from this obligation alone. Risk is triggered only when the court takes additional steps following the posting, approving the bail bond and issuing a certificate authorizing the principal's release (see CPL 510.40[3] ). When a hearing is ordered under CPL 520.30, the court approves or disapproves the bail bond after the hearing (see CPL 520.30[3] ). If the court disapproves the bail bond, the surety never runs the risk it contracted to insure. In light of the statutory language and legislative history described above, the principle that premium follows risk also supports our interpretation of Insurance Law article 68 as providing that, when a court holds a bail source hearing under CPL 520.30, the surety may retain a premium only when the principal is released on bail." See Gevorkyan v. Judelson, 29 N.Y.3d 452 (2017) attached.

Arthur Bogoraz has now set up shop in Canada, under a company selling corporate wellness called Vital Management.

Read the decision here.

No-Fault Decisions of Note

Lost Wages

Lost wage benefits under current No-Fault regulations are designed to fairly compensate the eligible injured party. Insurance Law Section 5102 (a) (2) provides that an individual who makes a claim under the no-fault law must be compensated for "[l]oss of earnings from work which the person would have performed had he [or she] not been injured."
In reality, the insurance carriers defending the lost earnings claim face an uneven playing field, skewed in favor of the claimant.
The  Department of Financial Services has issued an advisory opinion as early as 2003 indicating when an injured person can demonstrate that they could reasonably expect to earn overtime wages of a projected amount, but for being injured, those lost wages would be reimbursable under No-Fault. The department has also opined when an injured insured is unable to return to work due to injuries arising from an automobile accident and, the insured's employer hires another person to fill the insured's vacant position during the insured's period of disability, so that the insured cannot immediately resume her employment when she is medically cleared to return to work, the insured may recover lost wages for the period after she is medically cleared but before she actually resumes work. Furthermore, § 65-3.16(b)(3) of N.Y. Comp. Codes R. & Regs. tit. 11 (Regulation 68-C) states that "[l]oss of earnings from work shall not necessarily be limited to the applicant's actual level of earnings at the time of the accident, but may also include demonstrated future earnings reasonably projected." Thus, under the no-fault scheme, injured persons may recover certain future earnings in addition to earnings from employment at the time of the accident.
Defending these claims requires time intensive and exhaustive presentations to the American Arbitration Association. Two decisions are attached from the American Arbitration Association which demonstrate the commitment required to defend a lost wage claim.  Bruce Burgos v. State Farm Mutual Automobile Insurance Company (AAA No.:  41-16-1048-0611) Amount in dispute - $40,000 and Sonnia Martinez v State Farm Mutual Automobile Insurance Company (AAA Case: 41-15-1021-8871) Amount in dispute - $66,690. A forensic accounting examination and the sworn opinion of an economist is essential on a speculative claim for past or future benefits by a self-employed claimant. Verification in the form of tax records frequently contradict the testimony of the claimant on earnings. Case law is also critical, to argue to the arbitrator the precedents on the interpretation of the regulations.
"Claims for lost earnings must be ascertainable with a reasonable degree of certainty and may not be based on conjecture." ( Glaser v County of Orange, 54 AD3d 997, 998 [2d Dept. 2008], Schiller v New York City Tr. Auth., 300 AD2d 296, 296-97 [2d Dept. 2002]; Davis v City of New York, 264 AD2d 379 [2d Dept. 1999].) It is the claimant's burden to establish damages for past [and future] lost earnings with reasonable certainty, such as by submitting tax returns or other relevant documentation. See State Farm Mutual Auto. Ins. Co. v. Stack 55 A.D.3d 594, 869 N.Y.S. 2d. 536, 2008 NY Slip Op 07651 (NY App. Div., 2 nd Dept., October 07, 2008).

Read the Bruce Burgos decision  hereRead the Sonnia Martinez decision here.
More On Lost Wages Under No-Fault

Consider the July 27, 2017 decision of the Appellate Division, Third Department in  Freligh v. Gov't Employees Ins. Co ., 152 A.D.3d 1145 (N.Y. App. Div. 2017).
On December 23, 2012, plaintiff allegedly sustained various injuries when the vehicle that he was operating was rear-ended by another vehicle. At the time of the accident, plaintiff, who had worked in the automotive parts and repair industry for a number of years, had been unemployed for approximately seven months. In January 2013, plaintiff submitted an application for no-fault benefits to GEICO. With respect to the lost wages portion of the application, plaintiff indicated that he "was due to start [a] new job" but had been unable to work since December 23, 2012 as a result of the injuries that he had sustained in the accident. Plaintiff further indicated that details regarding his position, including his salary and the employer's name and address, would be provided. Plaintiff thereafter provided defendant with a copy of his employment application dated December 15, 2012, which reflected that plaintiff had been offered a job at VW Parts, Inc. commencing on January 1, 2013 and at a salary of $2,000 per week, with benefits. The claim for lost earnings was subsequently denied for proof of verification.

The plaintiff submitted the testimony of William Hrazanek, who was the sole shareholder of the parts business and who allegedly offered plaintiff employment. The Appellate Division noted that the testimony must be accepted as true on a summary judgment motion despite the fact that William Hrazanek admitted, among other things, that (1) he had previously pleaded guilty to the crimes of insurance fraud and offering a false instrument, (2) he had made false sworn statements in regard to the bankruptcy proceeding of a corporation, (3) he had initiated that bankruptcy proceeding as a "ruse" to forestall creditors and (4) he had paid his wife a salary from the parts business while she was a student at Columbia University for her "learning purposes."

The uncontested proof, however, was the prospective employer, VW Parts, Inc., was in financial distress and the $2,000 projected salary was incredible as a matter of law. The Court stated, "Considering the foregoing, Hrazanek's and plaintiff's subjective beliefs about the financial health of the parts business and/or their subjective beliefs about plaintiff's skills are immaterial to the resolution of whether it is reasonable to project that the parts business would have employed plaintiff at a salary of $2,000 a week. In contrast, the uncontradicted evidence that the parts business was failing, that it had not made any efforts to acquire or open an automobile repair shop, and that, even if it had, plaintiff had a demonstrated history of being unable to run a profitable automobile repair shop all bear on the reasonableness of such a projection. That material evidence established as a matter of law that the projection that plaintiff would have received $2,000 a week from the parts business is unreasonable (see Sharpe v. Allstate Ins. Co., 14 AD3d at 775; see generally Bailey v. Jamaica Buses Co., 210 A.D.2d 192, 194 [1994] ). Accordingly, defendant's motion for summary judgment dismissing the complaint should have been granted. This determination renders academic defendant's alternative argument for dismissal, that plaintiff failed to provide proper verification of his claim."

In light of the strong dissent by Judge Egan, this case may be considered by the Court of Appeals.

Read the decision here.

This newsletter is for education and information purposes only, and is not intended to provide legal advice. No attorney-client relationship exists or is created by the use of this newsletter or the information provided herein. This newsletter should not be used as a substitute for competent legal advice from a professional attorney in your state.


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