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April 2020 iNews Issue 98
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The Covid-19 pandemic has taken so many lives, now more than 13,000 in New York. All of us know a friend, family member or relative who has been affected by this tragedy. We salute our health care workers and first responders on the front lines. We mourn for the lives lost and pray for an end to this scourge.
The legal community in New York mourns the loss of Justice Johnny Lee Baynes
, Judge Noach Dear
from Kings County and Thomas Leonard, my classmate from Fordham University, a partner at Barry, McTiernan & Moore, a prince of a man.
The Lion of The Bronx Bar, my dear friend, Harold Weissman, has also passed. Our condolences and prayers go out to his wife Sally, his children Michael and Diane and his extended family. Like many of you, Harold was the person I most admired, the lawyer I aspired to be, and a man I loved. I first met Harold in the early 1980's as a young lawyer in the Bronx appearing before Judge Fusco (settle or select) in the Trial Assignment Part. Harold met me in the hall before the conference and told me his plans to adjourn the case, and asked for my consent. I told him I would follow his lead, which I ended up doing for the next 35 years. At the conference, Harold said something to Judge Fusco which set him off. The conference devolved into a shouting match and Harold turned bright red. After the Conference, I said to Harold, "Mr. Weisman, I hope that was nothing I said to cause that argument"; to which Harold replied, 'What's your name kid ?' Harold went on to tell me the history between him and Judge Fusco, which was colorful to say the least. That was the start of a lifelong friendship for me. I became a 'made man' in the Bronx as I was friend of Harold's. I was fortunate to be close to him and Sally, sharing many special dinners at Primolo, concerts at Lincoln Center, and visits to his homes in Pelham and East Hampton. The best story about Harold is his 65 year love affair with Sally, his beautiful wife. Every step I take in the Bronx Courthouse, I will think of Harold. God Bless you my friend.
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Managing COVID-19
The COVID-19 crisis has kept us all out of Court, with no set date to return. At this stage it is hard to imagine a jury trial happening for some time. Having gone from trial to trial for 30 + years this is a PAUSE we could all do without. A Trial lawyer's skills are honed in the Courtroom, on trial, in front of a jury. The concentration level on trial is unmatched, exhausting and exhilarating; something we all miss at the moment. We can prepare for upcoming matters but the edge of a looming cross examination is missing. The camaraderie of meeting other lawyers in Court and discussing cases is something I also miss greatly. This is indeed a very odd time in our lives. As long as we and our families are all healthy, we will make it through this hiatus. Maybe we will start in the farm system like they do with athletes when they are coming back to the big leagues - a small claims case or two to warm us up. Maybe a Civil Court property damage case. I'll take any trial at this point. I take back any complaints made of the pressures of going from case to case. Let this pass quickly and may you all be safe.
COVID-19 Q&A with Frank Scahill
Coverage Counsel have been lighting up the internet with the possibility of coverage for Covid-19 related losses through Business Interruption policies. The news is bleak for most policyholders. The Department of Financial Services published the following queries :
"Your business interruption insurance policy should list or describe the types of events it covers. Events that are not listed on, or not described in, the policy are typically not covered. It is important to review the policy exclusions, coverage limits, and applicable deductibles. You should also determine if the policy requires your business interruption to last for a certain time period before you are entitled to any policy benefits. Business interruption coverage typically can only be triggered if you have property loss that leads to the business interruption. One example could be that a fire in your office has caused you to suspend your business activities."
Q. How does my business interruption insurance policy treat the novel Coronavirus (COVID-19)?
A. It is unlikely that a current business interruption policy has contemplated the coronavirus specifically. However, you should check to see if your policy has an exclusion that would disable coverage for an incident triggered by an epidemic or pandemic, which might apply as the COVID-19 situation evolves. Also, any claim would still need to be related to your property damage for coverage to be triggered.
Q. Does my business interruption insurance policy cover me if my employees stay home out of concern about COVID-19?
A. As explained above, business interruption coverage requires a related property damage. Fear of COVID-19 alone is unlikely to trigger business interruption insurance coverage.
Q. Does the Governor's declaration of a State of Emergency affect my business interruption insurance policy?
The State of Emergency declaration does not change the terms of your business interruption policy. It does, however, indicate the serious attention that the Governor has directed all State agencies to give to COVID-19. As a result, the Department of Financial Services is focused on consumers having the greatest amount of knowledge about their business interruption insurance.
Case law also provides little solace :
"The purpose of business interruption insurance is to indemnify the insured against losses arising from inability to continue normal business operation and functions due to the damage sustained a result of the hazard insured against.' " (Cytopath Biopsy Lab. v. United States Fid. & Guar. Co., 6 A.D.3d 300, 301, 774 N.Y.S.2d 710 [1st Dept.2004] [citation omitted] ). "Business interruption losses experienced by the insured beyond the time needed to physically restore the destroyed or damaged property are not recoverable." (44 Am. Jur. 2d Insurance § 1549; see also Retail Brand Alliance, Inc. v. Factory Mut. Ins. Co., 489 F.Supp.2d 326 [S.D.N.Y.2007]; Children's Place Retail Stores, Inc. v. Federal Ins. Co., 37 A.D.3d 243, 829 N.Y.S.2d 500 [1st Dept.2007] ).
Another purpose of business interruption insurance is to "return to the insured that amount of profit that would have been earned during the period of interruption had a casualty not occurred" (Pennbarr Corp. v. Ins. Co. of N. Am., 976 F.2d 145 [Ct.App., 3d Cir.1992] ), or to "compensate an insured for losses stemming from an interruption of normal business operations ... thus preserving the continuing of the insured's business earnings by placing the insured in the position that it would have occupied if there had been no interruption" (Voss v. Netherlands Ins. Co., 22 N.Y.3d 728 n. 1, 985 N.Y.S.2d 448, 8 N.E.3d 823 [2014], quoting 11 Steven Plitt et al., Couch on Insurance 3d § 167:9). See Nat'l Union Fire Ins. Co. of Pittsburgh, Pennsylvania v. TransCanada Energy USA, Inc., 52 Misc. 3d 455, 466, 28 N.Y.S.3d 800, 809-10 (N.Y. Sup. Ct. 2016), aff'd sub nom. Nat'l Union Fire Ins. Co. v. TransCanada Energy USA, Inc., 153 A.D.3d 1153, 61 N.Y.S.3d 4 (N.Y. App. Div. 2017)
"Generally, it is for the insured to establish coverage and for the insurer to prove that an exclusion in the policy applies to defeat coverage" (Consol. Edison Co. of N.Y. v. Allstate Ins. Co., 98 N.Y.2d 208, 218, 746 N.Y.S.2d 622, 774 N.E.2d 687 [2002]; see also Platek v. Town of Hamburg, 24 N.Y.3d 688, 3 N.Y.S.3d 312, 26 N.E.3d 1167 [2015] [although insurer has burden of proving applicability of exclusion, insured has burden to establish existence of coverage] ). Even where an insurance policy covers "all risks," the insured must prove that a loss occurred and that the loss is covered. (U.S. Dredging Corp. v. Lexington Ins. Co., 99 A.D.3d 695, 952 N.Y.S.2d 60 [2d Dept.2012] ).
The insurance carriers have a mechanism in place to evaluate and resolve claims. If the Federal Government exercised its powers under the Commerce clause to declare the Covid-19 pandemic an 'occurrence' within the meaning of business interruption policies, the State Insurance Departments will follow. The Fed can then pump money into the carriers for distribution to policyholders on claims they would not normally be forced to cover. Rather than rely on the SBA PPP program (The Paycheck Protection Program (PPP) funds have been exhausted. In less than two weeks, $349 billion has been claimed by around 1.6 million small business owners, only 6% of small business owners), The Fed should look to the existing Insurance framework in America to save small business. Of all the questions asked of Secretary Mnuchin and Governor Cuomo, no one has brought this up thus far. I hope someone does.
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Congratulations to Ricki Parks on her admission to the New York State Bar on March 11, 2020 in the Appellate Division Second Department.
Congratulations to Gerard Ferrara for a summary judgment dismissal on January 13, 2020 on the issue of liability in Botros Kaldas Elraheb v. Robert Riebling (Index No: 901/18). The mater involved a pedestrian fatality on March 11, 2016 in Queens.
Congratulations to Chares Mailloux for a defense verdict on damages on February 6, 2020 in Queens County before Judge Dennis Butler against three plaintiffs in Leidy Mateo-Santana, Hecto Martinez, and Icecranil Acosta v. Robert Doolity (Index No :715462/17).
Congratulations to Rich Brown for a defense verdict on liability on February 6, 2020 in Kings County before Judge Lara J. Genovesi in Jason Flores and Cynthia Hernandez v. Rauf Meer (Index No: 519959/16).
Congratulations to Tony Graziani for a defense verdict on February 14, 2020 in Suffolk County Before Judge Ford on the issue of liability in Gavin Roman v. Kenneth Degolyer (Index No. 620544/17).
Congratulations due to Charles Mailloux who obtained a defense verdict on February 21, 2020 in Queens on the issue of liability before Judge Maureen Healy in Nuran Kucur v. Ravi Jaswani (Index No: 703932/17).
Congratulations to Chris Amato for a defense verdict on the issue of liability on February 25, 2020 in Queens County Supreme Court before Judge Lourdes Ventura in Alphonse Ranni v. Belkis Sosa (Index No : 713281/2017).
Congratulations to Zach Nastro for a defense verdict on damages February 25, 2020 in Kings County before Judge Carolyn Wade in Anthony Williams v. Kayla May (Index no: 508021/17).
Congratulations to Gil Hardy for a defense verdict on liability on March 10, 2020 before Judge Sharon Gianelli in Nassau County on Michael Boyer v. Joyce Laniado (606179/17).
Congratulations to Charles Mailloux for a successful containment strategy in Queens County on March 11, 2020 on a summary jury trial before Judge David Elliot on the issue of damages (Liability was conceded) in Dilan Kaymaz v. Krzysztof Kaminski (Index No. 704966/17). The parameters were $0-$275,000. The injuries included claims of cervical disc herniation requiring an open surgery to the spinal column with a fusion of the vertebral bodies and a titanium cage for the 27 year old female plaintiff. The jury awarded $50,000 for past pain and suffering and $100,000 for future damages (over the next 4 years). Overall an excellent result on a $300,000 policy.
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A Court of Appeals decision from March 26th, 2020 on the issue of 'who is an employee' in an Unemployment Insurance setting, deserves attention. The question was whether the courier was an independent contractor as opposed to an employee. In this case the Court held the courier was an employee. This case has implications to smart ride applications UBER LYFT etc.
"Here, there is substantial evidence in the record to support the Board's determination that Postmates exercised control over its couriers sufficient to render them employees rather than independent contractors operating their own businesses. The company is operated through Postmates' digital platform, accessed via smartphone app, which connects customers to Postmates couriers, without whom the company could not operate. While couriers decide when to log into the Postmates' app and accept delivery jobs, the company controls the assignment of deliveries by determining which couriers have access to possible delivery jobs. Postmates informs couriers where requested goods are to be delivered only after a courier has accepted the assignment. Customers cannot request that the job be performed by a particular worker. In the event a courier becomes unavailable after accepting a job, Postmates-not the courier-finds a replacement. Although Postmates does not dictate the exact routes couriers must take between the pick-up and delivery locations, the company tracks courier location during deliveries in real time on the omnipresent app, providing customers an estimated time of arrival for their deliveries. The couriers' compensation, which the company unilaterally fixes, and the couriers have no ability to negotiate, are paid to the couriers by Postmates. Postmates, not its couriers, bears the loss when customers do not pay. Because the total fee charged by Postmates is based solely on the distance of the delivery and couriers are not given that information in advance, they are unable to determine their share until after accepting a job. Further, Postmates unilaterally sets the delivery fees, for which it bills the customers directly through the app. Couriers receive a company sponsored "PEX" card which they may use to purchase the customers' requested items, when necessary. Postmates handles all customer complaints and, in some circumstances, retains liability to the customer for incorrect or damaged deliveries.
Postmates exercises more than "incidental control" over its couriers-low-paid workers performing unskilled labor who possess limited discretion over how to do their jobs. That the couriers retain some independence to choose their work schedule and delivery route does not mean that they have actual control over their work or the service Postmates provides its customers; indeed, there is substantial evidence for the Board's conclusion that Postmates dominates the significant aspects of its couriers' work by dictating to which customers they can deliver, where to deliver the requested items, effectively limiting the time frame for delivery and controlling all aspects of pricing and payment.
Although the operative technology has changed in the interim decades, this case is indistinguishable from Matter of Rivera, where we held that substantial evidence supported the Board's conclusion that a similar delivery person was an employee of the delivery company-even though he set his own delivery routes and did not have a set work schedule but called the company's dispatcher whenever he wished to engage in work, accepting only the jobs he desired (see Matter of Rivera [State Line Delivery Serv. - Roberts], 69 NY2d 679 [1986], cert denied 481 US 1049 [1987]; see also Matter of Di Martino [Buffalo Courier Express Co. - Ross], 59 NY2d 638 [1983])."
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No Fault Decision of Interest
Kamara Supplies v GEICO Gen. Ins. Co.
(2020 NY Slip Op 50414(U)) decided on April 13, 2020 by the Appellate Term, First Department, involved the issues of attorney's fees. At trial in the Civil Court the provider prevailed and sought attorney's fees beyond the standard found in 11 NYCRR § 65-4.6(d), which limits attorneys' fees to 20% of the amount recovered, subject to a then-maximum fee of $850 (now $1,360). The provider sought the hourly rate fee provision contained in 11 NYCRR § 65-4.6(c) which provides " For disputes subject to arbitration or court proceedings, where one of the issues involves a policy issue as enumerated on the prescribed denial of claim form (NYS form NF-10), subject to this section, the attorney's fee for the arbitration or litigation of all issues shall be limited to a fee of up to $70 per hour, subject to a maximum fee of $1,400. In addition, an attorney shall be entitled to receive a fee of up to $80 per hour for each personal appearance before the arbitration forum or court."
The Appellate term rejected this argument noting : " Plaintiff's arguments to the contrary do not warrant a different result. While the failure to attend an IME "is a breach of a condition precedent to coverage under the no-fault policy" (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]), it is not a "policy issue as enumerated on the prescribed denial of claim form" (11 NYCRR § 65-4.6[c]). Nor is defendant's characterization of its defense as a policy issue dispositive. Construing the regulation strictly, as we must since it is in derogation of the common law rule that parties to a controversy pay their own counsel fees (see McKinney's Cons Laws of NY, Book 1, Statutes, § 301[a]; Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 [1986]), hourly attorneys' fees are allowable where one of the specifically enumerated policy issues is involved, not whether one party designates a particular defense as a policy issue.
The opinion letters issued by Department of Financial Services (DFS) relied upon by plaintiff do not interpret the counsel fees regulation at issue. Nor did DFS explicitly state, in interpreting its own regulations, that the failure of the assignor to appear for an IME constitutes a "policy violation" so as to trigger additional attorneys' fees under Insurance Department Regulations (11 NYCRR § 65-4.6[c])."
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Dr. Sanford Wert is an orthopedic surgeon we also see frequently on our files. Disputing a claim with a knee or shoulder surgery requires a well thought out cross examination. How do we prove to a jury the plaintiff's claims of a knee injury which required surgery has no factual basis? Review the cross examination attached by Charles Mailloux of our firm in a Queens case, Keumok Han v. Spyridon Spetsieris (707898/17) from October 2019 where Dr. Wert claimed a motor vehicle accident caused a torn meniscus requiring surgery. It is hard to conceive a better result than the admissions received on this case. On Cross-Examination Dr. Wert was confronted with the following:
Q. Would it be fair to say that the three indications for surgery are a complaint of pain, a positive diagnostic finding, and a failure of conservative treatment?
A. Yes, that's reasonable.
Q. Reviewing your report, could you describe what your findings were with regard to swelling?
A. No mention of swelling, just range of motion and certain tests.
Q. What about testing? You performed specific tests on the Plaintiff's left knee?
A. Yes.
Q. And one of those tests that you did was a McMurray's test?
A. Yes.
Q. And a McMurray's test, correct me if I'm wrong, Doctor, is a test that can be used to identify a tear in an individual's
meniscus; is that correct?
A. Yes.
Q. And what were your findings for your McMurray's test performed on the Plaintiff on September 28, 2016?
A. Negative.
Q. You also performed an anterior drawer test; is that correct?
A. Yes.
Q. Could you describe for the jury what that test was?
A. Anterior drawer is a test where you flex the knee to 90 degrees and try to pull the lower leg forward.
Q. And what were your findings on that exam?
A. That was negative.
Q. You also did a Lachman's test on the Plaintiff's left knee that day?
A. Yes.
Q. What were your findings on that test?
A. That was negative.
Q. What does Lachman's test test?
A. ACL, anterior cruciate ligament.
Q. You also did a valgus instability test?
A. Yes.
Q. And a varus instability test, correct?
A. Yes.
A. They were negative.
Q. But what are you using that test for?
A. Ligaments. Medial and lateral collateral ligaments.
Q. So those tests that you did, would it be fair to say that they were aimed at looking into every part of the Plaintiff's knee in order to see if something was going on clinically?
A. Yes.
Q. And you didn't have any findings, any positive findings at all upon your examination of the Plaintiff's knee when she
first saw you, correct?
A. Correct.
Q. Would it be fair to say that if the Plaintiff was responding well to conservative treatment that she would not be
a candidate for surgery; is that correct?
A. Yes.
Q. Now, would it be fair to say when we look at the indications of surgery on September 28, 2016, Ms. Han was not a candidate for surgery to her left knee?
A. Correct.
Q. So the Plaintiff on September 28, 2016 was not a candidate for surgery, and then you performed surgery without
even a further evaluation, correct?
A. Correct.
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Dr. Emmanuel Hostin is an orthopedic surgeon we frequently see on cases where arthroscopic procedures are performed for knee and shoulder pathology. On trial defense counsel needs to be thoroughly familiar with the plaintiff's medical records, the history of prior complaints, the reason behind the surgical recommendation and the results of diagnostic radiology testing. Dr. Hostin testified in the 2019 trial of Edward Carter v. The City of New Rochelle (55298/13). The plaintiff, Edward Carter, (age 46), had a long medical history including diabetes, congestive heart failure, and prior motor vehicle accidents in 2005 and 2007. The plaintiff suffered from diabetic neuropathy since his early thirties. The plaintiff was deemed disabled in 2007, due to his heart condition and was no longer employed. He served his first Bill of Particulars on January 9, 2015, where he alleged injuries to the right shoulder, including tears of the supraspinatus, superior and anterior labral, as well as to the rotator cuff. The plaintiff claimed disc herniation of the lumbar spine at L4/5 and L5/S1, that required epidural steroid injections. The plaintiff also claimed injury to the cervical spine the required epidural steroid injections. Dr. Hostin testified a rotator cuff tear and labral tear were caused by a rear end collision.
Dennis McGuinness of O'Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus LLP cross examined Dr. Hostin on his surgical findings and opinion. The attached transcript contains a masterful cross examination by Mr. McGuinness. His ability to dissect the procedure, discuss the anatomical findings, dispute the causality, and challenge Dr. Hostin's opinion led to a verdict awarding the plaintiff $5000 for past pain and suffering, with a $10,000 award for past medical expenses. No award was given for alleged future pain and suffering or future medical expenses. This transcript should be studied by any defense on an arthroscopic shoulder surgery case. Great work here Dennis!
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Social Media Post of the Month
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The Social Media posting of the month goes to Yara Mainor: Plaintiff testified that she used to be in a bowling league, which she no longer participates in. She used to go kickboxing weekly, which she no longer does. She has to walk five blocks to work; after three blocks of walking, Plaintiff testified it becomes a struggle to continue. What normally took her ten minutes, now takes her thirty minutes to walk those blocks to work.
Her social media profile does not comport with her testimony.
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STAY CONNECTED
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