By James G. Fouassier

The last thing anyone wants to read in this month’s issue is more about the novel coronavirus but emergency mandates and tempo-rary changes in regulated health claims administration may be im-portant to some of your clients.

There is a need to fi rst follow up on the subject of our last few articles. On March 2, 2020, the Supreme Court of the United States granted certiorari in Tex-as v. United States, which will be heard as California v. Texas (the appeals from Tex-as and California were consolidated). The order granting cert was not limited to any of the distinct legal issues presented below, so SCOTUS will be considering all of them during its next term, which was scheduled to begin in October 2020 but may be delayed like everything else.

The court is expected to schedule one hour of oral argument when the case is heard. Ex-pectations were that argument would take place before the November 2020 election but, again, that may not happen given the ex-igencies of the moment. Even if it did, no de-cision is likely to issue (especially given the potential political consequences) until near the end of the court’s term in late June 2021.

Since the order does not affect any stays pending appeal that current-ly are in place the Affordable Care Act will remain in full force and effect until the fi nal ruling comes down.

Now, on to COVID-19. In re-sponse to the pandemic, the New York Departments of Financial Services and Health have been

quick to reduce the barriers to patient care that routinely accommodate all interactions between health care providers and the insur-ers and plans that pay for care. (Keep in mind that all of this applies to New York regulat-ed insured products and the few self-funded plans not subject exclusively to federal reg-ulation under ERISA, such as government employee health programs. Over half of all insured persons are covered by ERISA plans. This also does not apply to traditional Medi-care and “Medicare Advantage” plans. See infra.) First and foremost, services related to the diagnosis and treatment of COVID -19 will not be subject to the usual patient re-sponsible shares: no copayment, coinsurance or deductibles. Health insurers and plans pay providers “net” claims, meaning the contract-ed or “usual and customary” amount of the claim less the patient shares, and it is the ob-

By Lynn Poster-Zimmerman

Just recently, on March 17, the world was ready to celebrate St. Pat-rick’s Day, with all the usual mass gatherings, parades, rowdy bars and restaurants. Yet, there are no St. Pat-rick’s Day celebrations, Passover Seder family gatherings, Easter Day Parade. The world is not the same.

Our everyday lives are not the same. Our routines, crazy as they so often are, have come to a screeching halt. The cause: COVID-19, an unseen and heretofore un-known force of nature, wreaking havoc here at home and across the globe. Yet, we are not alone and, as a society and a bar association, we will persevere and we will all get through this, as we hope and pray for each other’s health and safety.

Effective today, our Suffolk County Court system has been consolidated, with all essen-tial operations located in the Cohalan Court-house Complex in Central Islip. The Suffolk County Bar Association has been working closely with our administration to keep abreast of the ever-shifting landscape and keep you all informed. We are most fortunate to have the strong and steady guidance of our District Ad-ministrative Judge, C. Randall Hinrichs, to navigate us through these mammoth, yet tem-porary, transitions in our system. Due to Judge

Hinrichs’ monumental efforts, ded-ication and wisdom, what could have turned into a disaster, is well and functioning. Rest assured, we are continuing to monitor the situa-tion and advise you as to the evolv-ing adjustments.

We need to remind ourselves that this too shall pass. When? We do not know. How? We do not know.

As attorneys and judges, we are the ones who are used to calling the shots, directing, being strong for our clients and having the answers. Now, we are not. Yet, we are all part of this hu-man race. We can use our skills in our learned profession to help guide others through this, to remain calm, make safe and appropriate choic-es for ourselves, our clients and our families.

As diffi cult as these circumstances are, I think about the history of our civilization and the tragedies and calamities that our fore-

THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

DEDICATED TO LEGAL EXCELLENCE SINCE 1908 WWW.SCBA.ORG

VOL. 35, NO. 4 - April 2020

INSIDEApril 2020

FOCUS ON

Health and Hospital Law

LEGAL ARTICLES

PRESIDENT’S MESSAGE

After COVID-19 we will come out of this stronger and better as individuals

lynn poStEr-zimmErman

BAR EVENTS

100 Years of Progress1908 2008

PRSRT STD.US POSTAGE PAID

SHIRLEY, NY 11967

PERMIT NO. 534

The new Agent Orange ......................14

Medical aid in dying ...........................15

Advances in medical research ...........14

Health insurance denials ....................15

Among Us ...............................................7

CLE Course Listings ..........................19

Bench Briefs ...........................................6

Commercial Litigation .........................8

Construction ..........................................9

Consumer Bankruptcy .........................6

Contract ..................................................6

Employment (Yankovich) ....................7

Employment (Morris) ..........................5

Family (Catterson) ................................7

Family (Mitev) .......................................8

Membership Services .........................13

Personal Injury....................................16

Practice Page .........................................4

Pro Bono Warriors ............................. 11

Real Estate Development ...................10

Real Property ....................................... 11

Surrogate ................................................4

Tax .........................................................10

Transactional .......................................12

Vehicle and Traffi c ................................9

Who’s your expert ..............................13

Dean’s List............................................17

Meet Your SCBA Colleague ................5

Opinion .................................................12

Book review..........................................16

COVID – 19 and Your Clients

(Continued on page 20)

(Continued on page 20)

April 2020Annual Peter Sweisgood DinnerThursday, April 30 at 6 p.m. Watermill Inn, SmithtownThe legacy of Rev. Peter Sweisgood, now in its 32nd year, is an event you don’t want to miss. He was instrumental in assisting many Long Island professionals affl ict-ed with alcoholism and drug abuse and sat on many panels dealing with this syn-drome. The dinner, hosted by the Lawyers Helping Lawyers Committee, chaired by Elaine Turley and Rob Garcia, worked tire-lessly to get the word out that if you have a problem, you are not alone and there is a confi dential committee to assist. The dis-tinguished Arthur Olmstead, our honored guest, and Executive Director Jane LaCova will be remembering the Rev. Peter Sweis-good. For reservations go to the website for the fl yer or call the offi ce.

May 2020Annual MeetingMonday, May 4 The Annual Meeting is when the election of offi cers, directors and members of the Nominating Committee takes place. Fur-ther information will be available on a SCBA eblast.

June 2020Instillation of Scott M. KarsonNYS Bar PresidentMonday, June 1, at 6 p.m.Great Hall SCBA Past President Scott M. Karson will be installed in a special reception as the President of the New York State Bar Asso-ciation. Chief Judge Janet DiFiore of the NYS Court of Appeals will administer the Oath of Offi ce. Call the SCBA for further information.

112th Installation Dinner Dance Friday, June 5, at 6 p.m. Cold Spring Country Club, HuntingtonThe Honorable Derrick J. Robinson will be installed as the 112th President of the Suf-folk County Bar Association. The installa-tion of the offi cers, and directors will also take place at this annual event. For further information, call Jane LaCova at the SCBA.

JamES g. fouaSSiEr

Attorney Grievance &Disciplinary Defense

120 Fourth AvenueBay Shore, New York 11706Bay Shore, New York 11706

(631) 666-2500(631) 666 2500

www.longtuminellolaw.com

An allegation of professional misconduct can tarnish your reputation and place your law license in jeopardy. Let the

experienced team of David H. Besso and Michelle Aulivola help you achieve a favorable result.

ienced team of David H. Besso and Michelle Aulivola help you achieve a favorable result.

David H. Besso, past David H. Besso, past Chairman of the Grievance

Committee, has been Committee, has beenrepresenting attorneys for representing attorneys for more than twenty years.

Michelle Aulivola hasrepresented attorneys inepresented attorneys in

grievance and grievance and disciplinary proceedingsdisciplinary proceedingsfor more than a decade.

Long120 Fourth Avenue

Long Tuminello, LLP

Looking to reach an exclusive audience?

Let us help. Long Island Business News

now offers co-branded emails, proven

lead generators that will bring attendees

to events and webinars, attention

to professional announcements and

downloads of whitepapers and other

services that you offer. These emails are

sent to an exclusive list of subscribers

to our highly popular daily

email newsletter.

For a limited time, were offering a trial

at the special prices below.

$1,500 for 30,000 emails [1x buy]

631.737.1700

THE SUFFOLK LAWYER - April 2020 3

Our Mission“Th e purposes and objects for which the Association is established shall be

cultivating the science of jurisprudence, promoting reforms in the law, facilitating the administration of justice, elevating the standard of integrity, honor and courtesy in the

legal profession and cherishing the spirit of the members.”

Write for The Suffolk Lawyer Did you ever wonder how you could get involved in your bar association’s monthly newspaper? Do you have a great idea for an article or believe your colleagues would benefi t from information you’ve recently learned? Or do you just enjoy writing?

You too can write for Th e Suff olk Lawyer. Writing for the paper is open to all members and doing so is encouraged. Th e Suff olk Lawyer is a refl ection of the fi ne members that belong to the Suff olk County Bar Association. Why not get involved? For additional information please contact Editor-in- Chief Laura Lane at scbanews@optonline.net or call (516)376-2108. Look forward to hearing from you!

560 Wheeler Road • Hauppauge NY 11788-4357Phone (631) 234-5511 • Fax # (631) 234-5899

E-MAIL: SCBA@SCBA.ORGBoard of Directors 2018-2019

Lynn Poster-Zimmerman ......................................................................PresidentHon. Derrick J. Robinson ............................................................President ElectDaniel J. Tambasco ...............................................................First Vice PresidentVincent J. Messina, Jr. ..................................................... Second Vice PresidentCornell V. Bouse .................................................................................... TreasurerPatrick McCormick ................................................................................SecretaryJoseph A. Hanshe............................................................................Director (’20)Sean Campbell ................................................................................Director (’20)Michael S. Levine ............................................................................Director (’20)Gerard J. McCreight .......................................................................Director (’20)Andrea A. Amoa .............................................................................Director (’21)Hon. Caren Loguercio ...................................................................Director (’21)Th eresa A. Mari ..............................................................................Director (’21)Peter R. McGreevy ..........................................................................Director (’21)Paul Devlin ......................................................................................Director (’22)Jeff rey S. Horn .................................................................................Director (’22)Peter D. Tamsen ..............................................................................Director (’22)Cynthia S. Vargas ............................................................................Director (’22)Justin M. Block Past President ......................................................Director (’22)John R. Calcagni ................................................... Past President Director (’20)Patricia M. Meisenheimer ................................... Past President Director (’21)Sarah Jane LaCova ................................................................. Executive Director

The Suffolk LawyerUSPS Number: 006-995 is published monthly except July and August by Long Island Business News, 2150 Smithtown Avenue, Suite 7, Ronkonkoma, NY 11779, under the auspices of the Suffolk County

Bar Association. Entered as periodical class paid postage at the Post Office at Huntington, NY and additional mailing offices under the Act of Congress. Postmaster send address changes to the Suffolk

County Bar Association, 560 Wheeler Road, Hauppauge, NY 11788-4357.

in conjunction with The Suffolk LawyerEditor-in-Chief

LAURA LANEFrequent Contributors

Leo K. Barnes, Jr.Elaine ColavitoIlene S. Cooper

Paul DevlinHon. Mark C. DillonJames G. Fouassier

Hillary A. FrommerAndrew Lieb

David A. Mansfi eldPatrick McCormick

Cory MorrisVesselin Mitev

Craig D. RobinsBarry Smolowitz

Stephen L. UkeileyLouis Vlahos

Mordy YankovichVictor Yannacone, Jr.

Send editorial copy and listings for Among Us to:THE SUFFOLK LAWYER

scbanews@optonline.net

Published by

Group PublisherLisa Blossman

Associate PublisherJoe Dowd

Page DesignerWendy Martin

Multimedia Sales ExecutivesBarbara Pescuma

bpescuma@libn.comRobin Burgio

rburgio@libn.com

The Suffolk Lawyer is published monthly, except for the months of July and August, by Long Island Business News under the auspices of The Suffolk County Bar Association. © The Suffolk County Bar

Association, 2019. Material in this publication may not be stored or reproduced in any form without the express written permission of The Suffolk County Bar Association. Advertising offices are located at

Long Island Business News, 2150 Smithtown Avenue, Suite 7, Ronkonkoma, NY 11779.

Suffolk County Bar Association

Important Information from the Lawyers Helping Lawyers Committee

THOMAS MORE GROUP TWELVE-STEP MEETING

Every Wednesday at 6 p.m.,United Methodist Church of Hauppauge, 473 Townline Road, Hauppauge, N.Y.

All who are associated with the legal profession welcome.

LAWYERS COMMITTEE HELP-LINE: 631-697-2499

• Administration • Appeal • Executor• Guardianship • Injunction• Receiver • Lost Instrument

• Stay • Mechanic’s Lien• Plaintiff & Defendant’s Bonds

THE SUFFOLK LAWYER - April 20204

By Kera Reed

This is part two of a two part series.At times, it is clear that a person is not

simply missing as an absentee as contem-

plated by Article 9 of the Surrogate’s Court Procedure Act (“SCPA”) but is likely de-ceased. There are a number of reasons why a declaration of death of such missing per-son may be preferable than proceeding to

seek the appointment of a temporary admin-istrator for an absentee since a declaration of death pursuant to the Estates Powers and Trust Law (“EPTL”) § 2-1.7 will permit the alleged decedent to be treated as dead for

purposes of “any ac-tion or proceeding in-volving property, con-tractual or property rights contingent upon his death or the admin-istration of his estate.”

EPTL§ 2-1.7 gov-erns the presumption of death by absence.1

There are two general considerations in seeking relief under this statute.

The fi rst consideration is an absence for three years provided for in EPTL §2-1.7(a).2

The statute requires that the alleged dece-dent be continuously absent for three years, that there be no explanation for the absence other than death, and that the petitioner search diligently for the alleged decedent.3

The statute directs the court to set the date of the alleged decedent’s death to be three years after his or her disappearance un-less there is clear and convincing evidence which establishes an earlier date as a more probable date of death.4

The second consideration is exposure to specifi c peril provided for in EPTL§ 2-1.7(b).5 An easy example of the specifi c peril would be an airplane that crashes in which it can be shown that the alleged dece-dent was a passenger. However, sometimes whether a disappearance is a specifi c peril may be a question of fact.6

Under either approach, the procedure for obtaining a declaration of death pursuant to EPTL § 2-1.7 has similarities to a proceeding for the appointment of a temporary adminis-trator for an absentee: An interested person will need to commence the proceeding by fi ling a petition with the Surrogate’s Court together with evidence of a diligent search based upon the facts and circumstances; a citation will issue which will need to be

THE PRACTICE PAGE

Hon. Mark C. Dillon

General Business Law 11 in-structs that service of civil process of any kind is prohibited on Sun-days. Service made on Sunday in violation of the statute is void (Foster v. Piasecki, 259 AD2d 804, 805). The statute has exist-ed since 1965 (L.1965 , c. 1031, sec. 45), consistent with local “blue laws” that were in effect at the time. The statute’s obvious purpose is to provide rest for both process servers and defendants on the Lord’s Day. The statute is not an unconstitutional es-tablishment of religion, nor does it violate the equal protection clauses of the federal and state constitutions (Fine v Commissioner of Dept. of Consumer Affairs, 168 AD2d 285).

A companion statute is GBL 13, which provides that service cannot be made on Sat-urdays upon any person who keeps Saturday as a holy time. A violation of that statute is a misdemeanor. The statute is protective of religiously observant Jews. Service made in violation of the statute is void (JP Morgan

Chase Bank, Nat’l Ass’n. v Lilker, 153 AD3d 1243, 1244). However, mere service upon a Jewish defen-dant is not void unless two specif-ic requirements are met. First, the recipient of the process must actu-ally use and observe Saturday as a no-work holy time. Second, the process server’s choice of serv-ing on Saturday must be motivated

by malice (GBL 13; Signature Bank N.A. v Koschitzki, 57 Misc.3d 495 [Sup. Ct., Kings Co.]). The religiously-prohibited service in-cludes not only personal service, but oth-er methods of service as well. If process is made on Saturday upon a person of suitable age and discretion under CPLR 308(2), the statute may be violated if the timing was ma-licious (accord Garner v Doggie Love LLC, 2011 WL 197729 [Sup. Ct. NY Co.). Simi-larly, if service is affected by the “nail and mail” method under CPLR 308(4), and affi x-ation occurs on Saturday, the statute is vio-lated (JP Morgan Chase Bank, Nat’l Ass’n. v Lilker, 153 AD3d at 1245). Any service that is invalidated under GBL 11 or 13 represents

a failure to obtain personal jurisdiction over the defendant, meaning that the plaintiff is not entitled to re-commence a second action beyond the statute of limitations within the six-month grace extension of CPLR 205(a).

Cases involving alleged violations of GBL 13 involve whether the defendant is truly ob-servant, and even more frequently, whether the service was timed with religious malice. Malice necessarily speaks to the process serv-er’s state of mind. It may be established by reasonable inferences drawn from the facts, such as Saturday service upon an outwardly Orthodox or Hasidic person. It exists when the process server actually knew that the per-son being served was observant (Hirsch v. Ben Zvi, 184 Misc.2d 946, 948). In Hirsch, where service was affected on a Saturday that also happened to be Sukkot, the religious ob-servance of plaintiff’s counsel was imputed to the process server in fi nding malice and in-validating the process (Id., at 948). Service of process will withstand challenge when the defendant, while Jewish, is not shown to ob-serve Saturday as a holy day (Chase Manhat-tan Bank, N.A. v Powell, 111 Misc.2d 1011

[Sup. Ct., Nassau Co.], or when the element of malice is lacking (Hudson City Savings Bank, FSB v Schoenfeld, 172 AD3d 692, 693; Matter of Kushner, 200 AD2d 1, 2).

The service of mere notices, such as a con-tractual notice under a lease, does not violate the prohibitions of GBL 11 and 13 (Glenball, Ltd. v TLY Coney, LLC, 57 AD3d 843).

GBL 11 and 13 do not prohibit service of process on national holidays, nor service upon observers of religious holidays that fall on weekdays, or in the case of Christians, on Saturdays. Thus, service of process on a non-Sunday Christmas is valid, whereas ser-vice on Easter, which is always on a Sunday, is not. And statutorily, Passover, Yom Kippur and other high Jewish holidays are apparent-ly fair game for service of process when they do not fall on a weekend. The reader might notice the statutory inconsistencies.

Note: Mark C. Dillon is a justice of the Appellate Division, 2nd Department, an Adjunct Professor of New York Practice at Fordham Law School and an author of CPLR Practice Commentaries in McKinney’s.

Days When Serving Process is Forbidden

mark C. Dillon

PROTECTING INVESTORS IN SECURITIES LAW MATTERS

Nationwide Practice with unparalleled record of real results for victims of securities fraud and financial advisor abuse. Seasoned litigator with numerous multi-million dollar awards, settlements and judgments in FINRA arbitrations and Federal and State Court proceedings. Cases have been covered on National Media including CNBC “American Greed”, Wall Street

Journal, New York Times, Barrons, USA Today, Newsday and Investment News.

30 years experience:• Mutual Funds and Other Structured Products• Misrepresentations Stocks, Bonds, Options• Unsuitable Investments• Misrepresentation of Risk• Inappropriate Use of Margin and Leverage• Reg D Private Placement Abuses• Inappropriate Annuity Sales• Elder Abuse• Ponzi Schemes• IPO Fraud

Former Enforcement Attorney U.S. Securities Exchange Commission, Washington D.C.; Assistant District Attorney Nassau County

www.denninlaw.com

316 Main Street Northport, N.Y. 11768

(631) 261-0250

270 Madison Avenue; 9th FloorNew York, N.Y. 10016

(212) 826-1500

TIMOTHY J. DENNIN, P.C. Founded 1990

SURROGATE

Absentees and Declarations of Death – What Happens When Someone Disappears

kEra rEED

(Continued on page 21)

THE SUFFOLK LAWYER - April 2020 5

By Laura Lane

Barry Smolowitz, a general practitioner focusing on criminal, computer and education law, is a former New York City police officer. He moved forward in life at a differ-ent pace than most, entering college when he was 16 years old and becoming a trainee police officer when he was 17. That’s about the time he first became interested in the law.

How did you end up becoming involved in the police department at 17? I was going to college and was living in Brooklyn. I was too young to drive so I had to take two trains and two buses to get there. I used to get home at 1 a.m. My father was a transit police officer and he told me about the police trainee exam. You could become a police officer on your 21st birthday. On a lark I took the exam and did extremely well. I left college and was appointed to the police department working the midnight to 8 tour as an as-sistant desk officer. Because I was a civilian I was inside. I started reading law books and that piqued my interest in the law in general.

But you didn’t go back to college at this time, right? At 21 I went to the police academy, and back to college. A year later I made an arrest in Brownsville Bed Stuyvesant that went to trial. The attorney defending the person I arrested won. He came over to me and said, “What’s a nice Jewish boy like you doing in the police department?” He said I was smart and should become a lawyer. I told him I had to finish college first. So, I did finish college, then went to graduate school and then law school all while I was a police officer. I went to school part time.

Then what happened. I got transferred to the legal de-partment. In Manhattan they had a Legal Bureau back then, which had 150 people in it, most of which were police offi-cers. One of my jobs was to give legal opinions to the police on the street.

You ended up being in the police department for 18 years. How did you end up leaving? I left because of an injury where I tore the ligaments in my knee after making an arrest. That was 2 ½ years before I actually left. My plan had been to stay a police officer who was also an attorney and then go up through the ranks in the Police Department. When I retired I was 34 and wasn’t even admitted to the bar yet.

You went to Touro. I was in the first full graduating class there. That’s when I got involved in the Suffolk County Bar Association.

Why did you join? My first three cases were matrimo-nial and I didn’t know what to do. I went back to Touro but there were no alumni to call. I was the alumni. Most of the teachers never practiced a day in their life. I decided to go to the SCBA and join and see if they could help me. They were nice and gave me names of people to call, which in-cluded Barry Warren, Harvey Besunder and Craig Purcell. They, and others, took me under their wing and asked for nothing in return.

How did you initially get involved at the SCBA? Before there were mandatory CLE’s I volunteered at the Academy. I ran the programs, assisted in putting on lectures. I brought surveys into the Academy and did lectures on technology too.

You became the Academy Dean in 1997. Why did you get more involved? The bar was good to me. I met a lot of good people there. There are very few people that transcend from law enforcement to law at the bar. I’m a take charge type of individual. They weren’t used to that at the SCBA and they appreciated it. It’s about getting things done. That’s how I got involved in technology there. They were shipping their computers down south to have them fixed. I helped them so they didn’t have to do that anymore.

When did you first take an interest in technology? I started to get involved in technology when I was 5 years old. By age 10, I was repairing televisions and radios. Then when I was in high school I worked part time jobs as a tele-vision repairman. I am, and have been for years, an amateur radio operator. When in the Legal Bureau at the Police De-partment I got my first computer. Electronics for me is as natural as breathing.

Why would you recommend that attorneys, both new to the profession and the more experienced join the SCBA? There are a lot of reasons. If you are young in the practice the bar offers many opportunities to learn a lot early on. The bar has influence in the legal profession and gives a voice to insti-tuting change. As a member you can be a part of this. You can also become a mentor to younger practitioners, and of course there is the opportunity for comraderies.

You have been an instructor at the Traffic and Park-ing Violations Agency in Suffolk since 2015. Why do you continue to be involved? I teach required courses to motor-ists considered to be problematic. I originally did this as a volunteer because the roads were so dangerous. I’m trying to make a difference.

You have received many awards. Which ones are you most proud of? I received the SCBA’s President’s Award and Director’s Award twice. Those are important.

What do you like about being an attorney? My life has always been surrounded by situations where I give back or assist people. Being a lawyer is a service profession. When one does the job correctly we can have a major positive im-pact on people’s lives. Everything we do in this country in-volves the law. I help people. That’s why I became a lawyer. And that’s why there are other things that I also do that helps people outside of the practice of law.

You’ve always had your own practice. Why? I left a job in policing and made a thoughtful decision. I didn’t want to work in an office or a firm. I wanted to be my own boss, to decide how and when I would help somebody.

What kinds of challenges did you face? Initially it was how to establish and run a business. I always had a home office and never regretted it. It gives me a certain amount of freedom. I also wanted to give my clients a personal ex-perience. I do not advertise. My clients come to me on re-ferral. If you hire me you get me. And that’s worked pretty well for me. I was one of the first practices in 1986 that was completely computerized. Channel 12 even came in to in-terview me.

Getting back to the SCBA, is there any other reason why membership is of value? We are dealing in a time where different generations expect different things. Millen-

nials don’t engage like baby boomers do. The SCBA brings individuals who have similar interests that allow you to ex-amine and exercise a wide range of thoughts and beliefs to reach a common goal. You don’t get that if you isolate. The SCBA also brings diversity among the different areas of law.

Among your other responsibilities you are the official photographer for the SCBA. Do you enjoy it? I have been an amateur photographer since I was 13. I saw in the early days the way photographs were being shot and knew we could do better. I started doing it on a lark. Then one thing led to another. People seem to enjoy the photos that I take. I enjoy it and get a kick out of it.

You have been on Grievance for 12 years. Why? At the SCBA I was on the Ethics Committee and then became the chair. I was on the bar’s Grievance Committee and became its chair. I left it because I was assigned to the 10th Judicial District Grievance Committee. Even back in law school I al-ways thought that lawyers hold a special place in public trust. Lawyers should be beyond reproach. I find that 90 percent of everything that comes in is dismissed or disposed of without discipline. The percentage of lawyers doing bad things is ex-tremely low but unfortunately there are some that are doing very bad things. I’m still policing. But I’m doing it differently than when I was a police officer. I’m policing the profession with my participation in the Grievance Committee.

Note: Laura Lane, an award-winning journalist, is the Editor-in-Chief of The Suffolk Lawyer. She has written for the New York Law Journal, Newsday and is the senior edi-tor for three North Shore publications at Herald Community Newspapers in Nassau County.

Meet Your SCBA Colleague — Barry Smolowitz

Barry Smolowitz

(Continued on page 23)

By Cory Morris

New Yorkers in 2020 can rejoice “that workers for [at least one food delivery] app are considered employees for purposes of unem-ployment benefits.”1 While most courthouses are closed, (many matters deemed non-essen-tial due to COIVD192), the courier, fast-food chains and the salesclerk that stocks the toilet paper are believed to be more essential than access to justice for a great deal of litigants.

Gig workers, working second or third jobs and perhaps unable to secure benefits

through more traditional employ-ment, are on the frontline of the COVID19 pandemic and deserv-ing of some recognition. Touted by the New York Attorney General in her March 26, 2020 Press Release, “During Coronavirus Pandemic, Decision Will Allow Drivers to Col-lect Unemployment Benefits,” this New York Court of Appeals deci-sion addresses but falls woefully short of fix-ing another pandemic problem just waiting to rear its ugly head — benefits for gig workers.

There’s an App for thatThe newly minted New York

Court of Appeals decision In the Matter of the Claim of Luis A. Vega v. Postmates Inc. upholds the award of unemployment benefits to a Postmates’ courier, or what has be-come known as a gig worker, Luis A. Vega.

When you visit https://postmates.com/, the advertisement reads: “Food, drinks, groceries, and more available for delivery and pickup.” If one were so inclined to click on

https://careers.postmates.com/, it currently re-cites that “[w]e’re here to build the future, not just to maintain the status quo. For our peo-ple, Postmates is a way of life and a part of pop culture” and beckons those seeking a ca-reer with Postmates to “[b]e a part of a com-pany that facilitates $6.6 billion in economic activity across all sales, courier earnings, and merchant growth.” While it sounds like a part-nership, Postmates’ couriers are classified as independent contractors. However, as Post-mates argued before the New York Court of

EMPLOYMENT COVID-19 CIVIL RIGHTS

Delivery Drivers – Essential and Entitled to Unemployment Benefits

Cory morriS

THE SUFFOLK LAWYER - April 20206

By Elaine Colavito

Suffolk County Supreme Court

Honorable Paul J. Baisley, Jr.

Summary judgment as to Habberstad de-fendants denied; questions of fact as to own-ership of vehicle at time of accident.

In Wael Fakhro and Katherine Fakhro v, Ahmed Adjoor, Habberstad BMW, Hab-berstad Motorsport Inc., BMW Financial Services NA, LLC and BMW Financial Services, LLC, Index No.: 605871/2018, decided on Aug. 28, 2019, the court denied that branch of plaintiff’s motion for summa-ry judgment against the Habberstad defen-dants was denied.

In this action for personal injuries sus-tained as the result of a motor vehicle acci-dent, it was alleged that the vehicle was op-erated by defendant, Adjoor, and was owned by defendant Habberstad BMW, Habberstad Motorsport, Inc., BMW Financial Services, NA, LLC, and BMW Financial Services, LLC and had been provided to non-party, Jozet Ayoub for use while her vehicle was being serviced. The Habberstad defendant alleged that defendant, Ayoub, did not have their permission or consent to operate the

vehicle and was not an authorized driver pursuant to the rental agree-ment for the vehicle. Plaintiffs moved for partial summary judg-ment as to the issue of liability.

In rendering its decision, the court pointed out that plaintiffs could not meet their prima facie burden on their motion for summary judgment by evidence submitted for the first time in their reply papers. Thus, the evidence submitted by plaintiffs in their reply to the Habberstad defendants’ opposition papers would not be considered as grounds for their summary judgment motion. The court found that plaintiffs failed to establish their burden as their submissions revealed questions of fact regarding the ownership of the vehicle operated by defendant, Ayoub, at the time of the accident.

Motion for default judgment denied; acci-dent not described nor was how defendant’s negligence caused or contributed to injuries.

In Rosa Mori v. Southampton Manage-ment, Inc. and Steamy, Inc., Index No.: 610387/2019, decided on Jan. 3, 2020, the court denied the motion pursuant to CPLR 3215, granting leave to file a default judg-ment against defendant, Steamy, Inc.

In rendering its decision, the court noted that in her affidavit, plaintiff stated only that Steamy, Inc., “failed to properly and/or adequately train and/or instruct their [sic] employees, creating a condition which was dangerous and defective. She did not de-scribe the nature of the accident or how the defendant’s negli-

gence caused or contributed to her injuries. As such the court was unable to determine whether a viable cause of action existed.

Honorable James Hudson

Motion to reargue denied; expert testimo-ny proposed by the plaintiff regarding DTI was not yet generally accepted in neurology for the use in clinical treatment of individual patients; and could not therefore, be present-ed before a jury.

In Denise Brouard and Gerald Brouard v. James Convery, PV Holding Corp., and A Vis Rent a Car System, Inc., Index No.: 28560/2005, decided on May 9, 2019, the court denied the plaintiff’s motion for re-argument.

The court noted that the issue in the case was one of the plaintiff’s employing a nov-

el and unrecognized application of DTI (Dif-fusion Tensor Imaging), a scientifically and judicially recognized technology. The court clarified and stated that the issue was not, as plaintiff contended, that the court was im-properly refusing to permit the use of DTI results as part of the testimony of plaintiff’s expert at trial.

In rendering its decision, the court said that as previously stated in the Feb. 9, 2018 Mem-orandum Decision, there should exist a clin-ical (not merely scientific) consensus, and that the proper foundation be laid as well as acceptable methods employed, in each par-ticular case. In consideration of the instant motion for reargument, the court awaited the outcome of further development of the judi-cial use and application of DTI technology. The court noted that nether case was precise-ly on point to the case at bar. In rendering its decision, the court declined to follow recent persuasive authority and noted that it will wait until the Court of Appeals or Appellate Division issued a binding authority on point. The court pointed out that the burden of prov-ing general acceptance of scientific princi-ples or procedures for the admissibility of expert testimony rested in the party offering

BENCH BRIEFS

ElainE Colavito

(Continued on page 21)

CONTRACT LAW

The COVID-19 Shutdown and the Impossibility of Performance DefenseBy Jarrett M. Behar

As we are all painfully aware, Gov. An-drew Cuomo has issued an Executive Order directing that all “non-essential” businesses statewide terminate their in-office personnel functions. In addition to the public health and policy issues that arise from this order, a myr-iad of legal questions also follow. While there are no concrete answers to many of these questions, given the unprecedented nature of the COVID-19 pandemic, it is helpful to look to caselaw to anticipate how these issues may play out in the business disputes that are sure to emerge from this situation. One such issue is the applicability of the defense of impos-sibility of performance that may be asserted against a party seeking to enforce its con-tractual rights against another party that has failed to perform its obligations.

General contract law in New York (and most places) provides “that once a party to a contract has made a promise to perform, it must follow through or be lia-ble for damages, even when un-foreseen circumstances make that performance burdensome.”1 The defense of impossibility of per-formance has been typically ap-plied very narrowly in light of the view that a contract, when distilled down, is really just an arm’s length allocation of risks between the parties.2 As a result, the Court of Appeals has recognized that this defense should only be available in “extreme circumstances” and “only when the destruction of the subject matter of a contract or the means of perfor-mance makes performance objectively im-possible.”3 In addition, the event that pro-

duced the impossibility must not have been something that could have been foreseen or guarded against in the contract.4

In a general sense, the COVID-19 pandemic was not foreseeable to parties that en-tered into contractual agreements through most of 2019. However, can the same be said about con-

tracts that were entered into after the first case of COVID-19 was reported in China around Dec. 31, 2019 or after the first case was reported in the United States around Jan. 21, 2020?5 These questions will un-doubtedly have to be answered by the courts as businesses become unable to perform their contractual obligations as a result of the COVID-19 pandemic and the ensuing governmentally-ordered restrictions.

One case resulting from a governmental act occurred in Orange County, New York when the purchaser in a sale of real property con-tract attempted to rescind the contract after the relevant jurisdiction enacted a moratorium on subdivision approvals and then enacted a re-vised zoning code that prohibited the type of subdivision contemplated in the agreement.6 The Appellate Division, Second Department affirmed the trial court’s dismissal of the ac-tion and held that it was not unforeseeable that the town would change its zoning code in a manner rendering the planned subdivision im-possible.7 The court partially relied on its hold-ing in an earlier case that found that sophisti-cated developers should either anticipate such a change or guard against it in the terms of the underlying contract.8

(Continued on page 20)

CONSUMER BANKRUPTCY

Bankruptcy and Foreclosure Practice Under COVID-19 and the Coronavirus CARES Act - Important Updates on Bankruptcy and Foreclosure MattersBy Craig D. Robins

We are all grappling with how to compre-hend the impact of COVID-19, which will likely transform the way we conduct our practices for the next few years. Consumer bankruptcy and foreclosure defense prac-titioners returning to work after being side-lined by the coronavirus pandemic will see an impact on all aspects of their practice.

With the virus raging on, large sectors of the workforce have been laid off and many businesses have been paralyzed. Facing the

highest unemployment rates since the Great Depression, a tremen-dous number of consumers and businesses will be unable to pay their debts. Mortgage payments will not be made. It is certain that we will see a dramatic uptick in the number of bankruptcy filings and foreclosures.

Considering that before the pandemic many Long Island households only had modest savings, not to mention thousands of dollars of credit card debt,

the lack of income, combined with various expenses caused by COVID-19, will wipe out many families’ savings, placing many in a situation in which bankrupt-cy is the only answer to get a fresh new start. Job loss will also thrust many into foreclosure.

CARES Act On March 27, 2020, the CARES Act was

signed into law. This is the $2.2 trillion stim-ulus package, formally titled the Coronavirus

Aid, Relief and Economic Security Act. The act aims to provide emergency assistance for individuals, families and businesses affected by the 2020 coronavirus pandemic. Although its most publicized measures consist of finan-cial relief for businesses and individuals, bur-ied within its 880 pages are also some im-portant changes to various provisions of the Bankruptcy Code.

Bankruptcy means test changes Previously, with some limited exceptions,

Craig D. roBinS

(Continued on page 22)

JarrEtt m. BEhar

SIDNEY SIBEN’S AMONG US

Condolences…To the family of honorary member Rob-

ert Jay Dinerstein, who passed away on March 15.

To the family of Patricia A. McByrne, mother of Pat Quinlan and mother-in-law of past SCBA President Robert F. Quinlan passed away.

To the family of SCBA member Patrick F.

Young passed away.

Elizabeth “Betty” Copertino died. She was the wife of Hon. John Copertino, for-mer Appellate Justice, Tenth JD, who passed away last year. Betty was also the son of Dis-trict Court Judge Hon. Carl Copertino.

To the family of Rudolph “Rudy” Cart-ier, a long-time and very active member of the Association.

To the family of Guy Raimondi, the father

of SCBA members Christopher and John E. Raimondi.

To the family of Michael Chetkof, a long-time member of SCBA and a dear, close friend of Justin Block.

To the family of Annette Elstein, moth-er of Hon. Sandra J. Feuerstein, U.S. Dis-trict Court Eastern District of N.Y. Annette was 99 years old, just two months shy of her 100th birthday.

The Board of Directors is saddened and sends its heartfelt sympathies to the fami-lies, colleagues and friends of the beloved members and family of members who have passed away during this COVID-19 (Coro-navirus) crisis:

New Members…The SCBA extends a warm welcome its

newest members: Rodger D. Citron, John R. Eyerman and Jason T. Katz.

EMPLOYMENT

Employers Face Potential Exposure for Personnel Decisions Related to the Coronavirus By Mordy Yankovich

The coronavirus pandemic is causing em-ployers to have to make difficult decisions re-garding their staff. Many employers are being forced to lay-off or furlough employees or re-duce their hours and compensation. Amid all of this internal chaos in an effort to remain in business, employers cannot afford to make a misstep that may lead to exposure for failure to comply with the new emergency federal and state sick and family leave laws or for making employment related decisions based on an employee’s protected class in violation of federal, state or local discrimination laws. The following is a summary of the require-ments of these applicable laws:

Emergency Family Medical Leave Expansion Act/ Emergency Paid Sick Leave Law

The federal paid leave laws enacted in re-sponse to the coronavirus apply to employers with less than 500 employees. An employee is entitled to 80 hours of paid sick leave if the employee is: quarantined as a result of the coronavirus; seeking a medical diagnosis for

symptoms of the coronavirus; car-ing for an individual who is quar-antined; or experiencing any oth-er substantially similar condition specified by HHS.

The Emergency Family Medical Leave Expansion Act entitles em-ployees who are unable to work or telework because of their need to care for a child whose school has been closed (or childcare provider is unavail-able) due to the coronavirus to 12 weeks of leave. The first 10 days of leave are unpaid. For the following 10 additional weeks, the employer must compensate the employee at a rate of no less than two-thirds of the employ-ee’s regular rate of pay. However, such pay is capped at $200 per day and $10,000 total. The law does contain a hardship exemption for employers with less than 50 employees where the “viability of the business as a go-ing concern would be jeopardized.”

New York State Paid Sick Leave/ Ex-panded Paid Family Leave

New York state passed legislation requir-ing employers to provide leave to employees

who are under a mandatory or pre-cautionary order of quarantine or isolation due to the coronavirus or to care for a child subject to such order. A qualifying employee is entitled to paid leave based on the number of employees that work for his/her employer. Employers with up to 99 employees must provide qualifying employees with at least

five days of paid sick leave (employers with less than 11 employees with a net income for 2019 of less than a million dollars do not have to provide paid leave). Employers with 100 or more employees must provide 14 days of paid sick leave. Qualified employees may also now use Paid Family Leave for addi-tional leave if the employee or his/her child is under an order of quarantine or isolation. Employees eligible for Paid Family Leave are entitled to 60 percent of their pay up to a maximum weekly benefit of $840.70.

Federal, state and local discrimination laws Title VII of the Civil Rights Act of 1964

(“Title VII”), the New York State Human Rights Law (“NYSHRL”) and the Suffolk

County Human Rights Law prohibit discrim-ination and harassment based on protected classes such as race, religion, sex, disability, national origin, age, etc. The NYSHRL re-cently lowered the standard for establishing a claim of harassment to treating an employ-ee “less well” based on his/her membership in a protected class. Employers risk expo-sure to claims of discrimination/harassment if they do not apply workplace policies, im-plemented as a result of the coronavirus, in a uniform manner. For example: Reducing “older employees” hours because they are more susceptible to the virus or mandat-ing that only Asian Americans telework can constitute discrimination.

Employers, including law firms, should enact and enforce uniform policies in order to ensure compliance with the above laws and consult with employment counsel prior to making personnel decisions.

Note: Mordy Yankovich is a senior as-sociate at Lieb at Law, P.C. practicing in the areas of Employment, Real Estate and Corporate Law. He can be reached at Mordy@liebatlaw.com.

FAMILY

Child Support Modifications and Retroactivity in a ‘Paused’ WorldBy Jeffrey L. Catterson

With New York being the epi-center of the coronavirus’s do-mestic surge, its financial im-pact has been immediate and far ranging. With Gov. Andrew Cuo-mo’s directive for 100 percent of the non-essential work force to “Shelter in Place,” many of our clients have been furloughed, laid off or, more drastically, terminated from their only

sources of income. With no end in sight nor a clear understanding of what the economic landscape will be for their employment once they weather this storm, clients are rightfully concerned about how to manage their support obligations and minimize any arrears.

Making matters worse, based upon Judge Marks’ March 22,

2020 Administrative Order prohibiting any filings but for strictly defined “essential”

matters, these aggrieved parties are pro-hibited from filing petitions to modify their support obligations. This inability to file an application to modify support prevents the payor from ‘stopping the clock’ on support arrears for date of application retroactivity. Specifically, Family Court Act §451 (1) pro-vides as follows:

Except as provided in article five-B of this act, the court has continuing ju-risdiction over any support proceed-ing brought under this article until its

judgment is completely satisfied and may modify, set aside or vacate any order issued in the course of the pro-ceeding, provided, however, that the modification, set aside or vacatur shall not reduce or annul child support ar-rears accrued prior to the making of an application pursuant to this section. The court shall not reduce or annul any other arrears unless the defaulting party shows good cause for failure to

(Continued on page 24)

NOMINATING COMMITTEE

Report of the Nominating Committee Pursuant to Article VI, SEC 2 of the Bylaws of the Suffolk

County Bar Association (SCBA), the Nominating Committee has submitted the following report of names of candidates to be placed in nomination for the election to be held at the Annual Meeting on May 4, 2020, which Report has been submitted in writing to the Secretary of the SCBA, Patrick McCormick, who hereby notifies the members of the SCBA:

President-Elect .............................................Daniel J. TambascoFirst Vice President ................................. Vincent J. Messina, Jr.Second Vice President ......................................Cornell V. Bouse

Treasurer ......................................................Patrick McCormickSecretary .......................................................... Hon. John J. Leo

Directors (Four with terms expiring 2023)........................................................................... Jarrett M. Behar...................................................................... Catherine E. Miller...........................................................................David R. Okrent........................................................................... Daniel A. Russo

Nominating Committee Members (Three with terms expiring 2023).............................................................................Sean Campbell

............................................................... Jennifer A. Mendelsohn

............................................................. Lynn Poster-Zimmerman

The members will also be voting on a Bylaws amendment for Article III, Admissions and Dues, click here.

We are not sure if this meeting will be a virtual meeting, so stay tuned for further information.

Respectfully submitted,Patrick McCormick,Secretary

JEffrEy l. CattErSon

morDy yankoviCh

THE SUFFOLK LAWYER - April 20208

FAMILY

Love and Lawyering in the Time of Cholera By Vesselin Mitev

“Three weeks from now, with the sun upon my face during the brisk walk to the court-house, I shall be litigating my cases. And if you find yourself surrounded by friendly ad-versaries, compliant clients, and accommo-dating judges, do not be afraid; for you are in Elysium, and you are already dead!”

This immortal speech given by Maxi-mus Decimus Meridius, portrayed by Rus-sell Crowe in the 2000 epic “Gladiator” can be quickly YouTubed as ready reference to my weak parody above, but buoyed by ris-ing strings and a somber score, it depicts the aforementioned Roman general roaring at his troops to hold the line before the impending battle against a Germanic warrior tribe.

“Three weeks from now, I will be harvest-ing my crops. Imagine where you will be, and it will be so. Hold the line! Stay with me! If you find yourself alone, riding in the green fields with the sun on your face, do not be

troubled; for you are in Elysium, and you are already dead.”

Twenty years later, the film still holds up and especially now, in what we have quickly universally all termed to be challenging, un-precedented, or uncertain times, will at least fill 3 hours of your dai-ly quarantine or social distancing.

Lawyering in the midst of a pan-demic has been, in a word, surreal. Working from home has, in my experience, proven a poor substitute to the very zeitgeist of our practice, which is interacting with other hu-mans, whether they be clients, adversaries or courts.

The in-person simultaneous interaction upon which we are built has been replaced by the pixelated thin veneer of a virtual reality; we can feel the tension crackle in the court-room during zealous cross-examination; to be sure, I don’t think anyone is ready for a contempt hearing held via Zoom.

I submit that labeling the ma-jority of lawyers non-essential, when historically, through the epochs, it is only the existence of laws (and their factotums — lawyers) that have held together societies from disintegrating into chaos and anarchy, was and is ill-advised and reactionary.

Friends and family from afar re-gale me nightly with anecdotes (the opposite of data) about how when this passes we will all see an uptick in clients seeking divorces and with other family law issues; the sardon-ic societal joke being, of course, that none of us can really stand the people we have cho-sen (now forced) to be closest with, and giv-en the choice would unsubscribe from that familial mailing list.

Nor is it of especial succor that some limit-ed issues can be brought to the courts during the closure. The reality is that people’s le-gal problems, at best, can be put on the back

burner for a short while, but cannot be de-frayed indefinitely. And when the smoke clears and regular life resumes, and it will, the rich ironies and vagaries of our practice and profession will be on full display again.

Are you not entertained?

Note: Vesselin Mitev is a partner at Ray, Mitev & Associates, LLP, a New York liti-gation boutique with offices in Manhattan and on Long Island. His practice is 100 percent devoted to litigation, including tri-al, of all matters including criminal, matri-monial/family law, Article 78 proceedings and appeals.

Vesselin Mitev

COMMERICAL LITIGATION

The At-Issue Doctrine & Waiver of Ancillary Privilege By Leo K. Barnes Jr.

Many trial attorneys prepare summations before voir dire or opening statements be-cause an effective summation will have a nexus with voir dire and opening statements such positions can be taken with the jury or judge premised upon what the admissible ev-idence will show. Although the summation will undoubtedly be refined during the trial process, the blueprint for the case presenta-tion must be determined well in advance.

That global perspective must start at the first client interview. For example, when drafting a complaint, plaintiff’s counsel risks waiving the right to a jury by includ-ing certain equitable claims which constitute a waiver. “The rule is fundamental that where a plaintiff seeks legal and equitable relief in respect of the same wrong, his right to trial by jury is lost. If any right remains, it is the right of the defendant.” Di Menna v. Coo-per & Evans Co., 220 N.Y. 391, 396 (1917). Sometimes, the pursuit of equitable claims is inevitable; but in situations where the equi-table claim is merely perfunctory, the savvy attorney will avoid the same to avoid the risk of jury waiver. The same global perspective must continue through the discovery process so that other waivers are not inadvertently ef-fectuated.

In Alekna v. 207-217 W. 110 Portfolio Owner LLC, 156847/2016, New York Coun-ty Supreme Court Justice Carol Edmead de-termined that the “at-issue” doctrine applied, ordering defendants to produce an otherwise privileged due diligence report. According to the decision in Alekna, plaintiffs’ claim was premised upon a rental overcharge scheme stemming from allegations that defendants failed to honor their obligations in connec-tion with their receipt of J-51 tax benefits (J-51 is a tax exemption/abatement program for multi-family property owners).

The Buyer Defendants bought the subject property from defendants 207 Realty Asso-

ciates LLC and Mann Realty As-sociates (Seller Defendants) in April 2016. In their amended an-swer and cross-claims, the Buyer Defendants alleged that they did not willfully overcharge plain-tiffs, as Buyer Defendants relied on misrepresentations as to plain-tiffs’ rental status in the rent rolls provided by Seller Defendants. Moreover, Buyer Defendants alleged that they “could not reasonably have discov-ered” Plaintiffs’ rental status. These allega-tions were significant because the Buyer De-fendants could be liable for treble damages if a finding was made that they willfully over-charged plaintiffs (see Smoke v. Windermere Owners, 173 A.D.3d 500 (1st Dep’t 2019)).

Apparently, the parties agreed that a cer-tain Due Diligence Report, prepared by Buyer Defendants’ former counsel, would, in the absence of an applicable exception or waiver, be protected by the attorney/client privilege. However, plaintiffs argued that the Due Diligence Report was discover-able, because the at-issue doctrine provided a waiver of privilege such that the Due Dil-igence Report should be exchanged during discovery. The Buyer Defendants argued that the at-issue doctrine did not apply, as Buyer Defendants did not plan to use the Due Diligence Report at the dispositive mo-tion or trial stages of the action.

Accordingly, plaintiffs filed a CPLR 3124 motion to compel defendants to produce the Due Diligence Report, while the defendants opposed the motion on the basis that the Due Diligence Report was privileged and was not waived.

As per the Court of Appeals observation in Green v. Montgomery, 95 N.Y.2d 693, 699-700 (2001):

[p]rivileges, while important in the law, are not absolute. Indeed, most rights and privileges are waivable, even such constitutional rights as the right to a jury trial, the right to appeal and the

right against self-incrimination.Accordingly, for the “at issue”

doctrine, an otherwise privileged communication is waived when a party places the subject matter of advice “at issue.” Orco Bank, N.V. v Proteinas Del Pacifico, S.A., 179 A.D.2d 390, 577 N.Y.S.2d 841 (1st Dep’t 1992). Under the “at issue” doctrine, a party that plac-

es legal advice or other privileged facts or communications at issue is deemed to have waived any privilege with respect to such facts or communications and can be com-pelled to produce the same. The doctrine ap-plies when a party, through affirmative acts, places privileged material at issue and has se-lectively disclosed the otherwise privileged advice. Determining waiver of attorney-cli-ent privilege requires careful analysis of facts and circumstances regarding whether a party actually placed otherwise confidential com-munications “at issue.” See Deutsche Bank Trust Co. of Americas v Tri-Links Inv. Trust, 43 A.D.3d 56, 837 N.Y.S.2d 15 (1st Dep’t 2007); American Re-Insurance Co. v U.S. Fidelity & Guar. Co., 40 A.D.3d 486, 837 N.Y.S.2d 616 (1st Dep’t 2007).

Applying the foregoing principles, Justice Edmead determined that the defendants had, in fact, placed their otherwise privileged documents at issue in the litigation and or-dered disclosure subject to certain permissi-ble redactions:

Whether this doctrine applies where a landlord alleges that its overcharge of tenants was unwilful, and that it had no way of discerning, at the time it bought the subject property, whether the prior receipt of J-51 benefits placed the subject units within the ambit of rent stabilization, is a novel question of law. The court finds that the at-issue doctrine does apply in these circum-stances. The sale of the subject prop-erty was in April 2016, nearly seven years after the Court of Appeals land-

mark decision in Roberts v. Tishman Speyer (13 N.Y.3d 270 (2009)) (hold-ing that landlords receiving J-51 ben-efits may not luxury deregulate units within buildings receiving such bene-fit). Moreover, Roberts’ progeny had, by the time of the subject sale, made it clear that the Roberts decision applied retroactively (see Gersten v. 56 7th Ave, 88 A.D.3d 189 (1st Dep’t 2011).Thus, it is reasonable to conclude that the Buyer Defendants’ Due Diligence Report may contain statements as to the legal status of plaintiffs’ apart-ments. To the extent that it does, plain-tiffs are entitled to a redacted copy of the Due Diligence Report, as this ev-idence would rebut the Buyer Defen-dants’ allegations regarding their own ignorance. Failing to order the Buyer Defendants’ to turn over portions of the Due Diligence Report that relate to the legal status of the apartments within the subject property would de-prive plaintiffs of vital information re-lating to an issue that Buyer Defen-dants have brought into play. Portions of the Due Diligence Report that do not relate to the regulatory status of the apartments remain privileged and are properly redacted [bold added].

The court’s determination that the defen-dants’ election to assert a position which ultimately resulted in the disclosure of oth-erwise privileged documents serves as a re-minder that counsel must maintain a global perspective on the litigation end zone and the ramifications which correspond with the route thereto.

Note: Leo K. Barnes Jr. is a partner at Barnes Catterson LoFrumento Barnes LLP. He practices commercial litigation and can be reached at LKB@BCLBLawGroup.com.

lEo k. BarnES Jr.

“Three weeks from now, I will be harvesting my crops. Imagine where you will be, and it will be so. Hold the line! Stay with me! …

THE SUFFOLK LAWYER - April 2020 9

CONSTRUCTION LAW

The Enforceability of Contractual Limitation of Liability Clauses By Kenneth A. McLellan

A clear contractual provision limiting dam-ages — absent exceptions such as gross neg-ligence — will be enforced by the New York courts. This principle of New York law is of particular importance in a construction law context, particularly to professional engi-neers engaged in performing inspections or architects engaged in design activities. In-deed, the court’s enforcement of such a lim-itation can be critical to any professional or entity who might perform a service for a rel-atively small fee that, without such a limita-tion in place, could result in enormous expo-sure, such as a burglar or fire alarm company.

The Appellate Division, Second Depart-ment, recently reaffirmed the enforceability of a limitation of liability. In Astoria Gener-ating Company, LP v. Riley Power, Inc., 179 A.D.3d 987 (2nd Dept. 2020), a decision is-sued earlier this year, the court held that “[a] clear contractual provision limiting damages is enforceable.” The court went on to note three exceptions: A special relationship be-tween the parties; a statutory prohibition; and if the provision enforcement of such a provi-sion is against public policy because the par-ty seeking to enforce it was grossly negligent. The Astoria Generating case involved con-tract with Riley Power to overhaul and refur-bish of a steam boiler. Astoria owned and op-erated a power station where it manufactured and sold electricity. Astoria claimed that there was a pressure explosion that caused damage to Astoria’s property and sought recovery.

In arriving at its decision, the Second De-partment relied on a line of its own prior cas-es. The Court cited Schietinger v. Tauscher Cronacher 40 A.D.3d 954 (2nd Dep’t. 2007). In that case, the defendant, an engineering

firm, was successful in enforcing a contractual provision that its li-ability for a pre-purchase home inspection be limited to $1,705. The plaintiff homeowners in that matter alleged that the defendant engineering firm negligently per-formed an inspection, failing to disclose that the roof contained as-bestos and was in such poor con-dition that it would need to be re-placed. The court affirmed dismissal of the complaint, finding no gross negligence.

The court in the Astoria Generating case also cited Ryan v. IM Kapco, 88 A.D3d 682 (2nd Dep’t. 2011), further discussed gross negligence. That case also involved a home inspector and found that the defendant’s li-ability was limited to $550. Plaintiff home-owners claimed that the defendant failed to discover and disclose that the roof rafters were not the proper size. The plaintiff’s claim was dismissed and the decision was affirmed by the Second Department.

The Second Department has held that for a plaintiff to show that a defendant’s work was performed in a grossly negligent fashion, it must be “so defective as to evidence a reck-less indifference to the rights of others or a failure to exercise even slight care.” See Id.

In order to shed more light on what New York courts consider “gross negligence,” we can turn to a case cited in the Ryan case, which is Sommer v. Federal Signal Corp., 79 N.Y.2d 540 (N.Y. 1992). In that case the Court of Appeals held that “[it] is the pub-lic policy of this State, however, that a party may not insulate itself from damages caused by grossly negligent conduct [.]” The Som-mer case is recommended reading for any practitioner either representing a plaintiff or

defendant, in this situation. The set of facts presented in the

Sommer case had a bearing on the court’s decision due to issues of public safety. The Sommer case in-volved a fire. The building owner contracted with Holmes Protec-tion, Inc., for monitoring of the building’s central fire station. As part of the service, Holmes would receive any alarms that sounded

at the building and would immediately no-tify the fire department. There was a mis-communication between the building’s chief engineer and an allegedly inexperienced sub-stitute dispatcher at Holmes. The Holmes dis-patcher had allegedly mistakenly deactivated the system. A fire broke out, but the Holmes dispatcher did not report alarms to the fire de-partment. A small fire grew out of control al-legedly causing $7 million in damages.

Holmes’ contract contained an exculpato-ry clause that limited liability to a maximum of $250. The Court of Appeals found that whether there was gross negligence under the set of facts provided was an issue of fact.

On the same day it decided the Sommer case, the Court of Appeals also handed down David Gutter Furs v. Jewelers Protection Services, 79 N.Y.2d 1027 (1992). In David Gutter the court provided its view of a set of facts that would not support a claim of gross negligence where a contractual limitation of liability protected the defendant. In the Gutter Furs case, the plaintiff fur dealer contracted with the defendant to design, install and mon-itor a burglar alarm system. Plaintiff moved into the location with an alarm designed by defendant, and $300,000 of furs were stolen. The burglar alarm did not sound. Plaintiff claimed the exculpatory clause should not be

enforced because the defendant was grossly negligent. Plaintiff based its claim on an ex-pert’s opinion about the inappropriate type and location of motion sensors. Plaintiff also claimed that the defendant should have as-certained that the inventory should have been arranged. Plaintiff further claimed that defen-dant should have conducted a post-occupan-cy inspection. The court found the allegations against defendants did not raise an issue of fact as to whether defendant performed its duties with “duties with reckless indifference to plaintiff’s rights, and thus the contractual exculpatory and limitation of liability clauses are enforceable [.]” See Id.

As noted, while limitation of liability claus-es is generally enforceable, the courts will ex-amine the set of facts presented to determine whether a defendant’s gross negligence may create an issue of fact precluding summary judgment. It appears that the inquiry is fact specific. The court has expressed special con-cern where a party’s service involves signif-icant public interest. Practitioners may wish to consider exceptional circumstances identi-fied by the courts in past cases when evaluat-ing the enforceability of such a clause.

Note: Kenneth A. McLellan is a partner with Winget, Spadafora & Schwartzberg, LLP, and is admitted to practice in New York and New Jersey. His main practice ar-eas are construction law and defending pro-fessional malpractice claims.

Disclosure: Matthew Tracy, Esq., of Winget Spadafora and Schwartzberg, LLP, worked on Ryan v. IM Kapco, 88 A.D.3d 682 (2nd Dep’t. 2011). That case is mentioned in the article. He represented the respondents in the appeal.

kEnnEth a. mClEllan

VEHICLE AND TRAFFIC

Coping with Court Closures During the Coronavirus CrisisBy David A. Mansfield

The coronavirus crisis has had a tremen-dous effect on the practice of law for de-fense lawyers that has resulted in the closure of the courts and agencies except for certain non-routine matters.

The Suffolk Traffic and Parking Violations Agency deserves credit for a clear and con-cise posting to answer the vast majority of routine inquires. While there is no substitute for the agency that is open.

There are resources available to the de-fense lawyer to keep track of adjourned cas-es. The agency has assigned each return date with a corresponding adjourned date for first

appearance, adjourned conference and payment dates.

The Suffolk Traffic and Parking Violations Agency has posted links on its website https://www.suffolk-countyny.gov/tpva/Closure-Relat-ed-Information#ptc for resched-uling of first appearance dates, conference dates and payment of fine dates. The new dates for these matters are in mid-May and June.

The attorney of record will receive a new conference date notice for their case. And tri-als will be rescheduled with notices sent by regular mail. It is likely that trials will be re-set for May and later dates.

If your client’s license was sus-pended for failing to answer a sum-mons on or before April 1, 2020, the agency can be petitioned to re-quest a lifting or termination of the suspension by email between the hours of 8 and 10 a.m. SuffolkTP-VA@suffolkcountyny.gov.

This article makes no represen-tation that a request to lift a §510-

3a suspension pending prosecution will be favorably acted upon.

The District Court cases can be monitored on webcrims as well. Go to https://iapps.courts.state.ny.us/webcrim_attorney/Login

An exception is youthful offender eligible

cases, which will not be posted.The defense lawyer can set up an eTrack

account to allow for email notifications in individual cases. Go to https://iapps.courts.state.ny.us/webcivil/etrackMain

And Traffic Violations Bureau cases in New York City can be monitored with a vpassny account at https://secap.dmv.ny.gov/unprotected/logoff.asp

Please stay safe.

Note: David Mansfield practices in Islandia and is a frequent contributor to this publication.

DaviD manSfiElD

THE SUFFOLK LAWYER - April 202010

REAL ESTATE DEVELOPMENT

Summary of Recent Land Use, Zoning and Environmental Real Estate Decisions By Jason A. Stern

As shown in our previous columns, cli-ents can face a variety of real estate develop-ment issues, the answers to which depend on land use, zoning, environmental, and munic-ipal laws, rules and regulations, which vary among the counties, towns, villages and cit-ies across Long Island and New York state. However, there are certain overarching legal principles that guide these answers and this column reviews recent New York court deci-sions on such principles to give practitioners a framework for understanding the issues and how the courts address them, with an empha-sis on decisions from the Appellate Division, Second Department:

Pre-existing nonconforming use denied for “Short-Term Rental,” which was never permitted

In Cradit v. Southold Town Zoning Board of Appeals, 179 A.D.3d 1058 (2d Dep’t 2020), Cradit purchased real property in the Town of Southold (“Town”) in a low-density residen-tial district in 2014 and used same for “short-term rentals.” The following year, the Town amended its zoning code to prohibit “tran-sient rental properties” in all districts. Cra-dit applied to the Town Zoning Board of Ap-peals (“ZBA”) to continue using the property for short-term rentals as a pre-existing non-conforming use, which the ZBA denied. Cra-dit commenced an Article 78 proceeding in the Supreme Court, Suffolk County (Arthur G. Pitts, J.) seeking to vacate and reverse the ZBA’s decision. The Supreme Court denied and dismissed the Article 78 proceeding; on appeal, the Appellate Division, Second De-

partment affirmed. The Second Department found the ZBA “cor-rectly determined that Cradit’s use of the residence for short-term rentals was similar to a hotel/mo-tel use” and such use “had nev-er been a permissible use” in the zoning district. Thus, the Second Department held Cradit could not establish such short-term rent-al use was a legal “pre-existing” noncon-forming use because such use had nev-er been legal at the property and affirmed the dismissal of the Article 78 proceeding.

Use variance granted based on evidence of cemetery’s “Decline In Revenue”

In White Plains Rural Cemetery Assn. v. City of White Plains, 168 A.D.3d 1068 (2d Dep’t 2019), White Plains Rural Cemetery Association, a not-for-profit public cemetery (“Cemetery”), sought to construct a cremato-ry on property that had long been used as a cemetery. The Cemetery applied to the City of White Plains Zoning Board of Appeals (“ZBA”) for a use variance to allow the cre-matory, which the ZBA denied. The Ceme-tery commenced an Article 78 proceeding in the Supreme Court, Westchester County seeking to vacate and reverse the ZBA’s de-cision. The Supreme Court granted the Cem-etery’s application and reversed the ZBA’s decision. On appeal, the Appellate Division, Second Department affirmed. The Second Department found the Cemetery satisfied the first factor in deciding a use variance applica-tion: namely, whether the landowner demon-strated “factually, by dollars and cents proof, an inability to realize a reasonable return” on

the property, based on “evidence consisting of projections from a fi-nancial analyst the profit and loss statements which demonstrated that it had operated at a loss for the five-year period preceding the fil-ing of its application.” The Second Department also found the ZBA had erred “in finding this evidence was contradictory and conflict-

ed with a 2014 tax document indicating the Cemetery had a positive that year,” because the ZBA “failed to differentiate investment income accrued in the Cemetery’s statutori-ly required permanent maintenance fund,” pursuant to the not-for-profit laws, from “net losses” the Cemetery actually incurred “as a result of its decline in revenue.” Thus, the Second Department held there was “no ra-tional basis” for the ZBA’s decision the ZBA was directed to grant the Cemetery’s use variance application.

Zoning Board not bound by prior prec-edent for “Historic District” property

In Magid Setauket Associates v. Town of Brookhaven Board of Zoning Appeals, 2019 WL 7172440 (S. Ct. Suffolk Co. Dec. 16 2019) (Joseph Farneti, J.), Magid Se-tauket Associates (“Magid”) owned a Shell gas station in a “Historic District Transition Zone” and requested an area variance from the Town of Brookhaven (“Town”) Board of Zoning Appeals (“BZA”) to install a can-opy to “protect patrons from weather while they are at the fuel pumps filing their vehi-cles.” The variance sought a 15.5 foot set-back from the property line, where 50 feet was required — or a 69 percent relaxation

of the setback requirement. The BZA denied Magid’s application and Magid filed an Ar-ticle 78 proceeding in the Supreme Court, Suffolk County, challenging such decision, which the Supreme Court denied. The court found the BZA had a “rational basis” for its decision, particularly since the BZA found the canopy would have “an adverse visual and developmental impact on, and was in-consistent with, the historic character of the surrounding district.” The court also reject-ed Magid’s argument that the BZA’s decision was arbitrary because “similar applications” had been granted in the vicinity both be-cause, as a matter of law, zoning boards may “change its views as to what is for the best interests” of the Town and, as a factual mat-ter, because “none” of such “similar applica-tions” were located within a Historic District Transition Zone, like the subject proper-ty. Thus, the Supreme Court denied and dis-missed Magid’s Article 78 proceeding.

As these decisions continue to demon-strate, practitioners should be familiar with the overarching legal principles governing real estate development in New York, as well as the local land use, zoning, environmental, and municipal laws, rules, and regulations in rendering advice on these issues.

Note: Jason A. Stern is a partner and di-rector of litigation at Weber Law Group LLP, which focuses on commercial real es-tate, land use, zoning, government rela-tions, environmental law, and complex lit-igation. Mr. Stern can be reached at (631) 549-2000 and jstern@weberlawgroup.com.

JaSon a. StErn

By Louis Vlahos

This is part two of a two part series.

A lot happens upon the death of an individ-ual partner, including, for example, the fol-lowing: • The partnership’s taxable year will close

only as to the deceased partner, for pur-poses of determining the decedent’s dis-tributive share of partnership tax items for the portion of the partnership taxable year ending with the date of death.1

• The decedent’s estate (or other successor, such as a living/revocable trust, depend-ing upon how the deceased partner held their partnership interest; the “Estate”), will take such interest with an adjusted basis equal to the fair market value of such interest at the date of the partner’s death, increased by the Estate’s share of partnership liabilities on that date and re-duced to the extent such value is attrib-utable to items constituting income in re-spect of a decedent.2

• If the partnership has in effect, or if it timely makes, an election under Sec. 754 of the code, the Estate will receive a

special basis adjustment to its share of the partnership’s basis for its assets, derived from the Estate’s basis for its partner-ship interest at the date of the deceased partner’s death.3

But what about the taxable year of the partnership? Does the partner’s death have any ef-fect thereon?

The Estate as a partnerA deceased partner’s Estate is a new and

separate taxpayer that springs into existence, and begins its first taxable year, upon the death of the partner.4

If the deceased partner’s successor is an ir-revocable trust,5 it generally must use the cal-endar year as its taxable year.6 However, if the partnership interest is held by the dece-dent’s estate,7 the estate may choose any an-nual accounting period as its taxable year,8 and there’s the rub.9

What if the estate’s choice of taxable year results in a change of the partnership’s tax-able year? This would be the case, for exam-ple, where the decedent had a greater than 50-percent interest in partnership profits and capital. The estate’s selection of a fiscal year

would produce a new “majority interest” taxable year — a new re-quired year.

What if the estate did not hold any interest in the partnership, and said interest was held, instead by the decedent’s formerly revocable trust? As indicated earlier, a trust must use the calendar year as its taxable year; thus, with nothing

more, the partner’s death would have no im-pact upon the partnership’s taxable year.

But what if the executor of the estate and the trustee of the trust elect to treat and tax the trust as though it were part of the estate for purposes of the income tax?10 In that case, the trust would not be treated as a separate trust for the taxable years of the estate ending after the decedent’s date of death and before the “applicable date.”11 Rather, as part of the estate, the trust would take the estate’s tax-able year for its own. Consequently, the part-nership in which the trust holds an interest may be subject to a change in its majority in-terest taxable year.

Change of taxable yearThis situation raises an interesting issue:

how will the partnership know that the Es-

tate’s selection of a fiscal year may have resulted in a change of the partnership’s required taxable year? Why would the part-ners care?

There are a number of concerns. For one thing, the change may affect the timing of when the partnership’s tax items are to be accounted for by the partners in determining their taxable income.

In addition, a short period return (of less than 12 months) will have to be filed, begin-ning with the day following the close of the old taxable year and ending with the day pre-ceding the first day of the new taxable year.12 The partnership does not annualize its tax-able income for purposes of preparing this short period return; rather, the return for the short period is made as if that period were a taxable year.13

A number of elections must be made on a timely filed tax return.14 What if a partner-ship is unaware of the change to its required taxable year? In that case, it will likely fail to file the necessary short period return, along with any elections that must be made with such return.15 It will also fail to have included with the return, or to have sepa-

TAX

The Death of a Partner: Out With the Old Taxable Year, In With the New?

(Continued on page 24)

louiS vlahoS

THE SUFFOLK LAWYER - April 2020 11

SIGN UP

LEGAL SERVICESFOR

COMMERCIAL TRANSACTIONS,WORK OUTS, LEASING &

CORPORATE WORK

(516) 222 - 0222KBDA@BROWNALTMAN.COM

538 BROADHOLLOW ROADSUITE 301 WESTMELVILLE, NY

ATTO

RNEY

S AT

LAW

JANUARY AND FEBRUARY PRO BONO WARRIORSWe thank these generous and committed attorneys who accepted a pro bono case from the Pro

Bono Project at Nassau/Suffolk Law Services in January and February.

JANUARY

Richard Artura

Toni Biscardi

Crysti Farra

Richard Jacoby

Steven Kass

FEBRUARY

Regina Brandow

Jodi Ann Donato

Christine Schiebler

Margarett Williams

If you would like to join this elite team of volunteers, call us to find out how you can help. Case acceptance is always voluntary. Thanks to the SCBA and Suffolk Academy of Law, you will receive CLE credit and a voucher

for a CLE course. Please contact Carolyn McQuade (631) 232-2400 ext. 3325.

REAL PROPERTY

Self-Help Commercial Evictions Don’t Make Business SenseBy Andrew Lieb

A commercial landlord can legally pur-sue a self-help eviction in New York State. However, pursuing such an eviction through self-help is a terrible business plan for a commercial landlord and should be avoid-ed. A self-help eviction exposes a landlord to monetary penalties, a proceeding to re-store the tenant into possession and the po-tential for arrest. Therefore, it is advised that a commercial landlord forgoes its common law right of self-help eviction and instead, pursues a judicial eviction, irrespective that a judicial eviction is time consuming and costly, because the negative attributes of a judicial eviction are de minimis as com-pared to the exposure incident to a self-help eviction. Savvy commercial landlords should act in accordance with the findings from macro-level cost/benefit analysis rath-er than acting in accordance with cursory evaluations of only the initial barriers to en-try of available tactics in the pursuit of legal goals such as evicting tenants.

Under the common law, “a commercial landlord may utilize self-help where (1) the subject lease specifically reserves the land-

lord’s right to reenter and regain the premises upon tenant’s breach of its obligation to pay rent, (2) prior to reentry, landlord serves upon tenant a valid rent demand, (3) reentry was affected peace-ably, and (4) tenant is in fact in de-fault in its obligation to pay rent.” Sol De Ibiza, LLC v. Panjo Real-ty, Inc., 29 Misc.3d 72 (App. Term 1st Dep’t. 2010). However, proving com-pliance with these elements is a bigger lift than simply pursuing a judicial eviction in the first instance. While it is acknowledged that a self-help evicting landlord may not be required to prove compliance because their tenant may not commence an action to raise these issues, it’s equally plausible that such a tenant wouldn’t oppose a judicial eviction proceeding brought by their landlord and therefore the likelihood that issue is raised should be disregarded in macro-level cost/benefit analysis.

With respect to a self-help eviction, the Ap-pellate Term, in Sol De Ibiza, confirmed the requisite language to satisfy element (1) is “if Tenant shall make default in the payment of rent reserved...then…Landlord may with-

out further notice, re-enter the de-mised premises either by force or otherwise, and dispossess Tenant by summary proceedings or other-wise.” Therefore, pursuit of a self-help eviction should be strictly predicated on such language being set forth in a lease. It is noted that such language should be included in all commercial leases, irrespec-

tive of the thesis of this article, because the existence of such language creates leverage in pre-eviction negotiations between landlord and tenant. Regardless, if such language is absent from a lease, self-help eviction should be avoided.

With respect to elements (2) and (4), each are both required in self-help and judicial evic-tions. Consequently, these elements should be disregarded in cost/benefit analysis.

With respect to element (3), the issue of peaceable reentry can pose litigated ques-tions of fact. While case law holds that changing the locks is peaceable, if a tenant appears during such lock-changing event, this peaceable act can quickly transform into forceful. See Ferby v. Jonero, LLC, 44 Misc.3d 1229(A) (N.Y. City Civ. Ct.,

2014). If reentry becomes forceful, RPAPL §853 creates compounded exposure. RPA-PL §853 provides that, “[i]f a person is dis-seized, ejected, or put out of real property in a forcible or unlawful manner, . . . he is entitled to recover treble damages in an ac-tion therefor against the wrong-doer.” Be-yond RPAPL §853, the Housing Stability and Tenant Protection Act criminalizes self-help eviction as a Class A Misdemeanor, at RPAPL §768, with accompanying civil pen-alties. However, unlike §853, §768 only ap-plies to a residential “dwelling unit” and as such, is inapplicable to the instant cost/ben-efit analysis. Nonetheless, §853 applies to commercial landlords and should, alone, tip the scales in cost/benefit analysis away from a self-help eviction.

As to the benefits of self-help eviction, when eviction is uncontested, judicial evic-tion is more cumbersome than self-help evic-tion. Judicial eviction, unlike self-help evic-tion, requires fees for service of process, filings with the court, the provision of le-gal services, the sheriff or marshal, a mov-ing company and more. Judicial eviction in-

anDrEw liEB

(Continued on page 26)

THE SUFFOLK LAWYER - April 202012

OPINION

Lessons from the COVID-19 Pandemic By Victor Yannacone, Jr.

As a result of the COVID-19 pandemic, courts, law offices, solo and small firm prac-tices, small businesses, workplaces, employ-er-employee relationships, will all be dif-ferent, perhaps for only a short while, but certainly in the immediately foreseeable fu-ture and perhaps forever. Every lawyer will eventually have to learn to work efficiently and productively from home and rethink the nature and purpose of a law “office.”

For time billing lawyers without deep-pocket retainer clients, lost billable hours may never be recovered. For contin-gent fee law firms who advance disburse-ments, the interruption in cash flow may be catastrophic. Associates who depend on salaries and do not have their own paying clients may find themselves unemployed in-definitely. Partners who cannot maintain cli-ent billing to cover their income may face a dramatic change in life-style or perhaps find their status changed from equity partner to “of counsel.”

Many solo practice and small firms will have to merge or join together in some kind of group practice to consolidate redundant services and reduce overhead, general and administrative expenses.

The new realities of cyber practiceFederal and state government can and

should create secure virtual facilities in the cloud such as courthouses and document depositories and provide secure access to those facilities for attorneys wherever they may be located.

Working alone at home is now a fact-of life for many lawyers. Just you, your laptop, your smart phone and the internet. Your files are stored somewhere in cyberspace. But there are more questions than answers about prac-ticing law from home.

Is there enough room in your home for your family and your practice? Will your clients just pay their bills without questioning the value to them of every billable hour. Will your clients willingly pay rates that include your rent and the salaries of secretaries, parale-gals and clerks?

There is no longer any justifi-cation for requiring counsel and parties to travel significant distances and spend the substantial time to do so. Cost-conscious clients will no longer pay for it and busy lawyers cannot afford it.

The internet practice of transactional law

With electronic signatures and acknowl-edgements, most small business transactions can be conducted online. Virtual real estate closings can be managed by title companies and lending institutions online and in the cloud. Negotiations can be conducted face-to-face through video conferencing no matter how many individuals may be involved and how far apart they may be.

The courthouse and the courtroom are changing

Will the judges and administrators of the federal and state court systems recognize the opportunity to build on the “social distanc-ing” experience of this pandemic to stream-line litigation and limit courthouse and court-room appearances to actual trials or hearings on dispositive motions?

Changing arcane criminal law practic-es and procedures

Since video arraignments and bail hear-ings can be conducted shortly after an arrest directly from a police station or correction-al facility over a secure government enabled

videoconferencing system with a judge, district attorney, and defense lawyer available on call, we should see the end to busloads of prison-ers transported from some kind of holding facility to the courthouse where assistant district attorneys and defense attorneys mill around waiting — sometimes all day— for a 5 or 10 minute appearance?

At a video arraignment or bail hearing all relevant information can be available on-line for all the parties to view and comment on in real time. Prisoners can be remanded, granted bail or released on their own recog-nizance with or without restrictions such as GPS tracking devices in less than 24 hours freeing active law enforcement officers from burdensome paperwork to go back in the cars and on the streets.

Bringing efficiency to the practice of civil law

The “Meet & Confer” by teleconference procedure, now a staple of federal practice, should become universal. Pre-trial confer-ences requiring personal appearances at the state courthouses can be replaced by a re-quirement for Joint Pre-trial Orders such as those required by the federal courts and where necessary subsequent videoconfer-ences with a judge or magistrate.

Depositions/examinations before trial can be conducted by video conference as they are now since the “social distancing” rules were imposed.

Because of the enormous and almost un-constrained power of federal judges to man-age litigation and federal magistrate judges to manage discovery, there is no reason why the Suffolk County Bar Association togeth-er with their sister bar association in Nassau County cannot begin to formulate sensible rules to improve the administration of jus-

tice involving litigation in at least the East-ern District of New York and the Tenth Ju-dicial District of New York State and present practical proposals from active practitioners to the courts for action.

It is time for barristersIt is also time for the courts and the law as a

profession to recognize that not every lawyer is suited by temperament, or is capable, much less competent to advocate for a client before a judge and jury or argue an appeal. It is time to hearken back to the common law tradition we share with England and limit access to our courtrooms to American Barristers. We must heed the admonition of the late Chief Justice Warren E. Burger in 1973 that, “The painful fact is that the courtrooms of Ameri-ca all too often have ‘Piper Cub’ advocates trying to handle the controls of ‘Boeing 747’ litigation.” https://ir.lawnet.fordham.edu/flr/vol83/iss3/2

See also, https://yannalaw.com/public-pol-icy-essay-1/justice-law-american-legal-sys-tem/advocacy-and-training-advocates/

Note: Victor John Yannacone Jr. is an ad-vocate, trial lawyer, and litigator practicing today in the manner of a British barrister by serving of counsel to attorneys and law firms locally and throughout the United States in complex matters. He has been continuous-ly involved in computer science since the days of the first transistors in 1955 and ac-tively involved in design, development, and management of relational databases. He pi-oneered in the development of environmen-tal systems science and was a cofounder of the Environmental Defense Fund. He can be reached at (631) 475–0231, or vyanna-cone@yannalaw.com, and through his web-site https://yannalaw.com.

TRANSACTIONAL

When is a ground lease like an annuity? By Irwin Izen

This month’s column has our client, a local businessman, looking to defer a substantial capital gain via a 1031 exchange. Unfortu-nately, having sold his relinquished property months ago, our client’s 1031 exchange is up against a fast approaching replacement prop-erty deadline. Pressed for time, our client is presented with both traditional (improved properties) and “nontraditional” options. One such option is purchasing real property subject to a long term Ground Lease (GRL).

In our scenario, low and behold, broker A (who admittedly has been working effort-lessly with our client since the “relinquished property” was sold, knowing full well that he has a commission riding on any purchase) has negotiated for our client to purchase real property currently operated by a national franchisor, under a long term Ground Lease (GRL). Guiding your client through this pur-chase, subject to the GRL, is your Action in the TransAction

After reviewing the Letter of Intent (LOI), which clearly states (as it should in any ne-

gotiation) that it is non-binding and subject to the more formal ex-ecution of a Purchase and Sales Agreement (PSA), you request counsel forward the PSA for re-view. Knowing the sale is sub-ject to the GRL, a copy should be readily available, if not attached to the PSA.

You immediately note both [GRL & PSA] are subject to the tenant’s RIGHT of FIRST REFUSAL (ROFR) to purchase the property. This is of upmost significance to your client. As is usual in a 1031 exchange, three replacement proper-ties are identified, however as these replace-ment properties are removed from the re-sale marketplace, the unanticipated exercise of a ROFR may leave your client without a replacement property and an unexpected tax liability. A more thorough review of the GRL and other documents will be provided during the due diligence period provided in the PSA and consequently the transactional attorney is best advised to negotiate the com-mencement of the due diligence period after

the tenant has either declined or waived an ROFR.

Customarily, there is an uncon-ditional “Due Diligence” period provided the purchaser, with strict “time is of the essence” deadlines. During this period, access to the property is provided for appraisals, environmental testing, building in-spections and other inspections. A

prudent purchaser should also conduct any required municipal searches early on as de-pending on the level of sophistication of the municipality, searches (H&B, Violations, Fire, etc.), of the property could take weeks. An often overlooked fact is whether the prop-erty is being operated under the proper per-mits, including annual building and fire mar-shal inspections.

The GRL is quick to obligate the tenant to all secure all operational permits and other municipal compliance so alerting the tenant to an outstanding municipal requirement is easily rectified so that the permitted use can continue uninterrupted. Due diligence peri-ods become particularly crucial when financ-

ing the purchase as environmental and ap-praisal conditions need to be timely satisfied.

Eventually, the due diligence period is ei-ther extended if additional information is re-quired or upon expiration of the due diligence period, the transaction either becomes firm or terminated. Of course, compliance with any notice requirements contained in the PSA for cancellation must be followed or the purchas-er risks waiver of same.

For example, the tenant declines the ROFR, so now the focus is on the property being sold subject to the underlying GROUND LEASE (GRL). As you purview the GRL, you note:• The tenant is responsible for “all” operat-

ing expenses, including insurance, taxes, assessments, etc., thus making it a triple net GRL. Unlike customary PSA negoti-ations, there is no tax adjustments or oth-er reimbursements to seller for prepaid items paid by the tenant.

• The tenant is a well-recognized brand name affording certain concessions such as the right to sublease and liberal cura-tive default provisions. As demand for

(Continued on page 25)

irwin izEn

viCtor Yannacone, Jr.

THE SUFFOLK LAWYER - April 2020 13

Tax Defense & Litigation

Long Tuminello, LLP120 Fourth Avenue

Bay Shore, New York 11706(631) 666-2500

Harold C. Seligman has been a member of theUnited States Tax Court since 1987.

He has represented individual and corporate clients in hundreds of tax cases, both large and small,

over the past 30 years against the IRS and New York State Department of Taxation and Finance.

www.longtuminellolaw.com

WHO’S YOUR EXPERT

The Products Liability ExpertBy Hillary Frommer

In two recent decisions, the fed-eral courts addressed the admissi-bility of expert testimony in prod-ucts liability cases. In both Amica Mutual Insurance Co. v Electrolux Home Products, Inc.,1 and Bal-ura et al. v Ethicon, Inc. et al.,2the courts excluded certain expert testimony offered by the plaintiffs on the grounds that it was unreliable.

The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence and the principles set forth in Daubert v Merrell Dow Pharm, which re-quires the federal court to determine wheth-er the witness qualifi es to be an expert; the proffered expert opinion is based on reliable data and methodology; and the proffered tes-timony on a particular issue will assist the tri-er of fact.

In both cases, the courts found that the fi rst prong of the test was satisfi ed, in that the plaintiff’s respective witnesses qualifi ed as experts. There were, however, issues with the second prong — reliability. A discussion of the courts’ analyses on that issue is below.

In Amica Mutual Ins. Co., the plaintiff brought suit seeking insurance coverage for fi re damage to property that was allegedly caused by a clothes dryer manufactured by the defendant. The plaintiff asserted legal theories of negligence, breach of warranty, and strict liability based on the product’s al-legedly defective design and manufacture and on the defendant’s alleged failure to

warn. The plaintiff sought to of-fer the expert testimony of Arthur Bronstein, and specifi cally, his opinion that the exposure of wires over time to vibration or heat “led to electrical arcing, generated heat, and eventually ignited the wire in-sulation and/or accumulated lint inside the dryer,” which caused the fi re. The court determined that Dr.

Bronstein’s opinion regarding the existence and nature of the alleged defect did not have “suffi cient indicia of reliability.” Specifi cal-ly, the court found it signifi cant that while the expert testifi ed as to his observations of the subject dryer, he admittedly examined the dryer only after “its internal components had been heavily damaged by fi re, and af-ter the dyer had been moved by fi refi ghters, which further dislodged some internal com-ponents.” The expert also admitted that he had not examined or tested any other dryer with the same make and model as the sub-ject dryer, that he had not tested the insula-tion material used in the dryer to determine how it functioned when exposed to vibra-tion or heat. Moreover, the expert admitted that his hypothesis aside, he could not iden-tify any reliable method “for distinguishing between arcing that causes a fi re and arcing that results from a fi re that has spread from elsewhere.” These admissions were critical for the court, which it expressly recognized that “testing of hypotheses is considered the hallmark of reliable scientifi c methodology.” In sum, the court concluded that the expert’s

(Continued on page 26)

hillary a. frommEr

MEMBERSHIP SERVICES

Heart Health Seminar, at a Steakhouse?By Paul Devlin

Insignia Steak & Sushi in Smithtown. That is where members of the SCBA gathered in a standing-room-only crowd for a presenta-tion on heart health and fi nancial planning on Feb. 27, 2020. The irony of having an event about heart health at a steakhouse was not lost on anyone. The running joke throughout the night was precisely this irony. So why did we make this choice?

The catalyst for this event was the desire of SCBA President Lynn Poster-Zimmerman to get valuable information and resources about wellness to our members. Not only career wellness as the SCBA does with CLEs, com-mittee meetings and various other initiatives. But also, physical and fi nancial wellness.

With that intent, I wanted to organize an event that members would be excited about attending. I landed on Insignia as the venue with the broadest appeal. This was especially true given that we offered an open bar, passed hors d’oeuvres, and a sushi bar, all compli-ments of our sponsors.

The messages of the presenters were very well received. The single most important take-away for me was what cardiologist Da-vid J. D’Agate, M.D., of the Suffolk Heart Group referred to as the heart test you need but have probably never heard of. He start-

ed his presentation telling the sto-ry of Jim Fixx. Mr. Fixx was in in-credible physical shape. He went running every day and even wrote the book entitled, “The Complete Book of Running.” Nevertheless, he died of a massive heart attack while running at age 48. Mr. Fixx had three-vessel coronary artery disease. We have all heard stories of a seemingly healthy and active person dy-ing suddenly of a heart attack.

Dr. D’Agate followed this story with powerful statistics such as the fact that one American suffers a heart attack every 40 seconds, and that one in every three deaths in the U.S. is due to heart disease. As in the case of Mr. Fixx, this disease is often silent until it is too late. Blood screenings at annu-al physicals can show normal levels of LDL cholesterol even though the same patient could have coronary artery disease. EKG results can also be deceiving.

The good news is that there is an effective way to screen for coronary artery disease, al-though most people have never heard of it. It is the coronary artery calcium score (CAC a/k/a calcium score). This “mammogram” of the heart is a CT scan that shows the doctor de-fi nitively whether there is any artery disease. One of the reasons the test is not well known

is that it is not covered by health insurance. The out-of-pocket cost of this imaging is approximately $150. The radiation dose of the test is considered low, about the same about as a mammogram. There is no signifi cant preparation required and the scan takes about 10 minutes to complete. A prescription for the CAC test is required.

Almost everyone should have a CAC test. Even if you are perfectly healthy and active, this test could save you from being another statistic like Mr. Fixx. Dr. D’Agate recom-mended that most people with zero coronary artery disease on the initial scan repeat the test every fi ve years.

In addition to the heart health presentation, attendees heard some common-sense advice from fi nancial planner, Christopher Carri-ere of Prudential Advisors. At the time of this event, the market had just begun a sharp downward trend. Mr. Carriere told the crowd that in times like these the important thing is to stick to your fi nancial plan. A comprehen-sive plan anticipates downturns in the mar-ket. If you have a plan, stick to it even when panic selling seems most tempting. If you do not have a plan, put one in place now and hire a fi nancial planner if you are not well versed in fi nancial planning.

The fi nal presenter of the evening was Adam Goldstein of Lexitas Reporting. He highlighted the effi ciencies in cost and op-erations of his nation-wide fi rm. They are highly advanced in using technology to give attorneys various options such as remote video depositions.

I am grateful for all who helped make this event a success by attending and being recep-tive to the valuable information provided by the presenters. I am equally grateful to the sponsors who made it possible to have this event at an excellent venue with no charge to our members. The three sponsors were Zwanger-Pesiri; Prudential Advisors; and Lexitas Reporting.

As I write this article, New York state is on “pause” due to the COVID-19 pandemic. I hope this writing fi nds all of you well. For those of you who may be ill, I wish you a speedy and complete recovery. When things get back to normal, please seriously consider undergoing the CAC test.

Note: Paul Devlin is an active member of the SCBA, serving on the Board of Directors and as co-chair of the Membership Services & Activities Committee. He is an associate attorney with Gentile & Tambasco, where his practice focuses on personal injury litiga-tion. He may be reached at (631) 760-0923.

paul DEvlin

THE SUFFOLK LAWYER - April 202014

By Joseph A Hanshe

Last year I read a fascinating book by Jen-nifer Doudna, Ph.D. who is a Professor of a Biochemistry in the Molecular and Cell Bi-ology Department of the University of Cali-fornia, Berkley. The book, “A Crack in Cre-ation,” with a subtitle of “Gene Editing and the Unthinkable Power to Control Evolu-tion.”1 The book concerns the development of CRISPR-Cas9 technology by Doudna and her colleagues and it has the world buzzing with excitement.

CRISPR-Cas9 is a unique technology that enables geneticists and medical research-ers to edit parts of the genome by removing, adding or altering sections of the DNA se-quence. The potential for the medical profes-sion was noted at the time to be unlimited; but, was it safe for use in humans. Scientists believe that the technology could possibly be used to cure diseases associated with ab-errant genome conditions such as sickle cell anemia, Tay Sachs disease and many cancers. The technology can make heritable changes in human embryos. It is thought that it may well give scientists a cure for HIV. The origi-nal research took place in laboratory animals, not humans.

Two articles appeared in the Feb. 28, 2020 edition of “Science,2” published by the American Association for the Advancement of Science. One was by Jennifer A. Doud-na entitled, “Knocking out Barriers to Engi-

neered cell Activity” (pg.977) and another by Edward A. Stadtmau-er, et al, entitled “CRISPR-En-gineered T Cells in patients with Refractory Cancer.” (pg. 1001). The Stadtmauer article revealed the first-in-human clinical trial de-signed to test the safety and fea-sibility of CRISP-Cas9 gene edit-ing of T cells from patients with advanced, cancer. The experimental treatment was designed to test the efficacy of the technology in the treat-ment of myeloma and sarco-ma cancers. Needless to say, the preliminary test results demonstrated that the ge-nome engineering is safe and feasible using CRISPR-Cas9 in humans

Dr. Doudna’s article recounted the success of Stadtmauer’s in the treatment of myeloma and sarcoma. She followed six very ill pa-tients for nine months and found no residual adverse effects. It was thought that using the CRISPR-Cas9 technology would generate an adverse immune response to the protein used in Cas9 since it is of bacterial origin. No such effects were noted. Consequently, the first step in using the CRISPR-Cas9 system in humans with genetic diseases proved to be successful. There remains a very long peri-od before the medical therapy will become generally accepted by the medical communi-ty. Let’s hope! In my humble opinion Doud-

na and her colleagues deserve the Nobel Prize in Medicine. Needless to say, the legal and ethical issues involved in this therapy requires careful scrutiny.

Equally exciting news comes out of the Genetic Laboratories at Harvard University School of Medicine. At Harvard, Dr. David

Sinclair is researching lifes-pan and aging. After years of experimentation at Har-vard, MIT and the University of Sidney, Australia, Sinclair has come up with a grand theory of aging. He espous-es that aging is not caused by DNA mutations, mitochon-

drial disfunction, stem-cell exhaustion or any of the other hallmarks of aging. His hypothe-sis is that aging is the result of the epigenetic3 noise that accumulates over years of cellular insult. It can be slowed, halted, or reversed by activating the gene circuit that counters this noise. He notes in his book, “Lifespan, Why We Age-and Why We Don’t Have To,” that his research shows that every cell in the body produces sirtuins, which are enzymes that change the packaging of DNA and turn genes on and off as needed. He notes that activating the sirtuins in mice improves DNA repair, in-creases their exercise endurance, and extends their life span by 40 percent.

Think of the year 2050, when Sinclair’s work on aging enables the human body to

live to 150 years, or more, and Doudna’s CRISPR-Cas9 cures all maladies associat-ed with genome malfunction. Its food for thought for lawyers on how to structure a le-gal framework to protect the moral and ethi-cal values we have come to accept. So, I say to those who have read my article on “Med-ical Aid in Dying” you should think careful-ly about ingesting that “killer pill.” Any day there could be a medical intervention that could convert your aging, diseased body into a spry 150 old. Smile!

Note: Joseph A. Hanshe received his Bachelor of Science and Master of Science Degree in the Biomedical Sciences at Hofstra University. Thereafter he attended SUNY Downstate Medical School where he completed advanced courses in the medi-cal sciences. He practices medical malprac-tice law and criminal law from his office in Sayville, New York. He was appointed by the New York State Appellate Division Second Department as a court examiner where he assists the Suffolk County Supreme Court in Article 81 guardianships. He is chair of the Health and Hospital Law Committee.

1. Houghton, Mifflin Harcourt, Boston and New York 2017.2. Science is published weekly by the American Association for the Advancement of Science, 1200 New York avce., NW, Washington DC 200053. The process by which the expressions of genetic information is modified on a molecular level without a change to the DNA sequence.

Advances in Medical Research

JoSEph a hanShE

FOCUS ON

Health And Hospital Law

SPECIAL EDITION

By Matthew Daidola

In response to the terrorist attacks on Sept. 11, 2001, the United States launched Oper-ation Enduring Freedom and invaded Af-ghanistan. Soon thereafter, in March 2003, a collation of forces led by the United States military invaded Iraq. The invasion and sub-sequent occupation are still on-going to-day. For both safety and convenience, burn pits were used to dispose of the garbage and waste produced at our military bases.

This approach to burning trash is not new for American military forces. The practice has been conducted since the time of Gener-al George Washington. However, never be-fore have we seen a military action with this level of sophistication and duration. Many of our large bases appear to function more like city centers than temporary military outposts. Furthermore, like diverse city centers, they generate complex garbage and waste.

For decades, the Environmental Protection Agency has been aware of the damaging ef-fects burning garbage has on human health. In a 1980 health-assessment of a munici-pal solid-waste incinerator in Ohio, the EPA

found dangerous levels of toxins and particulate matter in the sur-rounding residential area. Further, it was discovered that the proxim-ity to the garbage-burning inciner-ator spiked the predicted lifetime cancer risks of the nearby neigh-borhoods and, thus, triggered im-mediate regulatory action.

According to recent esti-mates by the U.S. Govern-ment Accountability Office and the Department of De-fense, there are at least 230 burn pits in Iraq and Af-ghanistan. The largest of these burn pits was located at Balad Air Base, Iraq — also known as Camp Anaconda. It comprised 10-acres of burning trash operating 24-hours a day, 365-days a year, from 2003 until 2009. All U.S. military personnel entering Iraq were initially flown into this airbase. It is estimated over 3.5 mil-lion military personnel have been exposed.

In 2009, researchers began analyzing the Veterans Affairs’ medical records of military

personnel who served between 2004-2007. At the conclusion of their analysis, they discovered un-usually high levels of new-onset asthma in military personnel de-ployed overseas when compared to military personnel stationed at home. Even more concerning was the heightened levels when com-

pared to the general public, since asthma diagnosed af-ter the age of 13 was a bar from military enlistment. The condition was termed Iraqi/Afghanistan War Lung Injury (IAW-LI).

Many sick veterans and contractors now find them-

selves without benefits or proper compensa-tion. Eighty percent of veterans who put in claims related to burn pit exposure are de-nied. Several high-profile civil suits and ap-peals have been dismissed. In the past, leg-islation has been proposed on all levels of government, state and federal, without com-prehensive coverage coming to fruition.

Further questions of liability arise since most of these burn pits were controlled by private contractors but at the direction of the U.S. government. Recently, the United States Supreme Court rejected an appeal from over 60 lawsuits by veterans and veteran lobbyist groups seeking to hold private contractors liable. The lower federal appeals court had held that the decision to utilize burn pits were “made by the military.” It appears that the is-sue is now evolving into more of a political

question, therefore, rendering relief through the courts an unlikely possibility.

Currently, there is a new bi-partisan leg-islative bill under construction. It is expect-ed to be brought before Congress this sum-mer. Attached to the bill are Senators Kirstin Gillibrand (D-NY), Cory Gardner (R-CO), Congressman Raul Ruiz (D-CA) and me-dia personality Jon Stewart, who has signed on as the official spokesperson. Also part of the team is Dr. Anthony Szema and Dr. Rob-ert Miller, leading members of the initial re-search teams that discovered the negative health implications burn pit exposure has had for our veterans. They hope to succeed where other policy makers have failed.

Passage of the bill would provide much needed benefits for our veterans but could also cause chaos within the courts, the VA medical system, and the private insurance in-dustry. With millions exposed and billions in benefits needed, we expect this issue to con-tinue well beyond the duration of the initial military action.

Note: Matthew Daidola, is a former New York City Police Officer and a graduate of St. John’s University School of Law. He re-cently completed a pre-medical post-bacca-laureate at Stony Brook University and has aspirations to attend medical school in the near future. Matthew is an integral part of the Burn Pit legislative team, attends con-ferences in Washington D.C., and wrote the underlining medical research summary for the bill.

Burn pits, the ‘New Agent Orange’

matthEw DaiDola

FOCUS ON

Health And Hospital Law

SPECIAL EDITION

The Suffolk Lawyer wishes to thank Health and Hospital Law Special Section Editor James Fouassier for contributing his time, effort and expertise to our April issue.

JamES fouaSSiEr

THE SUFFOLK LAWYER - April 2020 15

By Denise Snow

Chances are pretty good that at some point, someone you know will be receive a denial of a benefit for a treatment, medication or di-agnostic from their insurance company. At-torneys who assist the disabled with getting home care services are seeing a surge in deni-als of benefits. Therefore, this article will fo-cus on External Appeals for Managed Long-Term Care (MLTC) denials.

A brief review of health insurance is ben-eficial. A denial of a treatment, diagnostic, pharmaceutical or service triggers the ap-peal. To identify an enrollee’s appeal rights, one must first determine the type of plan be-cause there are some differences in the pro-cess amongst plans. The scope of this article is a basic overview, and some plans are not discussed. However, for most plans, the ap-peal process will proceed first with an inter-nal appeal (the plan makes the determination) and if the benefit is still denied, an external appeal (an independent review organization makes the determination).

Employer based insurance plans, other than government (city, county, N.Y. state employees, e.g. NYSHIP) and church em-ployers fall under the scope of the Em-ployee Retirement Income Security Act of 1974 (ERISA). Employer plans may be ei-ther self-insured or fully insured. In a ful-ly insured plan, the employer pays premi-ums to a health insurance company which in turn pays the bills incurred when an em-ployee utilizes a health service. In self-in-surance plan (sometimes noted as “welfare benefit plan”), the employer or union is re-sponsible for bill payment. It is often dif-

ficult to determine what type of plan provides the coverage (em-ployees usually do not know; the card does not indicate). Often one must call the employee’s human resource department for clarifica-tion. Through preemption, both of these plans fall under the purview of ERISA, although through a savings clause, states retain the right to regulate fully insured plans. The result is self-insured plans fall under federal jurisdiction, whereas fully insured plans fall un-der state and federal juris-diction, thus generally pro-viding a greater degree of protection for the enrollee.

Medicare and MedicaidAs to public insurance, Medicare has a

5-level appeal process: Determination, Re-consideration by independent organization, Hearing with an Administrative Law Judge with the Office of Hearings and Appeals, Re-view by the Medicare Appeals Council, and lastly, Civil action in Federal District Court.

In Medicaid, due process protects a benefi-ciary’s claim to services by providing notice of state actions and providing beneficiaries with an opportunity for a hearing to review those actions. These standards were set forth in the U.S. Supreme Court’s 1970 decision in Goldberg v. Kelly. In New York state, fee for service Medicaid beneficiaries can proceed with a request for a fair hearing. They have 60 days from the date of the notice to request a fair hearing. If the denial is upheld in the fair hearing decision, they can then file an

action under Article 78 of CPLR within four months of the decision.

Managed Long Term CareManaged Long Term Care

(MLTC) is a system of private health insurance companies that was approved by the NYS Depart-ment of Health to offer services to

the chronically and disabled for home care. As such, the beneficiary has the patient protections of both commer-cial insurance and Medicaid. However, the incentive for plans to deny is obvious. As noted by the Inspector Gen-eral, U.S. Department of

HHS, “Managed care organizations (MCOs) contract with State Medicaid agencies to pro-vide beneficiaries with Medicaid services. MCOs must cover services in at least the same amount, duration, and scope that would be covered under Medicaid fee-for-service. However, capitated payment models in man-aged care may create an incentive for MCOs to inappropriately limit or deny access to covered services to increase profits.”

When the plan makes an adverse benefit determination, the MLTC is required to send a timely and adequate written notice of the denial which is the Initial Adverse Determi-nation (IAD). In the case of a reduction or discontinuance of services the notice must be mailed not less than 10 days from date of the proposed action. An adequate notice must provide specific reasons for the action and state the corresponding laws/regulations. Notices must be available in alternative for-mats and in a manner that takes into consid-

eration the special needs of the beneficiary. Pursuant to Mayer v. Wing, Medicaid person-al care service may not be reduced or termi-nated without showing that the beneficiary’s medical condition or social circumstances changed since services were originally au-thorized, change in circumstances justify-ing the reduction, or proof that a mistake was made in the original authorization.

The beneficiary must then submit an inter-nal appeal within 10 days of the date of the notice or effective date of the reduction of previously authorized services for Aid Con-tinuing (AC). This deadline is critical. Aid continuing will allow the beneficiary to keep their services through the internal and exter-nal appeal process. This is new. Previously, the beneficiary requested a fair hearing at this point for AC. The beneficiary has 60 days from the date of the IAD to appeal. A fair hearing may not be requested until a decision is made on the beneficiary’s internal appeal, which the plan issues as a Final Adverse De-termination (FAD).

It is good practice to draft a comprehen-sive, detailed internal appeal for two reasons — it may persuade the plan to change its de-cision and it will be the basis of a fair hear-ing and/or external appeal. Call the treating physician, ask for any supporting letters of medical necessity and/or medical records. The advocate should immediately request the clinical records from the plan, importantly, the Uniform Assessment System (UAS). The UAS is the assessment tool the plan used to make its determination.

In attacking the denial, first look at the no-tice. Was it timely? Was it adequate? Did it

Health Insurance Denials: External Appeals

DEniSE Snow

FOCUS ON

Health And Hospital Law

SPECIAL EDITION

By Joseph A. Hanshe

Pending before the New York State Assembly is A.2694 (Assem-blywoman Amy Paulin) and in the New York State Senate is (S.3949 (Sen. Diane Savino). Both legisla-tions concern Medical Aid in Dy-ing in New York State. Each concerns the medical prac-tice of a physician prescrib-ing medication to a qualified individual that the individual may choose to self-admin-ister to bring about death. In the United States there are 10 States and Washington D.C. that have laws to per-mit the practice. However, as a background to the proposed legislation, there is the United States Supreme Court case of Vacco v. Quill 521 U.S. 793 (1997). The Vacco case con-cerned the right to die in New York. In Vac-co, the court ruled 9-0 that a New York ban on physician-assisted suicide was constitutional, and preventing doctors from assisting their patients, even those terminally ill, in extremis and in great pain, was a legitimate state inter-est that was well within the authority of the state to regulate. The quandary often lies in the ethical considerations and beliefs of the phy-sicians, which at times are at odds with their very ill patients.

The physician’s education ends with the Oath of Hippocrates upon their receipt of the MD degree. In the classical version of the oath, one of the ethical considerations sworn to by the doctor is: “I will neither give a deadly drug to any-body who asked for it, nor will I make a suggestion to this effect.

Similarly, I will not give to a woman an abortive remedy.”

In 1964, because of the advances in modern medi-cine and science, the Hip-pocratic Oath was re-written by Louis Lasagna, the dean of the Tufts School of Med-icine and adopted by most

of the medical schools throughout the Unit-ed States. In the modern version, it states in part, “most especially I must tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awe-some responsibility must be faced with great humbleness and awareness of my own frail-ty Above all, I must not play at God.” This new ethical value is often at odds with Ju-deo-Christian morals.

The legislature has before it a proposed law that would enable physicians to adminis-ter drugs to an adult, defined in the law as 18 years or older. The patient must be terminally ill with a prognosis of six months or less to

live and is mentally capable of making their own healthcare decisions, and physically ca-pable of ingesting the lethal medication. It should be noted, that advanced age, disability and chronic health conditions are not quali-fying factors for medical aid in dying. These factors notably are those found in most nurs-ing homes.

Besides the strict eligibility criteria these proposed laws establish the follow-ing core safeguards: • The attending physician must inform the

terminally ill adult requesting medical aid in dying about all other end of life care options. This includes comfort care, hos-pice care, pain control and palliative care.

• The attending physician must inform the terminally ill adult requesting medical aid in dying that they can change their mind at any time in any manner. This includes deciding not to self-ingest the medication once they have obtained it. And,

• The attending physician must also offer the individual an opportunity to rescind their request.

There are problems to overcome, policies to address and clearly defined guidelines to questions be put in place. For instance, is medical aid in dying euthanasia? Is it sui-cide? Does it promote suicide? Regulations must be in place so that insurance companies do not deny treatment because medial aid in dying is an available end of life option. In ad-dition, there are guidelines that must address

the possibility of family or health care pro-vider coercion. The policies, laws and diffi-culties experienced in those states that have enacted medical aid in dying laws should be carefully reviewed to avoid any known prob-lems that have arisen in those jurisdictions.

In modern times, those of us who care for and love house pets go to great pains to in-sure their comfort. When they are in extre-mis, terminally ill and in great pain, with all the love in our hearts we may choose to put them down so they will not suffer. While our pets have no say in the decision, hear-ing their cries of pain motivates us to act on their behalf. In the proposed legislation, it is the terminally ill, clear minded, un-coerced, individual who should have the right to die as well.

Note: Joseph A. Hanshe received his Bachelor of Science and Master of Science Degree in the Biomedical Sciences at Hofstra University. Thereafter he attended SUNY Downstate Medical School where he completed advanced courses in the medi-cal sciences. He practices medical malprac-tice law and criminal law from his office in Sayville, New York. He was appointed by the New York State Appellate Division Second Department as a court examiner where he assists the Suffolk County Supreme Court in Article 81 guardianships. He is chair of the Health and Hospital Law Committee.

Medical Aid in Dying in New York

JoSEph a. hanShE

FOCUS ON

Health And Hospital Law

SPECIAL EDITION

(Continued on page 25)

THE SUFFOLK LAWYER - April 202016

PERSONAL INJURY — MEDICAL RECORD REQUESTS

The Challenge to Obtaining Medical Records at Cost Under the Hi-Tech Act By Michael Glass and Christopher Glass

The delivery of medical records to pa-tients and their attorneys has undergone seis-mic changes in the last few decades. Federal and state HIPAA laws created strict standards governing patient privacy. In New York, Pub-lic Health Law Sections 17 and 18 required health care providers to turn over medical re-cords at a cost not to exceed $0.75 per page. In 2009, Congress passed the Health Infor-mation and Clinical Health Act (the Hi-Tech Act)1 which required medical providers to provide patients with an electronic or digital copy of their medical records at a special “pa-tient rate,” which was essentially the provid-er’s cost, if those records were maintained in electronic format.2

The statute and the regulations also pro-vided that patients could direct the medical provider to send the electronic record to a third party (which presumably included the patient’s attorney).3

HHS issued a “Guid-ance” in 2016 entitled “Individuals’ Right under HIPAA to Ac-cess their Health In-formation 45 C.F.R. § 164.524.” The Guid-ance made clear that the patient should have ac-cess to the medical re-cord irrespective of whether the request by the patient emanated from a third party (like an attorney’s office) or was to be sent to the patient’s attorney’s office. More specifically, HHS declared that the special patient rate ap-plies “when an individual directs a covered entity to send the (medical record) to a third party.”4 “This limitation,” HHS said, refer-ring to the Patient Rate, “applies regardless of whether the individual has requested that the copy of PHI be sent to herself, or has di-rected that the covered entity send the copy directly to a third party designated by the in-dividual (and it doesn’t matter who the third

party is).”5 Attorneys who need-

ed their client’s medical records soon began to realize that they could obtain their entire cli-ent’s medical chart in an electronic format, at the providers’ cost of delivering the record,

which was a fraction of the usual $0.75 per page maximum rate under New York state law. The attorney’s best practice was to send a letter to the health provider signed by the patient requesting that an electronic record be forwarded to the attorney, as agent of the patient. In the last few years, it became com-monplace for the personal injury attorney to receive a several thousand page hospital re-cord for a minimal cost, usually between $6.50 and $20.00. Needless to say, the Hi-Tech Act Guidance was not welcomed by the large national record copying companies like CIOXX, IOD and VERISMA, who were los-

ing millions of dollars every year in record copying revenue and who felt the reduced rate for medical records should only apply if the records were truly for the personal use of the patient.

Enter then, the recent decision in CIOX Health LLC v. AZAR, No. 18-CV-00640 (APM); 2020 U.S. Dist. LEXIS 12801 (District Ct. District of Columbia Jan. 23, 2020). CIOXX arose out of a challenge to a Department of Health penalty against a hos-pital serviced by CIOXX for the failure to provide records at the special patient rate to a patient who directed the records be sent to her lawyer. CIOXX argued the agency Guidance under the statute requiring CIOX to send the records at the special patient rate to the attor-ney was invalid on procedural grounds. The Agency issued the guidance, CIOX argued, without ever following the notice and com-ment requirements in the federal Administra-tive Procedures Act (APA),6 which governs

BOOK REVIEW

The Man Who Played John WayneBy William E. McSweeney

This is part one of a three part series.

“Ah, but a man’s reach should exceed his grasp,

Or what’s a heaven for?” — Robert Browning

Though covering some material already familiar to many readers regarding its prin-cipal subject, Scott Eyman’s exhaustively re-searched and elegantly written “John Wayne: The Life And Legend” does much more; the book as well presents an instructive, compre-hensive survey of the American movie indus-try from the days of pre-sound to the present. Of greatest value, with respect to his princi-pal, Eyman doesn’t merely cover new ter-rain, he digs beneath it to unearth a novel and plausible theme that at once unifies the facts and compels the reader’s sympathy — yes, sympathy — for the actor.

If John Ford’s title, “The Searchers,” had been cast in the singular, that term could have characterized its star, the man movie-goers knew as John Wayne. He was ever-searching. Born Marion Morrison in Winterset, Iowa on May 26, 1907 to a father who was an itiner-ant pharmacist and a mother who favored her younger son Bob, Marion from an early age would seek stability and recognition.

He would also seek to put poverty long behind him. After the Morrisons settled in Glendale, California, the elder son would help support the family by doing odd jobs around the community and would as well accept help — this from local firemen who gave him milk for “his cat,” though all knew there was no cat at home. The family pet was a dog, “Big Duke.” The shy, soft-spoken boy who tended to him was “Little Duke,” lat-er “Duke,” a nickname Wayne would cling to all his life, a continuing reminder of hard

days, a continuing spur to attain better ones.

If the fates imposed poverty on him, in a just balance they would con-fer physical grace and good looks. In his ma-turity, tall, deep-chest-ed, with shoulders that took up the width of a doorway, with brown hair, blue eyes, prom-inent cheekbones, a sculpted jaw, Duke in his handsomeness caused others to rivet their at-tention on him. In a word, he was photogenic — essential to the medium he would enter as a young man. Upon first meeting him, ac-tress-writer Louise Brooks later recalled that,

“Looking up at him, I thought, this is no actor but the hero of all

mythology miraculously brought to life…(He) was, in fact, that which

Henry James defined as the greatest of all works of art — a purely

beautiful being.”

But he was more than just a pretty face. Predictably, given his upbringing, he was an overachiever as a student in Glendale High School. A Latin scholar, a first-string tackle, a class officer, a participant in near-ly all extracurricular activities, Duke, by his drive, would gain the respect of students and teachers, and by his gentle, easy-going de-meanor, would gain their affection as well. Topping out at 6’4,” the scholar-athlete was a big man on the Glendale campus in both senses of the phrase.

The scholarship he displayed in high school would remain an essential part of his life. Duke was a chess and bridge-player; a quoter of John Milton and Shakespeare; had an office lined with the works of Dos Pas-sos, Faulkner and Hemingway. He had a

surgeon’s sure hand when it came to incis-ing a script: “I was disappointed in the lack of color and character in Jack Martin,” the clear-sighted young actor wrote to the impe-rious Cecil B. DeMille, then about to shoot “Reap The Wild Wind.”

“John Wayne: The Life And Legend”

By Scott Eyman

Simon & Schuster, New York

With photographs and index.

ISBN# 13579108642.

DeMille read Duke’s letter aloud to the three screenwriters involved in “Wild Wind.” When finished, the director asked them, “If an actor can see what’s wrong and work it out, why couldn’t you?”

A night-time reader, a lover of words, Duke nonetheless understood and submit-ted to the paradox imposed on him by the visual medium of film: His screen persona thus favored using as few words as possible. But what words he was given to read! Those written by, among others, Dudley Nichols, Borden Chase, and Frank Nugent. “I know all I want to know . . . I asked you to mar-ry me, didn’t I?” (Nichols, “Stagecoach.”) “And the air there is clean enough to wash your face in.” (Chase, “The Flame of the Barbary Coast.”) “There are some things, Mary Kate, a man doesn’t forget.” (Nugent, “The Quiet Man.”) “We’ll find her, as sure as the turning of the earth.” (Nugent, “The Searchers.”) The lines might have been giv-en to him, but no one else could have read them so perfectly — with meaning, with soft delivery, with conviction.

His understated delivery of lines was a re-action to the scenery-devouring histrionics of those actors — transitioning noisily from si-lence to speech — he witnessed as a young man newly employed on the 20th Centu-

ry-Fox movie lot. Having been injured and having lost his football scholarship while in his second year at the University of Southern California, Duke applied to and was hired at Fox as a prop-man. In those pre-union days of the late 20’s Duke worked all manner of jobs: geese-wrangler; carpenter; “juicer” (light-rigger); grip. It was this exposure to a variegation of skills, and his mastery of them, that later led him to become a micromanager — an uncredited assistant director — on many of his films.

“Jack should be brusque and sure of himself in all physical

situations because of the station in life he has reached at a youthful age. He doesn’t need to be a mental

giant — maybe a little short on logic, but must not be dull — must possess a definite sense of humor to help him through two or three

melodramatic situations that arise.”

It was on the Fox lot that Duke — who wanted above all to be an actor — met and impressed directors John Ford and Raoul Walsh. Ford had already underutilized the strapping young man in bit parts but had yet to cast him in anything substantial. It was Walsh who was to christen him “John Wayne” and to cast him as lead actor in “The Big Trail,” an epic tale of the pioneers’ west-ern trek.

Under the rubric of “be careful of what you wish for, you might get it,” Duke was to be doubly damned for having accepted the role of wagonmaster in “Trail.”

Note: William E. McSweeney is an attor-ney whose written work has appeared in various publications. He lives in Sayville, New York, with his wife and Editor-in-Chief, Jacqueline Shortell McSweeney.

(Continued on page 26)

ChriStophEr glaSSmiChaEl glaSS

william mCSwEEnEy

THE SUFFOLK LAWYER - April 2020 17

DEAN’S LIST

By Peter Tamsen

In my last Article I had promised a “Part Two” on OCA compliance as an Academy CLE pre-senter. I felt that was a great follow up to the re-cent OCA audit at the Academy. I will admit I penned that article at the same time as the first article for two reasons. One being to get it done and out of the way, the other reason was to keep the continuity of that topic going in my mind and in print.

Sadly, drastic changes have occurred in our world that re-quire the Academy to pause and reinvent itself to survive.

The quest, at least for me, as dean (my predecessors may blanche at this), was to make the Academy financially via-ble, and to continue the tradition of providing stellar pro-grams to the members of the bar. I wanted our presenters to be the best of the best. For the most part this seemed to work. We were on pace to be slightly ahead of budget for our current fiscal year. Things were looking good!

One thing changed all that. The coronavirus came to town. This invisible monster put life for all on hold. It stopped us all in our tracks. Although I write this as Academy Dean, the virus impacts everything and each and every one of us every day in every way.

The Suffolk County Bar Association’s building is shut-tered due to the quarantine. If the building is not available, programs can’t take place in the Great Hall nor can they be recorded for transmission or replay. We are in essence out of business. This is a problem for the Academy.

A solution however is in the works.Ever since I got involved with the Academy I champi-

oned the concept of distance learning. For years, I pushed for distance learning both at the Academy and for other in-stitutions I am involved with. The Academy was never for-mally prepared for distance learning technology and we were slow to adapt.

We do presently have (please check the website) web re-plays of previously recorded live programs available 24/7 for your viewing pleasure.

With the help of many, especially the Academy Executive Director Cynthia Doerler, we are now changing formats on the fly. We are now going to webcasts/web conferences us-ing Zoom. This software is available for all to use.

For those unfamiliar with Zoom, you should look into it. The software package the Academy uses allows up to 100 people to engage in an online meeting. This works well for the Academy. We can present programs using this format going forward. Zoom can be on a cell phone, desktop, or an

iPad/tablet. Other distance learning platforms are being researched.

To make the programs work you need a device that connects to the internet. If the device you are using has a camera and a microphone you can join the video conference and participate fully in the program. This new platform will change the way programs are offered and will change the di-rection of how the Academy presents programs in

the future. Zoom works best for programs of a shorter du-ration so you will see programs of an hour to an hour and a half in duration.

While I always enjoy seeing the Great Hall filled to ca-pacity that is impossible now. At least we no longer have to worry about parking issues!

So, what’s next for the Academy? We need content! In my years of involvement with the Academy we went from the traditional three hour evening programs to shorter lunch & learns at the courthouse. We always had programs in the works. Now the Academy will shift to webcast programs.

All of the prior planning is out the window! If you had a program in the works, please contact me or Cynthia to discuss changing the program to a webcast format. If you have an idea for a program, contact us to get the program planned and on the schedule. We need content. If you can get us the content, the viewers will come and the Academy will survive.

The shopping cart on the bar website has been changed to accommodate this new way of program delivery. The Acad-emy has offered and will offer a few free programs to mem-bers. We are well aware that with the world in quarantine and the courts shutdown, not only is the Academy/Bar suf-fering, our are members too. We think free programs and continued free credits are essential for our members.

I encourage you to check the Suffolk County Bar Associ-ation website for program offerings in this format. We will also be offering discounted bundled replays of pre-recorded programs in various practice areas along with the occasional free program.

I will close by extending a promise that I will continue to do my best to keep the Academy moving forward during this transition. When normal returns, I look forward to greeting you in person at the entrance to the Great Hall or in a Zoom program and I will personally thank you for the support of the Academy during these unusual time.

To all, please stay safe, stay home and use the down time to learn and fulfill all the CLE requirements you may have by obtaining those credits at the Suffolk Academy of Law.

Welcome to the New World

pEtEr tamSEn

The Suffolk Academy of Law, the educational arm of the Suffolk County Bar Association, provides a comprehensive curriculum of continuing legal education courses. Programs listed in this issue are some of those that will be presented during the Spring of 2020.

REAL TIME WEBCASTS: Many programs are available as both in-person seminars and as real-time webcasts. To determine if a program will be webcast, please check the calendar on the SCBA website (www.scba.org).

RECORDINGS: Webcast programs are available approximately one-week after the live program, as on-line video replays, as DVD or audio CD recordings.

ACCREDITATION FOR MCLE: The Suffolk Academy of Law has been certified by the New York State Continuing Legal Education Board as an accredited provider of continuing legal education in the State of New York. Thus, Academy courses are presumptively approved as meeting the OCA’s MCLE requirements.

REMINDERS: Cancellations for a full refund must be received within 24 hours before the course. You will be able to receive a credit for your next live program up to three months after the scheduled program.

Program Locations: Most, but not all, programs are held at the SCBA Center; be sure to check the website listings for locations and times.

Tuition & Registration: Tuition prices listed in the registration form are for discounted pre-registration. At-door registrations entail higher fees. You may pre-register for classes by returning the registration form with your payment. Sign up on line at: https://www.scba.org.

Non SCBA Member Attorneys: Tuition prices are discounted for SCBA members. If you attend a course at non-member rates and join the Suffolk County Bar Association within 30 days, you may apply the tuition differential you paid to your SCBA membership dues.

Americans with Disabilities Act: If you plan to attend a program and need assistance related to a disability provided for under the ADA, please let us know.

Disclaimer: Speakers and topics are subject to change without notice. The Suffolk Academy of Law is not liable for errors or omissions in this publicity information.

Tax-Deductible Support for CLE: Tuition does not fully support the Academy’s educational program. As a 501(c)(3) organization, the Academy can accept your tax deductible donation. Please take a moment, when registering, to add a contribution to your tuition payment.

Financial Aid: For information, please call the Academy at 631-234-5588.

NOTEWORTHY – If you have paid for a live program and were not able to attend, you will be able to receive a credit for your next live program up to three months after the scheduled program.

We invite you to plan a course or suggest a topic for CLE credit. Contact Dean, Peter D. Tamsen or Executive Director, Cynthia L. Doerler at cynthia@scba.org.

Materials for all Academy programs will be emailed to you usually one day prior to the program. Register on-line at www.scba.org.

Andrea Amoa, SecretaryHon. Paul J. Baisley, Jr.

Jarrett M. Behar, Associate Dean

Kenneth A. Brown

Hon. John Kelly, Co-Chair,Curriculum Committee

Hon. John J. Leo, Associate Dean, Co-Chair, Curriculum

CommitteeDarlene Jorif Mangane

Cooper Macco

Brittany C. ManganHon. James A. McDonaugh

Hon. Deborah PoulosHon. John E. Raimondi

Marianne S. RantalaHon. Eric Sachs

Tarsha C. SmithJason A. Stern, Treasurer

Ashley M. VallaDavid Welch

Paraskevi Zarkadas

AcAdemy of LAw

OFFICERS

DEAN Peter D. TamsenEXECUTIVE DIRECTOR Cynthia Doerler

OF THE SUFFOLK COUNTY BAR ASSOCIATION

SUFFOLK ACADEMY OF LAW

THE SUFFOLK LAWYER - April 202018

OF THE SUFFOLK COUNTY BAR ASSOCIATION

SUFFOLK ACADEMY OF LAW

Fusco, Brandenstein,

& Rada P.C.Over 4 Decades of Top Legal Expertise

Gina’s Enchanted

Flower Shop

CCCRONIN & CRONIN&

Law Firm, PLLC

The Academy of Law would like to thank the following sponsors for their generous support.

Tradition Title Agency, Inc.

Thank You to All Who Participated in the 2020 High School Mock Trial

The Academy would like to extend appreciation to teachers, attorneys, and the Suffolk County judiciary who volunteered their time to mentor and advise the students and judge the com-petitions for this annual ed-ucational program. With a heavy heart, the tournament was wisely cancelled due to COVID-19.

The tournament encom-passes the valuable lessons of ethics, civility and profes-sionalism; furthers students’ understanding of the law, court procedures and the le-gal system.

Our profound thanks to

County Coordinators and Suffolk County Bar Asso-ciation members, Glenn P. Warmuth, Esq. & Leonard Badia, Esq., who headed up this annual educational pro-gram co-sponsored by The Suffolk County Bar Associ-ation and The Suffolk Acad-emy of Law.

The Suffolk County Bar Association and the Suffolk Academy of Law extends their heartfelt thanks to Hon. C. Randall Hinrichs, District Administrative Judge for Suffolk County for his assis-tance and continued support of this important program.

— Cynthia L. Doerler

2

www.CPBJ.com

•Central Penn Business Journal

•717-236-4300

JUNE 14, 2019

FOOD BUSINESS

Craft-beer boom spurs local hops farmers

By Jason Scott

jscott@cpbj.com

Pennsylvania leads the nation in craft-

beer production.

But while more beer is being brewed in

places like Carlisle, Harrisburg and York,

brewers here must rely on some key in-

gredients that often travel long distances.

One is hops, which are not widely

grown in Pennsylvania, or on the East

Coast in general.

In fact, most hops come from Washing-

ton, Oregon and Idaho, which account for

the majority of the country’s hop produc-

tion. Washington alone has about 40,000

acres of hops.

Two Cumberland County hop farmers

are hoping to claim a piece of that market

and inspire other Pennsylvania farmers to

consider cultivating the crop for breweries

in Pennsylvania.

“It’s a niche thing. Not too many peo-

ple do it,” said Michael Reifsnyder, who

planted 3,400 hop plants on his 15-acre

West Pennsboro Township property in

2017.

A big reason for the lack of new hop farm-

ers is difficulty in getting started and com-

peting with larger established operations.

“These local houses are up against com-

panies that can reach a better economy

of scale, plus have quality control proce-

dures and logistics plans that have been

in place for decades,” said Brandalynn

Armstrong, co-owner of Zeroday Brewing

in Harrisburg. “It makes it harder for the

small producer to compete.”

Hop growing requires a large trellis for

the twining vines and an irrigation system.

Farmers also need special equipment to

harvest, process and package the hops.

Hops, which take three years to reach

full harvest, also are prone to pests and

diseases and can be difficult to grow in

certain soil types and climates.

But Reifsnyder, who retired in 2011

from the U.S. Navy after 22 years of service,

took a chance on hops after experiment-

ing with grapes and asparagus on his

Carlisle-area farm, dubbed GEMS Farm.

He also saw success at nearby hop yard

Sunny Brae Farms and thought his farm

could provide complementary varieties of

fresh local hops to small breweries.

He and his wife, Sharon, along with

their two teenage daughters, maintain

the hop yard, which is entering its second

year of harvest. GEMS currently grows five

varieties of hops on 3.25 acres, but the plan

is to eventually grow to seven acres, plant

a wider variety of hops and reach more

breweries.

“Expansion is on our radar,” he said.

Local thirst

In preparation for hop harvest later

this summer and early fall, the Reifsny-

ders recently purchased equipment that

will allow them to pelletize dried hops

— meaning to grind them into powder

and press them into small pellets. Pellet-

ized hops have a longer shelf life and are

what many brewers rely on throughout

the year.

The farm’s hop yard could yield about

5,000 or 6,000 pounds of hops this year.

GEMS expects to pelletize the majority

of its hops this year after selling almost

all of its harvest last fall to local breweries

making wet-hopped beers — also known

as fresh-hop beers that use hops fresh off

the vine.

Wet-hop batches of beer can use five

to 10 times as many hops as pelletized

batches.

Local brewers say they are eager to buy

more local ingredients, including hops,

but purchasing decisions come down to

quality, price and availability.

Jeff Musselman, head brewer at the

Millworks in Harrisburg, said the local

market has struggled to check all three

buckets. Most local hop farms are growing

on one or two acres and not pelletizing.

“The vast majority of local hops are

brewed in late summer or early fall for

wet-hop beers,” he said. “That has been

the big limitation.”

The Millworks and other breweries said

they would like to buy more local hops

year round, especially pelletized hops, to

support farmers.

“I think brewers absolutely want to use

it,” Musselman said, noting the differences

in smell and taste between East and West

Coast hops.

But Musselman said he expects local

hops would cost more than those from

larger West Coast suppliers, given the

lower hop volumes at local farms. Nev-

ertheless, he said he would still buy local

hops for special PA Preferred brews, i.e.,

beers made with Pennsylvania-produced

agricultural commodities, like hops or

grain.

Victor Shaffer and Andrew Lyons start-

ed growing an acre of hops outside of

Mechanicsburg last year. Their company,

called Lion Bines Hop Farm, is expected to

produce a partial harvest of hops this year

and a full harvest next year.

But the partners are investing now in

processing equipment to pelletize their

hops, with an eye on making extra money

by pelletizing hops for other farmers.

“In the future, we would love to process

for other farms so there is less of a cost

barrier,” Shaffer said.

Both Cumberland County hop farms

acknowledged the hops business in Penn-

sylvania is not much more than a seedling.

But through trial and error, they are opti-

mistic hop farms will begin to sprout.

“I hope we see more hop growers,” Rei-

fsnyder said. <

Lancaster County is continuing to draw

more people, with 2018 as the ninth consec-

utive year that the county saw increases in

visitors, visitor spending and tourism jobs.

The nine-year uptick is the result of a

diverse group of businesses and continued

changes in the perception of the county,

the county’s tourist information center, Dis-

cover Lancaster, wrote in a recent report.

Visitors to the county spent $2.24 billion in

2018, up 4.6 percent from $2.14 billion in 2017.

Of that total, $482 million of went to wages and

salaries for the 16,968 people working in the

Lancaster County tourism industry, accord-

ing to the report by Discover Lancaster, which

is based in East Lampeter Township.

The number of visitors to the county also

increased, rising from 8.64 million in 2017

to 8.85 million people in 2018, an increase

of 2.5 percent.

The report’s data was provided by Oxford,

England-based Tourism Economics and

based on hotel-tax collections reported by

the county, average hotel-room rates and

trends in visitor spending.

Lancaster County has had a long tradi-

tion of enticing tourists to its Pennsylvania

Dutch dining, outlet shopping and family

attractions like the Strasburg Railroad in

Strasburg Township and Dutch Wonder-

land in East Lampeter Township.

Those attractions have continued to pull

in tourists from across the globe but now

share the market with new businesses and

destinations.

They include popular restaurants and

bars, revitalized downtowns in places like

Lititz and Columbia, and outdoor activities

like Refreshing Mountain Retreat in Clay

Township, according to Joel Cliff, director

of communications for Discover Lancaster.

“We have worked on broadening our

brand for the last five or six years to expand

people’s expectations of what Lancaster is

all about,” Cliff said. “There are eight or 12

reasons to come to Lancaster not just the

three you already knew.”

The tourism increases also mirror the

economic growth in the U.S. as a whole, ac-

cording to Cliff.

“Clearly the economy has continued to

build itself back after the Great Recession,”

Cliff said. “It was building steam in 2017 and

certainly last year.” <

— Ioannis PashakisLancaster County tourism sees gain in visitors

Mike and Sharon Reifsnyder stand in the hop yard of their West Pennsboro Township

farm. They began growing the crop in 2017 in a bid to make locally grown hops more

available. PHOTO/MARKELL DELOATCH

6

www.CPBJ.com

Central Penn Business Journal

JUNE 21, 2019

OPINION

GUEST VIEWAt risk: A win for health care over big tobacco

A lot has changed since 1998, the year

that Pennsylvania and 45 states stood up

to big tobacco and helped create the To-

bacco Settlement Fund, or TSF. We may

have moved on from CD-

ROMs, dial-up internet

and the Y2K-bug frenzy.

But a few things have

stood the test of time: 

Pokémon, “Toy Story”

and Pennsylvania’s com-

mitment to keeping the

core mission of the TSF

dedicated to health care.

It took the 46-state co-

alition years of fighting with major tobacco

companies in order to come to the 1998

Master Settlement Agreement; the funds

weren’t distributed in Pennsylvania until

the Tobacco Settlement Act of 2001.

Throughout that process, The Hospital

and Healthsystem Association of Pennsyl-

vania and the commonwealth’s hospitals

played a big role in ensuring that money

was preserved for health care — not to fill

one-time budget holes or fund other proj-

ects. We worked with health educators, re-

searchers and provider groups to find the

right balance for everyone.

Since Pennsylvania hospitals first began

receiving this money, it has been used to:

• Help people quit using tobacco prod-

ucts• Provide access to health care for ev-

eryone, regardless of their insurance or

health status• Fund research to cure diseases like

cancer, and improve the health of all

Pennsylvanians• Support financially fragile rural hos-

pitals, which serve large proportions of

vulnerable patients

• More recently, help hospitals address

the opioid crisisSpecifically, during fiscal year 2017–

2018, Pennsylvania’s hospitals received

$28.5 million through the TSF at the state

level, which is then matched by the federal

government to total approximately $60

million. This money goes to cover the cost

of caring for the uninsured and underin-

sured.Pennsylvania also received more than

$44 million for CURE grants during the

fiscal year 2014–2015. The grants help

universities, hospitals and research orga-

nizations partner to unlock solutions for

cancer, ways to improve the quality and

outcomes of health care, and how to ad-

dress community health issues.

This year, these hospital dollars and re-

search funds could be at risk.

Gov. Tom Wolf’s budget plan kept the

TSF whole, but we are concerned that this

year some lawmakers want to use tobacco

dollars to pay state debt. You see, during

the 2017–2018 state budget process, the

General Assembly authorized borrowing

against $1.5 billion in future TSF payments

to balance the state’s budget. The bond

payments now are due, to the tune of $115

million during this budget.

Some of the reasons that TSF money

went directly to hospitals to fund uncom-

pensated care is because they are under-

paid by the safety-net payer, Medicaid,

which a recent analysis indicates reim-

burses at 81 cents on the dollar.

There are no hospitals or hospital staff

that treat only the uninsured or patients

insured by Medicaid, and Pennsylvania

doesn’t have a public hospital system. As

a result, the hospital community treats all

patients, regardless of the type of insur-

ance they have — and serves as the safety

net for the underinsured and uninsured.

Even with the improvement in the insured

rate through the Affordable Care Act and

Medicaid expansion, we still have people

who are uninsured and need help.

Our hospitals rely on these funds to

make sure they can stay open and contin-

ue to treat everyone. The state has options

to balance its budget — options that don’t

jeopardize the already stressed financial

situations of many of Pennsylvania’s hos-

pitals.More than a third of Pennsylvania’s

hospitals operated in the red last fiscal

year. Among that group, more than three-

quarters have been operating in the red

for the last three fiscal years. Now, more

than ever, these hospitals are relying on

the enduring promise that the TSF will be

there to help them continue to stay open,

remain financially stable and treat every

patient who walks through their doors.

Trends may come and go, but the Penn-

sylvania hospital community’s mission

remains focused on health care. We call on

the legislature to make sure it remains the

mission of the TSF, too. Don’t rob patient

care to fill budget gaps.•

Andy Carter is president and CEO of The

Hospital and Healthsystem Association of

Pennsylvania in Harrisburg.

AndyCarter

A strong wellness program can be a

differentiator for recruitment, reduce the

cost of health care benefits and help build

a team atmosphere based around healthy

choices. However, communicating the

benefits and program elements of a well-

ness initiative can be hard to navigate. Hu-

man resources and cor-

porate leadership need to

walk a fine line – avoiding

sounding paternal, mor-

alistic or even too per-

sonal while empowering

employees and spurring

participation.How a company com-

municates can make a big

difference. It can boost

enrollment in the wellness strategy and

create more engagement among employ-

ees. Those who are engaged at work will go

the extra mile and demonstrate increased

productivity, which shows up in a compa-

ny’s profitability, turnover numbers, safety

incidents and quality.

Communication is key for an employee

health and wellness program and for a

business overall. Looking to a professional

communicator for ideas and best practices

will help streamline communications sur-

rounding such a program and lead to more

engaged, healthier employees.

What can you do?

• See things from the employees’ per-

spective. How will the wellness program

components benefit them? Why should

they care? Does it affect their work life or

home life? Zero in on key factors affecting

employees and highlight the benefits of

healthy choices.

• Avoid communicating to staff as if

they are marketing targets. Trust them

and communicate with them as if they

are “one of us,” instead of “one of them.”

Use “we” and communicate from a team

perspective, rather than a top-down

standpoint. • Talk about the rewards – not only for

their personal lives, but rewards of the

program. What’s in it for them can be a

powerful motivator to expand participa-

tion. That participation, in turn, can build

a team atmosphere and lead to higher

engagement. • Consider health and wellness ambas-

sadors. Peer-to-peer communication is

powerful and partnering with passionate

team members to communicate can re-

move the paternalistic factor.

• Connect the dots for employees to the

bigger corporate picture. Participation in

wellness programs has the potential to de-

crease company health benefit costs over-

all, which in turn could make a difference

in employees’ premium or out-of-pocket

health care costs.

• Remove jargon, whether health care

or HR wording that might not be easily un-

derstood. Remember, when jargon is used,

it may mean the employees are unlikely to

understand the message.

• Avoid populating emails or messages

with large amounts of information. People

digest details in small chunks, so consider

an ongoing campaign to share bits and

pieces of information, or a web page to

view the full information when employees

are interested and have time.

• Have a sense of humor when commu-

nicating. Loosening up a formal approach

can go a long way to creating engagement

with the communication and getting on

board with the program.

• Make it a two-way conversation. Ask

employees what program components

they’d like to see. Find out what might mo-

tivate them to participate. Ask for ideas on

communicating the details to staff.

• Use social channels to help spread

the word. Whether its an internal social

tool such as Slack or Yammer or a closed

group on Facebook or LinkedIn, encour-

age employees to share pictures of their

healthy choices and/or program partici-

pation. Build a little competition between

company segments and offer content

meant to engage the group – ask ques-

tions, post a quiz or host a ‘meet this goal’

challenge.

• Bring creative ideas to the effort.

Consider interesting program elements to

up the ante of interest and participation.

Think about bringing in a local chef to of-

fer a cooking class, having a local farm

stand bring in their fresh produce regu-

larly or bring in a gardening expert to offer

a hands-on workshop for growing veg-

etables or herbs. At GRIT, team members

in the wellness program are walking miles

(via a step tracker) to earn a free airplane

ticket to anywhere in the world. The more

creative and out-of-the-box the program,

when paired with easy ways to participate,

the more people will want to take part.

• Stay diverse with your communica-

tions focus. If there is a large subset of

staff who bike to work, that’s great, but if

that’s all communications are about, the

company risks losing support from other

parts of the employee base. The same goes

for any topic: if it’s strictly about one thing,

the business might lose the interest of its

whole audience.

Internal communications centered around

health and wellness can make or break pro-

gram participation. Get together with HR,

leadership and a few employees to brain-

storm the best ways to get the message out.

•

Julie Lando is the owner and president of GRIT

Marketing Group, a marketing and communica-

tions firm with offices in York and Lancaster.

GUEST VIEWHealth and wellness communications can be engaging

JulieLando

6 www.CPBJ.com • Central Penn Business Journal • 717-236-4300 JUNE 14, 2019

By Stacy WescoeBridgeTower Media

Stefanie Angstadt started making cheese as a hobby soon after graduating from col-lege in 2008.

After a few years she knew it was some-thing she wanted to do full time.

She opened Valley Milkhouse in a former dairy farm in Oley in 2014 and began to manufacture and sell her cheeses profes-sionally.

Not a dairy farmer, herself, she partnered with other small Berks County dairies to buy fresh warm milk “straight from the udder.”

Her cheeses — mostly a mix of softer and aged styles — were a hit.

“We make everything by hand. It’s very good cheese so there is a demand,” Angstadt said.

In fact, demand often outpaced her sup-ply. Nonetheless, she struggled with the lo-gistics of getting the cheese she was making to the people who wanted it.

While around 80 percent of the cheese she makes is sold wholesale to markets and restaurants, profits were much higher on the 20 percent of the product she was selling at her farm stand and the two farmers markets she attends, the Easton Farmers Market in downtown Easton and one in Philadelphia.

“The question was, how do we reach these people who want to buy our cheese without standing there at a farmers market all day — sometimes in the rain — hoping the right people will come buy it?” she said.

Organizing principalIn 2016, as fate would have it, an old

friend of Angstadt’s, Alex Jones, a prominent organizer of commu-nity-supported agri-culture programs in the Greater Philadel-phia area, had just left a job with a CSA.

In a typical CSA, a group of farmers connect with a group of consumers who want to buy fresh, local produce. They sell shares of their fu-ture crop to the con-sumers, who then pick up weekly or monthly boxes of the farmers’ latest crops, sharing both the risk and the rewards of the farmers’ season and giving those farmers a more reliable source of income.

“My job was to buy products from dozens of local farmers,” Jones said.

She was looking to take her CSA skills and use them in a new way. She thought of Angstadt and another cheesemaker she had met in her old job: Sue Miller of Birchrun

Hills Farm in Chester County.Jones pitched the idea of using the CSA

format to develop a new way of selling craft cheese to cheese fans. That led Jones, Ang-stadt and Miller in 2016 to create the Collec-tive Creamery CSA, based out of Angstadt’s Oley creamery, with Jones as the operations manager and Angstadt and Miller as the two primary cheese makers.

“We thought between the three of us, we could pool our resources and move beyond farmers markets,” Angstadt said.

According to Jones, the trio didn’t invent the idea of a cheese-based CSA. But, she said, “A cheese CSA is still pretty unique.”

Jones said it also makes sense.“You can get subscriptions for anything

today — dog products, beauty products —why not cheese?” she said.

A profitable boostThe Collective Creamery is now heading

into its third year. And while it is still just a small part of each of the cheesemakers’ business, it is an important one.

By eliminating the middleman, the chee-semakers get more of the profit.

Angstadt said her profit margin is gener-ally about 15 percent to 20 percent on the roughly $150,000 in gross sales she has in a year. That makes it a challenge to maintain a capital-intensive operation. Anywhere she can improve the profit margin is a boost.

Profits on the CSA vary from month to month, but she said they tend to average at the higher end of her overall profits.

The current CSA package from the Col-lective Creamery ranges from $180 for a once-a-month pickup of two pounds and four varieties of cheese for four months

to $280 for a twice-monthly pickup of one-and-a-half pounds and three varieties of cheese for four months. CSA packages gen-erally run from five to six months. The current package is shortened since the current CSA season has already begun.

Customers pick up their orders at participating loca-tions. Most are busi-nesses that focus on

local craft foods and products like farm stands or craft brewers, which support “buy local” efforts.

Having a variety of pickup locations in the region helps the Collective’s members spread their cheese sales farther than they could on their own.

Subscriptions can be picked up in two Berks County locations — Hidden River

Brewing Co. in Douglasville and Covered Bridge Farmstand in Oley — and at one location in the Lehigh Valley — Bonn Place Brewing Co. in Bethlehem. Other pickup locations are in the Chester County and Philadelphia areas.

By having a wider client base, the chee-semakers also are able to offer more variety. Angstadt and Miller rotate between six varieties of cheese, including Angstadt’s Witchgrass, her version of a French Valen-cay cheese, and Miller’s Clipper, an aged raw-milk cheese. They also reach out to other cheesemakers in other regions, hop-ing to include their specialty craft cheeses in the CSA to give customers more options.

For example, Miller is currently work-ing with a sheep farmer to blend sheep and cow milk together to make a creamy Camembert-style cheese.

Ultimately, their goal is to turn cheese lovers into die-hard cheese fans.

“We want to cultivate the cheese culture in this area like it is in Europe. We don’t want people to see cheese as a guilty pleasure, but as a food you eat every day,” Angstadt said. “This is a way to grow the cheese community.

“People don’t see fine cheese as a neces-sity,” added Jones. “When they go to the gro-cery store they feel they have to get produce and bread … we want them to think of fine cheese like that, not as a luxury.”

Miller sees the craft cheese industry growing in much the same way the craft beer industry has developed and grown, with those in the industry working cooperatively instead of competitively to boost the entire industry by sharing tips and efforts.

“It’s the whole ‘a rising tide raises all ships’ kind of thing,” she said. “We all benefit from a stronger cheese industry.”

Jones said the trio is focused on being a regional leader in the craft cheese industry. They aren’t planning any major expansion.

But they are on the lookout for more pickup locations along their current route and for pockets of cheese lovers who may want to get in on their offerings.

“We have to be lean and use the resources we have,” Jones said.

One secondary benefit to the women’s local craft cheese making is the small boost it gives to the region’s dairy farmers, which Angstadt said are struggling with low prices on the commodities market.

She said there is a dairy crisis across the nation.

According to the National Family Farm Foundation, America has lost over half its dairy farmers in just the last 16 years, as wholesale dairy prices have dropped below 1970 prices.

“Because of the quality I demand, I pay a premium for the milk,” she said.

Her sources include Spring Creek Farm in Wernersville, an organic dairy farm.

Greg Stricker, a partner in Spring Creek, said he pays special attention to the milk he produces for Angstadt.

“I always try to make the highest-quality milk, but we try to concentrate on making a milk that is higher in protein and butter fat to make her cheeses,” Stricker said.

Stricker said the extra money a cheese-maker like Angstadt is willing to pay repre-sents a needed boost for small farms like his.

“It’s a huge benefit to us when a local business like that uses our product,” he said. “It’s essential to find someone making a higher-end product to compete.” <

DAIRY GODMOTHERS

Specialty cheese biz taps into local dairies

From left, Sue Miller, Stefanie Angstadt and Alex Jones brought together their collective talents to form the Collective Creamery CSA in 2016. PHOTO/SUBMITTED

Honey-Bell is a brie-style cheese made by Stefanie Angstadt in her Oley creamery. PHOTO/SUBMITTED

“You can get subscriptions for anything today — dog

products, beauty products — why not cheese?”

— Alex Jones, Collective Creamery CSA

JUNE 21

, 2019

717-23

6-430

0

•

Cent

ral Pen

n Bus

iness

Journ

al

•

www.CPBJ.c

om

7

Accord

ing

to th

e as

soci

atio

n, dro

nes

will

 offer

$82

.1 b

illio

n in ec

onomic

ben

efits

and c

reat

e 10

0,00

0 new

jobs

in th

e U

nited

Stat

es a

lone

by 202

5. Th

e as

soci

atio

n’s go

al

is to

enco

urage

sta

te l

eader

s to

support

the

devel

opmen

t of a

dro

ne in

dustry

– o

r

unman

ned a

ircra

ft sy

stem

s, as

they

are

more

form

ally

know

n – bec

ause

other

stat

es

alre

ady a

re d

oing

so.

For exa

mple

, New

York

is p

utting

up $30

mill

ion to

pay

for a

50-

mile

unm

anned

air

corr

idor b

etw

een S

yrac

use a

nd Rom

e, th

e

asso

ciat

ion sa

id. O

ther

stat

es h

ave

becom

e

feder

al t

est

sites

for

the

drone

indust

ry,

while

oth

ers

have

been j

oinin

g re

gional

partn

ersh

ips t

o dev

elop in

itiat

ives

. As e

ach

day p

asse

s, Pen

nsylv

ania

seem

s to be f

allin

g

furth

er b

ehin

d in d

evel

oping

a dom

estic

drone

indust

ry, o

bserv

ers s

aid.

For now

, th

e as

soci

atio

n isn

’t as

king

Pennsy

lvan

ia’s

lead

ers

for

much

– e

xcep

t

to b

e aw

are

of what

is g

oing

on and to

offer

support

as i

deas

devel

op, se

vera

l peo

ple

said

. One

goal

is to

cre

ate

a w

orkin

g gr

oup

with

in th

e st

ate

avia

tion c

aucu

s –

a le

gis-

lativ

e gr

oup – to

dev

elop a

road

map

that

would

“id

entif

y fu

nding

opportuniti

es t

o

support

criti

cal d

rone

infra

stru

cture

,” th

e

asso

ciat

ion sa

id in

a fa

ct sh

eet.

The a

ssoci

atio

n isn’t

aski

ng for n

ew re

gu-

latio

ns, poin

ting o

ut that

dro

nes ar

e reg

ulat-

ed b

y th

e Fed

eral

Avi

atio

n Adm

inist

ratio

n,

or FAA, w

hich c

ontrols

U.S. a

irspac

es a

nd

alre

ady

require

s com

mer

cial

dro

ne oper

a-

tors

to g

et a

lice

nse.

But that

does

n’t m

ean th

ere

is no ro

om

for

actio

n on t

he st

ate

leve

l. In

Oct

ober

2018

, Pen

nsylv

ania

law

mak

ers

passe

d Act

78, w

hich li

mits

the

abili

ty o

f munic

ipal

i-

ties

to r

egula

te u

nman

ned a

ircra

ft unle

ss

auth

orized

by t

he st

atute

.

Local

juris

dictio

ns ofte

n move

to p

ass

ordin

ance

s that

can in

terfe

re w

ith co

mm

er-

cial

oper

ators

, sai

d Dav

id D

ay, e

xecu

tive

vice

pre

siden

t at

Key

stone

Aeria

l Surv

eys

based

in P

hiladel

phia. Th

at m

akes

educa

-

tion cr

itica

l, he

added

.  

Keyst

one does

work

nat

ionw

ide

and h

as

found th

at so

me

offici

als i

n stat

es –

such

as

New

York

and N

ew Je

rsey

– ar

e m

ore aw

are

of iss

ues f

acin

g th

e dro

ne in

dustry

than

those

in P

ennsy

lvan

ia. Th

e ad

voca

cy d

ay

was

an e

ffort to

chan

ge th

at, t

oo, h

e sa

id. I

t

also

is h

oped th

at P

ennsy

lvan

ia’s

gove

rn-

men

t age

ncies

will

incr

easin

gly

adopt t

he

tech

nologi

es,

as a

genci

es i

n oth

er s

tate

s

have,

Day

added

.

The

asso

ciat

ion m

ainta

ins t

hat 3

6 out o

f

the

50 s

tate

s hav

e tra

nsporta

tion d

epar

t-

men

ts t

hat f

und cen

ters

or

progr

ams

for

drone

operat

ions.

PennD

OT,

it s

aid, i

s not

among

those

that

hav

e in

itiat

ed o

utsid

e

progr

ams.

Alexi

s Cam

pbell,

PennD

OT p

ress

secr

e-

tary

, sai

d Pen

nDO

T has

an a

ctiv

e in

tern

al

drone

progr

am a

nd has

bee

n flyi

ng dro

nes

for s

ever

al ye

ars.

“We’

ve r

ecen

tly a

dvance

d our

operat

or

train

ing

and c

ertifi

catio

n pro

gram

and a

re

curr

ently

enga

ged w

ith a

pilo

t pro

gram

as-

sess

ing e

ffici

enci

es fo

r the u

se o

f dro

nes fo

r

3D m

odelin

g of s

tock

piles,

exca

vatio

ns and

road

way

slid

e ar

eas,”

she

said

in a

writ

ten

resp

onse to

ques

tions.

Flyin

g into

new ro

les

Seve

ral a

ttendee

s at

the

June

11 e

vent

said

they

thin

k st

ate

lead

ers

will

be

sup-

portive

of i

deas t

o exp

and d

rone

progr

ams

both w

ithin

sta

te a

genci

es a

nd with

com

-

mer

cial

applic

atio

ns once

they

under

stan

d

the

potentia

l.

Task

s such

as b

ridge

insp

ectio

ns or a

eria

l

surv

eys

that

once

took

wee

ks t

o conduct

can n

ow b

e done

in a

day

or s

o, D

ay s

aid.

Farm

ers,

utiliti

es an

d oth

ers h

ave s

een h

ow

drones

can re

duce th

e cost

s of p

roje

cts a

nd

insp

ectio

ns. Th

ey a

lso h

ave

wei

ghed

the

li-

abili

ty ri

sks a

nd real

ized

they

are

bet

ter o

ff

using

drones

.

Gove

rnm

ents

, how

ever

, see

m to

hav

e a

higher

hurd

le t

o ove

rcom

e w

hen li

abili

ty

conce

rns a

re ra

ised

, Day

said

.

Seve

ral e

xper

ts n

oted th

e co

ncern

s ca

n

be ea

sed o

nce t

he optio

ns ar

e ca

refu

lly

wei

ghed

. For e

xam

ple, t

he ris

ks to

surv

ey a

utility

line t

raditi

onally

would

invo

lve w

ork-

ers

using

ladder

tru

cks

to e

xam

ine

high-

volta

ge w

ires,

whic

h is d

ange

rous w

ork th

at

could

take

wee

ks. N

ow, d

rones

with

cam

-

eras

can

insp

ect t

he sa

me

line

in a

frac

tion

of the

time

– an

d with

out putti

ng peo

ple in

harm

’s w

ay.

As peo

ple b

ecom

e m

ore a

war

e of h

ow

drones

can b

e use

d, the

indust

ry h

as ta

ken

off, Day

and o

ther

s sai

d.

Keega

n Flahiv

e is a

rem

ote p

ilot f

or Arg

os

Unm

anned

Aer

ial S

olutio

ns bas

ed in

Liti

tz.

When

the

com

pany

was

founded

in 2

015,

it did

a lo

t of w

ork w

ith re

al e

stat

e co

mpa-

nies t

hat w

ante

d aer

ial v

iew

s of p

roper

ties,

Flahiv

e sa

id. Th

e co

mpan

y now

does

work

for a

num

ber o

f diff

eren

t clie

nts, i

ncludin

g

const

ruct

ion c

ompan

ies,

utiliti

es a

nd gov-

ernm

ent a

genci

es.

The

opportuniti

es fo

r cre

atin

g new

jobs

and busi

nesse

s ar

e va

st,

said

Alber

t R.

Sarv

is, a

n ass

istan

t pro

fess

or of g

eosp

atia

l

tech

nology

at H

arris

burg U

niver

sity

of Sci

-

ence

and T

echnolo

gy. H

U h

as a

dapte

d its

geosp

atia

l pro

gram

s to

incl

ude th

e use

of

drones

and h

as sp

onsore

d sum

mer

cam

ps

for

studen

ts i

n hig

h sch

ool an

d mid

dle

school t

o enco

urage

inte

rest

in th

e tec

hnol-

ogy, S

arvi

s sai

d.

Oth

ers p

ointe

d out that

drones

have b

een

used in

the fi

lm an

d tele

visio

n indust

ries,

as

wel

l as i

n surv

eyin

g ra

il lin

es a

nd in p

olice

and e

mer

gency

applic

atio

ns, su

ch a

s riv

er

resc

ues. O

ne st

ory to

ld d

uring

the

June

11

even

t was

how

cattl

e had

ruin

ed a

portion of

a fa

rmer

’s cr

ops. A d

rone w

as ab

le to

ass

ess

the

tota

l dam

age,

whic

h hel

ped ju

stify

the

insu

rance

clai

m.

Then

ther

e ar

e th

e sp

in-o

ff busin

esse

s.

Ryan B

oswel

l is

the

Philadel

phia-b

ased

sale

s m

anag

er fo

r Phas

eOne

Indust

rial,

a ca

mer

a co

mpan

y bas

ed in

Colora

do.

PhaseO

ne ca

mer

as ca

n be outfi

tted on

vario

us dro

nes to

do a

var

iety

of w

ork fo

r

gove

rnm

ents

, quar

ry o

perat

ors a

nd util

ity

com

panie

s, am

ong oth

ers,

Boswel

l sai

d.

Day

sai

d the

drone 

indust

ry i

s co

m-

petiti

ve in

that

anyo

ne ca

n buy

a dro

ne fo

r

around $

500

and s

et u

p shop.

How

ever

,

com

mer

cial

oper

ators

are

require

d to ta

ke

FAA tr

ainin

g to

bec

ome

a lic

ense

d rem

ote

pilot,

he an

d oth

ers s

aid.

At Key

stone,

Day

sai

d, pric

es c

an ra

nge

depen

ding

on the

job a

nd the

loca

tion. A

day of a

eria

l cam

era w

ork w

ith a

licen

sed re

-

mote

pilo

t mig

ht cost

about $

2,00

0 in

som

e

high-d

ensit

y ar

eas i

n New

York

or N

ew Je

r-

sey a

nd per

haps a

bout $1,

000 e

lsew

here.

<

DRONEco

ntinu

ed fr

om pa

ge1

David H

eath, d

irect

or of t

he PA D

rone A

ssocia

tion, p

repare

s to m

ake rem

arks a

t Dro

ne Advoca

cy D

ay June 11

in H

arrisb

urg. H

eath and o

ther

supporte

rs hope to

encoura

ge state

leaders

to su

pport th

e growin

g drone in

dustry

. P

HOTO/T

HOMAS A

. BARST

OW

“We’v

e rec

ently

advan

ced

our oper

ator t

rain

ing an

d

certi

ficatio

n progra

m an

d

are c

urrently

engag

ed w

ith

a pilo

t pro

gram

asse

ssin

g

efficie

ncies f

or the u

se of

drones

for 3

D modeli

ng of

stock

piles,

exca

vatio

ns and

road

way sl

ide a

reas

.”

Alexis

Cam

pbell

, Pen

nDOT p

ress

se

creta

ry

JUNE 14, 2019

www.CPBJ.com

Central Penn Business Journal

13

NEWSMAKERSPromotions, appointments, hires

ACCOUNTINGChambersburg-based Rotz and

Stonesifer named Dennis Shindle

senior manager. He provides tax,

consulting and financial state-

ment services to closely held

companies. He is a CPA and a graduate of Shippens-

burg University. ARCHITECTURE/ENGINEERING

Lancaster-based RGS Associ-

ates named Jake Krieger proj-

ect landscape architect. He has

a bachelor’s degree from Temple

University. Matthew Fauth was

named a computer aided drafting

and design designer. He also is a

sergeant in the National Guard. He

has an associate degree from York

Technical Institute. Upper Dublin Township, Mont-

gomery County-based McMahon

Associates Inc. named Christo-

pher K. Bauer an associate. He is

general manager of the Camp Hill

office. He has more than 20 years

of project management and trans-

portation engineering experience

and has helped municipalities

through their responsibilities as

local project sponsors on state

and federally funded projects. He

also serves municipalities’ day-

to-day traffic consulting needs.

He is a professional engineer and

professional traffic operations

engineer. Swatara Township-based Skelly

and Loy named LeShelle Smith

marketing spe-cialist. She will be

responsible for graphics coordi-

nation, including preparation of

brochures, charts and exhibit ma-

terials. She will assist with the development of

special marketing and public rela-

tions programs, communications

and media plans and ensuring

that the website is current and

consistent. She has a degree from

Elizabethtown College.

BANKING/FINANCE

Lower Paxton Township-based

Centric Bank named Patricia A.

Kuhn assistant manager of the

Silver Spring

Township Finan-cial Center. She

will cultivate new

customer rela-tionships, man-

age the internal

sales process,

maintain the

branch’s operational proficiency

and mentor her financial center

team. Most recently, she was a cor-

porate social responsibility super-

visor and head teller II with First

National Bank. She has a bach-

elor’s degree from York College.

Lower Allen Township-based

Members 1st Federal Credit

Union named

Alma Jimenezbranch manager

of the location

inside the Gi-ant Foods store

on East Market

Street, York. She

was a branch

manager for PNC Bank. Manheim Township-based

Ambassador Advisors LLC named

Christopher R. Coolidge chief

investment of-ficer. He leads

the wealth man-agement depart-

ment and works

with various oth-er departments.

He is a chartered financial analyst

charterholder. Manheim Township-based

RKL Wealth Management LLC

named William M. Onorato a

senior wealth

strategist. He will

advise high-net-worth families

on multigenera-tional planning,

legacy planning,

business succes-sion and estate

planning. He has 25 years of es-

tate planning and wealth strategy

experience. He has a bachelor’s

degree and an MBA from Loyola

College and a law degree from the

University of Baltimore. Millersburg-based Mid Penn

Bank named Julie A. Bramlitt

financial adviser for Mid Penn

Financial Services. She will help

clients prioritize, organize and

simplify their financial matters

with customized financial solu-

tions. She has 25 years of banking

and financial services experience

and was a financial adviser with

Smoker Wealth Management.

She has bachelor’s and master’s

degrees from Ashford University.

Laura J. Melfi was named senior

vice president and cash manage-

ment officer with Mid Penn’s First

Priority Bank division. She will be

based in Chester County and con-

tribute to deposit growth through

business development activities.

She will also generate fee income

through cash management prod-

ucts and services, and expand and

retain customer relationships. She

has 43 years of financial services

experience. CONSTRUCTIONLancaster-based

Wohlsen

Construction Co. named Manuel

Maza project

manager and es-timator. He was

project engineer.

He has a bache-lor’s degree from

Millersville Uni-versity.

York-based Wagman Construc-

tion Inc. named Joe Corson direc-

tor of business development for

Maryland. He will

expand the firm’s

participation in

o p p o r t u n i t i e s

and enhance

client relation-ships throughout

Maryland. He has

30 years of con-struction industry experience. He

has a bachelor’s degree from the

University of Baltimore. EDUCATIONMillersville University named

John Cheek director of web and

creative services. He will over-

see the creative

production op-eration and serve

the university’s

marketing needs,

focusing on un-dergraduate and

graduate admis-sions, advance-

ment and the president’s office.

He will also oversee design aspects

of the school’s website. He was

creative director of Schiffer Pub-

lishing. He has a bachelor’s degree

from Millersville. GOVERNMENT Harrisburg-based Pennsyl-

vania Public Utility Commis-

sion named Amy S. Goldman

of Philadelphia and Matthew

Hrivnak of Cumberland County

members of the Pennsylvania

Telecommunications Relay Ser-

vice Advisory Board. Goldman

has been a public member of the

board. She is a speech-language

pathologist, has conducted

trainings on the importance of

telecommunications for those

with disabilities and has been

involved with the administra-

tion of Pennsylvania’s telecom-

munications device distribution

program. Hrivnak will represent

the PUC’s Bureau of Consum-

er Services on the board. He

is manager of compliance and

competition in the bureau’s pol-

icy division. Harrisburg-based State Civil

Service Commission named Te-

resa Osborne of Lackawanna

County a commissioner. She was

secretary of the Pennsylvania De-

partment of Aging. HEALTH CARE East Pennsboro Township-

based Geisinger Holy Spirit

named Dr. Ming Jang a member

of Geisinger Ho-ly Spirit Primary

Care. He will see adult patients

and specialize in geriatric care.

He was a clinical assistant profes-

sor of medicine in the division of geriatric medi-

cine at the University of Pennsyl-

vania’s Perelman School of Medi-

cine. He has a medical degree

from Drexel University College

of Medicine. HOSPITALITYAbbottstown, Adams County-

based Hanover Country Club

named John Danehy manager.

LAW East Hempfield Township-

based Russell, Krafft & Gruber

LLP named Ju-lia G. Vanasse a

member of the family law prac-

tice group. For nearly 20 years,

she was a Lan-caster County

divorce master, and she has 30 years of combined

family law experience. She has a

bachelor’s degree from the Col-

lege of William and Mary and a

law degree from Dickinson School

of Law.

Susquehanna Township-based

Mette Evans & Woodside named

Matthew D. Co-ble a sharehold-

er. He represents

insurance com-panies, fraternal

benefit societies,

insurance pro-ducers and third-

party administra-tors in insurance regulatory, trans-

actional and litigation matters.

MARKETINGLancaster-based Godfrey

named Luke Weidner an asso-

ciate creative director. He will

oversee message unification and

brand consisten-cy and align cre-

ative resources with project and

account needs to ensure efficien-

cy. Most recent-ly, he was the

design manager for Artisanal Brewing Ventures.

Weidner has a bachelor’s degree

from Penn State. NONPROFITSPhiladelphia-based Pennsyl-

vanians for Modern Courts named

retired Judge Lawrence

F. Stengel a board

member. He is a shareholder

with Manheim Township-based

Saxton & Stump and former chief

judge for the Eastern District of

Pennsylvania. PUBLIC AFFAIRSHarrisburg-based Triad Strate-

gies LLC named Rob Ghormoz

a senior associate in the govern-

ment affairs practice. He was a

senior adviser to Gov. Tom Wolf’s

re-election campaign and led his

2019 inauguration. He has a bach-

elor’s degree from Penn State.

SENDING NEWSMAKERS

Send announcements concerning

promotions and newly hired

personnel to people@cpbj.com.

Save photos at 300 dpi as TIFF

or JPG files. Please do not embed

photos in word documents. Photos

sent through the mail will not be

returned. Releases should include

the municipality in which the

company is located.

Shindle

Krieger

Fauth

Smith

Kuhn

Jimenez

Coolidge

Onorato

Bramlitt

Melfi

Maza

Corson

Cheek

Jang

Vanasse

Coble

Weidner

Stengel

8

www.CPBJ.com

Central Penn Business Journal

JUNE 7, 2019

OPINION

If yours is like many of the

small businesses I’ve studied, the

price you quote

for your prod-

ucts or services

is determined

by a simple for-

mula, based on

your estimated

costs. Feed in

your costs and

your desired

gross margin

and presto, out comes the price.

There’s just one problem

: price

has nothing to do with cost.

When I tell m

y clients their

prices should have nothing to do

with their costs, they usually look

at me as if I have suddenly sprout-

ed a third eye in my forehead. Af-

ter all, they’ve been doing that for

(fill in the blank) years and it has

worked, for the most part.

That m

ay be true, but in do-

ing so they are probably missing

opportunities to increase profits

on some products or services, or

to gain market share with others.

Those two things are what pricing

strategy is about.

When a business creates a

budget, it estimates sales rev-

enue, costs, and a desired gross

margin that will cover overhead

and produce a budgeted profit.

Looking at the budgeted profit

and loss statement, it is easy to

fall into a trap of thinking, “If we

can just get every sale for the es-

timated cost plus gross m

argin,

we’ll be right on target.” It sounds

simple and scientific, doesn’t it?

The problem

is that what buy-

ers are willing to pay has nothing

to do with the sellers’ costs. You

don’t believe that? I’ll give you

two scenarios.

I wear a Timex Ironm

an

watch that I can buy for about

$35 from a num

ber of retailers.

It is a very accurate watch with a

quartz movem

ent and some very

nice features. “Casual” quartz

watches from Gucci m

ade with

similar m

aterials sell for $275 to

$350. Trust me – I know m

anufac-

turing – there is no possible way

to explain that price differential

based on manufacturing costs.

That’s why you can buy fake

Gucci watches for less than my

Timex on the street. Th

e differ-

ential is totally due to the cachet

of the Gucci brand. The price

is what the market will bear,

the value the buyer puts on the

product. Suppose you have two identi-

cal machines, except one is paid

for and you took out a big loan

for the second one. The per-

son who runs it is a long-time

employee, who m

akes a higher

wage than the guy running the

paid-off machine. Th

e cost of the

second machine is higher than

the cost of the first. Do you be-

lieve you can get a different price

for a product based on which

machine you decide to use? Of

course you can’t.

Pricing is both strategic and

tactical. Working with com

pa-

nies to improve profitability, we

have adopted a strategy of slowly

raising prices above what we

get with the magic form

ula until

customers push back. W

e often

end with prices at a higher, more

profitable level for many, but not

all customers. It’s the custom

er,

not the formula that determ

ines

the best price.

We have experim

ented tactically

with what the market will bear for

change notices, usually much high-

er margins than for the original

orders. In that case the customer is

a captive audience. But sometim

es

we ease up on the change adjust-

ment, and let the custom

er know it

to build good will.

We have som

etimes reduced

prices below the magic form

ula

to build market share or capture

a new account. If the new busi-

ness is incremental, it is all good

on the bottom line.

The m

agic formula gives you

a nice target, but don’t fall into

the trap of thinking that is your

best price.

•

Richard Randall is founder and

president of management-con-

sulting firm New Level Advisors

in Springettsbury Township, York

County. Email him at info@newleve-

ladvisors.com.

In his budget address, Gov. Tom W

olf

stated to applause, “This proposal asks for no

new taxes. Not one dime. Not one penny.”

Yet, as the General Assembly com

bs through

the governor’s proposal, we find that there

are, in fact, tax increases.

One specific tax being proposed by the ad-

ministration is a “double tax” on am

bulatory

surgical centers (ASCs) like

the ones in my district. 

ASCs are convenient

health care facilities run

by physicians that provide

same-day surgical and di-

agnostic care for focused

care needs, such as eye

surgeries, colonoscopies,

spine and joint procedures,

and more. Th

ere are 234

Medicare-certified ASCs in Pennsylvania.

The governor expects to take $12.5 m

illion

from these innovative surgical centers, which

is income they would otherwise put toward the

incredible services they provide at lower costs

to patients. ASCs already pay income, sales

and property taxes, as opposed to general hos-

pitals, which do not pay these same taxes.

The governor is correct when he says there

are no “new” taxes in his proposal, as he tried

and was unsuccessful in getting this ASC tax

passed through the General Assembly last

year. It is my hope that the House Republican

Caucus, along with the Pennsylvania Medical

Society and other medical-service advocates,

will prove once more that this tax would be

detrimental to Pennsylvania surgery patients. 

First, this tax would cause ASCs to be un-

able to afford state-of-the-art equipment.

Such equipment allows them

to have higher

productivity and healthier patients, but under

this tax plan, this customer care m

ight no lon-

ger be possible.

Another advantage of surgical centers is

that their nurse-to-patient ratios are generally

lower than at general hospitals. These nurses

are trained in one or a few specialized surgical

procedures. This system

ensures that patients

receive the best care possible with the same

nurses caring for them throughout their treat-

ment.Smaller facilities also help surgical hospi-

tals protect patients from spreading infections

among each other. Th

is large reduction in

nosocomial infections is critical in a surgical

environment.

Not only are patients better cared for at

ASCs, but they face lower costs at these cen-

ters than they do at general hospitals. Medic-

aid patients face 50 percent lower costs and

patients with comm

ercial insurance plans

pay as low as 25 percent the costs of a hospi-

tal-based visit.

In addition to saving patients money, these

practitioners also save Medicare $2.3 billion

a year on just the 120 most-com

mon proce-

dures that Medicare patients receive, accord-

ing to UC Berkeley.

UC Berkeley noted in a recent study that

in 2015, Pennsylvania ASCs saved Medicare

$32.6 million on cataract procedures, $1.3

million on upper GI procedures and $6.9 m

il-

lion on cystoscopy procedures.

If the Wolf adm

inistration’s tax proposal

were to be enacted, the Pennsylvania Am-

bulatory Surgery Association, along with a

coalition of state medical societies, warn that

up to 25 percent of these centers may need

to close – pushing thousands of patients into

costly general hospitals and forcing centers to

withdraw from M

edicaid.

This is the very problem

that ASCs were at-

tempting to solve. 

This ASC tax would be a blow to com

peti-

tion and innovation in health care. By tying

the invisible hand of the free market in health

care with burdensome taxes, we get less

health and less care.

Another tax on these ASCs would not only

cost the state Medicaid system

, it may even

cost lives.I urge m

y colleagues in the Pennsylvania

House and Senate to vote against this proposal

and I urge Gov. Wolf to visit an ASC like W

est

Shore Endoscopy in Cumberland County to

learn about the progress that is being made by

these entrepreneurial physicians and nurses.

As I meet with physicians and patients in

my district, such as those at W

est Shore En-

doscopy, I have been amazed at the benefits

of their innovative approach.

We all can relate to the phrase, “Surgery is

only minor if it happens to som

eone else.”

Nobody wants to be told they need surgery

and they especially do not want an unpleas-

ant surgery experience.

Thanks to ASCs, thousands of Pennsyl-

vanians have been given a convenient and

quality outpatient experience with positive

outcomes and speedy recovery in the com

fort

of their own homes. A double tax on these

centers would not only be devastating to the

many hardworking physicians in our com

-

monwealth but their patients as well.

For the sake of the health and wellness of

our comm

onwealth, I hope my colleagues in

Harrisburg listen to our physicians and their

patients and reject this tax.  •

State Rep. Greg Rothman (R) represents the 87th

House District, which is in Cumberland County.

Proposed tax could harm specialty surgical centers

A formula for profit – or for missing out?

GUEST VIEW

THE WHITEBOARD

Richard

Randall

StateRep.

Greg Rothman

If there’s one constant in health

care, it’s change. UPMC’s invest-

ment in southcentral Pennsylvania

has brought positive change to

our region, including new, highly

specialized services, thousands of

new providers and leading-edge

technology to treat the most

advanced diseases. However, even

positive change can cause confu-

sion. I’d like to take a moment to

clarify a question involving health

insurance plans accepted at UPMC

Pinnacle. UPMC Pinnacle hospitals and

outpatient clinics continue to

accept most major insurance

plans, including Aetna, Capital Blue

Cross, Highmark and UPMC Health

Plan for all services. Changes in the

relationship between Highmark

and UPMC in the greater

Pittsburgh and Erie areas will not

affect the relationship between

UPMC Pinnacle and Highmark.

We look forward to continuing

to care for all of our patients in

2019 and beyond. To learn more

about full, in-network access to

UPMC doctors and hospitals, call

our toll-free help line at 1-833-

879-5013 or visit UPMC.com/

Choice2019. Philip W. Guarneschelli,

President and CEO

UPMC Pinnacle

TO THE EDITOR

8 www.CPBJ.com Central Penn Business Journal MAY 31, 2019OPINIONGUEST VIEW

Latest census data reveals trends to watchThe U.S. Census Bureau recently re-

leased new population estimates that account for and compare the resident population for counties between April 1, 2010 and July 1, 2018. The outcome? There are shifts in population taking place across the nation that may differ from what you might assume. Here are the highlights at a national and local level.

What’s happening locally?Cumberland, Dauphin, Lancaster and

York experience consis-tent growth. The most notable trend between 2010 and 2018 in Central Pennsylvania is that these counties all experienced consistent growth year-over-year. Moreover the growth was fairly even over the last eight years.

Another trend worth noting is that the counties have main-tained the same order of ranking based upon population for eight-plus years. For example, in 2010 the counties in order of smallest population to largest were Cum-berland, Dauphin, York and Lancaster. This is the same ranking we see in 2018,

and every year in between.Lancaster remains the largest and fast-

est-growing county. At 984 square miles, it also is the largest of the four counties. Between 2010 and 2018 it experienced the largest numeric growth at 24,112 people. No. 2 in numeric growth was actually the smallest of the four counties, Cumberland County, which grew by 16,017 people. York County grew by 13,301 people and Dauphin County grew by 8,997 people.

What’s happening nationally?The census data confirmed that coun-

ties with the largest numeric growth are located in the south and the west. In fact, Texas claimed four out of the top 10 spots. Looking at population growth by metropolitan area, Dallas-Fort Worth-Arlington, Texas had the largest numeric growth, with a gain of 131,767 people, or 1.8 percent in 2018. Second was Phoenix-Mesa-Scottsdale, Arizona, which had an increase of 96,268 people, or 2.0 percent. The cause of growth in these areas is migration, both domestic and international, as well as natural increase. In Dallas, it was natural in-crease that served as the largest source of population growth. For Phoenix it was

migration.The fastest growth occurred outside

of metropolitan areas. Surprisingly, no new metro areas moved into the top 10 largest areas. Of the 390 metro areas in the U.S., (including the District of Co-lumbia and Puerto Rico), 102, or 26.2 percent experienced population decline in 2018. The five fastest-shrinking metro areas (excluding Puerto Rico) were Charleston, West Virginia (-1.6 percent); Pine Bluff, Arkansas. (-1.5 percent); Farmington, New Mexico (-1.5 percent); Danville, Illinois (-1.2 percent); and Watertown-Fort Drum, New York (-1.2 percent). The population decreases were primarily due to negative net domestic migration.

North Dakota was home to the fastest-growing county. Among counties with a population of 20,000 or more, Williams County, North Dakota, claimed the top spot as the fastest-growing by percent-age. This county’s population rose by 5.9 percent between 2017 and 2018 (from 33,395 to 35,350 people). The rapid growth Williams County experienced was due mainly to net domestic migration of 1,471 people in 2018. The county also ex-perienced growth between 2017 and 2018

by natural increase of 427 people and in-

ternational migration of 52 people.

There is more growth than decline. Out

of 3,142 counties, 1,739 (or 55.3 percent)

gained population between 2017 and 2018.

Twelve counties (0.4 percent) experienced

no change in population, and the remain-

ing 1,391 (or 44.3 percent) lost people.

Between 2010 and 2018, a total of 1,481 (or

47.1 percent) counties gained population

and 1,661 (or 52.9 percent) lost popula-

tion. Though there has been more growth

than decline overall, the numbers indicate

that this can easily shift year over year.

A deeper dive into the census data

reveals several demographic changes

impacting commercial real estate develop-

ment: household formations, aging baby

boomers, growing millennials, women

in the workforce and migration toward

the South. Today’s demographic changes

present challenges for commercial real

estate developers, but they also offer lu-

crative opportunities to firms creatively

adapting to new demands.•

Mike Kushner is the owner of Omni Realty Group, a real estate firm in Harrisburg. He can be reached through www.omnirealtygroup.com�

Mike Kushner

2018 was a banner year for mergers and acquisitions. Global M&A activity was the second highest on record, with deals totaling $2.72 trillion. Looking ahead, 76 percent of top executives at U.S. compa-nies expect to close more deals this year than last, and a majority predict these deals will be larger, according to a report from Axios. These compa-nies, and others around the globe, turn to M&A deals to increase market share and improve their business models.

Throughout the M&A process, executives are hyper-focused on company synergies and big-picture goals. As a result, one very important fac-tor often goes overlooked – the employer’s retirement plans. There are many details to consider when acquiring a company. Understanding the seller’s retirement plan and how it will fit within the current ben-efit structure is vital to success.

If retirement plans are not considered upfront, executives may learn that the ac-quired company has an underfunded pen-sion plan – which can be a deal breaker – or that the seller’s 401(k) plan does not meet compliance standards.

So, if you’re planning a merger or acqui-sition, consider the retirement plans now to avoid a headache later on.

If the transaction is a stock acquisi-tion – where the buyer takes full owner-ship of the selling company – the buyer then assumes all of the seller’s liabilities, including its retirement plan. The buyer has three options for how to handle the acquired company’s retirement plan. It can either maintain its own plan and the seller’s plan separately, terminate the seller’s plan, or merge the seller’s plan into its own plan.

If the buyer decides to maintain both plans, the newly acquired employees can either be offered the same benefits they had previously, or a new formula for their employer benefits. Maintaining both plans can provide employees continuity of ben-efits with no impact to the buyer’s retire-ment plan. However, operating multiple plans can be burdensome and expensive, and nondiscrimination testing is needed if employees are receiving different benefit packages.

If the buyer is going to terminate the seller’s plan, this decision should be made and the process initiated before the com-panies merge. If the acquired company’s 401(k) is terminated after the transaction, the seller’s employees will face a one-year

restriction before being able to join the buyer’s 401(k) plan, losing out on a full year of tax-efficient savings and employer contributions.

The main advantages of termination are that employees can be integrated into the buyer’s plan with one benefit structure for all; there is only one plan to maintain; and the risk of any liability transfer into the buyer’s existing plan is avoided. The downside is that the employee accounts become immediately accessible. So, if not rolled over into an IRA or other retirement plan, employees could squander retire-ment assets and face penalty taxes for early distribution.

The final option – merging the seller’s and buyer’s plans – requires that both plans be the same type and have a similar plan design. This option can be efficient and cost-effective – one benefit structure, one plan to operate – and it also avoids the negatives of plan termination.

The risk associated with merging are the unknown factors of the seller’s plan. Has it always operated in compliance with all the complex rules associated with retirement plans? If not, the buyer’s plan would be at risk.

Before deciding how to handle the sell-er’s retirement plan, the buyer will need to perform exhaustive due diligence. This

includes confirming past operational and procedural compliance, making sure all plan documents are up-to-date, and con-firming general compatibility between the plans. Examples include reviewing non-discrimination testing results from recent years, the seller’s fiduciary oversight prac-tices, administrative operations such as distributions, payroll and loan processes, and fulfillment of government reporting requirements. 

Many companies partner with an out-side consultant to conduct a thorough benefit plan review and help determine the best option. When experts are engaged from the start, they can help ensure the transition is smooth and employees have a clear understanding of the benefits with their new employer.

An organization’s retirement plan should be a consideration from the early stages of an M&A. Though the evaluation process can be lengthy, it’s better to an-ticipate issues that could arise, instead of realizing them in the midst of the merger when it might be too late.

•John Jeffrey is a consulting actuary, specializing in retirement plan consulting and post-employ-ment health care benefits, for Conrad Siegel, which is based in Susquehanna Township, Dauphin County.

GUEST VIEW

Retirement plans should be piece of M&A puzzle

JohnJeffrey

JUNE 7, 2019

717-236-4300•

Central Penn Business Journal•

www.CPBJ.com

3

CORRECTIONS/

CLARIFICATIONS

The Central Penn Business Journal will cor-

rect or clarify mistakes made in the publica-

tion. If you have a question, please call the

editorial department at 717-236-4300.

Volume 35, Number 23

1500 Paxton St., Harrisburg, PA 17104

717-236-4300 • editorial@cpbj.com

Associate Publisher/Editorial Director, Cathy Hirko

NEWS

Editor, Joel Berg

Web Editor, Becca Oken-Tatum

Special Projects Editor, Mariah Chuprinski

Reporters

Jason Scott

Ioannis Pashakis

Reseacher, Ana Mrdalj

DESIGN

Graphic Designer, John Layton

AUDIENCE DEVELOPMENT

Manager, Tracy Bumba

For subscription information and questions, please call

800-425-8609 or email service@cpbj.com.

ADVERTISING

Senior Account Managers, Michele Engle, Carley Lucas,

Christiana Rathman

Account Manager, Gail Clough

Inside Sales/Operations Coordinator, Anthony Miranda

EVENTS

Event Manager, Dayna Edelman

Event Coordinator, Erica Hildabridle

Event Marketing Specialist, Laura Chanoski

Multimedia Design Specialist, Paul Gingrich

REPRINTS /PLAQUES

Lisa Arnold

larnold@bridgetowermedia.com • 717-323-5213

Group Publisher, Suzanne Fischer-Huettner

Copyright 2019 by BridgeTower Media. All rights reserved.

Volume 35, Number 23. Reproduction or use, without permission,

of editorial or graphic content in any manner, including electronic

reproduction, is prohibited. For licensing, reprints, e-prints and

plaques, email larnold@bridgetowermedia.com. Authorization to

photocopy articles for internal corporate or instructional use may

be obtained from the Copyright Clearance Center at 978-750-8400.

CENTRAL PENN BUSINESS JOURNAL (ISSN1058-3599) is pub-

lished weekly except for the first week of July, the last full week of

November and the last full week of December by BridgeTower Me-

dia, 1500 Paxton St., Harrisburg, PA 17104-2633. The periodical post-

age is paid at Harrisburg, PA and at additional mailing offices. POST-

MASTER: Electronic ACS Service requested. Send address changes

to: Subscription Services, PO Box 1051, Williamsport PA 17703-9940

Central Penn Business Journal cannot be responsible for the

return of unsolicited material with or without the inclusion of a

stamped, self-addressed return envelope. Information in this publi-

cation is gathered from sources considered to be reliable, but the ac-

curacy and completeness of the information cannot be guaranteed.

No information expressed herein constitutes a solicitation for the

purchase or sale of any securities.

By Jason Scott

jscott@cpbj.com

Expecting a record year for lending and

more growth, the Lancaster-based Commu-

nity First Fund has been adding staff and

restructuring its executive team.

The nonprofit economic development or-

ganization recently hired Michael Carper, the

former CEO of the Housing Development

Corp. MidAtlantic, to be its chief credit officer.

Community First Fund also contracted with

a finance expert from Chicago to serve as CFO

until it hires someone to the post full-time.

“We’re adding and growing dramatically,”

said Dan Betancourt, the organization’s presi-

dent and CEO.

Community First Fund provides financ-

ing for small businesses, affordable housing

projects and nonprofit organizations located

in low-income communities and serving dis-

advantaged groups, including Latino and Af-

rican-American entrepreneurs. And the need

for services is rising.

The organization, which started out serving

Lancaster, now covers 15 counties in Central

Pennsylvania, the Lehigh Valley and suburban

Philadelphia. Its staff has grown from 20 to 40

over the past five years and it is making more

direct loans to businesses, with volume rising

from about $10 million to $30 million in the

past three years.

The nonprofit also has opened new loan offic-

es in Allentown and Philadelphia where it would

like to add more people to expand lending.

“We expect to go deeper into markets we are

in,” Betancourt said.

But depth, he said, requires a bigger team.

That starts at the executive level.

In addition to adding new execs, the non-

profit has made some internal promotions.

COO Joan Brodhead was recently named se-

nior executive vice president and chief strategic

initiatives officer, while senior vice president of

lending James Buerger was elevated to execu-

tive vice president and chief lending officer.

Community First also has hired staff to work

under each of the C-suite executives.

The growth comes at a time when Commu-

nity First has been positioning itself as a go-to

resource for investors and developers inter-

ested in the federal opportunity zone program,

in which investors can get a tax break on capi-

tal gains by investing in projects in qualified

distressed areas, dubbed opportunity zones.

The investments typically will flow through

what are known as qualified opportunity funds.

Community First has been working to develop

such funds, which could work in combination

with other state and federal incentives.

Among the most notable of those is the

New Markets Tax Credit program, a federal tax

credit program operated by the U.S. Treasury

Department that helps support large urban

redevelopment projects.

Community First is one of two local orga-

nizations that can apply for those federal tax

credits.

The other — Harrisburg-based Common-

wealth Cornerstone Group, a subsidiary of

the Pennsylvania Housing Finance Agency

(PHFA) — recently was awarded $55 million

in the latest round of funding.

Community First was shut out but hopes

its clients still can take advantage of the in-

centives.

“We plan to work with clients and try to

help them find an allocation through another

organization,” Betancourt said.

Community First and Commonwealth Cor-

Pictured, clockwise from bottom left, is Community First Fund’s executive team: Dan

Betancourt, president and CEO; Mike Carper, chief credit officer; James Buerger, executive

vice president and chief lending officer; and Joan Brodhead, senior executive vice president

and chief strategic initiatives officer. PHOTO/SUBMITTED

Tax credit plan

After being shut out in the last fund-

ing round in 2017, Central Pennsylvania will

receive a share of 2018 tax credits under a

new round of funding from a federal program

designed to support large urban redevelop-

ment projects: the New Markets Tax Credit.

The U.S. Treasury Department last month

awarded $55 million in tax credits to the

Pennsylvania Housing Finance Agency’s

Commonwealth Cornerstone Group, based in

Harrisburg.

Commonwealth Cornerstone’s executive

director Charlotte Folmer said the funding

will help the nonprofit tackle a hefty pipeline

of projects seeking funding.

“We have over 40 projects requesting

over $700 million,” she said, noting that the

requests come from across the common-

wealth.

Folmer said she hopes the tax credits will

be able to support about seven projects this

year — likely mixed-use, commercial and

community service projects — with a focus on

those that exceed $5 million.

Developers often have to spend more

money to buy and fix up vacant and blighted

properties than they can expect to get back

in rental rates once construction is complet-

ed. The New Markets program takes private

equity from investors, usually banks, and

turns that money into gap financing to help

developers offset some of the construction

costs and keep rents in line with what a local

real estate market can support.

The investors receive tax credits in return,

which count against their federal income

taxes.Investors can receive credits totaling 39

percent of their investment. They can use the

credits over seven years as such: 5 percent

per year for the first three years and 6 per-

cent for the next four years.

Folmer said it will be several weeks until

Commonwealth Cornerstone receives its

federal allocation, the organization’s eighth.

The previous seven allocations have helped

fund 38 developments in the state, including

the Hamilton Health Center in Harrisburg,

Lancaster’s Keppel Building and the renova-

tion of Gettysburg’s Schmucker Hall.

In the meantime, officials are narrowing

down mixed-use and commercial projects

across the state that could receive the tax

credits. Part of that selection process could

include working with Lancaster-based

Community First Fund, which did not receive

tax credits this year but has its own backlog

of projects.

The two midstate nonprofits have part-

nered on tax-credit projects in the past,

including the redevelopment of the former

Bulova building in Lancaster. Commonwealth

Cornerstone poured $10 million in tax cred-

its into the project, while Community First

added another $8 million.

Folmer said project announcements could

come this fall.

Community First Fund

expanding executive team

please see EXPANDING page 7

ECONOMIC DEVELOPMENT

Craft-beer boom spurs local hops farmers

they are marketing targets. Trust them

and communicate with them as if they

are “one of us,” instead of “one of them.”

Use “we” and communicate from a team

perspective, rather than a top-down

standpoint. • Talk about the rewards – not only for

their personal lives, but rewards of the

program. What’s in it for them can be a

powerful motivator to expand participa-

tion. That participation, in turn, can build

a team atmosphere and lead to higher

engagement. • Consider health and wellness ambas-

sadors. Peer-to-peer communication is

powerful and partnering with passionate

team members to communicate can re-

move the paternalistic factor.

• Connect the dots for employees to the

bigger corporate picture. Participation in

wellness programs has the potential to de-

crease company health benefit costs over-

all, which in turn could make a difference

in employees’ premium or out-of-pocket

employees what program components

they’d like to see. Find out what might mo

tivate them to participate. Ask for ideas on

communicating the details to staff.

• Use social channels to help spread

the word. Whether its an internal social

tool such as Slack or Yammer or a closed

group on Facebook or LinkedIn, encour

age employees to share pictures of their

healthy choices and/or program partici

pation. Build a little competition between

company segments and offer content

meant to engage the group – ask ques

tions, post a quiz or host a ‘meet this goal’

challenge.

Craft-beer boom spurs local hops farmers

Stefanie Angstadt started making cheese

Hills Farm in Chester County.Jones pitched the idea of using the CSA

format to develop a new way of selling craft cheese to cheese fans. That led Jones, Ang-

Specialty cheese biz taps into local dairies

Craft-beer boom spurs local hops farmers

A strong wellness program can be a

differentiator for recruitment, reduce the

cost of health care benefits and help build

a team atmosphere based around healthy

choices. However, communicating the

benefits and program elements of a well-

ness initiative can be hard to navigate. Hu-

man resources and cor-

porate leadership need to

spective. How will the wellness program

components benefit them? Why should

they care? Does it affect their work life or

home life? Zero in on key factors affecting

employees and highlight the benefits of

healthy choices.

• Avoid communicating to staff as if

they are marketing targets. Trust them

and communicate with them as if they

are “one of us,” instead of “one of them.”

Use “we” and communicate from a team

perspective, rather than a top-down

standpoint.

Stefanie Angstadt started making cheese as a hobby soon after graduating from col-

After a few years she knew it was some-thing she wanted to do full time.

She opened Valley Milkhouse in a former dairy farm in Oley in 2014 and began to

cheese to cheese fans. That led Jones, Angstadt and Miller in 2016 to create the Collec-tive Creamery CSA, based out of Angstadt’s Oley creamery, with Jones as the operations manager and Angstadt and Miller as the two primary cheese makers.

“We thought between the three of us, we could pool our resources and move beyond farmers markets,” Angstadt said.

According to Jones, the trio didn’t invent the idea of a cheese-based CSA. But, she said, “A cheese CSA is still pretty unique.”

Jones said it also makes sense.“You can get subscriptions for anything

today — dog products, beauty products —

cial

oper

ators

, sai

d Dav

id D

ay, e

xecu

tive

vice

pre

siden

t at

Key

stone

Aeria

l Surv

eys

based

in P

hiladel

phia. Th

at m

akes

educa

tion cr

itica

l, he

added

.  

Keyst

one does

work

nat

ionw

ide

and h

as

found th

at so

me

offici

als i

n stat

es –

such

as

New

York

and N

ew Je

rsey

– ar

e m

ore aw

are

of iss

ues f

acin

g th

e dro

ne in

dustry

than

those

in P

ennsy

lvan

ia. Th

e ad

voca

cy d

ay

was

an e

ffort to

chan

ge th

at, t

oo, h

e sa

id. I

t

also

is h

oped th

at P

ennsy

lvan

ia’s

gove

rn

men

t age

ncies

will

incr

easin

gly

adopt t

he

tech

nologi

es,

as a

genci

es i

n oth

er s

tate

s

have,

Day

added

.

After a few years she knew it was something she wanted to do full time.

She opened Valley Milkhouse in a former dairy farm in Oley in 2014 and began to

farmers markets,” Angstadt said.According to Jones, the trio didn’t invent

the idea of a cheese-based CSA. But, she said, “A cheese CSA is still pretty unique.”

Jones said it also makes sense.“You can get subscriptions for anything

today — dog products, beauty products —

A strong wellness program can be a

spective. How will the wellness program

Craft-beer boom spurs local hops farmers

Jeff Musselman, head brewer at the

Millworks in Harrisburg, said the local

market has struggled to check all three

buckets. Most local hop farms are growing

on one or two acres and not pelletizing.

“The vast majority of local hops are

brewed in late summer or early fall for

wet-hop beers,” he said. “That has been

the big limitation.”

The Millworks and other breweries said

they would like to buy more local hops

year round, especially pelletized hops, to

support farmers.

“I think brewers absolutely want to use

it,” Musselman said, noting the differences

in smell and taste between East and West

Coast hops.

But Musselman said he expects local

hops would cost more than those from

larger West Coast suppliers, given the

lower hop volumes at local farms. Nev

Mike and Sharon Reifsnyder stand in the hop yard of their West Pennsboro Township

farm. They began growing the crop in 2017 in a bid to make locally grown hops more

Promotions, appointments, hirescompanies. He is

a CPA and a graduate of Shippens-

burg University. ARCHITECTURE/ENGINEERING

Lancaster-based RGS Associ-

ates named Jake Krieger proj-

ect landscape architect. He has

a bachelor’s degree from Temple

University. Matthew Fauth was

named a computer aided drafting

and design designer. He also is a

sergeant in the National Guard. He

has an associate degree from York

Technical Institute. Upper Dublin Township, Mont

gomery County-based McMahon

assistant manager of the

Township Financial Center. She

will cultivate new

customer rela-tionships, man-

age the internal

sales process,

maintain the

branch’s operational proficiency

and mentor her financial center

team. Most recently, she was a cor-

porate social responsibility super-

visor and head teller II with First

National Bank. She has a bach-

elor’s degree from York College.

Lower Allen Township-based

Members 1st Federal Credit

Union named

Alma Jimenezbranch manager

of the location

inside the Gi-ant Foods store

on East Market

Street, York. She

was a branch

manager for PNC Bank.

with customized financial solu-

tions. She has 25 years of banking

and financial services experience

and was a financial adviser with

Smoker Wealth Management.

She has bachelor’s and master’s

degrees from Ashford University.

Laura J. Melfi was named senior

vice president and cash manage-

ment officer with Mid Penn’s First

Priority Bank division. She will be

based in Chester County and con-

tribute to deposit growth through

business development activities.

She will also generate fee income

through cash management prod-

ucts and services, and expand and

retain customer relationships. She

has 43 years of financial services

experience. CONSTRUCTION

lishing. He has a bachelor’s degree

from Millersville. GOVERNMENT Harrisburg-based Pennsyl-

vania Public Utility Commis-

sion named Amy S. Goldman

of Philadelphia and Matthew

Hrivnak of Cumberland County

members of the Pennsylvania

Telecommunications Relay Ser-

vice Advisory Board. Goldman

has been a public member of the

board. She is a speech-language

pathologist, has conducted

trainings on the importance of

telecommunications for those

with disabilities and has been

involved with the administra-

tion of Pennsylvania’s telecom-

munications device distribution

program. Hrivnak will represent

the PUC’s Bureau of Consum

er Services on the board. He

is manager of compliance and

competition in the bureau’s pol

Mette Evans & Woodside named

Matthew D. Coble a sharehold

er. He represents

insurance companies, fraternal

benefit societies,

insurance producers and third-

party administrators in insurance regulatory, trans

actional and litigation matters.

MARKETING

Shindle

Krieger

Fauth

Kuhn

Jimenez

Bramlitt

Melfi

buckets. Most local hop farms are growing

on one or two acres and not pelletizing.

“The vast majority of local hops are

brewed in late summer or early fall for

wet-hop beers,” he said. “That has been

The Millworks and other breweries said

they would like to buy more local hops

year round, especially pelletized hops, to

“I think brewers absolutely want to use

it,” Musselman said, noting the differences

in smell and taste between East and West

Coast hops.

But Musselman said he expects local

hops would cost more than those from

larger West Coast suppliers, given the

lower hop volumes at local farms. Nev

farm. They began growing the crop in 2017 in a bid to make locally grown hops more

• Avoid communicating to staff as if

they are marketing targets. Trust them

and communicate with them as if they

are “one of us,” instead of “one of them.”

Use “we” and communicate from a team

it may mean the employees are unlikely to

understand the message.

• Avoid populating emails or messages

with large amounts of information. People

digest details in small chunks, so consider

an ongoing campaign to share bits and

pieces of information, or a web page to

view the full information when employees

are interested and have time.

• Have a sense of humor when commu

nicating. Loosening up a formal approach

can go a long way to creating engagement

with the communication and getting on

board with the program.

paid by the safety-net payer, Medicaid,

which a recent analysis indicates reim

burses at 81 cents on the dollar.

There are no hospitals or hospital staff

that treat only the uninsured or patients

insured by Medicaid, and Pennsylvania

doesn’t have a public hospital system. As

a result, the hospital community treats all

patients, regardless of the type of insur

ance they have — and serves as the safety

net for the underinsured and uninsured.

Even with the improvement in the insured

spective. How will the wellness program

components benefit them? Why should

they care? Does it affect their work life or

home life? Zero in on key factors affecting

employees and highlight the benefits of

• Avoid communicating to staff as if

they are marketing targets. Trust them

• Remove jargon, whether health care

or HR wording that might not be easily un

derstood. Remember, when jargon is used,

it may mean the employees are unlikely to

understand the message.

• Avoid populating emails or messages

Health and wellness communications can be engaging

was

an e

ffort to

chan

ge th

at, t

oo, h

e sa

id. I

t

also

is h

oped th

at P

ennsy

lvan

ia’s

gove

rn

men

t age

ncies

will

incr

easin

gly

adopt t

he

tech

nologi

es,

as a

genci

es i

n oth

er s

tate

s

have,

Day

added

.

The

asso

ciat

ion m

ainta

ins t

hat 3

6 out o

f

the

50 s

tate

s hav

e tra

nsporta

tion d

epar

t

men

ts t

hat f

und cen

ters

or

progr

ams

for

drone

operat

ions.

PennD

OT,

it s

aid, i

s not

among

those

that

hav

e in

itiat

ed o

utsid

e

progr

ams.

Alexi

s Cam

pbell,

PennD

OT p

ress

secr

e-

tary

, sai

d Pen

nDO

T has

an a

ctiv

e in

tern

al

drone

progr

am a

nd has

bee

n flyi

ng dro

nes

for s

ever

al ye

ars.

“We’

ve r

ecen

tly a

dvance

d our

operat

or

off, Day

and o

ther

s sai

d.

Keega

n Flahiv

e is a

rem

ote p

ilot f

or Arg

os

Unm

anned

Aer

ial S

olutio

ns bas

ed in

Liti

tz.

When

the

com

pany

was

founded

in 2

015,

it did

a lo

t of w

ork w

ith re

al e

stat

e co

mpa

nies t

hat w

ante

d aer

ial v

iew

s of p

roper

ties,

There are no hospitals or hospital staff

that treat only the uninsured or patients

insured by Medicaid, and Pennsylvania

doesn’t have a public hospital system. As

a result, the hospital community treats all

patients, regardless of the type of insur

ance they have — and serves as the safety

net for the underinsured and uninsured.

Even with the improvement in the insured

spective. How will the wellness program

components benefit them? Why should • Remove jargon, whether health care

or HR wording that might not be easily un

derstood. Remember, when jargon is used,

it may mean the employees are unlikely to

Health and wellness communications can be engaging

• Make it a two-way conversation. Ask

employees what program components

they’d like to see. Find out what might mo

tivate them to participate. Ask for ideas on

communicating the details to staff.

• Use social channels to help spread

the word. Whether its an internal social

tool such as Slack or Yammer or a closed

group on Facebook or LinkedIn, encour

age employees to share pictures of their

healthy choices and/or program partici

pation. Build a little competition between

parts of the employee base. The same goes

for any topic: if it’s strictly about one thing,

the business might lose the interest of its

whole audience.

In his budget address, Gov. Tom W

olf

stated to applause, “This proposal asks for no

new taxes. Not one dime. Not one penny.”

Yet, as the General Assembly com

bs through

the governor’s proposal, we find that there

are, in fact, tax increases.

One specific tax being proposed by the ad

ministration is a “double tax” on am

bulatory

surgical centers (ASCs) like

the ones in my district. 

ASCs are convenient

health care facilities run

by physicians that provide

same-day surgical and di-

agnostic care for focused

care needs, such as eye

surgeries, colonoscopies,

spine and joint procedures,

and more. Th

ere are 234

Medicare-certified ASCs in Pennsylvania.

The governor expects to take $12.5 m

illion

from these innovative surgical centers, which

is income they would otherwise put toward the

incredible services they provide at lower costs

to patients. ASCs already pay income, sales

and property taxes, as opposed to general hos-

pitals, which do not pay these same taxes.

The governor is correct when he says there

are no “new” taxes in his proposal, as he tried

and was unsuccessful in getting this ASC tax

passed through the General Assembly last

year. It is my hope that the House Republican

Caucus, along with the Pennsylvania Medical

Society and other medical-service advocates,

will prove once more that this tax would be

detrimental to Pennsylvania surgery patients. 

First, this tax would cause ASCs to be un-

able to afford state-of-the-art equipment.

Such equipment allows them

to have higher

productivity and healthier patients, but under

a year on just the 120 most-com

mon proce

dures that Medicare patients receive, accord

ing to UC Berkeley.

UC Berkeley noted in a recent study that

in 2015, Pennsylvania ASCs saved Medicare

$32.6 million on cataract procedures, $1.3

million on upper GI procedures and $6.9 m

il

lion on cystoscopy procedures.

If the Wolf adm

inistration’s tax proposal

were to be enacted, the Pennsylvania Am

bulatory Surgery Association, along with a

coalition of state medical societies, warn that

up to 25 percent of these centers may need

to close – pushing thousands of patients into

costly general hospitals and forcing centers to

withdraw from M

edicaid.

Proposed tax could harm specialty surgical centers

it may mean the employees are unlikely to

understand the message.

• Avoid populating emails or messages

with large amounts of information. People

digest details in small chunks, so consider

an ongoing campaign to share bits and

pieces of information, or a web page to

view the full information when employees

are interested and have time.

• Have a sense of humor when commu

nicating. Loosening up a formal approach

can go a long way to creating engagement

with the communication and getting on

board with the program.

paid by the safety-net payer, Medicaid,

which a recent analysis indicates reim

burses at 81 cents on the dollar.

There are no hospitals or hospital staff

that treat only the uninsured or patients

insured by Medicaid, and Pennsylvania

doesn’t have a public hospital system. As

a result, the hospital community treats all

patients, regardless of the type of insur

ance they have — and serves as the safety

net for the underinsured and uninsured.

Even with the improvement in the insured • Remove jargon, whether health care

or HR wording that might not be easily un

derstood. Remember, when jargon is used,

it may mean the employees are unlikely to

Health and wellness communications can be engaging

• Make it a two-way conversation. Ask

employees what program components

they’d like to see. Find out what might mo

tivate them to participate. Ask for ideas on parts of the employee base. The same goes

for any topic: if it’s strictly about one thing,

tained the same order of ranking based upon population for eight-plus years. For example, in 2010 the counties in order of smallest population to largest were Cum-berland, Dauphin, York and Lancaster. This is the same ranking we see in 2018,

or 2.0 percent. The cause of growth in these areas is migration, both domestic and international, as well as natural increase. In Dallas, it was natural increase that served as the largest source

The problem

is that what buy

ers are willing to pay has nothing

to do with the sellers’ costs. You

don’t believe that? I’ll give you

two scenarios.

In his budget address, Gov. Tom W

olf

stated to applause, “This proposal asks for no

new taxes. Not one dime. Not one penny.”

Yet, as the General Assembly com

bs through

the governor’s proposal, we find that there

One specific tax being proposed by the ad-

ministration is a “double tax” on am

bulatory

this tax plan, this customer care m

ight no lon

ger be possible.

Another advantage of surgical centers is

that their nurse-to-patient ratios are generally

lower than at general hospitals. These nurses

are trained in one or a few specialized surgical

procedures. This system

ensures that patients

receive the best care possible with the same

Proposed tax could harm specialty surgical centers

The problem

is that what buy

ers are willing to pay has nothing

to do with the sellers’ costs. You

don’t believe that? I’ll give you

Mike Kushner is the owner of Omni Realty

percent between 2017 and 2018 (from 33,395 to 35,350 people). The rapid growth Williams County experienced was

adapting to new demands.•

Mike Kushner is the owner of Omni Realty

For subscription information and questions, please call

Michele Engle, Carley Lucas,

By Jason Scott

jscott@cpbj.com

Expecting a record year for lending and

more growth, the Lancaster-based Commu

nity First Fund has been adding staff and

restructuring its executive team.

The nonprofit economic development or

ganization recently hired Michael Carper, the

former CEO of the Housing Development

Corp. MidAtlantic, to be its chief credit officer.

Community First Fund also contracted with

a finance expert from Chicago to serve as CFO

until it hires someone to the post full-time.

“We’re adding and growing dramatically,”

said Dan Betancourt, the organization’s presi

dent and CEO.

New Markets Tax Credit program, a federal tax

credit program operated by the U.S. Treasury

Department that helps support large urban

redevelopment projects.

Community First is one of two local orga

nizations that can apply for those federal tax

credits.

Pictured, clockwise from bottom left, is Community First Fund’s executive team: Dan

Betancourt, president and CEO; Mike Carper, chief credit officer; James Buerger, executive

vice president and chief lending officer; and Joan Brodhead, senior executive vice president

PHOTO/SUBMITTED

We all can relate to the phrase, “Surgery is

Community First Fund

expanding executive teamECONOMIC DEVELOPMENT

percent between 2017 and 2018 (from 33,395 to 35,350 people). The rapid growth Williams County experienced was

This is the same ranking we see in 2018,

or 2.0 percent. The cause of growth in these areas is migration, both domestic and international, as well as natural increase. In Dallas, it was natural increase that served as the largest source

this tax plan, this customer care m

ight no lon

ger be possible.

Another advantage of surgical centers is

that their nurse-to-patient ratios are generally

lower than at general hospitals. These nurses

are trained in one or a few specialized surgical

procedures. This system

ensures that patients

Proposed tax could harm specialty surgical centers

We all can relate to the phrase, “Surgery is

Michele Engle, Carley Lucas,

ECONOMIC DEVELOPMENT

this tax plan, this customer care m

ight no lon

ECONOMIC DEVELOPMENT

this tax plan, this customer care m

ight no lon

ger be possible.

ECONOMIC DEVELOPMENT

ger be possible.

Another advantage of surgical centers is

ECONOMIC DEVELOPMENTAnother advantage of surgical centers is

that their nurse-to-patient ratios are generally

ECONOMIC DEVELOPMENTthat their nurse-to-patient ratios are generally

lower than at general hospitals. These nurses

ECONOMIC DEVELOPMENTlower than at general hospitals. These nurses

are trained in one or a few specialized surgical

ECONOMIC DEVELOPMENTare trained in one or a few specialized surgical

Proposed tax could harm specialty surgical centers

ECONOMIC DEVELOPMENT

Proposed tax could harm specialty surgical centers

ECONOMIC DEVELOPMENT

• Total access to Long Island Business News List Database*

• Unlimited downloads

• PDFs and spreadsheets

• Book of Lists PLUS

• Unpublished data

• Custom data searches

*Please note: the Data portion of the premium subscription is non-refundable.

As a premium subscriber, gain total databaseaccess with unlimited downloads.

Expecting a record year for lending and

more growth, the Lancaster-based Commu

nity First Fund has been adding staff and

restructuring its executive team.

The nonprofit economic development or

ganization recently hired Michael Carper, the

former CEO of the Housing Development

Corp. MidAtlantic, to be its chief credit officer.

Community First Fund also contracted with

a finance expert from Chicago to serve as CFO

until it hires someone to the post full-time.

“We’re adding and growing dramatically,”

said Dan Betancourt, the organization’s presi-

dent and CEO.

Community First Fund provides financ-

ing for small businesses, affordable housing

projects and nonprofit organizations located profit has made some internal promotions.

COO Joan Brodhead was recently named se-

nior executive vice president and chief strategic

initiatives officer, while senior vice president of

lending James Buerger was elevated to execu-

tive vice president and chief lending officer.

New Markets Tax Credit program, a federal tax

credit program operated by the U.S. Treasury

Department that helps support large urban

redevelopment projects.Pictured, clockwise from bottom left, is Community First Fund’s executive team: Dan

Betancourt, president and CEO; Mike Carper, chief credit officer; James Buerger, executive

vice president and chief lending officer; and Joan Brodhead, senior executive vice president

and chief strategic initiatives officer. PHOTO/SUBMITTED

expanding executive team

Expecting a record year for lending and

more growth, the Lancaster-based Commu-

nity First Fund has been adding staff and

restructuring its executive team.

The nonprofit economic development or-

ganization recently hired Michael Carper, the

former CEO of the Housing Development

Corp. MidAtlantic, to be its chief credit officer.

Community First Fund also contracted with

a finance expert from Chicago to serve as CFO

until it hires someone to the post full-time.

New Markets Tax Credit program, a federal tax

Pictured, clockwise from bottom left, is Community First Fund’s executive team: Dan

Betancourt, president and CEO; Mike Carper, chief credit officer; James Buerger, executive

vice president and chief lending officer; and Joan Brodhead, senior executive vice president

and chief strategic initiatives officer. PHOTO/SUBMITTED

SUBSCRIBE TODAY!CALL 877-615-9536 OR VISIT

service@bridgetowermedia.comAlready a Print & Digital Subscriber? Call to upgrade - NOW!

www.libn.com

ment.Smaller facilities also help surgical hospi

tals protect patients from spreading infections

among each other. Th

is large reduction in

care needs, such as eye

surgeries, colonoscopies,

spine and joint procedures,

Medicare-certified ASCs in Pennsylvania.

The governor expects to take $12.5 m

illion

from these innovative surgical centers, which

is income they would otherwise put toward the

practitioners also save Medicare $2.3 billion

a year on just the 120 most-com

mon proce

dures that Medicare patients receive, accord

ing to UC Berkeley.

UC Berkeley noted in a recent study that

StateRep.

Greg Rothman

procedures. This system

ensures that patients

receive the best care possible with the same

nurses caring for them throughout their treat

ment.Smaller facilities also help surgical hospi

AUDIENCE DEVELOPMENT

For subscription information and questions, please call

By Jason Scott

jscott@cpbj.com

UC Berkeley noted in a recent study that

in 2015, Pennsylvania ASCs saved Medicare

$32.6 million on cataract procedures, $1.3

million on upper GI procedures and $6.9 m

il

vanians have been given a convenient and

of their innovative approach.

We all can relate to the phrase, “Surgery is

only minor if it happens to som

eone else.”

Nobody wants to be told they need surgery

and they especially do not want an unpleas

ant surgery experience.

Thanks to ASCs, thousands of Pennsyl

Community First Fund

expanding executive teamECONOMIC DEVELOPMENT

ment.

procedures. This system

ensures that patients

receive the best care possible with the same

nurses caring for them throughout their treat

ment.Smaller facilities also help surgical hospi

doscopy, I have been amazed at the benefits

of their innovative approach.

We all can relate to the phrase, “Surgery is

For subscription information and questions, please call

, Cathy Hirko

Mariah Chuprinski

AUDIENCE DEVELOPMENT

By Jason Scott

Medicare-certified ASCs in Pennsylvania.

The governor expects to take $12.5 m

illion

from these innovative surgical centers, which

tals protect patients from spreading infections

among each other. Th

is large reduction in

nosocomial infections is critical in a surgical

environment.

Not only are patients better cared for at

ASCs, but they face lower costs at these cen

ters than they do at general hospitals. Medic

aid patients face 50 percent lower costs and

patients with comm

ercial insurance plans

pay as low as 25 percent the costs of a hospi

tal-based visit.

In addition to saving patients money, these

practitioners also save Medicare $2.3 billion

a year on just the 120 most-com

mon proce-

dures that Medicare patients receive, accord-

ing to UC Berkeley.

UC Berkeley noted in a recent study that

in 2015, Pennsylvania ASCs saved Medicare

$32.6 million on cataract procedures, $1.3

million on upper GI procedures and $6.9 m

il

Rep.

Greg Rothman

Smaller facilities also help surgical hospi

tals protect patients from spreading infections

among each other. Th

is large reduction in

nosocomial infections is critical in a surgical

Not only are patients better cared for at

ASCs, but they face lower costs at these cen

ters than they do at general hospitals. Medic-

aid patients face 50 percent lower costs and

patients with comm

ercial insurance plans

pay as low as 25 percent the costs of a hospi-

In addition to saving patients money, these

practitioners also save Medicare $2.3 billion

my district, such as those at W

est Shore En

doscopy, I have been amazed at the benefits

of their innovative approach.

We all can relate to the phrase, “Surgery is

only minor if it happens to som

eone else.”

Nobody wants to be told they need surgery

and they especially do not want an unpleas

ant surgery experience.

Community First Fund

expanding executive team

Smaller facilities also help surgical hospi

tals protect patients from spreading infections

among each other. Th

is large reduction in

nosocomial infections is critical in a surgical

Not only are patients better cared for at

ASCs, but they face lower costs at these cen

my district, such as those at W

est Shore En

doscopy, I have been amazed at the benefits

, Cathy Hirko

Mariah Chuprinski

AUDIENCE DEVELOPMENT

UC Berkeley noted in a recent study that

in 2015, Pennsylvania ASCs saved Medicare

$32.6 million on cataract procedures, $1.3

million on upper GI procedures and $6.9 m

il

lion on cystoscopy procedures.

If the Wolf adm

inistration’s tax proposal

were to be enacted, the Pennsylvania Am

bulatory Surgery Association, along with a

ing to UC Berkeley.

UC Berkeley noted in a recent study that

in 2015, Pennsylvania ASCs saved Medicare

million on upper GI procedures and $6.9 m

il

dures that Medicare patients receive, accord

ing to UC Berkeley.

UC Berkeley noted in a recent study that

in 2015, Pennsylvania ASCs saved Medicare

$32.6 million on cataract procedures, $1.3

million on upper GI procedures and $6.9 m

il

PRINT & DIGITAL + DATAS U B S C R I P T I O N

PRINT DIGITAL + DATA

LIBN

& +REAL ESTATE

DEVELOPER SEEKINGOK FOR $35MMIXED USE PROJECT›› 7

FOCUS//REAL ESTATE

FRESH IDEASFOR REDESIGNINGSMALLER OFFICES›› 21

LIBN.COMVOLUME 67 NUMBER 4 ■ LIBN.COM JANUARY 24-30, 2020 ■ $2.00 Part of the network

LIBN.COM

As healthcare and technology grow, so do the professional service firms that support them.

›› Page 4

As healthcare and technology grow, so do the

GROWTH MODE

go premium

in 2015, Pennsylvania ASCs saved Medicare

$32.6 million on cataract procedures, $1.3

million on upper GI procedures and $6.9 m

il

lion on cystoscopy procedures.

If the Wolf adm

inistration’s tax proposal

were to be enacted, the Pennsylvania Am

bulatory Surgery Association, along with a

in 2015, Pennsylvania ASCs saved Medicare

$32.6 million on cataract procedures, $1.3

million on upper GI procedures and $6.9 m

il

lion on cystoscopy procedures.

If the Wolf adm

inistration’s tax proposal

were to be enacted, the Pennsylvania Am

UC Berkeley noted in a recent study that

in 2015, Pennsylvania ASCs saved Medicare

$32.6 million on cataract procedures, $1.3

million on upper GI procedures and $6.9 m

il

lion on cystoscopy procedures.

THE SUFFOLK LAWYER - April 2020 19

OF THE SUFFOLK COUNTY BAR ASSOCIATION

SUFFOLK ACADEMY OF LAWApril CLE Programs: Webinars Coming Up!

Welcome to our New Offi cers!The Academy is proud to welcome six new

Offi cers. Offi cers of the Academy help to guide and govern the Academy’s CLE programming and fi nancial stability. Typically Offi cers en-gage in the conceptualization, planning, organi-zation and presentation of Academy-sponsored programs, both in the fi eld of Continuing Legal Education (CLE) and in the promotion of public awareness and understanding of the legal sys-tem and the legal profession.

Mitchell T. Borkowsky – Law Offi ces of Mitchell T. Borkowsky

Michael G. Kruzynski – Court Attorney, Referee/ADR Coordinator, Supreme Court, Suffolk County

Chad H. Lennon – Veterans and Service Members Rights Clinic at Touro Law Center

Jennifer Ann Mendelsohn – Support Magis-trate, Family Court, Suffolk County

Laurette D. Mulry – Attorney in Charge, Le-gal Aid Society of Suffolk County, Inc.

Philip J. Siegel – Siegel & Sitler, PLLC

Let’s Be Social!FIND US HERE

AbsenteesTuesday, April 7, 202012:30 p.m. - 1:30 p.m.1.0 Professional Practice$25

Join us for this one-hour intermediate program about rules and procedures governing absentees and what to do if there is one in an Estate or Trust.

You will learn about absentees in general; administering the estate of an absentee; distributing the estate of an absentee; absentees versus declarations of death; review of cases of interest and issues raised.

Faculty:Marc S. Bekerman, Esq.

Veterans Treatment Court In Criminal CasesTuesday, April 14, 202012:30 p.m. – 1:30 p.m., via ZoomMCLE: 1 Diversity

Veterans Treatment Courts began in Buffalo, New York by Judge Robert Russell in 2008. There are over 460 Veterans Treatments Court as of 2016. Suffolk County has one of the leading Veterans Treatment Courts in the country and has the largest population of veterans in New York State. An attorney who practices in Suffolk County will likely come across a veteran or service member in their practice. This program will give attorneys a better understanding of how the program works and how to determine if the court is in the best interest of their client including how the client is accepted and program expectations.

Faculty and Program Coordinator:Chad Lennon, Esq., Veterans and Servicemembers’ Rights’

Clinic, Touro Law Center

Guidance To Notaries Concerning Executive Order 202.7Friday, April 17, 202012:30 p.m. – 1:30 p.m., via Zoom1.0 Professional Practice

In response to the COVID-19 (Novel Coronavirus) public health emergency, on March 19, 2020 Governor Cuomo signed Executive Order 202.7, which authorizes notary publics to offi ciate documents remotely. Specifi c procedures must be followed to remotely notarize a document. This program will familiarize you with important details about what is allowed, what is required and how real estate closings are currently being conducted in this environment.

Faculty:Michael J. Isernia, Esq., BE, MBAPaul Bugoni, Esq., Vice President and Senior Underwriting

Counsel, at WFG National Title Insurance Company

ABC’s of TrustsTuesday, April 21, 202012:30 p.m. – 2:00 p.m., via Zoom1.5 Professional Practice

Course Description: To trust or not to trust. Anyone with assets should consider how their assets will be distributed to their heirs and a key tool for an estate plan is a trust. This program will teach you the basics of trusts including, why create a trust?; different types of trusts; advice counsel can give to testator/grantor to choosing the right trustee; elements of a trust including Supplemental Needs Trusts.

Speakers:Scott McBride, Esq., Court Attorney, Suffolk Surrogate’s

Court; Kurt Widmaier, Esq., Russo, Karl, Widmaier & Cordano

PLLC, Richard Weinblatt, Esq., Haley, Weinblatt & Calcagni, LLP

Social Media In The WorkplaceFriday, April 24, 202012:30 p.m. – 1:30 p.m., via Zoom1.0 Professional Practice

Over the last couple of decades, the internet and social media have brought signifi cant changes to the workplace. Employers and employees fi nd each other online, and workforces are more mobile, diverse and dispersed. At the same time, the transition to an information economy has changed the nature of work. Companies make greater use of temporary workers and outsourcing. These changes have both increased the importance of identifying and protecting confi dential information and made it more challenging to do so. This course will help attendees identify and advise clients on the challenging legal issues accompanying these changes in the workplace. This course will help you to understand the legal issues associated with use of the internet and social media for recruiting and screening applicants as well as legal issues associated with the use of the internet and social media in the context of the workforce.

Faculty:Lisa Renee Pomerantz, Esq.

Fraudulent ConveyancesTUESDAY, APRIL 28, 202012:30 p.m. – 1:30 p.m., via Zoom1.0 Professional Practice

After nearly 95 years, on December 6, 2019, Governor Cuomo signed the Uniform Voidable Transfer Act (“UVTA”) into law. New York was one of the last states operating under the more antiquated Uniform Fraudulent Conveyances Act. The UVTA modernizes Article 10 of the Debtor and Creditor law and brings it closer in line to comparable provisions of the U.S. Bankruptcy Code. Among other things, the UVTA brings New York’s defi nitions of voidable transfers in line with twenty-fi rst century nomenclature (i.e., from “fraudulent” transfers to “voidable” transfers), will result in clarify and uniformity on the choice of law, defi nition of insolvency, and the burdens of proof in prosecuting and defending voidable transactions. The UVTA is effective with respect to transfers made and obligations incurred on and after April 4, 2020.

This program will compare and contrast the former Article 10 of the Debtor and Creditor Law, the UVTA and the comparable provisions of the Bankruptcy Code.

Faculty:David A. Blansky, Esq., Partner, LaMonica Herbst &

Maniscalco, LLP

A VeRy SPecIAL THANK yoU To oUR ANNUAL SPoNSoRS

Tradition Title Agency, Inc.

THE SUFFOLK LAWYER - April 202020

bearers have had to endure, and I feel grateful that in my life I have not had to endure worse than the coronavirus. There is no minimizing the impact of this pandemic upon our live-lihoods, our economy, our way of life and, most importantly, our health. There is no minimizing the loss of even one life. That is a tragedy that no one should have to bear, and which we must strive to avoid. If it means we need to socially distance ourselves, give up our normal routines, and hunker down at home, it is a small price to pay to stem the tide of this rapacious virus. All of which I re-mind myself as I scour the shelves of Costco for 3 hours, traipse all over Suffolk County

searching for that elusive 4-pack of toilet pa-per (I have given up on the hunt for Purell), and sing Happy Birthday to myself twice as I wash my hands.

For the foreseeable future, the Bar Associ-ation will be closed to the public. Although our attorneys are always welcome. We are still functioning with our staff at limited times, and we will not always be open. We have had to cancel or postpone many events that I know we have all looked so forward to. We have canceled our CLE seminars through March, and beyond, and are postponing other meetings. As unfortunate as that is, it is more important that we focus on staying healthy.

Of course, our terrific staff, with Executive Director Sarah Jane LaCova at the helm, is keeping us functioning and abreast of all we need to accomplish.

When I began my year as president of this illustrious bar association last June, I asked you all to Do One Thing. So many of you have risen to the challenge and so graciously volunteered your time, expertise and good-will to do just that. I have been overwhelmed with the outpouring of effort and commit-ment from you all. This bar association is tru-ly a place to call home. We strive to be that home for you as we navigate through these trying times. To that end, if you have any

questions or concerns, please do not hesi-tate to contact the bar association or myself. We are here for you. A calamity like this can bring out the worst in people or the best in people. I have certainly seen the best. I do be-lieve we will come out of this stronger and better as individuals and as a nation. Togeth-er we can do what we could never do alone.

You can still do one thing through this health crisis. Take care of yourselves, think of others, appreciate what we have and love your family and friends (from a distance of six feet).

Be well and stay healthy,

President’s Message (Continued from page 1)

A Focus on Hospital Law — COVID – 19 and Your Clients (Continued from page 1)ligation of the providers to seek payments of those shares directly from the member-pa-tients. The emergency regulations prohib-it providers from charging copayments and billing patients for the deductible and coin-surance amounts the patients are required to pay. Good news for patients. Problematic for providers. Payer systems are designed to de-duct patient shares and it is uncertain at this early stage just how successful payers will be in “tweaking” their systems to include what otherwise would be the excludable pa-tient portions when they entertain provider claims for COVID-19 related services. This presumes, of course, that payers actually will pay those portions and not simply interpret the emergency regulations to mean that the patients can’t be charged.

Next, DFS temporarily has suspended cer-tain concurrent (in hospital) clinical utiliza-tion reviews for medical necessity and pro-vider admission notification requirements for 90 days from the date of the Circular Letter effecting same (Insurance Circular Letter No. 8 March 20, 2020). DFS also suspended pre-authorization clinical reviews for scheduled

surgeries or admissions (health insurers and plans may retrospectively review these ser-vices when the emergency regulations sun-set.) Your client’s health plan should pay claims from in-network hospitals that are otherwise eligible for payment without first reviewing the claims for medical necessity, and to the extent necessary, request informa-tion to perform a retrospective review, rec-oncile claims and make any payment adjust-ments only after 90 days from the date of the letter, subject to further regulatory evaluation as the COVID-19 situation develops.

DFS is suspending preauthorization re-quirements for home healthcare services fol-lowing an inpatient hospital admission. Plans may review home healthcare services for medical necessity concurrently or retrospec-tively but not in advance.

DFS is also suspending preauthorization requirements for inpatient rehabilitation ser-vices following a hospital admission.

Finally, skilled nursing facilities may not deny admission of a patient or readmission of a resident solely based on a confirmed or sus-pected diagnosis of COVID-19. The nursing

home also may not require that a hospitalized resident who is medically stable to return be tested for COVID-19. Importantly, to avoid the not infrequent occurrence of a delay due to disagreements between the hospital at-tending and the nursing home medical offi-cer over a patient’s condition, any hospital-ized resident is deemed appropriate for return to the nursing home upon a determination by the hospital physician that the resident is medically stable for return.

For Medicare Advantage plans and Medi-care Part D prescription plans (which, after all, are privately run by health insurers on a risk basis) CMS issued guidance, not man-datory requirements, allowing them to waive cost sharing for COVID-19 tests and treat-ments in doctor’s offices or emergency rooms and services delivered via telehealth, remove prior authorization requirements, waive pre-scription refill limits and relax restrictions on home or mail delivery of prescription drugs. In states where the governors have declared an emergency, Medicare Advantage plans must however immediately cover services at out-of-network providers at the in-network

cost-sharing rate and waive gatekeeper refer-ral requirements.

For any clients who may pay for their health care through so-called “high-deduct-ible plans” funded by “health savings ac-counts” the IRS has issued guidance that em-ployers also may waive cost-sharing amounts for COVID-19 testing and treatment prior to a covered member meeting an annual deduct-ible. This is all optional, however; each indi-vidual plan may or may not implement any of this.

For health care providers of all kinds, pa-tient care always comes first. We’ll figure out the rest of it once the emergency passes.

Note: James Fouassier, Esq. is a staff as-sociate with the Department of Managed Care at Stony Brook University Hospital, Stony Brook, New York and former Co-Chair of the Association’s Health and Hospital Law Committee. His opinions are his own. He may be reached at: james.fouassier@stonybrookmedicine.edu

Similarly, when a prospective purchaser attempted to use the impossibility of perfor-mance defense based on the loss of nearly of all of his personal assets as a result of the Bernie Madoff scandal, the court found that the default should not be excused and that the seller was entitled to retain the purchaser’s down payment as liquidated damages for the breach.9

In a case concerning an executive order, the Appellate Division, First Department dealt with a company that had purchased insurance against an air traffic controller’s strike that would disrupt its necessary distri-bution chain.10 The policy provided that there would be no liability to the carrier unless the strike continued for seven days.11 When a strike eventually occurred, it was unforesee-ably terminated by declaration of President Reagan firing all of the air traffic controllers three days after the strike began.12 Although the court found that there have been circum-stances where governmental acts have truly made performance impossible, and that there was no way that the company could have rea-sonably anticipated that the president would end the strike by firing all of the air traffic

controllers, the facts here did not constitute a sufficient impossibility of performance de-fense.13 Instead, the court relied on a strict interpretation of the contractual provision as written: three is less than seven.14

This is not to say that there is not law to sup-port the use of the defense when an action truly renders performance impossible. The Appel-late Division, First Department also dealt with a transportation company that had contracted with the City of New York to furnish, among other things, tugboat services for sanitation barges.15 Subsequently, there was a portwide strike and there was no practical way for the company to provide the contracted for tug-boat services to the city.16 As a result, the court found that the transportation company may not be liable to the city for its failure to provide the services as result of the impossibility of its per-formance and it reversed the trial court’s grant of summary judgment in favor of the city.17

Finally, in a case arising from the tragedy that took place on Sept. 11, 2001, a court held that the untimely cancellation of an African safari could be excused by the impossibility of performance defense based on a claim that timely communicating the cancellation from

Staten Island was impossible in the immedi-ate aftermath of the terrorist attacks.18

Ultimately, the underlying facts leading to the assertion of an impossibility of perfor-mance defense will be determinative as to its potential success. It seems clear that the fi-nancial consequences of the COVID-19 pan-demic will not, standing alone, be enough to excuse performance. However, if the perfor-mance is truly rendered impossible by the closure of a business that cannot operate as a result of the governor’s stay-at-home or-der, then it may be possible that contractual performance will be excused, or, at the very least, the time to perform tolled until perfor-mance is no longer impossible.

Note: Jarrett M. Behar, a partner of the firm Certilman Balin Adler & Hyman, LLP, practices in the areas of commercial litiga-tion, real estate development and construc-tion law. He is the co-chair of the Suffolk County Bar Association Transactional and Corporate Law Committee, an Officer and Associate Dean of the Suffolk Academy of Law and the Vice-President of the Commack Union Free School District Board of

Education. For additional information con-cerning this article, please feel free to contact Mr. Behar at jbehar@certilmanbalin.com.

1. See Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900, 902 [1987].2. See id.3. See id.4. See id. (citing, inter alia, 407 E. 61st Garage v. Savoy Fifth Ave. Corp., 23 N.Y.2d 275 [1968]).5. See <https://www.nytimes.com/article/corona-virus-timeline.html>6. See RW Holdings, LLC v. Mayer, 131 A.D.3d 1228, 1229 [2d Dep’t 2015]. 7. See id.at 1230.8. See id. (citing Pleasant Hill Developers, Inc. v. Foxwoods Enters., LLC, 65 A.D.3d 1203, 1206 [2d Dep’t 2009]).9. See Sassower v. Blumenfeld, 24 Misc.3d 843, 845-46 [Sup. Ct. Nassau County 2009]. 10. See Metpath Inc. v. Birmingham Fire Ins. Co. of Penn., 86 A.D.2d 407, 408 [1st Dep’t 1982]. 11. Id. at 409-410. 12. Id. at 408.13. See id. at 411-413. 14. See id. at 413-414.15. See City of N.Y. v. Local 333, Marine Division Int’l Longshoreman’s Assoc., 79 A.D.2d 410, 411 [1st Dep’t 1981].16. Id. at 413. 17. See id. at 414.18. See Bush v. ProTravel Int’l, Inc., 192 Misc.2d 743, 7753-754 [Sup. Ct. Richmond County 2002].

Contract Law (Continued from page 6)

THE SUFFOLK LAWYER - April 2020 21

served upon the alleged decedent by pub-lication (the citation will only be required to be served upon the alleged decedent and those other persons determined to be neces-sary by the court); a Guardian ad Litem will be appointed for the alleged decedent and a hearing will be held by the court.

Unlike the appointment of a temporary administrator, if relief is granted under this statute, the alleged decedent will be de-clared to be dead and the persons interest-ed in his or her estate can proceed accord-ingly. As such, it may be appropriate as part of the petition to seek either the probate of the alleged decedent’s Last Will and Testa-

ment or the appointment of an administrator for the alleged decedent’s estate. If such is not requested in the petition, additional pro-ceedings in the Surrogate’s Court may be commenced based upon the fi nding of death entered by the court in the proceeding pur-suant to EPTL § 2-1.7. Of course, in seeking such additional relief in the petition, there may be additional persons who may become interested parties in the proceeding.

Some of the implications of a declaration of death that are not presented by the ap-pointment of a temporary administrator in-clude: Probate of the alleged decedent’s will; distribution of the alleged decedent’s prop-erty under intestacy; allowing property to pass to surviving joint tenants where the al-leged decedent owned property jointly with rights of survivorship; allowing property to pass to named benefi ciaries by operation of law; allowing the acceleration of a life estate in property to permit the next estate to suc-ceed to the property; if the alleged decedent owned shares of a corporation subject to a buy-sell agreement on the death of one of the

shareholders, permitting the other sharehold-ers to purchase his shares under the agree-ment; and permitting the commencement of certain judicial proceedings that may other-wise be unavailable such as a cause of action for the person’s wrongful death.

If a person declared dead under EPTL § 2-1.7 returns alive, the court can vacate the fi nding of death and revoke the Letters of Administration issued to his or her fi ducia-

ry (or the Letters Testamentary as the case may be). The returning person’s property rights are governed by SCPA § 911, which as discussed in the prior article says that if the court has ordered distribution of the ab-sentee’s assets and terminated the absentee’s rights in his property, the absentee cannot bring an action for its return.

There are differences between proceed-ing under SCPA Article 9 as an absentee and proceeding pursuant to EPTL§ 2-1.7 seeking a declaration of death. As such, there are factors which may need to be tak-en into consideration.

One consideration is that the proofs re-quired for relief under EPTL §2-1.7 are more stringent than the proofs required for the appointment of a temporary administra-tor under SCPA Article 9. As such, a prac-titioner should assess whether the proofs at hand are likely to obtain relief under EPTL §2-1.7. One alternative may be for the peti-tioner to seek appointment under Article 9 as temporary administrator to handle the ab-sentee’s affairs while he or she accumulates the necessary proofs to seek the declaration of death of the missing person.7

The administration of property of a per-son who disappears can be complicated. The Surrogate’s Court is an appropriate venue for two different proceedings depending on the type of relief sought, whether to proceed for the appointment of a temporary adminis-trator to administer the property of the estate of the missing person as an absentee or to seek a declaration of death for the absentee

and the consequences thereof.

Note: Kera Reed is the co-chair of the Surrogate’s Court Committee and the Supervising Attorney in the Trusts and Estates Department at Burner Law Group, P.C.

1. A separate section allows the distribution of a decedent’s estate after three years and a diligent search by presuming that missing distributees predeceased the decedent without issue. See SCPA § 2225. 2. EPTL § 2-1.7(c) recognizes that other statutes may have their own presumption-of-death pro-visions such as Real Property Actions and Pro-ceeding Law §§991, 1391 (presumption of death of heirs in actions for partition of real property and mortgage foreclosure) (25 years); §1211(3) (presumption of death of co-tenant) (7 years). 3. If there is another explanation for the absence, relief under EPTL § 2-1.7 will likely be denied. See Matter of Kutner, 57 A.D.2d 697, 395 N.Y.S.2d 540 (4th Dep’t 1977). 4. In 2000, the legislature added the last clause of subparagraph (a), which allows the Court to set the date of death earlier than three years from the disappearance in response to Matter of Cosentino, 177 Misc.2d 629, 676 N.Y.S.2d 856 (Surrogate’s Court, Bronx County 1998.5. One recent example of note of specific peril was the September 11th attack on the World Trade Center. Expedited procedures were im-plemented to provide death certificates for the victims if certain criteria were met, but EPTL § 2-1.7 remained available to seek a declaration of death if the criteria were not met. See In Matter of LaFuente, 191 Misc.2d 577, 743 N.Y.S.2d 678 (Surrogate’s Court, Dutchess County 2002).6. See Matter of Downes, 136 Misc.2d 1031, 518 N.Y.S.2d 558 (Surrogate’s Court, Suffolk County 1987).7. See Matter of Feng, N.Y.L.J., June 22, 2011, at 26, col. 6 (Surrogate’s Court, Queens County)

Surrogate (Continued from page 4)

the disputed expert testimony and that gener-al acceptance of scientifi c principals did not require the testimony of an expert at trial. The expert testimony proposed by the plaintiff re-garding DTI was not yet generally accepted in neurology for the use in clinical treatment of individual patients. It could not therefore, be presented before a jury.

Honorable William B. Rebolini

Motion to disqualify denied; law fi rm had not represented defendant with regard to sale of subject property or other transactions re-garding the subject property.

In Andre Gera and Gera Realty LTD v. KA & B Properties Inc., Robert O’Connor, Ka-tia O’Connor, Breana O’Connor, Alida Con-sole a/k/a Alida Lang, individually and d/b/a KA & B Properties and Foreclosure Experts USA, KA & B Properties and Foreclosure Experts USA, Index No.: 621640/2019, de-cided on Feb. 19, 2020, the court denied the defendant, Robert O’Connor’s motion for an order prohibiting the Law Offi ces of John B. Zollo, P.C. from representing the plaintiffs. Here, defendant argued that the law fi rm had represented him on several matters in the past, without further explanation. In opposi-tion, the law fi rm conceded that it represent-ed certain “LLCs, of which Mr. O’Connor was a member, in the purchase of certain real properties…” Defendant, O’Connor had not alleged that the law fi rm represented him in connection with the sale of the subject real property or any other transactions involving the subject real property that are alleged in the complaint or the purported counterclaim

of defendant O’Connor. Accordingly, the court denied the motion to disqualify.

Motion to dismiss amended complaint granted; plaintiff received the full policy limits.

In Robyn Cannariato and Michael Anerel-la, individually and as Members of and on behalf of 28 Baycrest Drive, LLC v. Nation-al General Insurance Company, Helmsmann Insurance Agency, LLC, Gregory H. DiPen-ta, and Liberty Mutual Insurance Company, Index No.: 623302/2018, decided on Jan. 10, 2020, the court granted the defendants’ mo-tions to dismiss the amended complaint.

In rendering its decision, the court noted that based upon the undisputed facts and the express terms of the insurance agreement, plaintiffs’ breach of contract claims was dis-missed as a matter of law. Plaintiff received the full policy limits covering the subject premises and its contents. Plaintiffs could not now rewrite the policy and eliminate the ap-plicable limits of liability. On another note, with regard to 28 Baycrest, the court noted that it was not a party to any contracts or any transactions herein, and thus, it had no stand-ing to allege claims against any of the defen-dants. Specifi cally, the court pointed out that 28 Baycrest was never involved in their in-surance policy application process, was nev-er a client of defendants DiPenta or Helms-mann and never made a request for insurance coverage. Since plaintiff 28 Baycrest could not allege claims against the defendants and the policy had been exhausted, plaintiffs’ re-quest to reform the policy to add 28 Baycrest as an additional insured was futile.

Honorable Carmen Victoria St. George

Motion for summary judgment as to lack of informed consent granted; moving defen-dants did not perform the subject surgery.

In Cristopher Canterino, as executor of the estate of Stephanie Canterino, deceased, and Christopher Canterino, individually v. James N. Romanelli, M.D., James N. Romanel-li, M.D., P.C., North Shore Plastic Surgery, P.C., North Shore Amsurgery, P.C., Roberta A. Bianco, D.O., Roberta A. Bianco, D.O., P.C., Ferdinand Deblasio, M.D. a/k/a Fred Deblasio, Jr., M.D. and Huntington Hospital, Index No.: 612738/2015, decided on Sept. 30, 2019, the court granted the branch of the motions by defendants Dr. Bianco and her practice, as well as Dr. DeBlasio and Hun-tington Hospital.

In rendering its decision, the court noted that Dr. Bianco’s expert did not address this cause of action. At oral argument of the in-stant motion, the issue of informed consent was not raised by the plaintiff or the defen-dant; instead, the issue was narrowed by the court to the essential questions as to whether Dr. Bianco should have cleared plaintiff for the surgery. Since Dr. Bianco did not perform the surgery and that the only consent for the surgery was signed between the decedent and Dr. Romanelli’s offi ce, the court dismissed the lack of informed consent as to Dr. Bianco and her practice. With regard to the summary judgment motions of defendants Dr. DeBla-sio and Huntington Hospital as to the cause of action for lack of informed consent, for the same reasons, that the court granted summa-ry judgment dismissal on that cause of action

as to Dr. Bianco and her practice, the court granted summary judgment and dismissed the cause of action for lack of informed con-sent as to Dr. DeBlasio and Huntington Hos-pital.

Note: Elaine Colavito graduated from Touro Law Center in 2007 in the top 6% of her class. She is a partner at Sahn Ward Coschignano, PLLC in Uniondale. Ms. Colavito concentrates her practice in matri-monial and family law, civil litigation, immi-gration, and trusts and estate matters. She is the immediate past president of the Nassau County Women’s Bar Association.

Bench Briefs (Continued from page 6)

The administration of property of a person who disappears can be complicated. The Surrogate’s Court is an appropriate venue for two different proceedings depending on the type of relief sought, whether to proceed for the appointment of a tempo-rary administrator to administer the property of the estate of the missing person as an absentee or to seek a declaration of death for the absentee and the consequences thereof.

STAY UP TO DATE ON THE GO WITH

THE SUFFOLK LAWYER - April 202022

all income a debtor received during the six-month period prior to filing had to be includ-ed in the income calculation for Chapter 7 eligibility purposes or Chapter 13 dispos-able income calculations. The CARES Act excludes any government coronavirus pay-ments from being treated as income for the means test.

Existing Chapter 13 CasesMany debtors in existing Chapter 13 cases

will fall behind with their monthly plan pay-ments and post-petition mortgage payments. Previously, when debtors fell behind because of some short-term financial setback or de-crease in income, they were able to bring a motion to modify their plan post-confirma-tion to either increase the remaining pay-ments to incorporate the missed payments, or if the situation permitted it, to decrease their remaining payments. However, under no cir-cumstance was a debtor permitted to extend the plan past the maximum five-year period.

The CARES Act explicitly permits exist-ing debtors to modify confirmed plans based on a material financial hardship related to the coronavirus pandemic and also permits them to extend payments for up to seven years after the initial payment was due. The additional two years will enable many ex-isting Chapter 13 debtors to soften the blow of being out of work for a period of time. It is anticipated that the court and trustees will develop a process to make post-petition modifications as easy as possible for those who need them.

Chapter 11 cases for small business debtors

On Feb. 19, 2020, the Small Business Reorganization Act became effective. This created a brand new type of bankruptcy,

Subchapter V (or 5), which was enacted to reduce the cost and expense for small busi-nesses who sought to reorganize. It was lim-ited to those debtors whose debts did not ex-ceed $2.7 million. (This was the topic of last month’s column.) Subchapter V debtors are able to take advantage of special streamlined reorganization procedures and simpler con-firmation standards.

The big news is that the CARES Act great-ly expands Subchapter V eligibility by in-creasing the debt limit to $7.5 million for a period of one year. This should enable a much greater number of businesses and indi-viduals to avoid the more costly and more in-volved standard Chapter 11 proceeding. We should therefore expect to see a flood of these new cases.

The new Subchapter V eliminates some of the more involved procedures required by traditional Chapter 11 filings, such as disclo-sure statements, and provides some of the ex-pedited procedures utilized by consumers in Chapter 13 cases, which are centered around a payment plan.

ForeclosuresThe CARES Act prohibits most foreclo-

sure activity on federally backed mortgage loans for a 60-day period beginning March 18, 2020. Mortgage servicers may not initiate any judicial or nonjudicial foreclosure pro-cess, move for a foreclosure judgment, order a sale, or execute a foreclosure-related evic-tion or foreclosure sale.

In addition, the Act provides up to one year of forbearance for borrowers under federal-ly backed mortgages who have experienced financial hardship related to the COVID-19 pandemic. During a period of forbearance, no fees, penalties, or interest shall accrue on the borrower’s account beyond the amounts

scheduled or calculated as if the borrower made all contractual payments on time and in full under the terms of the mortgage contract.

These provisions only apply to federally backed mortgages which cover about two-thirds of all mortgages. Federally backed mortgages include those purchased or secu-ritized by Fannie Mae or Freddie Mac; or in-sured by the Federal Housing Administration or the U.S. Department of Veterans Affairs.

It should be noted that during the week of March 16, 2020, which predated the signing of the CARES Act, the District Administra-tive Judge for each New York state county, including Nassau and Suffolk, issued an Ad-ministrative Order which indicated that un-til rescinded, no foreclosure auctions shall be held. A few days later, on March 20, 2020, Gov. Andrew Cuomo issued Executive Order 202.8 which mandated that there shall be no “foreclosure of any residential or commercial property for a period of ninety days.”

In addition, on March 22, 2020, the New York Office of Court Administrator’s Order No. 78 directed court clerks not to accept fil-ings in non-essential cases “until further or-der.” Since foreclosure cases are deemed non-essential cases, this means that lenders may not file any new foreclosure cases until the Court Administrator rescinds that order.

Accordingly, based on how devastating coronavirus is affecting New York right now, it is highly likely that there will not be any foreclosure activity of any kind for a good number of months.

Mortgage forbearanceThe CARES Act permits borrowers with

federally backed residential mortgage loans to request a forbearance from making pay-ments for up to 180 days, with the ability to request an extension for an additional 180-day period. It is also anticipated that all ma-jor lenders will eventually offer various pro-grams to enable their borrowers suffering from COVID-19 financial hardship to work out arrangements to satisfy mortgage arrears.

In addition, on March 24, 2020, the New York State Department of Financial Services issued an emergency law (New Part 119 to 3 NYCRR — Emergency Relief for New Yorkers Who Can Demonstrate Financial Hardship As a Result of Covid-19), effective to April 20, 2020 and any subsequent renew-al period. This law establishes a “COVID-19 Relief Program.” Regulated entities must make “widely available” to New York bor-rowers demonstrating financial hardship caused by COVID-19, a forbearance of 90 days. Federally guaranteed and GSE loans are exempted. The law requires that within 10 business days, regulated institutions must provide an application process for borrowers. Regulated institution means any New York regulated banking organization as defined under New York Banking Law and any New York regulated mortgage servicer entity sub-ject to the authority of the department.

Student loansThe Act also provides relief to individu-

als with student loans by giving them a six-month payment holiday.

Staying up to date with bankruptcy court procedures

As the pandemic initially swarmed New York in mid-March, our courts and the Office

of the U.S. Trustee began posting COVID-19 guidelines, protocols, emergency procedures and administrative orders which, for a peri-od of time, changed almost daily as the situ-ation worsened. All Bankruptcy Court hear-ings, if they were not already automatically adjourned, were to be held telephonically as the courts closed to almost all visitors and at-torneys. Hearings on motions, which are or-dinarily required, were dispensed with unless a party insisted. Almost any motion could be adjourned upon request by any party.

The Bankruptcy Court for the Eastern Dis-trict of New York website (nyeb.uscourts.gov) contains up-do-date details of emergen-cy COVID-19 protocols. Each bankruptcy judge has his or her own COVID-19 emer-gency procedures. Counsel should check the website regularly to see if there are any new updates. The court has also been sending email updates to ECF registered attorneys.

Staying up to date with Supreme Court procedures

The New York Unified Court System web-site (nycourts.gov) also contains current up-dates regarding the state courts’ COVID-19 policies and procedures.

Trustees and 341 HearingsMichael Macco, one of the two Chapter 13

standing trustees in our district, and his sig-nificant other, Lynn, were both hospitalized with coronavirus. On behalf of the bankrupt-cy bar, we wish them a speedy recovery.

On March 17, 2020, the U.S. Trustee is-sued a notice that all 341 hearings scheduled through April 10, 2020, would be automat-ically adjourned to a future date not yet de-termined. Based on the grim current state of the pandemic in New York, it is highly likely that the U.S. Trustee will extend the adjourn-ments to all hearings through at least the end of April.

It is anticipated that the U.S. Trustee will develop new protocols and procedures to en-able trustees to conduct meetings of creditors with little or no actual face-to-face contact. In the past, trustees permitted some hospi-talized, incarcerated or homebound debtors to appear telephonically. Perhaps such tele-phonic hearings or video conferencing will replace in-person appearances at the court-house for section 341 hearings until the coro-navirus situation is under control.

We are all in this together. The court’s various emergency procedures are all de-signed to keep people safe and prevent the spread of the virus. At some point we will return to normalcy; however, this may take some time. Those who are bankruptcy and foreclosure defense attorneys have the abil-ity to help many Long Islanders overcome some of the tragic consequences of corona-virus and get a fresh new financial start or prevent foreclosure.

Note: Craig D. Robins, a regular colum-nist, is a Long Island bankruptcy and fore-closure defense lawyer who has repre-sented thousands of consumer and busi-ness clients during the past 33 years. He has offices in Melville, Coram, and Valley Stream. (516) 496-0800. He can be reached at CraigR@CraigRobinsLaw.com. Please visit his Bankruptcy Website: www.BankruptcyCanHelp.com and his Bankruptcy Blog: www.LongIslandBankruptcyBlog.com.

Consumer Bankruptcy (Continued From Page 6)

THE SUFFOLK LAWYER - April 2020 23

Appeals, “Postmates food delivery drivers are not the company’s employees because the ser-vice simply connects couriers to customers.”3

Postmates, like many other application based services, argued that the computer/phone application is just “a matching sys-tem…a mechanism for people who want things to be delivered to find people who are willing to make those deliveries.” While the decision addresses the case of Luis A. Vega, “Postmates and other platform companies, like Uber and Lyft, face mounting legal and legislative challenges to a core aspect of their business model: the classification of drivers connected to customers as self-employed en-trepreneurs, rather than employees.” Indeed, like outsourcing labor to sweatshops outside of the United States, that recurrent business model relies on avoiding paying employee benefits and taxes.

States and other municipal entities are push-ing back against the free ride that these en-trepreneurial exceptors have obtained so far: a glut of workers essential to their business without having to pay those pesky perks oth-erwise mandated by law. Indeed, “[a] similar battle between Uber and regulators in New Jersey spotlights the possible financial im-plications [which resulted in] a $650 million bill for unpaid employment and temporary disability taxes, finding that the company has been misclassifying workers as independent contractors.” It is likely that reasonable regu-lation would, among other things, have avoid-ed the need for New York Court of Appeals to hear In the Matter of the Claim of Luis A. Vega v. Postmates Inc.

2020: Redefining employee- employer relations

Postmates’ couriers are entitled to unem-ployment benefits. “New York’s Court of Ap-peals has reinstated a 2015 decision determin-ing that couriers for on-demand delivery app Postmates should be classified as employees, making them eligible for unemployment in-surance at a time when the U.S. is seeing re-

cord job losses due to the coronavirus pan-demic.”4 Although it is hard to imagine a lack of work for these persons during the shelter-in-place orders currently in place throughout the world, such “delivery app[s]” require a certain level of quality control mostly guided by user ratings.

These formidable frontline favorites among those vulnerable, stuck at home or confined to their couch are run by gig workers. “Typically, gig workers are classified as independent con-tractors, which means they are ineligible for unemployment benefits or healthcare.” The legal fiction coupled with the side hustle slo-gan was that these “gig workers” were able to make their own hours while driving for a “delivery app.” From food and booze to peo-ple and papers, courier services are not new to New York while the idea that one could re-move the independent contractor label was a novel idea.

The Matter of Luis A. Vega5 upholds the decision of the Unemployment Insurance Appeals Board by substantial evidence, find-ing that “Postmates exercised control over its couriers sufficient to render them employees rather than independent contractors operat-ing their own businesses.”6 Of course, the le-gal fiction that allowed this system to operate was that the level of control was “incidental” and that these gig workers “were free to cre-ate their own customer following.”7 The stark reality, however, “is to get the delivery done and get paid by Postmates. There is no value in an independent relationship with any one customer since it will not lead to economi-cally beneficial future business.”8 Citing the United States Census Bureau and the United States Bureau of Labor Statistics, Judge Ri-vera concurred in the result but admonished the gig worker exception.

Judge Jenny Rivera explained the history of New York’s Unemployment Law and made clear that “[a]lthough the legislature has not defined the term “employee,” it has designat-ed certain workers as such…and authorized the Commissioner of Labor to determine eli-

gibility for unemployment insurance benefits for all other workers.”9 Judge Rivera’s con-currence thoroughly explains how the result in is accord with agency law, employment law and the establishment of an employer-employ-ee relationship.

While concurring in the result, Judge Jen-ny Rivera “reach[ed] that conclusion [con-sidering] the extent to which an employer prevents worker entrepreneurialism and the worker’s exercise of entrepreneurial control over important business decisions.”10 Judge Rowan D. Wilson, dissenting, focused on the failure of the legislature to act in this new era of technology.

“A world where work looks much different”

Judge Wilson, dissenting, brings clarity to the staggering statistics cited by Judge Rivera in addressing what appears to be the new re-ality. If Judge Rivera described the proverbial elephant in the room, Judge Rowan D. Wilson hoisted it out and set up a spotlight — we need legislation to address the gig worker economy.

The year is 2020. We live in the 21st Century. While couriers, curbside delivery and dating have an “app for that” our New York Legislature needs to create legislation and assist the courts. Judge Rowan D. Wil-son bemoans this in his dissent: “[w]hether, to what degree, and on what basis we wish to provide unemployment benefits to Post-mates couriers generally, or to other workers in the gig economy, is a policy question best left to the Legislature.”11

As the demand for these “essential” ser-vices have skyrocketed, we bear witness to the unionization and growing advocacy of the gig workers who make these applications function and who are starting to demand accountabili-ty and benefits. Rideshare Drivers United has been striking12 while www.gigworkersrising.org touts that “Uber and Lyft drivers need a fair share.” While California has witnessed the passage of legislation entitling these work-ers to benefits and allowing “millions of new

workers [the] right to join labor unions,” New York has remained stagnant although the im-primatur of injustice remains.

Note: Named a SuperLawyer, Cory Morris is admitted to practice in NY, EDNY, SDNY, Florida and the SDNY. Mr. Morris holds an advanced degree in psychology, is an adjunct professor at Adelphi University and is a CASAC-T. The Law Offices of Cory H. Morris focuses on helping individuals facing addiction and criminal issues, acci-dents and injuries, and, lastly, accountabil-ity issues.

1. NYS Attorney General, March 26, 2020 Press Release, Attorney General James Scores Major Win for ‘Gig’ Workers with Victory in Postmates Case, NYS Attorney General (last access on March 30, 2020), available at: https://on.ny.gov/2vVpAjE.2. AO/78/20, Administrative Order of The Chief Administrative Judge of The Courts: Essential Proceedings, dated March 22, 2020, available at: https://www.nycourts.gov/whatsnew/pdf/AO-78-2020.pdf.3. Karl Hardy, Postmates Fights Driver’s Employee Status in New York Court, Bloomberg Law (Feb-ruary 11, 2020), https://bit.ly/3avm6Uf. 4. Jay Peters, Postmates couriers are eligible for unemployment benefits, rules New York appeals court, The Verge (March 27, 2020), https://bit.ly/3dHSJQn.5. In the Matter of the Claim of Luis A. Vega v. Postmates Inc., No. 13 (New York Court of Ap-peals, March 26, 2020), available at: https://www.nycourts.gov/ctapps/Decisions/2020/Mar20/13o-pn20-Decision.pdf (“Postmates”).6. Id. at P. 6.7. (citing Matter of Yoga Vida NYC, Inc., 28 N.Y.3d 1013, 64 N.E.3d 276, 41 N.Y.S.3d 456 (2016)). 8. Postmates, supra (J. Rivera, concurring in result), P. 16.9. Id. at P. 6 (citations omitted).10. Id. at P. 18.11. Postmates, supra (J. Wilson, dissenting), P. 23.12. Lauren Kaori Gurley, Gig Workers Are Form-ing the World’s First Food Delivery App Unions, VICE (October 9, 2019, https://bit.ly/2wPeCg1; Alexia Fernández Campbell, Gig workers’ win in California is a victory for workers everywhere, Vox (September 11, 2019), https://bit.ly/39qS4ja.

Employment COVID-19 Civil Rights (Continued from page 5)

THE SUFFOLK LAWYER - April 202024

Tax (Continued from page 10)rately filed, any other forms that are due at the same time as the partnership’s tax return. This failure may very well result in the im-position of penalties.

“Not again” Let’s assume the partnership figures out

that the fiscal tax year chosen by a deceased partner’s Estate will require a change in the partnership’s own tax year. Let’s also assume that the partnership acts accordingly.

The Estate remains a partner of the fiscal year partnership, at least for tax purposes,16 until the administration of the Estate is com-pleted. At that point, the Estate will distribute the decedent’s partnership interest as directed by the latter’s will or trust.17

Because the beneficiaries of a decedent’s Estate will almost certainly be individuals who use the calendar year as their taxable year, the partnership may experience anoth-er “new” majority interest taxable year, but will it again have to change its own required taxable year?

In general, the answer is yes. However, be-cause the partnership was required to change to a new majority interest taxable year when the Estate selected its fiscal year, then no fur-ther change in the partnership’s taxable year will be required for either of the two years following the year of the change;18 mean-ing, if the Estate’s distribution of the partner-

ship interests occurs beyond this “safe” peri-od, the partnership may be required to again change its taxable year, based upon the tax-able years of the beneficiaries.

Avoid surprisesCan a partnership and its partners devel-

op a plan, or a framework, for anticipating and dealing with the issues posed above? Of course they can. Well, they can at least try.

For example, the partnership agree-ment may require that the part-ners make their estate plans known to the partnership’s management team. It may also require that all proposed trans-fers of a partnership interest be reported to the partnership, whether or not such transfers are “permitted transfers” under the terms of the agreement.

The partnership agreement may also re-quire that the Estate keep the partnership’s management team informed of the Estate’s plans for selecting a taxable year. Query whether it would be appropriate to require that the partnership’s consent be obtained be-fore such a taxable year is chosen, or that the Estate demonstrate that the proposed taxable year will not require a change of the partner-ship’s own taxable year?

Finally, it may behoove everyone con-cerned, even without regard to the issue of the taxable year, if the partnership were sim-

ply required to redeem the Estate’s interest.20

Note: Lou Vlahos, a partner at Farrell Fritz, heads the law firm’s Tax Practice Group. Lou can be reached at (516) 227- 0639 or at lvlahos@farrellfritzcom.

1. IRC Sec. 706(c)(2)(A). The partnership’s tax-able year does not close as a result of the death of a partner. Reg. Sec. 1.706-1(c)(1). 2. Reg. Sec. 1.742-1. See also IRC Sec. 1014, Sec. 752, Sec. 753, and Sec. 691. 3. IRC Sec. 754, Sec. 743. The adjustment only occurs with respect to the transferee partner (the Estate). 4. IRC Sec. 1(e), Sec. 641 et seq. 5. The formerly revocable or living trust that be-came irrevocable upon the grantor-partner’s death. 6. IRC Sec. 644. There is an exception to this rule for “qualified revocable trusts” under IRC Sec. 645. 7. As distinguished from the “Estate” as defined herein.8. There is no rule comparable to IRC Sec. 644 that applies to estates. As a new taxpayer, the estate must determine when its taxable year will end. In general, the estate chooses its taxable year when it files its first income tax return (IRS Form 1041). The estate’s first taxable year may be any period of twelve months or less that ends on the last day of a month. 9. From Hamlet’s soliloquy on suicide: “To die, to sleep, to sleep perchance to dream: Ay, there’s the rub. For in the sleep of death, what dreams may come.” 10. IRC Sec. 645. The trust must be a qualified revocable trust. Sec. 645(b)(1). 11. IRC Sec. 645(b)(2) defines the applicable date as follows: if no estate tax return (IRS Form 706) is required to be field, it is the date which is two years after the date of death; if such a return is

required to be field, it is the date which is six months after the date of the final determination of estate tax liability. 12. For example, assume a partnership’s required taxable year ends December 31. One of the partners dies on October 10, 2020. The part-ner’s death does not, by itself, change or close the partnership’s taxable year. The deceased partner’s estate chooses a fiscal year that ends on September 30; thus, its first tax year will run from October 11 2020 through September 30, 2021. Assume that the estate’s selection of a fiscal year causes a change in the partnership’s required majority interest taxable year from one ending December 31 to one ending on September 30. The partnership will have to file a short period return for the period beginning January 1, 2021 and ending September 30, 2021. 13. Reg. Sec. 1.706-1(b)(8); IRC Sec. 443; Reg. Sec. 1.443-1. Basically, a closing of the books. 14. Which may also include extensions of the time prescribed for filing.15. Depending upon the election, the automatic relief provision under Reg. Sec. 301.9100-2 may not be available. 16. Its status as a matter of state law may be that of a mere economic interest holder. It also may be that the Estate has only those partner-related rights that are necessary for settling the dece-dent’s estate or administering their property. See, e.g., NY’s LLCL, Sec. 608. 17. Don’t forget that the distribution may carry out the estate’s DNI. IRC Sec. 662. 18. IRC Sec. 706(b)(1)(4)(B). 19. This is not unusual in the case of S corpora-tions and their shareholders, where it is impera-tive that the corporation’s shares not be trans-ferred to persons who are not qualified to own such shares. See IRC Sec. 1361(b), (c), (d) and (e).

make application for relief from the judgment or order directing payment prior to the accrual of the arrears, in which case the facts and circumstanc-es constituting such good cause shall be set forth in a written memorandum of decision.

While there is a “good cause” exception al-lowing the reduction or annulment for “any other arrears” accrued prior to a party’s ap-plication to modify, there is no “good cause” exception for child support arrears. The Sec-ond Department has consistently held that the trial court does not have the authority to modify support arears accrued prior to a party’s application for same, even if the par-ty shows good cause for failing to make an application for relief from the judgment or order of support prior to the accrual of ar-rears. See, Moore v. Abban, 72 A.D.3d 970, 899 N.Y.S.2d 362 (2nd Dept. 2010) where the support magistrate concluded, in essence, that because it was unjust and inappropriate to impose any child support obligation upon the mother (see Family Ct. Act § 413[1][g] ), she was entitled to have her support obli-gation terminated nunc pro tunc to the date of the original support order and to have her arrears vacated accordingly. However, the Second Department held that the Fami-ly Court could not reduce or vacate the ar-rears which accrued prior to the date of the mother’s petition, regardless of whether the mother had good cause for having failed to seek modification of the child support order prior to their accumulation. Moore at 365. This is even so where requiring the party to pay the arrears will result in a grievous in-justice. (see Family Ct. Act § 451; Matter of Dox v. Tynon, 90 N.Y.2d 166, 173–174, 659 N.Y.S.2d 231, 681 N.E.2d 398; Matter of

Wrighton v. Wrighton, 23 A.D.3d 669, 670, 805 N.Y.S.2d 101; Matter of Jenkins v. McK-inney, 21 A.D.3d 558, 799 N.Y.S.2d 904; Matter of Barrow v. Kirksey, 15 A.D.3d 801, 790 N.Y.S.2d 278).

While this rule may appear to be absolute, arrears that accrue prior to a party’s applica-tion to modify their support obligation have been vacated in limited cases, such as where it is impossible for the party to pay support or to move to be relieved from the obligation to pay support, for medical reasons. See, Com-missioner of Social Services v. Grant, 154 Misc. 2d. 571 (NY County 1992)(where the court found that, “if it was impossible for the respondent to pay child support and impos-sible for him to move for relief from the or-der, the hearing examiner may relieve him of responsibility for child support from the date it became impossible for respondent to act. Impossibility of performance should not be confused with “good cause” to excuse spou-sal support. FCA § 451. Good cause is a con-siderably lower standard. Indeed, this hearing examiner found good cause to vacate spou-sal support arrears”). The subsequent cases that have rejected this analysis have distin-

guished that the payor did not present any ev-idence of fraud or demonstrate any inability on his part to seek modification of the child support orders, which might warrant a finding that enforcement of the judgment against him would result in grievous injustice (see Matter of Commissioner of Social Servs. [Rosa Lid-ia T.] v. Luis Alonso G., supra; Gaudette v. Gaudette, 263 A.D.2d 626, 628, 692 N.Y.S.2d 839; Matter of Reynolds v. Oster,192 A.D.2d 794, 795, 596 N.Y.S.2 545; Matter of Com-missioner of Soia Servs. v. Grant, 154 Misc.2d 571, 574, 585 N.Y.S.2d 961).

Significantly, Judge Marks’ March 22, 2020 Administrative Order expressly refer-ences Governor Cuomo’s Executive Order which “suspend[ed] statute of limitations in legal matters.” Specifically, Executive Order 202.8 provides as follows:

“any specific time limit for the com-mencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the crim-inal procedure law, the family court act, the civil practice law and rules,

the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.”

How, if at all, does Executive Order 202.8 affect the retroactivity for calculating child support arrears if a party cannot file a modifi-cation petition? Will the trial courts treat the retroactive application date as a tolled “time limit” for the filing and, thereby, allow mod-ification of child support arrears that may accrue prior to a party’s actual filing for a downward modification?

With this uncertainty, what can we do to limit our client’s exposure? If an attorney is representing the support recipient, serve the modification petition, or, at a minimum, a notice of an intent to file a downward mod-ification application with the change of cir-cumstances. If there is not an attorney on the other side, provide the modification peti-tion or notice to the support recipient direct-ly via regular mail, certified return receipt, and e-mail, with read receipt, if possible. The idea is to provide notice as soon as pos-sible. Fortunately, the Suffolk County Fam-ily Court is accepting filings via e-mail at: SCFCremoteclerk@nycourts.gov.

Stay safe and healthy. We will all get through this together.

Note: Jeffrey L. Catterson is a partner at Barnes, Catterson, LoFrumento & Barnes, LLP, with offices in Garden City, Melville and Manhattan and practices primarily in matrimonial and family law. He can be reached at JLC@BCLBLawGroup.com and (516)222-6500.

Family (Continued From Page 7)

THE SUFFOLK LAWYER - April 2020 25

meet the requirements of 18 NYCRR 358-2.2 Often the IADs contain little or no clin-ical rationale for the denial or reduction and the advocate can argue they have not met the Mayer v. Wing requirement. Did the notice contain specified justification for reducing hours as required by MLTC Policy 15.09 and MLTC Policy 16.06?

The basis of most adverse determinations is “not medically necessary.” New York does not have a mandated definition of medical necessity, but a typical plan definition is that medically necessary means care that is effec-tive, appropriate and necessary to treat or di-agnose a beneficiary’s illness or injury. Did the plan state which medical documents it re-lied upon to make that determination? Argue the service is medically necessary for this particular individual; attack their determina-tion of lack of medical necessity. Is the ser-vice appropriate based on potential benefits and harm to the individual? Is the determina-tion based on appropriate scientific evidence, professional standards in improving out-comes? Did the plan fail to consider medical evidence furnished by the appellant? Contact the beneficiary’s provider and tell them you are assisting their patient with the home care benefits. Often, they are appalled at the de-nials and will provide the advocate with the requested documentation.

Did the plan fail to provide a full and fair review to the appellant? Argue that the de-cision is arbitrary and capricious without consideration of the individual’s needs ( 42 CFR Subpart D Section 438.210 states the plan “may not arbitrarily deny or reduce the amount, duration or scope of a required ser-vice solely because of diagnosis, type of ill-ness, or condition of the beneficiary”). Use the plan’s own records to appeal. Carefully review the UAS, which was performed by a registered nurse. The nurse often makes notes that are in direct contradiction to the plan’s

adverse determination. The internal appeal can be expedited/fast tracked if the benefi-ciary’s condition warrants and the plan will make a decision in 72 hours. For all other ap-peals, the plan has 30 days in which to make a decision on the appeal. The appeal cannot be reviewed by the same re-viewer who made the initial adverse determination.

If the MLTC then upholds their decision, they will send a Final Adverse Determina-tion. At this point, the bene-ficiary may either request a fair hearing (pursuant to 42 CFR Subpart F, Section 438.400) or submit an external appeal (pursuant to Article 49 NYIL) or choose to do both. The beneficia-ry has 120 days to request the fair hearing (previously it was 60 days). It must request the Fair Hearing within 10 days of the notice for Aid Continuing. The beneficiary has four months from the date of the FAD to request an external appeal.

External appealsExternal appeals are decided by a third-par-

ty independent reviewer, under contract with the state. The standard of review used for medical necessity is whether a health plan acted reasonably, with sound medical judg-ment, in the best interest of the patient. In-dependent reviewers are required to consider current research on evidence-based practice guidelines, nationally accepted clinical stan-dards and peer-reviewed medical literature, in addition to the health plan’s internal rules. An expedited review is available if the ben-eficiary’s condition is dire and if the treating physician attests that an expedited review is necessary. For an expedited review, a deci-sion is made in 72 hours and 30 days for a standard review.

Fair hearing or external appeal? Which should the advocate choose? Ob-

viously, if aid continuing is needed, a fair hearing must be requested within 10 days of the FAD. Alternatively, if the situation is dire, an expedited external appeal should

be submitted for a rapid re-sponse. But it is possible to receive a favorable external appeal decision within the timeframe to request a fair hearing, thereby obviating the need for a fair hearing. In the event the advocate files both an external ap-

peal and has a fair hearing, its decision will prevail. Therefore, if a favorable decision is obtained by the external appeal, then the advocate would withdraw the fair hearing request prior to a hearing. If the fair hearing is scheduled before the external appeal de-cision is issued, adjournment of the hearing may be considered.

External appeal is an important avenue for an advocate when the denial is based on “not medically necessary.” Availability of a re-view of the decision by an independent med-ical expert in a related field, not employed by the plan and a definitive medical standard make the external appeal attractive. In fact, in New York state, it is estimated that about 40 to 50 percent of plan denials are reversed on external appeal. Based on personal expe-rience, reversals are most likely higher for MLTC plan appeals. Additionally, decisions are made and received quickly — within 72 hours of an expedited appeal or 30 days of a standard appeal.

Next, consider what is being appealed and who has the burden of proof. The party try-ing to change the status quo has the burden of proof, meaning the responsibility to show the ALJ that the change is correct. For example, for a denial of a requested service, the appel-

lant has the burden of proof and the plan does not need to provide any evidence. For a re-duction or discontinuation, if the plan is in vi-olation of a regulation, a hearing may be the best venue for adjudication. When it is your client’s burden, you may have to think cre-atively about documents you need to support the case. An external appeal allows the advo-cate to cite to peer reviewed medical sourc-es (which may be submitted with the appeal), evidenced-based practice, the beneficiary’s specific needs e.g., progression of a chron-ic condition and any and all input from the treating provider. Additionally, if the internal appeal previously submitted was fully devel-oped, then the advocate usually only needs to make minor edits to specifically address the FAD. Usually though, the FAD is simply a rehash of the IAD.

Lastly, the process to submit an external appeal is straightforward and on paper only. The advocate will submit a consent, a HI-PAA release, the appeal, the FAD and any supporting medical documents. If an expe-dited appeal is requested, then a physician’s attestation is also submitted. The appeal is submitted to the Department of Financial Services through their website. Once a case number is assigned, the advocate can contin-ue to submit any additional documents. DFS will notify the advocate if they need any ad-ditional information. The decision is then sent out via email within the timeframe noted above.

Note: Denise Snow, JD, RN, Esq. is an as-sociate professor at Stony Brook University, School of Nursing. She is an adjunct at Touro Law where she teaches Health Law and is in private practice. She is a past co-chair of the Association’s Health and Hospital Law Committee. Her opinions and comments are her own. She may be reached at dsnowesq@gmail.com

FOCUS ON

Health And Hospital Law

SPECIAL EDITION

Family (Continued From Page 15)

Transactional (Continued from page 12)franchisee opportunities grows, loca-tions are always in demand. Any suc-cessful chain can always fill an empty store with a franchisee, so the poten-tial for many years of income exists or if the tenant allows the lease to expire, then your client is left with an improved ready to occupy structure.

• The rental schedule and remaining term are set for the next 10 years. The trans-actional attorney must carefully review both the remaining term and rental schedule, particularly when financing, as the loan term should at least be equal to the remaining GRL term, and lease payment equal to a certain percentage of the Debt Service (monthly mortgage payment). While the term and options to extend are usually straight forward, the rent schedule will either contain fixed, consumer price (CPI) or other in-dex to set rental increases or a sophis-ticated GRL may contain a rent “reset” clause. Where an underdeveloped area is now becoming desirable and proper-ty values rising, it may be advisable to negotiate GRL with a “reset” clause in

order to capture an appreciating proper-ty market.

• If financing is contemplated, it is impera-tive that the GRL provide for the tenant’s cooperation in executing a Subordination Non Disturbance Estoppel Agreement (SNDA). In fact, if the tenant is a national chain, it will likely have previously expe-rienced the financing routine and may in fact have its approved “form” SNDA for review in advance.

• The GRL should also obligate the tenant to any occupancy and or other use permits and to make sure same are current as any expiration of same could prove detrimen-tal to the business and the continued rent-al payment.

• One additional provision in the GRL, conditioned on any termination of the franchise agreement with the termination of any sublease. Thus, if the subtenant (franchisee) were to be terminated, the sublease would terminate and the proper-ty revert back to the tenant (franchisor). A strong national brand makes such a provi-sion a non-factor as the GRL remains in full force and effect.

• Lastly, the GRL obligates the tenant to occupy and maintain the property. It is likely the franchisor has constructed this facility as per the plans and specifica-tions used in their normal building prac-tices and that the tenant continues to be responsible for any building repairs, ren-ovations or other upgrades.

Obligating the tenant to maintain the structure and property lessens the need for a building inspection and translates into a PSA in which the usual representations as to me-chanical systems are nonexistent. After all, the operation of the property has been exclu-sively under the control of the tenant since day one so the usual plumbing, heating and electrical systems being in working order are conspicuously but not unexpectedly absent from the PSA.

Despite such limitations, when the trans-action is analyzed “unimproved” (remember the franchisor has built the structure) land is all that is being sold, so focusing on title, es-crow and conducting further due diligence is where additional efforts are concentrated. In furtherance of this effort, a review of zoning covenants and other planning board minutes

or conditions should be undertaken to ensure that a reverter of a non-permitted use or other forfeiture of a special permit does not jeopar-dize the continued operation.

Of course, not every property purchased is subject to the GRL of a nationally recognized franchisor, but conceptually, a steady stream of income is produced by a GRL. No need to worry about structural deficiencies, prop-erty insurance or municipal concerns, as with improved property. Just sit back and collect a monthly check, like an annuity.

Note: Irwin S. Izen, is a solo practi-tioner, concentrating on real estate, busi-ness and transactional law. He is the for-mer co-chairman of the Transactional & Corporate Law Committee and is the past co-chairman of the Suffolk County Bar Association Real Property Committee. He represents both individuals and small busi-nesses in purchase and sales, real estate matters and other transactions facing the entrepreneur and maintains his office at 357 Veterans Memorial Highway, Commack, New York 11725 and can be reached via email at Izenlaw@aol.com.

THE SUFFOLK LAWYER - April 202026

volves court attendance, delays, document execution and other efforts. Yet, all these bur-dens are dwarfed by the exposure created by element (3) of a self-help eviction.

Beyond element (3)’s express exposure, it’s incidental exposure creates additional risk. Under self-help eviction, there is addi-tional risk with respect to the disposition of the tenant’s personal property. A “landlord is responsible for the cost of storing the proper-ty for a reasonable period until it is claimed by the tenant.” Wilson v. CRL Mgm’t, Inc., 14 Misc.3d 231, (Rochester City Ct. 2006). Breaching this responsibility exposes the

landlord to claims of conversion and negli-gent bailment. In contract, a judicial eviction has less risk because where “an eviction is carried out ‘in accordance with a duly issued warrant,’ a landlord is not liable to a tenant for any damage alleged caused by the mar-shal.” Slepoy v. Kliger, (App. Term 2d Dep’t 2d, 11th & 13th Dists. 2009).

Setting aside all these learned risks, the greatest exposure from a self-help eviction is derived from the real world where unlearned participants have power and act unpredict-ably. This exposure was best articulated by the Appellate Term, in Martinez v. Ulloa, 50

Misc.3d 45 (App. Term 2d Dep’t 2d, 11th & 13th Dists. 2015). The Appellate Term ad-vised, in dicta, that “it would not be unusual or improper in appropriate circumstances for a tenant locked out of a premises to seek as-sistance from the police. There is an element of uncertainty associated with resort to self-help…” Should the police be involved, they may act in contravention to the nuances of the law and a landlord could find themselves arrested incident to this uncertain scenario.

Commercial landlords are in business and need to make informed business decisions. Counsel needs to strongly remind such busi-

ness clients of the maxim of ‘just because you can, doesn’t mean you should.’ This maxim is particularly true with respect to self-help evictions.

Note: Andrew M. Lieb is the managing attorney at Lieb at Law, P.C., a law firm with offices in Smithtown and Manhasset. He is a past co-chair of the Real Property Committee of the Suffolk Bar Association and has been the Special Section Editor for Real Property for The Suffolk Lawyer for years.

Real Property (continued from page 11)

when and how agencies can issue final leg-islative rulings. The court agreed, holding that the Agency failed to follow appropriate rulemaking procedure under the APA. In dic-ta, the court went further and suggested that the agency Guidance was erroneous, even if the rulemaking notice and comment statute had been followed.

CIOXX, and every other major record copying company, immediately began reject-ing the patient’s third party attorney requests for medical records under the Hi-Tech Act and sent the attorneys large bills for copying the records at the standard $0.75 per page (in New York) rate. As of this writing, HHS has not appealed the ruling.

So, what should personal injury attorneys do while we await a legislative solution to the CIOXX decision?7 It remains undisputed that individual patients have a right to an electron-ic copy of their medical records at cost. At-torneys should immediately revise their Hi-Tech request letters so that the request clearly comes directly from the patient. The request

should direct that the records be sent in elec-tronic format directly to the patient, instead of to the lawyer’s office. The added com-plication, of course, is that the patient then has to provide access to the electronic copy to his/her attorney. That is, however, a small price to pay to obtain access to the client’s medical records at an affordable rate while we await a more permanent solution.

Note: Michael Glass is a partner in the personal injury law firm of Rappaport, Glass, Levine and Zullo, practicing in the areas of medical malpractice and complex personal injury litigation.

Note: Christopher Glass specializes in plaintiff’s personal injury and medical mal-practice. He currently practices as an as-sociate with Rappaport, Glass, Levine, & Zullo, LLP.

1. See Pub. L. 104-191, title II, §§ 261, 264(a)-(b), 110 Stat. 1936, 2021, 2033 (1996)

2. “(A)ny fee that the covered entity may impose for providing such individual with a copy of such information…if such copy…is in electronic form shall not be greater than the entity’s labor costs in responding to the request for the copy.”  42 USC § 17935(e)(3)}.3. “[I]n the case that a covered entity (a medical health records provider) uses or maintains an electronic health record with respect to protect-ed health information of an individual . . . the individual shall have a right to obtain from such covered entity a copy of such information in an electronic format and, if the individual chooses, to direct the covered entity to transmit such copy directly to an entity or person designated by the individual, provided that any such choice is clear, conspicuous, and specific.” 42 USC Sec 17935(e) (1).  The regulation under the statute similar-ly stated: “If an individual’s request for access directs the covered entity to transmit the copy of [PHI] directly to another person designated by the individual, the covered entity must provide the copy to the person designated by the individ-ual.” 45 C.F.R. § 164.524(c)(3)(ii).4. Individuals’ Right under HIPAA to Access their Health Information 45 C.F.R. § 164.524, p. 165. Id.6. Administrative Procedure Act, 5 U.S.C. § 706(2).7. On the legislative front, HSS and CMS recently

issued regulations for public comment under the 21st Century Cures Act.  The Cures Act was signed into law during the Obama administration and was meant to accelerate research into cures for various illnesses.  Recent final rulemaking proposed by HSS and CMS under the Cures Act would require electronic medical record software companies to make their electronic medical re-cords software more compatible with one another and easier to download into a smartphone appli-cation for patient use.  Language in the proposed regulations much like language in the Hi-Tech Act, supports the argument that the patient can require that the electronic medical information be sent to a “designated third party.”  The pro-posed regulation does not specifically mention attorneys or attorney requests for records. If approved after public comment, the procedural grounds of the decision within CIOX Health LLC v. AZAR, Case No. 18-CV-00640 would arguably be overturned. However, the more substantive question of whether Department of Health devi-ated from its statutory authority, in promulgating a rule requiring records be directly sent to third parties (including attorneys) at the preferential rate, would still remain an open question. See https://www.healthit.gov/sites/default/files/cures/2020-03/ONC_Cures_Act_Final_Rule_03092020.pdf at p.954-955.

Transactional (Continued from page 16)

untested theory of what might or possibly or could have caused the fire was purely specu-lative and, thus, inadmissible.

Balura v Ethicon, was one of the many massive products liability multi-district liti-gations against the defendants who manufac-tured pelvic mesh products. In this particu-lar action, the plaintiff alleged that a surgical mesh manufactured by the defendants and implanted in her pelvis was defective and had caused injuries. The plaintiff intended to offer the expert testimony of Dr. Margolis, who was not the plaintiff’s treating physician and who otherwise did not examine the plain-tiff. Based on his review of medical records, depositions, and deposition exhibits, coupled with his training and expertise, Dr. Margol-is proffered that “to a reasonable degree of medical certainty, [the plaintiff]’s pelvic in-juries were caused by the defective [mesh].”

The defendants first argued that Dr. Mar-golis’s entire testimony should be excluded because the report was “replete” with cer-tain facts that were not documented in the plaintiff’s medical records and were not ver-balized by the plaintiff. While that fact was undisputed, the court pointed out that Dr.

Margolis did indeed describe many symp-toms that were so identified in the medical records or articulated by the plaintiff in her deposition — a fact which the defendants ig-nored. The court was not convinced that the inclusion of certain inaccurate facts “contam-inated” the reliability of Dr. Margolis’s entire opinion and diagnosis of the accurate facts, especially where the defendants did not chal-lenge Dr. Margolis’s methodology in arriv-ing at his opinion.3 The court went on further to state that it could not conclude that “the good data upon which Dr. Margolis based his report are simply inadequate to support the conclusions reached.” The court thus found that the defendants’ “inaccurate facts” argu-ment went to the weight of the opinion, rath-er than its admissibility; the defendants were free to minimize the weight of such testimo-ny by cross-examining Dr. Margolis about the inaccurate facts.

While the defendants failed to show that Dr. Margolis’s testimony should be exclud-ed in its entirety, they did sufficiently show that his opinion that alleged product defects caused the injuries should be precluded. Dr. Margolis sought to testify that the plaintiff’s

pelvic injuries were specifically caused by the defendants’ product. However, he offered no opinion or explanation as to how the al-leged defect caused the injuries. Lacking that explanation, the crux of the expert opinion was essentially that the “mere presence” of the surgical mesh caused the injury. That was insufficient to establish causation. The court concluded that Dr. Margolis could attribute the plaintiff’s injuries to certain “features” or “characteristics” of the product but he could not testify as to “defects” or opine that de-fects caused the injuries.

Interestingly, the court found that the lack of specificity in Dr. Margolis’s causation opinion did not warrant preclusion of his testimony in connection with the plain-tiff’s non-design defect claims. The plaintiff brought a claim for failure to warn. Because the “defect” in such a claim is the failure to warn itself, Dr. Margolis’s lack of specific-ity was immaterial. Moreover, the court de-termined that the expert’s opinion could help the jury understand the nature and extent of the plaintiff’s injuries, which was essential to her claim. The court similarly found that his testimony attributing the alleged injuries

to the product might bear on the plaintiff’s claim for punitive damages.

Note: Hillary A. Frommer is counsel in Farrell Fritz’s Estate Litigation Department. She focuses her practice in litigation, pri-marily estate matters including contested probate proceedings and contested account-ing proceedings. She has extensive trial and appellate experience in both federal and state courts. Ms. Frommer also represents large and small businesses, financial insti-tutions and individuals in complex business disputes, including shareholder and part-nership disputes, employment disputes and other commercial matters.

1. This case, cited at 16-CV-6845L (DGL)(MWP), 2020 U.S. Dist. LEXIS 27135 (W.D.N.Y. Feb, 18, 2020), is pending in the Western District of New York. 2. This action, case no. 3:19-CV-1372 (LEK/ML), 2020 U.S. Dist. LEXIS 27857 (N.D.N.Y. Feb. 18, 2020), is pending in the Northern District of New York. 3. The court cited to Amorgianos v Nat’l R.R. Passenger Corp., 303 F.3d 256 (2d Cir. 2002), in which the Second Circuit noted that not every mistake in an expert’s report renders the opinion inadmissible.

Commerical Litigation (Continued From Page 13)

THE SUFFOLK LAWYER - April 2020 27

LAWYER TO LAWYERIRS AND TAX ATTORNEY

To Advertise in the Su� olk-Lawyer call

631-427-7000

Melville OfficeOne or two large executive offices in law office suite.Possible overflow/referrals.Membership in building gym included. Coffee shop.Call Craig Robins, Esq. 516.496.0800.

OFFICE SPACE

Employment Law MediationMartin Gringer, Esq., one of the founders of Franklin, Gringer & Cohen, P.C., is pleased to announce his availability to serve as a mediator in employment discrimination cases and wage and hour disputes.Graduate of New York University School of Law, Field Attorney with the National Labor Relations Board, Region 29.Admitted to US Supreme Court; United States Court of Appeals for the Second, Third and DC Circuits.Extensive experience in all aspects of employment law litigation.Franklin, Gringer, & Cohen, P.C.666 Old Country Road, Suite 202, Garden City, NY 11530516-228-3131 • mgringer@franklingringer.com

CONSTRUCTION LAW LABOR & EMPLOYMENT LAW MEDIATION

www.LIConstructionLaw.com(516) 462-7051Offices Uniondale, Melville, Ft Lauderdale

• Construction Contract preparation, review and negotiation• Defective / Incomplete construction• Post-Sandy House Raisings• Non payment – Lien filings – Bond Claims• Lien Foreclosures• Union Hearings• Construction Arbitrations, Mediation, Litigation

IRS & NYS TAX MATTERS NYS & NYC RESIDENCY AUDITS NYS DRIVER'S LICENSE SUSPENSIONS SALES AND USE TAX

LIENS, LEVIES, & SEIZURES NON-FILERS INSTALLMENT AGREEMENTS OFFERS IN COMPROMISE

w w w . l i t a x a t t o r n e y . c o m • i n f o @ l i t a x a t t o r n e y . c o m 6 3 1 - 4 6 5 - 5 0 0 0

Tax Attorneys Representing Taxpayers in IRS & NYS Tax Matters

Download Our App Tax Helpline

DISABILITY CLAIMS

Long Island Business News is working tirelessly to keep our communities informed

as the effects of COVID-19 continue to impact Long Island and our world.

However, no one works harder than the men and women on the front lines — our doctors,

nurses, medical staff and first responders who risk their lives each day to protect our society. Thank you for your dedication to

your craft and your community.

You are our heroes.

LIBN salutes those employees operating under essential business guidelines from

restaurant staff, to mail couriers, to grocery employees, and every worker in between.

#LIBNCARES

libne-alert

OUR DAILY NEWS ALERT IS FREE.

libn.comSIGN UP NOW AT

Best practices for your business?A subscription to Long Island Business News

STAY CURRENT, SUBSCRIBE TODAY!Don’t miss another issue of the news and

analysis that affects you and your business.

Start your subscription by calling 1.800.451.9998 or go to subscribe.libn.com