Greenberg LLP Blog Greenberg LLP Blog Wednesday, 21 February 2018 03:37:08 +0000 HD CMS en daily 1 Will the Dragon Now Be Slayed? Thu, 04 Jan 2018 12:00:00 -0500 This articles serves to illustrate the unintended and abusive use of Section 280E. 26 USC Section 280E statesNo deduction or credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business (or the activities which comprise such trade or business) consists of trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act) which is prohibited by Federal law or the law of any State in which such trade or business is conducted.  (Added Pub. L. 97-248, title III, §â€¯351(a), Sept. 3, 1982, 96 Stat. 640.) This articles serves to illustrate the unintended and abusive use of Section 280E, which like many legislative pronouncements, came about from good intentions, bus has morphed into a dragon of a tax provision that torments compliant cannabis businesses, and has long since strayed from its original objective.  Download the full published article: 26 USC SECTION 280E: WILL THE DRAGON NOW BE SLAYED? Potential Constitutional Implications of “Bifurcationâ€� in Personal Injury Cases? Mon, 08 May 2017 12:00:00 -0500 You are a plaintiff’s personal injury practitioner. You are in Queens Supreme Court, or possibly in Westchester or Kings County. You are a plaintiff’s personal injury practitioner. You are in Queens Supreme Court, or possibly in Westchester or Kings County. It’s 3:30 in the afternoon and the jury has just been directed by the court in a fairly typical traffic accident case to deliberate on liability—because your client’s case has been “bifurcated” and the jury must first return a verdict in your client’s favor on the liability issue before you can proceed to damages.Of course, from your jury’s perspective, this fairly common situation does pose a considerable personal decision. On the one hand, if your jury reaches a verdict finding no responsibility or liability on the part of the defendant in your case, each juror can then return to his or her normal personal lives, businesses, childcare responsibilities, etc.. However, if your jury finds the defendant liable, then each juror knows he or she can expect a whole new trial proceeding – which encompasses counsels’ opening statements, a brand new court’s initial charge, the introduction of further evidence likely now to complex and intricate expert medical testimony, as well as closing arguments, court’s instructions, and a whole new deliberative process in which you as a juror will now be obligated to participate. And, since each of your jurors cannot possibly know how long this second damages trial will take, each juror will likely envisage that the “damages phase” of the litigation might take even longer than the liability trail –considering the continual interruptions during the liability trial each juror has already experienced for the court’s other matters, trial counsels’ verbose arguments on evidentiary matters, as well as witness delay. In short, each juror also knows that if they find for the defendant on liability, their jury service ends and they go home. With a liability finding, each juror knows they can return to their normal everyday lives—lives which could include important, immediate personal responsibilities, critical business and financial decisions and/or serious childcare issues. Likewise, every one of your jurors also knows that a liability finding in favor or your plaintiff client brings with it their required participation in further, possibly elaborate, and complex judicial proceedings. In these circumstances, does your jury have a personal stake in the outcome of the liability portion of the trial? Can your jury be fair and impartial as to the contentions of the parties when a very real concrete impact on their lives necessarily rests upon their decision and verdict? And, if your jury does have a personal stake in the outcome of the liability trial, making it more personally beneficial to them to find it for the defendant, has your plaintiff client—in the event of a defendant’s verdict on liability—been deprived of his or her constitutional right to a fair and impartial jury? A recent decision in a court proceeding in the Supreme Court Westchester County suggests that the answers to these questions are that – absent consent on the part of the plaintiff – the generally accepted practice in the Second Department of presumptively trying all personal injury case as “bifurcated” – may pose an unconstitutional infringement upon the plaintiff’s right to a fair trial. See Morilus v. Nocco, Westchester Supreme Court, Index 64065/2015 (West. Sup. Ct. Trial Assignment Part 2017).  Well known to all personal injury trial practitioners is that trials of personal injury cases in the Second Department are presumptively “bifurcated”—the issue of liability tried first, and, only if a jury finds liability on the part of the defendant in the first trial, do the proceedings continue with a second full trial to determine the nature and extend of plaintiff’s injuries. But, does this general presumption withstand scrutiny either from a constitutional or legislative perspective?This presumption of bifurcation in the Second Department was at one time legislatively mandated. In 1979, the Second Department enacted §699 which stated affirmatively:  “[i]n all negligence actions to recover damages for personal injury, the issues of liability and damages shall be severed and the issue of liability shall be tried first. In exceptional circumstances, for reasons to be stated in the record, where, in the discretion of the judge presiding over the calendar part, good cause exists as to why such as a severance should not be granted; he may order a single trial on the issues of liability and damages.” In short, in 1979 the Second Department required that personal injury cases tried bifurcated unless that presumption was somehow shown as inappropriate – generally where plaintiff’s injuries had a direct evidentiary bearing upon the defendant’s alleged liability. And, that was the unvarying practice in the Second Department for seven years between 1979 and 1986. However, in 1986, §699 was expressly repealed and replaced by §202.42.(a) which states: “[j]udges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action.Yet, only in the Second Department (where §699 has been repealed since 1986) has there continued the regular day-to-day practice of proceeding ab initio with bifurcated trials in every personal injury case. No other Judicial Department in the State of New York follows this practice. Notwithstanding that all Judicial Departments in New York State, including the Second Department, are governed by 22 NYCRR § 202.42,only the Second Department continues with a presumption that can only be justified by a practice consistent with the ruling of proscribed §699. Resolving disputes with the jury is neither expeditious nor economical. In fact, it can only be seen as an administrative burden upon governmental services. No doubt, it requires a significant budget to support juror lists, panels, and administrative personnel. It requires physical space in governmental buildings for juror deliberations and voir dire proceedings, etc. And, the jury system delays and retards judicial outcomes and determinations; sometimes decisions that could be reached in days may take weeks, or even longer. It is no wonder that governmental authorities would be attracted to any superficial policy or idea that could somehow curtail the inefficient and expensive procedures inherent in the jury process.But, the New York State Constitution at Article 1 Section 2 guarantees as “inviolate forever” the right to a jury trial in all civil cases, unless waived. That constitutional guarantee seems perhaps somewhat inconsistent even with §202.42. It is certainly understood that no juror selected to hear or determine the facts of any civil controversy may have any personal interest or bias in the outcome of the case. In fact, it is universally accepted that revelation by any potential juror of such personal interest or bias during voir dire automatically requires that that prospective juror be deemed ineligible. Yet, in every “bifurcated” case, by virtue of the nature of bifurcation, every juror would seem necessarily to have such personal interest, bias, or stake in the outcome. If the juror reaches a verdict in favor of the defendant on the issue of liability, jury service ends; the jury is free to return to his home, back to his or her regular, and possibly critical, business, financial concerns, and other personal activities. If such a jury practice necessarily causes and creates inherent bias or personal interest on the part of every juror, it can certainly be questioned whether such practice passes constitutional muster. At this point, one case in the lower court has addressed this issue. Morilus, Id. Likely, other judges both in the Second Department, as well as in the other judicial departments within the State, may in the future seriously assess whether to “bifurcate” a personal injury trial does infringe upon the personal injury plaintiff’s constitutional rights.By: Bill Greenberg, PartnerThe Greenberg Law Firm2929 Purchase StreetPurchase, NY 10577(914) 694 1880 PRO FORMA ATTORNEYS AFFIRMATION IN SUPPORT OF MOTION FOR UNIFIED TRIAL Mon, 25 Jun 2012 12:00:00 -0500 Affirmation in support of motion for unified trial on grounds that bifurcation violates NY State Constitution PRO FORMA ATTORNEYS AFFIRMATION IN SUPPORT OF MOTION FOR UNIFIED TRIAL ___________, an attorney duly admitted to practice law before the State of New York , hereby affirms the following under penalty of perjury: 1. I am a attorney for the in the above-captioned matter. As such I am fully familiar with all issues pertinent to the instant application. 2. This case is scheduled for a trial on. This Affirmation is submitted in support of a motion seeking an Order of this court directing that this case be tried as a unified trial on both issues, liability and damages, and not as a bifurcated trial where these issues are separately tried. The ground for the motion is that the procedure by which a trial is set down, absent consent of all parties, as a bifurcated trial, separating the trial of the issues of liability and damages, violates the Constitution of the New York State. 3. Attached hereto as Exhibits are the following: Exhibit "A" Summons, Verified Complaint, Verified Answer, and Bill of Particulars; etc. . 4. The trial should be a unified trial as plaintiffs do not consent to a bifurcated trial, and absent consent, an order directing a bifurcated trial violates the New York State Constitution. 5. Section 202.42 "Bifurcated trials" is a regulation enacted by order of the Administrative Board of the Courts ("Administrative Board"), comprised of the Presiding Justices of the four Appellate Divisions and the Chief Judge of the Court of Appeals effective February 9, 1987. There is no case in New York which has considered whether this regulation, adopted in 1986 by an administrative board, offends the New York State constitutional guarantee for civil trial by jury or the fundamental rules of due process. Nor does there exist any commentary by the Administrative Board analyzing this issue. 6. Article I, Section 2 of the Constitution of the State of New York ("Section 2) guarantees as "inviolate forever" the right to a jury trial in all civil cases, unless waived. When the New York Constitution was last substantively amended in 1938, the courts had no power to require over objection of the parties that a case be bifurcated. So the question that arises is whether the administrative regulation Section 202.42-by which judges are "encouraged" to order such proceedings, notwithstanding objection by any the parties-offends Section 2. Common sense compels the conclusion that Section 202.42 does so offend. 7. Inherent in the guarantee of a civil trial by jury is the absolute assumption that no juror selected to hear and determine the facts of any civil controversy shall have any personal stake in the outcome of the case. In fact, revelation by any potential juror of such personal stake during voir dire requires that such juror be deemed by the court ineligible to hear the case. Yet in every bifurcated case, by virtue of the nature of bifurcation, every juror does have a personal stake-and in many instances-a very substantial and crucial personal stake in the outcome. For if the juror arrives at a verdict in favor the defendant on the issue of liability, that verdict ends the juror's jury service. The juror is free to go home back to his or her normal regular lives and business, free to care for their minor children at home, or deal with important and pressing business and professional obligations at their office, etc. Yet, the same juror knows, as he must be told at the outset of the proceedings, that if the juror arrives at a verdict in favor of a plaintiff, in a personal injury case particularly, the juror's jury service does not end. But it must continue through a second phase of a the trial-in reality a new separate and complete trial procedure with openings, evidence on both sides, closings, new jury instructions and a whole new period of deliberations-where the juror is required to attend thus being unable to return to his or her normal lives. In short, it is hard to conceive of a more impactful, specific and inarguable personal stake then the ability to walk free of further obligation to serve simply by finding in favor of one party rather than another. Such inarguable personal stake offends Section 2 and thus renders unconstitutional court regulation Section 202.42. In which event, the instant motion ordering a unified trial herein should be granted. _______________________ Attorneys name CPLR 3122-a-- Facilitating Proof of Injuries Wed, 20 Jun 2012 12:00:00 -0500 The issues of authenticity and hearsay as pertains to the admissibility of domestic hospital records are dealt with by CPLR Sections 4518 and 2306. The issues of authenticity and hearsay as pertains to the admissibility of domestic hospital records are dealt with by CPLR Sections 4518 and 2306. Those provisions specifically authorize receipt into evidence of domestic hospital records which have been properly "certified" and subpoenaed to a New York Supreme Court. In short, the provision dispenses with the requirement of a foundation otherwise required for business records-the testimony of a custodian of the record that it was made, kept and maintained in the ordinary course of business of the hospital facility. See 4518 (c); 2306. Even if the medical facts within the domestic hospital records constitute medical opinions, courts readily admit them as evidence, provided they are "certified " and transmitted pursuant to CPLR 4518(c) by the medical institution directly to the courthouse as subpoenaed records. However, not all pertinent medical evidence in litigation is contained in domestic hospital records. In the era of medical specialization and a transient population, the client is likely to have important medical information included within office records of multiple physicians in a plethora of specialties located both in and out of New York State, as well as within the records of foreign hospital institutions. Thus to establish a cause of action at issue, the practitioner frequently finds it necessary to prove myriad medical facts and medical opinions set forth in physician's office records and out-of-state hospital records-hopefully in an efficient and cost conscious manner. The only strategy which guarantees the admission of such medical facts and opinions is to call the doctor or his records custodian as a trial witness in order to lay the business record foundation-often times not a very practical or easily accomplished strategy.Of course, the CPLR at Rule 3122-a does outline steps to follow so that such records can be admitted into evidence without live testimony from a custodian: (1) subpoena the records to the courthouse; (2) ensure that the certification accompanying the records is in the form of an affidavit subscribed and notarized which attests (a) that the affiant is the authorized custodian of the records, (b) that the records are accurate copies of the originals and are a complete set and (c) and that the records were made in the regular course of business by the entity which made and kept the records also in the business' regular course; (3) give notice of intention to offer the records at trial at least 30 days before trial to the practitioner's adversary ("notice of intention")-and ensure that the adversary is also given an opportunity to inspect the records. If adversary counsel fails to object in a timely fashion, it is presumed that the records satisfy CPLR 4518 and the records will be admitted as evidence unless some explanation-not a likely occurrence-is made by adversary counsel to justify the failure to have made timely objection. See e.g. Zweng v. Debillis & Semmens, 22 A.D.3d 845, 803 N.Y.S.2d 681 (2 Dept. 2005). A practical method to satisfying the disclosure obligations of CPLR 3122-a -particularly in this age of email and the internet-is to email as attachments copies of the records at issue to adversary counsel along with the requisite notice of intention, at least 30 days prior to trial. Of course, the proponent must also ensure that the records are in fact subpoenaed to the Supreme Court, along with the appropriate certifying affidavit by the duly authorized records custodian. In the case of records subpoenaed from out-of-state providers, production of the necessary records via certification requires the out-of-state facility's cooperation, as out-of-state providers are not actually subject to the subpoena power of a New York court. This may require direct contact with the physician or institution involved to ensure that the appropriate certification accompanies those records that are in fact transmitted to the Supreme Court . Absent cooperation from the out-of-state provider, the only other option available would be to seek an open commission in accordance with CPLR 3108. For the personal injury practitioner, Section 3122-a (c) is particularly significant. The office records of all treating doctors, even those containing medical opinions of the treating physician are admissible provided such records were in fact made for purposes of diagnosis and treatment-the "business" of the medical practitioner. See e.g. Wilbur v. Lacerda, 34 A.D.3d 794, 826 N.Y.S.2d 135 (2 Dept. 2006).But what of the records contained within the office records of the treating physician arising from other sources, such as for example, MRI reports, lab results, CAT scan reports and medical reports of other physicians? Can such records likewise be admissible through the use of the CPLR 3122-a? Independent records that have not been made by the physician's office require independent certification from each facility. As such, a provider's certification extends only to those records created and maintained within that specific provider's office and any records from other facilities that are collected by the provider throughout the course of treatment will fail the test for business records set forth at CPLR 4518, and are therefore not admissible-even though the required CPLR 3122-a foundation were to have been faithfully laid. Thus, the practitioner should endeavor to serve subpoenas on all record makers and give adverse counsel notice of the intention to offer them---following up with the records custodians to ensure that the appropriate certifying affidavit have been prepared and forwarded to the Supreme Court along with certified copies. Then, the entire medical history at issue may be assessed by the jury.  William Greenberg is a partner of the Westchester County law firm The Greenberg Law Firm. He can be contacted at Rebecca Greenberg is a partner of The Greenberg Law Firm. She assisted in the editing and research of the article. Calendar Control 2011 -- Prejudice to the Defendant Thu, 15 Dec 2011 12:00:00 -0500 It has always been the case that prudence required mindfulness of those calendar control mechanisms available to the judiciary to remove and dismiss cases. It has always been the case that prudence required mindfulness of those calendar control mechanisms available to the judiciary to remove and dismiss cases. But now a common law doctrine has apparently emerged about which the vigilant practitioner should be cognizant-laches. This common law approach adds to the arsenal available to courts to dismiss cases which may crowd dockets. A quick review of the existing statutory mechanisms is useful: CPLR §3126 (dismissal with prejudice as a sanction for contumacious and willful failure to comply with discovery obligations); CPLR §3216 (dismissal for failure to resume prosecution after receipt of a 90 day notice or its equivalent); CPLR § 3404 (dismissal for failure to restore to the trial calendar a post note of issue case within one year of its removal); and Uniform Rule 202.27 (dismissal for failure to attend a regularly scheduled court appearance). These mechanisms are indeed compelling tools with which the court may dispose of many sluggish cases complicating its workload. But, what if the subject case's procedural history does not fall under the neat parameters for dismissal premised upon recognized statutory authority? Apparently, the court may find within its inherent authority the power nevertheless to dismiss on the common law grounds of laches. Rosenstrauss v. Women's Imaging Center of Orange County, 56 A.D.3d 454, 866 N.Y.S.2d 759 (2nd Dept. 2008). In Rosenstrauss the court found that-even though the case was a pre-note of issue case and not subject to dismissal under CPLR §3404 as determined by the lower court-the lower court's ruling would not be disturbed because the plaintiff had waited eleven years before moving to vacate the erroneous dismissal order. Additionally, none of the other statutory mechanisms allowed for dismissal. There was no failure to attend a scheduled court appearance, no 90 day notice or its equivalent had been served upon plaintiff's counsel, and there was no issue of any willful failure to participate in discovery. Despite the fact that the lower court's order in Rosenstrauss did not conform to the statutory requirements under CPLR §3404, and the laches analysis adopted in Rosenstrauss seems somewhat inconsistent with the Court of Appeal's opinion in Chase v. Scavuzzo, 87 NY 2d 228, 638 NYS 2d 587 (1995) (courts without power to dismiss for general delay), the Rosenstrauss court nevertheless determined that the laches doctrine prevented the plaintiff from vacating the lower court's order of dismissal. The laches defense is not traditionally used as a mechanism for calendar control; the defense is generally found as a defense to an equitable cause of action requiring a showing of prejudicial delay. See Siegel's Practice Review at 203 (2008). But, where there has been an inordinate delay in prosecution-such as eleven years as was the case in Rosenstrauss-the doctrine seems now to be an arrow in the court's quiver available to assist in dismissal of mired cases. See Arroyo v. Board of Education, 25 Misc. 3d 1229(A), 906 NYS2d 770 (Sup. Ct. Kings Co. 2009); Pickett v. Federated Department Stores, Inc., 79 AD3d 1116, 914 NYS2d 636 (2nd Dept. 2010); Rodriguez v. Mitchell, 81 AD3d 624, 916 NYS2d 784 (2nd Dept. 2011). In Arroyo the plaintiffs waited thirteen years before seeking to restore their case, which was dismissed after a failure to attend a regularly scheduled court conference. The court restored the case pursuant to CPLR 5015. See e.g. Campos v. New York City Health and Hospitals Corp., 307 AD2d 785, 763 NYS2d 292 (1st Dept. 2003). Upon restoration, the plaintiffs' case in any event was dismissed on grounds of laches; the court resting its decision upon the prejudice to the defendant arising from plaintiff's inordinate delay in prosecution. Because the plaintiffs had failed to file a note of issue for two weeks after having been ordered to do so, the lower court dismissed the plaintiffs' case-but granted a motion to restore the case to active status eight years after the dismissal. In Pickett, the Second Department reversed the lower court and dismissed the complaint on laches grounds, although there was no basis to dismiss under CPLR 3216-90 days having not elapsed between the lower court's order to file the note of issue and the lower court's order of dismissal. See Bowman v. Kusnick, 35 AD3d 643, 827 N.Y.S.2d 258 (2nd Dept. 2006) (CPLR §3216 may not be invoked as grounds for dismissal unless 90 days has elapsed from the date of the preliminary conference order.)Ten years after the court marked a plaintiff's case "inactive pre-note", the plaintiff moved to restore the action to active status, but plaintiff's motion was denied on laches grounds, the court having found that plaintiff's inexcusable delay had prejudiced the defendant. Rodriguez, id. The emergence of laches as a subjective device for calendar control is a development of which the practitioner should be aware. The long dormant and "comatose " case, while not technically subject to dismissal under existing objective statutory mechanisms, may no longer survive the court's subjective assessment that there has been laches in the prosecution-with resulting prejudice to the defendant. In which case, that court may nevertheless dismiss even though there are no grounds for dismissal under CPLR §§ 3126, 3216, 3404 or Uniform Court Rule 202.27. To date, dismissal for laches has been invoked only for cases inactive for at least eight years. Bowman v. Kusnick, id. But, the laches ground for dismissal has now apparently entered the court's arsenal and is apparently available as a ground to dismiss older relatively inactive cases. In which case, the practitioner may expect opposing counsel to routinely urge dismissal on laches grounds-whenever the defendant can demonstrate that a delay in prosecution has caused prejudice to the defendant. In short, prejudice to the defendant occasioned by the delay of prosecution-even without resort to a 90 day notice pursuant to CPLR 3216-may become a basis for dismissal. Only time and future court decisions will tell whether the laches ground for calendar control will expand and become a routine basis for dismissal. Until then, the practitioner should be mindful not allow any unwarranted delay to impede prosecution. For even if the statutory grounds for dismissal do not apply, the practitioner may be vulnerable to a dismissal on laches grounds if the defendant can show prejudice arising the practitioner's unwarranted delay in prosecution. Bill Greenberg is a partner of the Westchester County law firm The Greenberg Law Firm. He maybe contacted at Rebecca Greenberg is a partner of The Greenberg Law Firm. She assisted in the editing and research of the article.