Miscellaneous

September 28, 2018

New York Sues Maker of OxyContin Drugs

New York State joined a growing list of states this month when it sued Purdue, the maker of OxyContin, for the company’s role in creating the current opioid crisis. According to New York State, Purdue marketed the prescription pain medication as a more effective and less addictive solution to chronic pain – despite possessing evidence suggesting the opposite. The resulting crisis resulted in the death of 3,000 New Yorkers just last year. Overall, the Centers for Disease Control and Prevention estimates that opioids caused 49,000 Americans deaths nationwide.

According to the lawsuit filed by the New York State Attorney General Barbara Underwood, a statewide investigation found that Purdue’s deceptive marketing played an “important role” in the overprescribing of opioids. According to the Wall Street Journal, more than 75 percent of opioid-related deaths in New York were caused by prescription pain medication, including OxyContin. In other instances, many patients become addicted to opioids through a legitimate prescription and then “graduate” to heroin for its cheaper and stronger high. New York is suing for an unspecified amount and states the money will go towards funding rehabilitation and prevention programs, with Attorney General Underwood saying, “Our work won’t stop with this lawsuit.”

August 25, 2018

New York Adopts “BSN-In-Ten” Law for Nurses

by Gallivan & Gallivan

New York became the first state in the country requiring all nurses to complete a four-year degree program, according to Nurse.com. The new law, which the American Nurses Association has lobbied for since 1964, marks the standardization of nursing education across the state. Under the new law, which took effect in January 2018, all nurses will have up to ten years from receiving their nursing license to complete a Bachelor of Science in Nursing. If a nurse fails to attain the four-year degree within the allotted decade then they will be stripped of their nursing license unless “extraordinary circumstances” can be shown.

The new law will not apply to currently licensed registered nurses in the state, students enrolled in a nursing program in New York State, or any individuals who have already been accepted to nursing school in New York State. In common parlance, these groups will be “grandfathered” in to the policy. For anyone that starts their nursing career or applies to a nursing school starting in 2018, the new law will apply. Under the previous law, nurses can become licensed in New York after completing either a two-year associates degree or a four-year bachelor’s degree and then passing a state licensing exam.

May 21, 2018

First Revenge Porn Lawsuit Filed in New York City

by Gallivan & Gallivan

A health professor at the City University of New York (CUNY) filed the first civil lawsuit under New York City’s “Revenge Porn” law, which was passed in November last year and went into effect in February. The professor, Dr. Spring Chenoa Cooper, alleges that her ex-boyfriend shared explicit images and videos of her online and linked the intimate material to her CUNY faculty page, in an attempt to harass her and destroy her career.

In her lawsuit, Cooper alleges that after ending a “tumultuous” relationship with her ex-boyfriend, Ryan Broems, in November, he began harassing her for weeks online by asking her invasive and inappropriate questions about her relationships and sex life. After blocking his text messages and social media accounts, she received a message from an unknown Tumblr account that demanded she provide intimate details of her life or else intimate pictures and videos of her would be posted online. After refusing the Tumblr user’s demands, intimate videos and pictures of her appeared on the user’s page. In the lawsuit, Cooper alleges that the Tumblr user is her ex-boyfriend Broems because he is the only person who received the explicit photographs and videos.

March 10, 2018

Lawsuit: Port Authority Secretly Recorded Medical Exams

by Gallivan & Gallivan

A Port Authority employee filed a lawsuit alleging that she was secretly videotaped during a medical exam. The employee, Charlene Talarico, said the incident happened during an exam in August 2016. Talarico is suing for unspecified damages, according to the lawsuit filed in a Manhattan federal court last week. Alleging emotional distress, pain and suffering, and other unspecified damages, Talarico is also asking the court to certify a class action on behalf of approximately 8,000 employees whose medical exams may also have been secretly recorded. According to the lawsuit, the Port Authority of New York and New Jersey covertly records employees receiving medical care at all of its facilities.

Talarico, a senior administrative secretary, claims she was recorded without her permission while having her hand examined at the Port Authority’s medical office on Park Avenue. While Talarico remained clothed for the entire exam period, the examination area had the same “privacy curtain” typically used in hospitals and doctor offices. Therefore, it is likely the video cameras set up in the examination areas also caught other patients while they were undressed. If Talarico’s allegations are true, the covert video recording would be a violation of the United States and New York constitutions – specifically, the federal healthcare privacy laws and freedom from unreasonable search and seizure, according to the lawsuit. Continue reading

November 16, 2017

Injured at Rap Concert, Fan Sues Rapper, Venue, Management Company, and Security

by Gallivan & Gallivan

After being pushed off a third-story balcony and then dragged on stage at a concert, a young fan is now paralyzed and suing the rapper and venue for his injuries. The 23-year-old fan, Kyle Green was attending a Travis Scott concert who is known for his over-the-top antics at concerts. This charged and amped-up atmosphere has led to Travis Scott becoming one of the most sought after artists, but is now being blamed for forcing Green to spend the rest of his life in a wheelchair.

While attending rapper Travis Scott’s concert at Manhattan’s Terminal 5, Green says he was pushed off the third-floor balcony. Then, according to video from the night, Green was lying still on the floor when Travis Scott told the security guards that surrounded him to, “Pick him up. Put this ring on his finger.” The security guards then picked up the young man, who had just fallen three stories, without a neck brace or backboard, and amazingly took him to the rapper’s stage. Continue reading

October 10, 2017

New York’s Paid Family Leave Law Finally Goes Into Effect in January 2018

by Gallivan & Gallivan

Beginning in January 2018, New York’s Paid Family Leave Law (PFLL) will provide all New York employees with 50 percent of their wages for eight weeks while they are taking off work to care for a loved one. The new law, passed by Governor Andrew Cuomo, will gradually increase the employee’s reimbursement until it pays out 67 percent of an employee’s wages for a 12-week period in 2021. The new law will be fully funded through payroll tax deductions.

Advocates of the new law hope that the PFLL will address the “gaps” not covered by the Family and Medical Leave Act (FMLA), a federal law that also applies to family members taking time off from work to care for a sick loved one. There are several notable differences between the federal law and New York’s. First, the FMLA only applies to employers with over 50 employees in a 75-mile radius, the PFLL applies to all employers in New York. Second, the PFLL extends to domestic partnerships. Third, unlike the FMLA, New York’s Paid Family Leave Law does not apply to employee’s who take time off to care for their own health problem. Fourth, the FMLA requires employees to work for 12 months to become eligible for benefits while the PFLL only requires employees to work for 26 months. Last, the most important difference is that the PFLL provides for compensation during the employee’s absence while the FMLA is typically unpaid. When both New York’s PFLL and the FMLA apply to an employee’s leave, the employee’s paid leave with both benefit programs will apply simultaneously as long as the employer provides the proper notice required under the FMLA. Continue reading

April 18, 2016

Woman Secretly Records Her Surgery — Shocked at What She Hears

by Gallivan & Gallivan

Ethel Easter of Harris County, Texas was wary of the doctor who would be performing a hernia surgery after some harsh comments he made to her. Easter was told by her doctor she would have to wait two months before her surgery could be performed. She pleaded that she could not wait that long as she was terribly ill. The doctor responded, “Who do you think you are? You have to wait just like everybody else.” After this comment, Easter decided to secretly tape record her surgery. Easter placed a small recorder in her hair extensions before entering surgery, when she played the tape back she was shocked at what she heard.

The surgeon began to criticize her immediately after she went under stating, “She is a handful.” He continued to mimic her, saying that she would contact a lawyer and file a complaint for having to wait longer than two weeks to book her surgery; the comments were followed by laughter of other staff in the room. She heard a female voice make fun of her belly button and a male voice saying “Precious, meet Precious.”; Easter believes this is in reference to actress Gabourey Sidibe’s overweight character in the movie Precious. Continue reading

March 2, 2016

New York Court Denied Defendant’s Request for “Independent” Medical Examination after Defendant Missed Deadline by One-year

by Gallivan & Gallivan

As part of the personal injury civil system, discovery is a phase in litigation that prevents unfair surprises for all parties to a cause of action. The court system, including Federal and State courts, require disclosure of all relevant and material facts that pertain to the case, to be “disclosed,” to the other side prior to trial. This includes document production, depositions, interrogatories, and when necessary, “independent” medical examinations.

An independent medical examination, also known as an “IME,” is a discovery device, which allows a defendant in personal injury cases, to obtain an assessment of plaintiff’s injuries from a physician that has not previously treated the plaintiff. This discovery device, allows the defendant to obtain what is supposed to be an objective and neutral evaluation, rather than documents that have been produced by plaintiff’s personal health-care providers and/or physicians. Parties must comply with specific rules and deadlines in order to take advantage of such resources. See, NYCPLR §3121(a): Physical or mental examination. “IME” is a term of art. IME doctors are hired by the defendants and their insurance companies. Therefore, there is a built in incentive for IME doctors to support the defense. In many plaintiffs personal injury offices, these examinations are referred to as Defense Medical Examinations or “DME’s”.

January 26, 2016

Patron Punched By NY Bouncer Will Get Trial

by Gallivan & Gallivan

Darin Hill, security guard at a nightclub in New York City, allegedly caused a patron, Plaintiff Fauntleroy, to suffer serious personal injuries during an altercation. Mr. Hill was employed by a security company, All Season Protection of NY, LLC. The operator of the nightclub, Sutol Operating Company, hired All Season Protection to provide security at the establishment. Mr. Hill, All Season Protection and Sutol Operating are all defendants in the lawsuit filed on behalf of Plaintiff Fauntleroy. Mr. Hill claimed he punched the patron in order to defend himself.

All the defendants made motions for summary judgment asking the Trial Court to dismiss the case. The Trial Court ruled in favor of the defendants and the case was dismissed. Plaintiff appealed. In Fauntleroy v. EMM Grp. Holdings LLC, 133 A.D.3d 452, 452-53, 20 N.Y.S.3d 22 (N.Y. App. Div. 2015) , the Appellate Division, First Department, reversed the Trial Court’s decision. As such the case will be placed on the trial calendar in Bronx County Supreme Court.

The Second Department Court found that issues of fact existed regarding whether Defendant Hill was justified in punching the plaintiff given the preceding events, and whether the punch was excessive under the law. The case will also proceed against both Hill’s employer, All Season Protection and the operator of the establishment, Sutol. Under the law of vicarious liability an employer can be held responsible for negligent or even intentional acts of its employees IF the employees are acting within the cope of their employment or in furtherance of the business. Here, the use of physical force as a security guard or bouncer at a nightclub could certainly be considered within the scope of Hill’s employment. For these reasons, the Appellate Court reasoned that a jury should decide these questions.

October 26, 2015

Recent Appellate Decision Comes Down In NYC Bar Fight Case

by Gallivan & Gallivan

On November 27, 2007 the decedent (deceased) attended a party at Duvet Restaurant and Lounge, a restaurant and night club located on W 21st Street in Manhattan, where he was fatally stabbed. The decedent was stabbed outside the night club by another patron as the result of a fight that started inside the club. The decedent was stabbed with a knife that the defendant was able to bring into the club. The lawsuit was bought by the administrator of the decedent’s estate against the perpetrator of the crime as well as the establishment (bar/restaurant). An estate administrator is a person who has been appointed by the court to administer the estate of a person who passed away with no will.

The New York Supreme Court, Appellate Division, Second Department recently amended an order that denied plaintiff’s motion for summary judgment in this wrongful death suit.