Melito & Adolfsen P.C. 2026-06-02T03:52:08Z https://www.melitoadolfsen.com/feed/atom/ WordPress /wp-content/uploads/sites/1501413/2020/09/cropped-favicon-32x32.png by Louis Adolfsen https://www.melitoadolfsen.com/?p=47587 2026-02-23T23:36:44Z 2026-02-23T23:36:44Z

Brown v. Two Exchange Plaza Partners, 76 NY2d 172 (1990), that a finding of absolute liability under the Labor Law will not prevent an owner and GC from obtaining contractual indemnity as long as they are not found to any extent negligent. In a common situation where an owner and GC are held liable under the Labor Law solely by virtue of their status, the Courts have permitted judgment over in favor of these entities against the responsible contractor. Furthermore, where a broad-based indemnity agreement runs in favor of the owner and GC, the Courts have held that such liability against the third-party contractor is premised both by principles of common law indemnity as well as contractual indemnity. In such circumstances, the New York Court of Appeals has held in Hawthorne v. South Bronx Community Corp, 78 NY2d 433 (1991), that the CGL carrier and the worker's compensation carrier must share the loss equally, since it falls under each of the policies. If some percentage of negligence is found against the owner or GC in the action, and even assuming that most of the fault is assessed against the subcontractor, the provisions of GOL § 5-322.1 which prohibit contractual indemnification of a negligent party come into play. That is, if negligence on the part of the owner and GC completely negates the indemnity contract, then liability against the subcontractor will be premised solely on the principle of common law contribution. This liability would be covered solely under the worker's compensation policy since it is excluded under the CGL policy's employee exclusion. On the other hand, if partial contractual indemnity is permitted, i.e., contractual indemnity is allowed except for the portion of the owner or GC's percentage of negligence, then both the CGL policy and the worker's compensation policy would be triggered. See, Hawthorne, supra. The New York Court of Appeals addressed this issue in its recent decision in ITRI Brick & Concrete Corp. v. Aetna Casualty & Surety Co., 89 NY2d 786 (1997). In that case, the Court of Appeals held that broad-based indemnity agreements which purport to shift full liability from a GC found partially negligent onto a subcontractor are rendered void under GOL § 5-322.1. Thus, the Court of Appeals struck down the contractual indemnity claim by a GC found partially negligent and held that the GC was solely entitled to common law contribution from the subcontractor who employed the plaintiff to the extent of the subcontractor's negligence. The result of this holding was that the subcontractor's worker's compensation carrier was required to pay the entire third-party judgment against the subcontractor. In ITRI Brick, the Court of Appeals left open the issue of whether a partial indemnification agreement (i.e., an agreement that expressly provides for contractual indemnification except for any portion of the liability based on negligence) would be enforceable under GOL § 5-322.1. In so doing, the Court noted that the indemnification agreements at issue in that case did not provide for such partial indemnification and therefore were plainly invalid under the statute in view of the GC's negligence. However, the Court of Appeals strongly indicated in dicta that it seemed unlikely that such partial indemnity agreements would be enforceable. As always, the coverage determination will depend on an interpretation of the precise language used in the indemnity provision.  ]]> by Melito & Adolfsen P.C. https://www.melitoadolfsen.com/?p=47574 2025-09-09T20:19:52Z 2025-09-09T04:21:17Z

Lutecc, then considered the best restaurant in New York City. He next was at Tavern on the Green with Warner LeRoy.  Tony then worked at the Plaza Hotel for Ivana Trump as the food and beverage manager of the Plaza. This  was the equivalent of being the person who ran the hotel -- food and beverage was everything that made the hotel. I am a lawyer and ate weekly at Tony's last restaurant, T bar, which is across the street from where I live. I knew him but I was just a loyal customer until he had a New York Wage and Labor problem. I did my best to help him, and we became close friends. After a while we had dinner just about  every night for two years. You might say I got to know him and all about his life. Tony was a big Trump fan. I was not. But I was always interested to hear why Tony says something about a person because Tony always seemed to see the best in people. Unfortunately, Tony passed away more than a year ago. Tony had a friend, let's call him Little Tony, who worked as an assistant for Tony at the Plaza. They were very close, and I would sometimes have dinner with the two of them. I loved to hear their stories about restaurants,  people, and how to run a restaurant. One night, they were sitting and talking about working at the Plaza. I knew that Little Tony was not a fan of Trump and really did not like him at all. This was sometime after Trump’s first term. So, that night when they began to talk about working for Trump at the Plaza, I was eager to hear what they had to say. To my surprise, they both seemed to say that Trump was a very thoughtful and easy-going person. They discussed how Trump would often intervene in disputes between employees. They said he was good at mediating, getting people to get along, and stopping arguments. I came away with an impression of Donald Trump as a much more thoughtful, and kind guy, than how he presented himself as an in-your-face candidate for President. I was not surprised by what Tony said, but I was very surprised to hear that Little Tony also  had only pleasant things had to say about President Trump. I looked at the two of them and  said, “I do not understand. Tony, I know you think Trump is terrific, but Little Tony, you do not like him at all. But from what you the two of said, it sounds like he was a nice guy. Little Tony turned to me and said, look, I do not like him, but he was a good guy to work for, and he was a nice guy. I hope that President Trump will read this and learn what these two guys said about him because the President now seems so angry and bitter.  Perhaps, he is not really that way…. time made him that way, and he can go back to the way he was. Watching the conference with Volodymyr Zelenskyy, while it is portrayed as a big blow up and a fight, at times, Trump came across as genuinely trying to make things work out.  You could see Trump trying to talk to him one on one and, very sincerely get Zelenskyy to understand that he did not “have the cards” and  that Ukraine should make a deal. A Guy Walks into a Bar If you have worked as a bartender, you know a customer who is awful the night before in a crowd of people. The same customer might come in early the next afternoon for a drink before anyone else comes in. You might find that the same person is completely different, thoughtful, and easy to talk to, and not at all the way he was the night before in the crowd. You then learn that often a person is different in public than when that person is one on one. Let us go to another story about the old Trump. A woman I know was the manager of the clothing department in a New York department store. She told me that Trump would come there with his new wife and wait while she was trying on clothes. This same manager likes to go to Prize Fights. President Trump is also well-known for going to “the fights” and having a seat right up by the ring. But one night as climbed the stairs to use the restroom, Trump spotted this sales manager down the aisle in what is called “the nosebleed seats.” The once and future President worked his way across the line of people in the seats to come over and say hello to her. Sounds like Trump remembers the little people. Bill Maher’s Dinner Bill Maher had a private dinner with President Trump. Dinner was arranged by a friend and Trump readily accepted. Before the meeting Maher had his staff make a document that contained all the critical things that Trump said about him. Maher brought to the dinner and showed it to Trump, who smiled and signed his name to it. During dinner, they had a conversation in which Maher told Trump all the things he continued to disagree with in his administration. The President thoughtfully listened to him and thanked him for his thoughts. Bill Maher than reported about his dinner on his show and many people were critical of his having dinner with a man who says so many things that offend Maher’s liberal base. Maher felt that he was having a dialogue with the President. He felt that the President could listen and seemed not to be particularly disturbed to know that Maher disagreed with him. What are we learning from this? We learn that when you deal with someone one on one, they are a different person than when they are in public with other people whose approval they may seek. In other words, if a genuinely nice guy wants to appear tough whenever there is a crowd around, he feels the need to fulfill that role. But if that person has a quiet moment with a person, perhaps like Donald Trump and Bill Maher, they can have a dialogue and express their thoughts. A cynic would say that Trump was just manipulating Maher and maybe that is true. Another might say that anyone can seem like a nice guy at a one-on-one dinner. But so, what?  They had a fine time that night. And this encounter might yet have some effect on what is going on in America. What has how nice Trump was as an employer or at a dinner with a critic of him have to do with the Law? President Trump has made his anger and his bitterness at his prosecutions well known. It is commonly said that he is “weaponizing” the Department of Justice to go after those who prosecuted him. One can understand the President's bitterness. The Stormy Daniels case may have been legally sound as determined by the trial judge and an appellate court. But the way it came about makes one wonder about the reasons for the prosecution. Even lawyers who oppose Trump believe this may have been “selective prosecution.” Similarly, the case by New York’s Attorney General, while supported under New York law, as the appellate division recently held, resulted in a punitive award of damages which was struck down as punitive under the 8th amendment of the Constitution. One wonders whether someone can persuade the President that his understandable anger, and bitterness needs to be tempered. There is some suggestion that there is someone in the White House who might do that. A recent New York Times article, White House Counsel Eases Trump’s Path on Aggressive Agenda (September 2, 2025) describes “David Warrington, the top lawyer inside the West Wing, [who]focuses on “the art of the possible,” as one Trump adviser said.”  As the article states: “Mr. Warrington, the White House counsel described his role as informing the President about the legal landscape and providing guidance about potential consequences, including ways to reduce risks — but not making decisions for Mr. Trump.” Further, said Chris LaCivita, one of Mr. Trump’s top political advisers, commented: “Dave’s very straight to the point. But Dave also doesn’t lead with the answer, ‘No.’ Instead, it’s, ‘Let’s figure out what is in the art of the possible.” In conclusion, the article quotes Mr. Warrington’s view of himself. “A lawyer’s job is to provide advice and counsel,” he said, “and a client may take the advice or disregard it as the client sees fit.” Now let's get a little idealistic.    Let's accept that Donald Trump was a thoughtful and understanding employer. Let's say that the President can be reached in a one-on-one conversation at dinner. Let's even say that he's trying to do the right thing even if everyone doesn't agree with him. There are some of us who believe that we're on the brink of civil war. There are others who think the Civil War never ended. Perhaps there's another alternative for us Americans. In his First Inaugural Address on March 4, 1861, as the nation teetered on the brink of the Civil War, appealing for unity and a return to the nation's fundamental values, President Abraham Lincoln delivered this line; “The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this land, will yet swell the chorus of the Union, when again touched, as surely, they will be, by the better angels of our nature.” (Emphasis added). Let's have more of President Trump's critics take him out to dinner. Let's have more one-on-one conversations with the President. Can we all be touched by our “better angels?” As Joan Rivers said, “Can we talk?” Isn't it the job of lawyers to persuade those who disagree with them? I might know a lawyer who would like to have dinner with President Trump.      ]]> by Melito & Adolfsen P.C. https://www.melitoadolfsen.com/?p=47572 2025-09-02T03:08:39Z 2025-09-02T03:03:02Z

only by the prosecution.  The person being charged is not allowed to have his lawyer attend the grand jury proceedings.  Consequently, the grand jury of the person being presented for indictment does not hear anything from a lawyer for the accused.  What this means is that the Grand Jury is presented with “evidence” to find “probable cause” that is so one-sided that the Grand Jury is highly unlikely not to vote a "true bill," which is the phrase used for the indictment. This may seem rather unfair, and Judge Wachtler's expression that a grand jury would indict a ham sandwich, is intended to make that point.  It makes it like the grand jury has no common sense and will just indict anyone if the prosecution presents an understandable claim that that person committed a crime. This is as unfair to Grand Juries and the Prosecutor's as it is to ham Sandwiches. It is the process of a one-sided presentation and not the Grand Jury which creates apparent unfairness. Recently, the issue of the grand jury's ability to act based on the evidence presented by the prosecution came into focus in a different way.  When the President decided to send United States officers into the District of Columbia to assist in policing, many citizens were offended and upset by the decision.  One individual, who otherwise seemed like a normal person, was very agitated and took a sandwich and threw it at a federal officer, hitting him.  The reports are that it was a submarine sandwich, which was probably easier to use as a projectile than a ham sandwich.  But whatever it was, what he threw was something that we eat. The grand jury did not indict the man for throwing the sandwich.  Obviously, it also did not indict the sandwich itself, unlike the grand juries envisioned by Judge Wachtler in New York.  The reason is apparently that the jury did not believe that the man committed a felony when he threw the sandwich at a federal officer. Certainly, throwing an object at a person who is a law enforcement officer should be some kind of crime.  Certainly, it could be a misdemeanor, which does not require a grand jury.  But does it rise to the level of a crime for which a grand jury should indict and find the defendant may have committed a felony?  The answer is that this grand jury of the peers of the accused did not believe throwing the sandwich was an indictable offense.  This cuts against the comment by Judge Wachtler that a grand jury would indict a ham sandwich. In his illustration, the ham sandwich clearly did nothing.  Here, the individual charged did, in fact, throw a sandwich at a federal officer and strike him with that sandwich.  What this shows is that the grand jury system, composed of peers, American citizens from the local community, may not indict a person for what the grand jury saw as a political protest. The Grand Jury, like the accused, did not like the President's decision to send federal officers into the District of Columbia and have them walk about the streets and charge normal citizens with minor crimes that might otherwise not be charged by local police. Depending on your politics, you may think that this is a good thing that the grand jury did not indict, or you might think the grand jury is not following the law.  Whatever it is, it may be a new avenue to understanding how Americans will react to some of the things that the current government of the United States is doing.]]> by Melito & Adolfsen P.C. https://www.melitoadolfsen.com/?p=47561 2025-03-30T21:16:31Z 2025-03-30T21:16:31Z

Sea of Love, there is an intimate scene between a New York City detective, played by Al Pacino, and Ellen Barkin, who manages a shoe store in the Upper West Side of Manhattan.  He comes to her apartment. She thinks he is there because he is interested in a relationship.  He may be, but what she does not know is that he is also investigating a murder, and she is a suspect. She disappears into the bathroom. While she is out of the room, he sees her pocketbook on the floor and, when he looks in it, he sees a gun, and suddenly he thinks he may have found the killer. Then she comes out of the bathroom wearing only a towel.  She then whispers something in his ear, as she pushes him against the wall.  He says, what?  And she says it again, and he says, what?  And then she says it more loudly: "Tell me what you're looking for?"  She was not sure what his intentions are or what he is looking for from her. However, he was not willing to share with her what he is looking for --whether she is the killer. Once he saw the gun, he showed her what he was looking for -- the murder and he thinks it's her…so he arrests her! to know what happens what see the movie…. But her words are really the key.  It is everything in life. If you want to know what someone wants, you must ask.  She is trying to find out what he is looking for in her, and he is trying to find out whether she is the killer..  But the point is that she was trying to communicate, and he had no intention of communicating…. If you are trying to reach a resolution of a dispute, that is what you must do.  If you can get to the point where you feel enough confidence that you know the other side’s case, and you know your own case, you can just say those words --- “…tell me what you're looking for?  If you have done your homework, and the adversaries have done theirs, you both will show your cards and the case will settle. It is that simple.      ]]> by Melito & Adolfsen P.C. https://www.melitoadolfsen.com/?p=47559 2025-03-15T20:00:00Z 2025-03-15T20:00:00Z

by Melito & Adolfsen P.C. https://www.melitoadolfsen.com/?p=47556 2024-11-14T22:13:37Z 2024-11-05T19:55:48Z

by Louis Adolfsen https://www.melitoadolfsen.com/?p=47531 2024-06-06T19:55:24Z 2024-04-02T20:18:50Z

by Louis Adolfsen https://www.melitoadolfsen.com/?p=47526 2024-01-07T23:17:20Z 2024-01-07T23:04:36Z

Lawyers Should Use AI as a Tool (ChatGPT and Google Bard are quite impressive!) – Not To Misrepresent the Law As the Age of AI dawns, there is concern that it will take over much of the work we all do and make us less important and perhaps  useless. We even fear it will be intelligent enough to overpower us all. But let us not overreact. AI has been and continues to be useful. In our experience. ChatGPT and Google Bard provided accurate and useful answers to our legal questions. Even Google provided solid answers. They did not generally provide case law but sometimes, as the example discussed below illustrates, they found cases directly on point. For caselaw, Westlaw, Lexis and Google Scholar remain the best source. But would some lawyers try to use AI to deceive their opponents and the courts? Apparently so. Misuses of AI This seems astonishing.  It is hard to imagine that a lawyer would file papers that a computer had generated using ChatGPT or Google Bard, and never even bother to check the legal principles they wrote in papers filed with the Court. Well, it is happening. A New York Times article recently tells of a lawsuit where a lawyer had used ChatGPT to prepare a legal brief.  So, Have You Heard the One About the Lawyer Using A.I.? New York Times, May 29, 2023, Here’s What Happens When Your Lawyer Uses ChatGPT. “A lawyer representing a man who sued an airline relied on artificial intelligence to help prepare a court filing. It did not go well.” May 27, 2023, by Benjamin Weiser According to the article, when a defendant in a lawsuit asked a Manhattan federal judge to toss out a case, the lawyers on the other relied on contrary case law. But as the article explains: “There was just one hitch: No one — [not the defendant’s] lawyers, not even the judge himself — could find the decisions or the quotations cited and summarized in the brief. That was because ChatGPT had invented everything.” Michael Cohen Joins In More recently, a New York Times article entitled, Michael Cohen Used Artificial Intelligence in Feeding Lawyer Bogus Cases, by Benjamin Weiser and Jonah E. Bromwich, December 29, 2023, reports “Donald Trump’s former fixer had sought an early end to court supervision after his 2018 campaign finance conviction. He enlisted the help of Google Bard. The fictitious citations were used by the lawyer in a motion submitted to a federal judge, Jesse M. Furman. Mr. Cohen, who pleaded guilty in 2018 to campaign finance violations and served time in prison, had asked the judge for an early end to the court’s supervision of his case now that he is out of prison and has complied with the conditions of his release. The ensuing chain of misunderstandings and mistakes ended with Mr. Cohen asking the judge to exercise ‘discretion and mercy.’” Long before there was any thought of something called artificial intelligence or more specifically Chat GPT, or Google Bard, lawyers have been have been accused of misstating or distorting the law and sometimes even provided phony case citations.  This will be the new excuse for any misstatement of the law. The lawyer can say he used Chat GPT, and it made a mistake. Of course, that will not matter because that is never going to be an excuse for filing false statements of the law. Our experience with Chat and Google To evaluate the credibility of Chat GPT, we asked it to find us one of the cases cited in the airline and it responded that the case was bogus and may have been used in a legal proceeding in another matter. So, it looks like Chat GPT was re-educated. We also tried to figure out how you could get Chat GPT to produce false citations. We were unable to get it to provide much case law, but we believe that if you asked it to provide a brief on a subject and then cases to support the issue, Chat GPT or Google Bard might very well produce false citations. In other words, it may produce a brief stating what the user advises is the law and then fill in the case citations based on what the AI has been told by the person using it. But let's not be down on artificial intelligence, ChatGPT, Google Bard. Bing or Google.  Here is an example, a client asked a law firm whether insurance policies cover the cost of complying with an injunction. There is caselaw but it is complex and requires careful analysis of the cases one finds in Westlaw. Evaluating the AI Search Engines Out of curiosity, we punched in the issue of whether insurance policies cover the cost of complying with an injunction into Chat Bing. Guess what?  In a split second it produced the precise cases on this subject which were also found using Westlaw. More recently, we asked the same question of Google (not Google Bard). This the response: This measure is the appropriate remedy in any situation in which, if the defendant is not ordered to cease performing an action, the plaintiff will be unable to be properly compensated. Liability insurance policies typically provide coverage only for "damages," not for injunctive relief. We then asked Google Bard. It gave five answers which varied to provide more insight, The responses were "nuanced"… Whether insurance policies cover the cost of complying with an injunction is a complex question with no definitive answer, as it depends on several factors, including:

1. The specific wording of the insurance policy:

• Certain policies, such as some commercial liability policies, may explicitly exclude coverage for the costs of complying with injunctions. Others may define "damages" in a way that could encompass compliance costs. Carefully reviewing your policy's language is crucial.

2. The type of injunction:

• Some courts have distinguished between mandatory injunctions issued in response to legal claims seeking monetary damages and those seeking purely equitable relief, like correcting a wrong or preventing future harm. Coverage for complying with the latter may be less likely.

3. The underlying claim:

• The nature of the lawsuit that led to the injunction can also influence coverage. For instance, environmental cleanup costs ordered by a court might not be covered under a general liability policy, while legal fees incurred to comply with an antitrust injunction might be.

This is impressive. (Try the search yourself and you will see the full range of its answer.) Finding “Obscure” Phrases Let us try another example.  Chat Bing is widely available now.  A lawyer wanted to write something about a statement in an article that was never published in a journal.  It was simply a paper that was known internally in the industry where it was written.  The three words were "taking the suddenness out of accident."  Chat Bing could not find those words or that phrase and said that it did not exist as far as it knew and asked if another question might be more appropriate. Making the same search through Google, which does not purport to be a very sophisticated AI device but certainly one that all of us rely on all the time, produced a different result.  Google immediately found that phrase in a legal document which referred to the unpublished paper and the phrase, "taking the suddenness out of accident." Do not Fear AI – Master It So, what does all this tell us?  Stop worrying about AI or Chat GPT and start thinking about human beings and how they should manage these incredibly useful and sophisticated devices.  They are not going to take over the world.  And they certainly are not going to destroy it.  We can do that ourselves.]]> by Louis Adolfsen https://www.melitoadolfsen.com/?p=47511 2023-09-15T18:33:20Z 2022-09-05T16:55:14Z

Lord of War, portrayed by Nicholas Cage, was the subject of a U.S. Drug Enforcement Agency (DEA) "sting" operation designed to charge him with a crime he never committed. His lawyer, Roger Zissou, stated that the conspiracy with which Bout was charged involved no weapons, and no exchange of money and, in Bout's view, no crime. The proposed prisoner swap brings to the surface, once again, the DEA sting operations described in a New Yorker Magazine article. "The D.E.A. agents concocted a scheme…. Undercover operatives, posing as members of Colombia’s main rebel group, the FARC, would entice Bout, through intermediaries, with the prospect of a multimillion-dollar arms deal. The State Department designates the FARC as a foreign terrorist organization; because much of the FARC’s funds derive from the drug trade, the D.E.A. takes the lead on most cases related to the group. The undercover agents would insist on meeting Bout somewhere outside Russia and catch him on tape discussing a shipment of surface-to-air missiles to the FARC, for the purpose of killing American troops in Colombia."  Disarming Viktor Bout, the rise and fall of the world’s most notorious weapons trafficker. By Nicholas Schmidle (August 27, 2014) Whatever Viktor Bout may have done as an arms dealer, the thing that got him was the sting operation. The plan is remarkably simple. A meeting is arranged between the target, in this case Viktor Bout, and confidential sources referred to as "CSs". These individuals meet with the target and ask him if he will be willing to sell to a Columbian terrorist organization, FARC The conversations are very casual, and the target says something that sounds like he agreed to sell to a sale. The person who introduced the CSs to the target usually is someone involved in drugs who has committed a crime. Sometimes, someone who launders money is also involved. None of the conspirators need to know what the other person has done -- they just must be drawn together in what the government charges is a conspiracy. Once someone charged with illegal arms sales in a DEA sting operation hears about Viktor Bout, the target knows that he will never escape confinement. He knows he will be convicted of conspiracy to kill U.S. citizens and provide aid to a terrorist organization. One such individual was Ali Fayad, a Lebanese national, residing in Ukraine, representing the Ukrainian government, and selling arms legitimately sanctioned by the United States government. He sold arms to Iraq and to Syria. He too was drawn into a meeting with CSs, an individual named Fouzi Jabber who allegedly dealt drugs, and another named El Meribi. Together, they were alleged, like Viktor Bout, to have formed a conspiracy to sell anti-aircraft missiles to shoot down U.S. helicopters in Columbia and provide aid to the terrorist organization in Columbia, FARC. The difference between Ali Fayad and Viktor Bout is that Ali Fayad avoided imprisonment because of a prisoner swap. The meeting Ali Fayad had with the CSs, which resulted in the charges against in the United States, took place is Warsaw. He was lured to that meeting, after resisting, and urging the CSs to come to Ukraine to the showroom where they could see the armaments and buy them legitimately. Ali Fayad claimed he had no idea what FARC was and had no intention to sell to any terrorist organization. He was arrested and incarcerated in Prague for two and a half years. He had a Czech lawyer and was represented in the United States by Lou Adolfsen of this office. As his case began to move along on the calendar in the Southern District of New York, U.S. counsel for Fayad argued that he had no intention to enter any conspiracy. His lawyers met with the top level of the U.S. attorney’s office which rejected his arguments. In 2015, Mr. Fayad's Czech counsel went to Lebanon for purposes that he did not discuss with U.S. counsel. The Czech attorney, along with Ali Fayad's brother and three other Czechs accompanying them, travelled to the Beqaa Valley in Lebanon where they were kidnapped. Six months later, the word went out from unknown sources seeking a prisoner swap. The prisoner swap took place. The Czechs were released and returned to their homes. Ali Fayad was returned to Lebanon as was his brother. (He faced further legal troubles there and was represented by his U.S. counsel who succeeded in having him released). Shortly before the swap, the Czech Justice Minister, Robert Pelikan, overruled the Czech courts, and refused the requests for extradition of Ali Fayad and El Meribi to the United States. Consequently, regardless of any prisoner swap, the Czech government was not going to extradite Ali Fayad based on the DEA sting operation. On the other hand, Fouzi Jabber, who was believed to have committed a drug crime, was extradited to the United States. Thus, the case of Ali Fayad is a model for a prisoner swap of Brittney Greiner, a US basketball player, for Viktor Bout, a Russian arms dealer. These two people, who had nothing whatsoever to do with each other, somehow have now become especially important in each other's lives.]]> Louis Adolfsen https://www.melitoadolfsen.com/?p=47500 2022-08-11T19:06:22Z 2022-08-11T19:06:22Z

Erik Newberg et al. v Glenhaven Health Care Organization et al, Suffolk County Supreme Court (Reilly, J.), Index no. 033963/2010 (July 19, 2022). In Newberg, the gravamen of the complaint was that the staff at its facility was negligent and departed from good and accepted medical practice in its care and treatment of pressure ulcers suffered by the decedent. Plaintiff alleges that the staff at the facility, by failing to properly assess, diagnose, evaluate, supervise, and monitor the decedent, caused and exacerbated the condition of two pressure ulcers, a right leg pressure ulcer, and a Stage IV decubitus osteomyelitis and clostridium difficile, which required a vacuum-assisted (“VAC”) closure of the wound and a rectal tube. Jan Lorrie Newberg (“Lorrie”) was a patient at Glenhaven in 2008. Lorrie filed suit in against Glenhaven on allegations of improper treatment, professional negligence, lack of informed consent and violation of Public Health Law Section 2801-d. Jan Newberg passed away in 2013 and his son Erik Newberg (“Erik”) substituted in as administrator and personal representative of Jan’s Estate to prosecute this action. In the Decision rendered on July 18, 2022, the Honorable David T. Reilly of the Supreme Court, Suffolk County, granted Glenhaven’s motion for summary judgment. In a lengthy, well-reasoned opinion, Judge Reilly methodically laid out the salient facts including Jan Newberg’s multiple debilitating co-morbidities present upon admission to Glenhaven in November 2007. The Court placed special emphasis on Lorrie’s preexisting Stage 4 Hodgkin’s Lymphoma and fungal skin infections. The Court also recognized that Lorrie presented to Glenhaven with a Stage IV sacral skin ulcer over the left buttocks/sacrum and ulcers on the heel of each foot. The Court ruling further recounted Glenhaven’s varied efforts to address and treat Lorrie’s skin wounds during the admission. The Glenhaven interventions included multiple wound care assessments, prescribing a myriad of medications, instituting a low air mattress and debridement procedures. The Court found Glenhaven’s evidentiary submissions, most prominently the affidavit of expert Barbara Tommasulo, M.D., a board-certified internist/geriatric and wound care specialist, established prima facie that Glenhaven did not deviate from good and acceptable medical practice in the care rendered Lorrie. The Court also concluded the treatment Glenhaven provided Lorrie during the admission did not proximately cause any injuries Lorrie sustained. As Glenhaven met its initial burden for summary judgment, the Court turned to analyze Newberg’s opposition including the affidavit of medical expert. As readily evident in the written opinion, the Court effectively excoriated the expert affidavit as conclusory, speculative and without factual basis in the record. The Court zeroed in on the fact that the expert failed “to state what preventative care or therapies Glenhaven should have employed to prevent and treat Jan Newberg’s pressure wounds or how the treatment that Glenhaven did carry out failed to meet the accepted standards of care.” The Court further determined that the defense failed “to establish that any act or omission on behalf of Glenhaven, and not the natural progression of Jan Newberg’s medical conditions, was a substantial factor in producing the injuries sustained by plaintiff’s decedent (Lorrie).”  As a result, the Court granted Glenhaven summary judgment dismissal of Newberg’s nursing home malpractice cause of action. The Court likewise dismissed in full Newberg’s Public Health Law cause of action. The Court held Glenhaven’s forensic medical expert and the Facility records established no violation of any contract, statute, rule or regulation, and that Jan Lorrie was not injured by any such violation. Again, the Court emphasized that plaintiff’s opposition failed to identify any specific Glenhaven action or inaction that violated any regulation or statute that led to Lorrie’s injuries. Finally, the Court quickly dismissed plaintiff’s lack of informed consent cause of action for the simple reason that Lorrie signed consent forms to undergo all treatment deemed necessary while a patient at Glenhaven. Of course, the result Newberg does not mean that any bed sore case, if carefully investigated, will result dismissal of any claims that the nursing home deviated from the standard of care required of such facilities. What the case does show, however, is that simply the fact of severe bed sores does not mean that a plaintiff will be able to establish malpractice against the nursing home. As we have shown in Newberg, nursing homes are required to have care plans and carefully follow these plans under the supervision of a physician. There may be instances where the care plan was inadequate or was not followed properly. But the severity of the injury does not necessarily mean the deviation in the standard of care. Residents with comorbidities may not recover completely no matter how carefully they are treated by their caregivers.  ]]>