NY Governor Suspends Statute of Limitations

NY Governor Suspends Statute of Limitations

By John A. Risi. September 2020 – Update As New York State settles into its “new normal,” Governor Cuomo continues to issue executive orders addressing matters from school openings to procedures for public hearings.  His latest Executive Order (EO-260), dated September 4th, 2020, continues the tolling of the Statute of Limitations through October 4th, 2020, with a minor exception lifting the toll relative to the time to challenge the approval by any municipal government or public authority of a construction project that includes either affordable housing or space for use by not-for-profit organizations. July 2020 – Update While all regions of New York State are in different phases of the re-opening process, as new COVID-19 cases largely remain at their lowest levels in New York State, Governor Andrew Cuomo continues to take a more cautious approach to re-opening, which can be seen in his most recent Executive Order.  The Order (202.48), continues to toll New York’s statute of limitations for the commencement of lawsuits and even the filing of Notices of Claim (a legal pre-requisite to commencing litigation against governmental entities and municipalities) through August 5, 2020. The governor had initially taken this step on March 20, 2020 and signed subsequent orders continuing the toll, including his most recent order of July 6, 2020. Included in the tolling are any specific time limits relating to notices (such as a Notice of Appeal) and motions. PMT will continue to follow important developments such as this most recent Executive Order and keep our valued partners abreast of all matters of significance to our shared business interests as we appreciate the recent...
Case by Case: Expert Witness Disclosure of Peer Review Doctor Can Be Made at The Last Minute

Case by Case: Expert Witness Disclosure of Peer Review Doctor Can Be Made at The Last Minute

By Lawrence N. Rogak. Brand Medical Supply v. Unitrin Advantage Ins. Co., 2020 NY Slip Op 50687 (App Term 2d Dept) Many kinds of lawsuits require, or at least employ, expert witnesses on a wide variety of topics, and indeed it seems that for every topic there is an expert somewhere who is willing to testify (and another one willing to refute them). One issue frequently encountered in using experts is the timing of the disclosure to the adverse party of the identity and substance of the expert’s opinion. Very often, courts hold that the expert witness disclosure required by CPLR 3101(d), if demanded by one’s adversary, must be made prior to filing the Note of Issue, with the penalty being preclusion (see, e.g., Kozlowski v. Oana, 102 AD3d 751 (2d Dept 2013 [defendant’s expert precluded in dental malpractice suit]). In the context of New York no-fault litigation, experts (usually employed only by defendants) are often precluded on the grounds of late disclosure as well. But now, the Appellate Term has carved out an exception to the timely disclosure rule where the expert is a peer review doctor upon whose opinion the claim was denied and whose report was annexed to an earlier summary judgment motion. At the trial, defendant’s only defense was the medical necessity of the services at issue (as is often the case in New York no-fault suits). Defense counsel called its expert witness, the peer review doctor, to the stand, and plaintiff’s counsel objected on the grounds that a formal response to its demand for expert witness disclosure had never been served. The trial judge...
COVID-19 Litigation Concerns Resulting from Businesses Reopening

COVID-19 Litigation Concerns Resulting from Businesses Reopening

By Nicole Duke and Thomas M. Bona. As states begin to reopen, some businesses are choosing to delay opening their doors. Business owners are considering the risk of a wave of lawsuits that may be filed as a result of deciding to begin work. Employers face potential liability not only from employees who may contract COVID-19 on the job, but also from customers who believe they were exposed by employees. As quoted by Todd Maisch, head of the Illinois Chamber of Commerce, “[f]or an employer wanting to get back to normal business, this could be the third crisis facing the nation. The first being the health crisis, the second being the economic crisis, the third being years of a liability crisis.”[1] Personal injury and wrongful death lawsuits are concerning for businesses that are already suffering financially from shutdowns. Though owners are attempting to protect themselves, this is an unprecedented situation that the Courts will have to face, and responses may vary state to state. In April, Georgia was at the forefront of the push to reopen. On April 24, 2020 Georgia Governor Brian Kemp issued an order reopening certain businesses including hair salons. The salons that have chosen to reopen have set up strict protocols. For example, a single customer may be allowed in a shop at a time and customers must agree to temperature checks before being permitted to enter. Focus on sanitary conditions is even more stringent than usual, and employees and clients must wear masks. Nevertheless, business owners are still concerned with potential litigation if either an employee or customer was to contract the virus. A...
Supreme Court Extends Civil Rights Protections to LGBTQ Workers in Landmark Decision

Supreme Court Extends Civil Rights Protections to LGBTQ Workers in Landmark Decision

By Patrick J. Cosgrove and Lisa M.Grandner. Title VII of the Civil Rights Act of 1964 (“Title VII”) is one of the primary federal statutes prohibiting employment discrimination. Title VII prohibits employment discrimination on the basis of race, color, religion, sex, and other protected class characteristics. See, 42 U.S.C. § 2000e-2. Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin”. See, 42 U.S.C. § 2000e-2(a)(1). On June 15, 2020, the United States Supreme Court issued a landmark decision extending civil rights protections to LGBTQ individuals. As held by the Court: In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law. Bostock v. Clayton County, Georgia, — US — (2020). The majority’s decision was written by Justice Neil M. Gorsuch, and addressed three (3) separate decisions from Eleventh, Second and Sixth Circuit Court of Appeals. Each decision involved the same question: does Title VII’s prohibition of discrimination because of sex also prohibit discrimination against gay and transgender workers? On June 15, 2020, the Supreme Court answered that central question, and held that LGBTQ individuals are entitled to Title VII protections. What does this mean...
Employee Privacy during COVID-19 in Pennsylvania, New Jersey, and New York

Employee Privacy during COVID-19 in Pennsylvania, New Jersey, and New York

By Michael Brumbach, Lisa Grandner and Andrew Ho. As America starts to get back to our new “normal”, some employers have already been taking precautions for the reopening of America’s businesses. Such precautions have included mask requirements, staggered work schedules, and temperature/fever tests. However, businesses may now find themselves in possession of health information and must keep in mind that there are significant legal ramifications when handling employee (or other) health data. With this in mind, the following article includes recommendations from the U.S. Equal Employment Opportunity Commission (EEOC) regarding COVID-19, as well as laws to look out for when dealing with employee health data. The most glaring protections of employee health data stem from the Health Insurance Portability and Accountability Act of 1996, otherwise known as HIPAA.  However, recent developments in New York law, namely the SHIELD ACT, may have created new consequences for businesses that fail to properly protect their employee’s health information. HIPAA requires that employers keep medical records confidential, and isolate medical records from files that employees such as supervisors or managers may access. This information includes: health insurance documents, requests for medical leaves of absence, FMLA reports, documentation regarding the underlying matters for FMLA paperwork, physician’s examination reports, medically-related excuses for absenteeism, medical job restrictions, accident and injury reports, worker’s compensation reports, and any other document that contains private medical information about an employee. The Americans with Disabilities Act (ADA) requires that all medical information, including COVID-19 related documentation, for employees be stored separately from the employee’s personnel file. Businesses may maintain logs of temperature results, but they must keep this information confidential. However,...