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...
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,...
Marc Pillinger Joins Esteemed Panelists on The SIP

Marc Pillinger Joins Esteemed Panelists on The SIP

Marc Pillinger, executive partner at Pillinger Miller Tarallo, LLP has been a practicing attorney for over 35 years. He is a noteworthy and prominent attorney in the areas of Construction, Labor Law and environmental and toxic torts and is listed in Who’s Who in Environmental Law and Kipling’s Who’s Who. Marc is a lecturer for the New York State Bar Association, N.Y.S. Academy of Trial Lawyers, Environmental Committee of CLM, numerous insurance carriers and brokers and the Insurance Society of Philadelphia. Marc participated as part of an esteemed panel on “The SIP” (Serious Insurance Podcast) for an in-depth discussion on topics affecting the construction and real estate risk industry during COVID-19. Marc’s input towards the legal environment surrounding this pandemic is captured in this interview. Other panelists include: Carolyn Farino (Head of Insurance, Americas Lendlease), Leslie Curry (Executive VP, Alliant) and Naresh Dade (VP, Marsh). The SIP is hosted by Zach Howell and strives to bring together diverse perspectives that exist amongst industry leaders across various brokerages, insurance carriers and risk management departments in Real Estate and Construction. The shows format is to discuss complex risk topics in a conversational way for both young industry and non-industry professionals in a way which can be easily comprehended. You can follow The SIP on LinkedIn here https://www.linkedin.com/company/thesip/   Watch the...
Cybersecurity: Be Vigilant and Be Prepared

Cybersecurity: Be Vigilant and Be Prepared

By Nicole Duke and Thomas M. Bona. The COVID-19 pandemic has changed the way society lives and conducts business. The rapid and unprecedented shift to remote working has opened businesses to new dangers and liabilities. One of the most pressing of these dangers is the increased risk of cyber attack. The Federal Bureau of Investigation has called attention to an increase in cyber-crime activity, targeting overburdened information technology systems and vulnerable work from home remote setups.  Further, the United States Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency has published a formal alert that cyber-criminals are targeting individuals and businesses through email and phishing scams. These phishing emails contain false updates and information regarding COVID-19 that an employee may open, exposing the system to risk. In addition to phishing scams, employees working remotely may log in using less secure hardware and software than an office setting provides, which may provide an easier pathway for cyber-criminals to enter a system. Employers should also be aware that with a majority of employees logging in remotely, it is easier for a cyber-criminal or “hacker” to blend in and secretly access systems. This leaves not only employer data at risk of being stolen, but sensitive client data as well. No business is immune to this increased risk of cyber attack, and high profile organizations have already suffered as a result of cyber-crime. One such example is the cyber attack on a medical facility tasked with working on a COVID-19 vaccine, leading to the publication of sensitive patient data. Businesses should plan a response to possible cyber attacks and consider the difficulty in...