News & Blog

Category: Trial Practice

How To Avoid Liability For Plaintiff’s Medicare Lien

January 28, 2011 • Posted By Jenna E. Elkind • Trial Practice


After conclusion of settlement negotiations (or upon a decision of a binding arbitration), pursuant to CPLR § 5003-a, a defendant has twenty-one (21) days from tender of a duly executed release and stipulation discontinuing an action to provide the settlement check to plaintiff.  However, if plaintiff is a recipient of Medicare benefits, and Medicare had paid for any treatment underwent as a result of the subject accident, Medicare is entitled to receive repayment of the expended amounts pursuant to the Medicare, Medicaid and SCHIP Extension Act of 2007 (“MMSEA”).  Medicare will, therefore, hold a lien on any settlement or recovery proceeds. 

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Case Law Opens Door To Admissibility Of Plaintiff’s Rendition Of Accident Found In Medical Records

January 7, 2011 • Posted By Lance E. Benowitz • Trial Practice


During a plaintiff's medical treatment, there are many times that a hospital or medical care professional's records include a history of the accident and how it occurred. The history of the accident is at times in direct conflict with the accident description given by plaintiffs in their pleadings, Bill of Particulars and deposition testimony, or even at trial. These inconsistencies could prove a very valuable tool for defense counsel at trial to impeach plaintiffs and attack their credibility.

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Social Networking Sites and Discovery in New York

December 10, 2010 • Posted By Douglas R. Rosenzweig • Trial Practice

facebook blog

Defense attorneys often suspect that plaintiffs exaggerate claims concerning the extent and nature of injuries in general and particularly how those injuries resulted in a significant loss of enjoyment of life.  In an attempt to confirm these suspicions, attorneys have long demanded authorizations for post-accident photographs, videotapes and home movies which demonstrate plaintiffs taking part in activities of daily living inconsistent with claims made in bills of particulars or during depositions.  The current battleground in attempts to obtain information which can be potentially devastating to a plaintiff’s credibility is the internet, particularly social networking sites such as MySpace and Facebook.  These sites have become such an integral part of daily life, particularly for plaintiff’s age 13-40, that plaintiffs will often post pictures of themselves without regard to the ramifications such posts may have on their lawsuit.  As such, it is critical that every effort be used to obtain this information.

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Recent Ethics Opinion on Settlement Agreements

November 9, 2010 • Posted By Douglas R. Rosenzweig • Trial Practice

ethics blog

According to a recent New York City Bar Association Formal Ethics Opinion, a plaintiff's counsel may not agree to hold a defendant harmless from claims arising out of the defendant's payment of settlement consideration, and the defendant's counsel may not ask plaintiff's counsel to provide such financial assistance. Click Here for a complete copy of the opinion.  

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Second Circuit Cools Off Hot Tea Claim

November 3, 2010 • Posted By Joseph A. French • Trial Practice


During jury selection many prospective jurors often raise the issue of the large award a woman won years ago by suing McDonalds after she spilled hot coffee and scalded herself. This past week, however, the Second Circuit appears to have iced a hot tea claim brought in Federal Court against Starbucks. Moltner v. Starbucks Coffee Company, 09-4943. CV (2d. Cir. 2010).

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New York State Labor Law Trumps Federal Law On Lost Wages For Illegal Immigrants

October 25, 2010 • Posted By Barry Meade • Trial Practice

barry blog

The State of New York Court of Appeals, the state's highest court, previously looked at whether the Immigration Reform and Control Act (“IRCA”), a federal law created to regulate immigration, supersedes New York State’s Labor Law and prohibits undocumented alien construction workers injured as a result of a violation of the state Labor Law from recovering lost wages in personal injury lawsuits.  The short answer was NO.

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Excluding Evidence of a Witness’s Prior Criminal Convictions: Remoteness & Moral Turpitude

May 10, 2010 • Posted By Douglas R. Rosenzweig • Trial Practice

Witness Chair

In preparing a case for trial, it often comes to pass that one or more of the witnesses in the case have a prior criminal record. In cases where there is a significant amount of money on the line, you can be sure that opposing counsel has done her homework carefully and is chomping at the bit to destroy the witnesses' credibility with an in depth and lengthy cross-examination regarding the prior misdeeds. This can have a significant impact on a case, particularly if the witness's credibility will be a determining factor in obtaining a defense verdict.

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