Archives: News


Seth B. Kennedy Joins Meyer Suozzi’s Labor & Employee Benefits/ERISA Law Practice Group

July 9, 2018 (New York City) – Meyer Suozzi is pleased to announce the addition of Seth B. Kennedy to their roster of attorneys.

Mr. Kennedy has joined the firm’s Labor & Employee Benefits / ERISA Law group and will be a resident in the New York City office. Mr. Kennedy’s practice focuses on working with the labor and employment department representing union clients and jointly trusted fringe funds.

“We are proud to welcome Seth to our firm,” said Patricia Galteri, Managing Attorney of Meyer Suozzi. “Hiring experienced and talented attorneys is key to Meyer Suozzi’s continued ability to provide quality, comprehensive representation for all of our clients in New York City, Long Island, and nationally.”

Prior to joining Meyer Suozzi, Mr. Kennedy was an Associate Counsel at AFSCME District Council 37 Health & Security Plan Trust in New York City.

Mr. Kennedy, a New Jersey resident received his J.D. from Chicago-Kent College of Law graduating with honors. While in Law School, he was a Research Assistant for the Chicago-Kent of Law Institute for Law in the Workplace. Mr. Kennedy was also President of the Labor and Employment Law Society.  Also, he was a Student Editor for the Employee Rights and Employment Policy Journal. He is admitted to practice Law in both the State of New York and the State of New Jersey.

***

About Meyer Suozzi

Founded in 1960, Meyer, Suozzi, English & Klein, P.C. is a distinguished provider of legal services, with a reputation for integrity, insight and excellent client service. The firm’s attorneys are committed to their clients, community, public affairs, and diversity. With offices in Albany, Garden City, Manhattan and Washington, D.C., the firm provides legal advice in 18 practice areas. The firm can be found online at www.msek.com.


Richard Corenthal Quoted In Rockland/Westchester Journal News

Firefighter Personnel Records Found Tossed on Floor of Condemned Yonkers Firehouse

 

Records containing firefighters’ personal information — including Social Security numbers, names, addresses and phone numbers — were found in the condemned firehouse in downtown Yonkers.

The personnel records were misfiled under the previous administration, according to Fire Commissioner Robert Sweeney, and left in the New School Street firehouse before the Yonkers Fire Department moved its headquarters to Nepperhan Avenue in 2011.

Two fire companies remained in the building until it was condemned in 2015. The old firehouse has since been closed off by chain-linked fencing.

“The city is taking all precautions to ensure the personnel documents are removed and the building is secured,” Christina Gilmartin, spokesperson for Mayor Mike Spano, said.

After learning of the discovery, the fire union — Local 628 — filed a grievance against the city.

In a letter to the city’s attorney, the fire union’s lawyer Richard Corenthal said, “On the face of it, it appears that the city has been grossly negligent in failing to protect the privacy of its employees in violation of state and federal laws as well as the common law.”

The documents were found last week after demolition crews threw everything that was left in the building to the first floor in preparation for demolition, Sweeney said.

Firefighters noticed the documents, which included medical records among other paperwork when they did a last-minute walkthrough, Sweeney said.

The demolition is part of a $10 million project, which was approved in December and is underway, to level the condemned firehouse and build a new one near the corner of Palisade Avenue and New School Street.

Hon. Ira Warshawsky Named 2018 ADR Champion by The National Law Journal

On June 1, only 46 ADR Champions were selected from hundreds of nominations received throughout the United States, with each nominee carefully vetted by the business arm of The National Law Journal. Those chosen have distinguished themselves in the field of arbitration and mediation, each having an abiding passion for, and deep commitment to, the practice of ADR — with a remarkable track record of success. It is an exemplary list of the finest leaders and neutrals in the United States with each honoree continuing to make their mark in ADR.

HON. IRA B. WARSHAWSKY, J.S.C (RET.)
Justice of the Supreme Court, Nassau

CHAMPIONSHIP PEDIGREE
Ira Warshawsky served on the bench for 25 years. “When I finished in 2011, I was still young enough to do more in the area of settling cases. I hated to see cases not settled when they should be and money left on the table. Mediation is now my primary focus, and arbitration is the next best thing to being a judge.”

EXPERIENCE & EXPERTISE
Warshawsky now works as a neutral overseeing cases throughout the New York metropolitan area. “One of my biggest matters was a massive construction case. It came before me as a Judge, and they had already used a well-known mediator. A year after I heard the case on the bench, some of the parties asked me to give mediating a shot. There were 22 or 23 parties involved, so I decided to do something different and break it up into pieces. First, I met with plaintiffs, then primary defendants, then subcontractors, then in slightly larger groups. Eventually, it settled.” At NAM, he has also worked with co-arbitrators around the country. “That includes some with massive infighting that required Daubert rulings, even though most arbitrators don’t want to do Daubert rulings.”

FUTURE VISION
ADR must consist of mediation first and arbitration second.”Everyone is writing arbitration clauses, and the quality is getting better. The goal of clauses should be cost efficiency and speed. Parties must consider venue, choice of law and ESI. You cannot escape ESI.” E-mediators will also mediate e-discovery for ADR and litigation. “If the parties hit a wall with the ESI portion, each side should have in-house counsel, outside counsel and an IT person at a meet and confer with a protocol to follow. The general counsel is the first step to a less expensive future in ADR use.”

 

Click here to view PDF in National Law Journal (page 26/27)


Richard Guay’s Victory on Behalf of NYC Public High School Principal was Featured on the Front Page of New York Times

When Nadav Zeimer became principal in 2010 of Harlem Renaissance High School, the school, which serves students who have fallen behind or dropped out of other schools, was failing. It had received a D on its most recent report card. At one point, New York City said it planned to close Harlem Renaissance and reopen it under a new name.

But within three years, the school’s grade went to a B, then an A. Its graduation rate improved; suspensions plummeted.

As Mr. Zeimer’s supervisor would say, last year, “Principal Zeimer has turned a failing school into a successful school.”

Which made it strange that, at that very moment, the city was trying to fire him.

As Mr. Zeimer worked to remake the school, he said, a small group of teachers revolted. He became the subject of multiple investigations and unflattering news stories, and lost his position — only to subsequently be cleared of most of the charges.

Mr. Zeimer’s story has become a familiar one at some of the city’s most troubled schools. Principals are asked by the Education Department to do one of the hardest jobs — turn around a failing school — in most cases without replacing the staff. Soon they become the target of investigations, often prompted by anonymous allegations, which can range from claims of discrimination to grade-fixing or fraud. As the inquiries mount, the principals’ time and energy are consumed by fighting them, and, they say, the Education Department does not back them up.

Some principals resign or are removed for seemingly minor violations. Santiago Taveras, who took over the faltering DeWitt Clinton High School in the Bronx, was removed in 2016 and subsequently demoted after an investigation found that he had changed grades for three students without following proper procedures — a violation that many observers thought did not justify removal.

And at least two principals who have been taken out of their schools — Mr. Zeimer and Kathleen Elvin, who was removed as principal of John Dewey High School in Brooklyn in 2015 — were later exonerated by arbitrators of all or most of the charges.

Shael Polakow-Suransky, the president of Bank Street College of Education and a deputy chancellor during the Bloomberg administration, said a trend of teachers accusing administrators of misconduct took off during that era. “It has something to do with people realizing that it was a tool that could be used as a weapon inside schools,” he said, noting that principals also used investigations against teachers.

“Once that weapon became recognized and people understood it,” he said, “I think it got used more often.”

Mayor Bill de Blasio, a Democrat, seemed to acknowledge the problem recently when he spoke of a “hyper-complaint dynamic” at the Education Department, saying that “on many fronts, we get a certain number of complaints that are not real.”

From 2007 to 2017 the number of complaints made annually against principals and assistant principals to the Special Commissioner of Investigation, one of the two main entities that carry out investigations in the schools, more than doubled, to 1,671 from 740. The biggest increases occurred from 2009 to 2014.

The Special Commissioner’s office typically investigated only 100 to 200 of those complaints a year, while referring many more to the Education Department’s Office of Special Investigations, which generally handles more minor complaints. In 2017, for example, the Special Commissioner’s office referred 1,184 complaints to the Office of Special Investigations. The Education Department said it could not say how many of those complaints were investigated.

Certainly, some administrators do commit serious misconduct, like the principal of a Bronx middle school who the Special Commissioner’s office found had stolen more than $20,000 from his school’s bank account.

But the city’s investigative process itself can be Kafkaesque: Investigations can be prompted by anonymous complaints. Principals say that in some cases they are not told clearly what the charges are, making it hard to mount a defense. In December, Mr. Zeimer received notice from the Office of Special Investigations that a case against him had been closed. When he asked the nature of the allegations, he was told that the office couldn’t say.

Many principals chafed under the administration of the former school's chancellor, Carmen Fariña, whom they saw as watering down their authority. Ernest Logan, the former head of the principals’ union, said that under the Bloomberg administration officials at the Education Department sometimes gave principals who faced complaints the benefit of the doubt because they understood “the need to make some noise, to shake up people.” Under Mr. de Blasio, who has a much closer relationship with the teachers’ union, Mr. Logan said, the Education Department just “wanted the noise to go away.” Whether that will change under the new chancellor, Richard A. Carranza, who replaced Ms. Fariña in April, is an open question.

The current senior supervising superintendent at the Education Department, Laura Feijoo, said that there were “countless examples” of the department’s supporting principals in difficult situations and that Mr. Zeimer, Ms. Elvin, and Mr. Taveras had been removed because of serious misconduct.

Michael Mulgrew, the president of the teachers’ union, said those three principals “were the agents of their own demise,” citing “their lack of ability to work with other adults” and to “realize that, as a leader, your job is to lead, not to dictate and punish.”

But people, including Mr. Polakow-Suransky, who are concerned that investigations can be weaponized against administrators, said that knowing that an anonymous allegation can lead to their removal makes principals feel vulnerable and discourages them from trying to remove low-performing teachers.

“It has a chilling effect on people taking on mediocre and ineffective teaching practices,” said Kim Marshall, the author of the Marshall Memo, a weekly newsletter about education, who has coached New York City principals, including Ms. Elvin. Principals want to know whether the department will have their backs if they hold teachers accountable, Mr. Marshall explained. In the wake of cases like these, he said, “I would think, absolutely, the answer to that is no.”

‘Not Every Rule Rises’

Ms. Elvin and Mr. Taveras took over schools that were among the lowest performing in the state and under threat of closing. As they tried to turn their schools around, the principals said, they were pushing teachers to work harder and holding them accountable. After the city put in place a new teacher evaluation system in 2013-14, the share of teachers at the three schools who received low ratings was significantly higher than in the city as a whole.

The teachers’ union said the principals were abusing their power and retaliating against anyone who questioned them.

When Mr. Taveras started at DeWitt Clinton in 2013, the school had received F’s on its two most recent report cards and its enrollment was plummeting. As enrollment fell, many teachers were no longer needed, and Mr. Taveras said he also sought to remove teachers who were shirking their duties.

Soon he was being dogged by investigations. He was investigated by both the Special Commissioner of Investigation and the Office of Special Investigations about a makeshift shower that he had installed and paid for himself to use in the morning after exercising.

In 2014, DeWitt Clinton became part of Mr. de Blasio’s Renewal school program, aimed at turning around low-performing schools.

The next year, Mr. Taveras asked the office overseeing Renewal for help addressing problems he had discovered related to how students were assigned to classes, which had led some students to be scheduled for the same class twice, he said. He told the official sent to meet with him that in prior years he had given students elective credit for the duplicate courses, rather than punishing them for administrators’ mistakes. He asked her to conduct an audit of the school’s transcripts to identify all of the problems.

Instead, she contacted the Special Commissioner of Investigation to report that Mr. Taveras had changed course codes on student transcripts.

A few months later, investigators received a package from an anonymous source containing student transcripts and attendance records from DeWitt Clinton, which showed that, in a separate violation of the rules, Mr. Taveras had changed grades for three students, out of the school’s nearly 1,700 enrollment, to passing from failing. (School staff members also appear to have shared some of the documents with The New York Post.)

In one case, the student had a medical condition that she told investigators caused her to miss a lot of school. She said her Global History teacher had reneged on an agreement to give her a passing grade if she completed a supplemental assignment packet and passed the Regents exam, and instead gave her a grade of “No Show.” Mr. Taveras told investigators that over the summer he emailed the Global History teacher, as well as the student’s physical education teacher, who had also given her a failing grade, asking them to review the grades. But they did not respond, he said, so he changed the grades to passing himself.

The grade changes went against department policy. But, said Eric Nadelstern, another deputy chancellor from the Bloomberg years: “There are rules, and there are rules. Not every rule rises to the level of needing to remove a principal.” Nor is there any evidence that the grade changes were an effort to fraudulently boost the school’s results since changing grades for three students would not significantly affect the school’s graduation rate — a key metric used by the Education Department to judge whether a school is making progress. Nonetheless, the department removed Mr. Taveras and threatened him with termination.

Mr. Taveras had been one of the few principals to publicly criticize the Renewal initiative, saying that administrators and teachers were being pulled out of their schools too often for meetings and training.

Mr. Taveras now works in the Bronx field support office, advising schools that have increases in disciplinary incidents.

He said he suspected the reason he was dealt with so harshly was that he was “on the top of the list” of principals that the teachers’ union wanted gone.

During the administration of Mayor Michael R. Bloomberg, he had been a deputy chancellor, and, he said, department higher-ups would meet monthly with officials from the teachers’ union, who would bring a list of principals they felt were not being fair to their members. (Mr. Polakow-Suransky confirmed that Bloomberg administration officials had regular consultations with the union, where the union raised concerns about principals, among other issues.)

Dr. Feijoo said Mr. Taveras had been removed because he violated academic policy and because his superintendent had concerns about his leadership. A spokeswoman for the department said his criticism of the Renewal program played no role.

Mr. Mulgrew said Mr. Taveras had failed at his job and lost the trust of his staff.

However, Mr. Taveras shared two emails from his superintendent, Carron Staple, from October 2016, less than two months before he was removed, which seemed to contradict Dr. Feijoo’s account. In the emails, Ms. Staple called him “an excellent leader,” strategized about how to get the department’s support to get “some of the dead weight out of the school,” and urged him not to be demoralized by the investigations.

“You are doing a great job so do not despair,” she wrote.

Trying to Change the Culture

Ms. Elvin was a seasoned administrator who had founded a successful school in Williamsburg and was past retirement age when she accepted the challenge of turning Dewey around in 2012.

Opened in 1969, Dewey had once been renowned as a model progressive high school, but over time it struggled. When Ms. Elvin took over, the Bloomberg administration planned to close and reopen it, replacing half the teachers. But a grievance by the teachers’ and principals’ unions put a halt to those plans, and Ms. Elvin was left with the existing staff.

When she arrived, she said in a series of recent interviews, she found almost all aspects of the school’s operation to be dysfunctional.

Emily Creveling, whom Ms. Elvin brought in as an assistant principal, said, “Aside from having a culture of no accountability, I think there was also a culture of, ‘If the students are failing, it’s their fault.’”

Under Ms. Elvin, administrators observed teachers frequently, reviewed lesson plans and held after-school sessions on improving teaching. Halfway through each marking period, they required teachers to report how many of their students were failing and why, what interventions they had tried, and what additional support students needed to succeed. Through these efforts and others, the school’s graduation rate improved and applications increased.

The administration also gave a significant number of teachers low ratings. In 2013-14, just 1 percent of teachers in the city’s school system overall received a rating of “ineffective,” the lowest category, and 7 percent got a rating of “developing,” the second lowest. At Dewey that year, 16 percent of teachers were rated “ineffective,” and 35 percent were “developing.” Using a provision of a new contract negotiated with the de Blasio administration, the teachers’ union challenged many of the ineffective ratings as reflecting harassment.

At the same time, a series of complaints were made against Ms. Elvin, which prompted numerous investigations. Ms. Elvin estimated she faced at least 20 investigations, including one based on an anonymous, and inaccurate, allegation that Ms. Creveling was her niece.

In 2014, the Office of Special Investigations began reviewing a cluster of mostly anonymous complaints of academic violations by the administrators, including charges that they had pressured teachers to give passing grades and allowed students to make up credits with courses that did not meet the department’s standards. Meanwhile, teachers, mostly anonymously, drove coverage of an alleged grade-fixing scandal in the press.

Not all of the teachers at Dewey opposed Ms. Elvin. A social studies teacher named Chung Chan emailed Ms. Fariña in June 2015 to express distress about what was happening. He described Ms. Elvin as a “godsend” for the struggling school. “She raised the standard appreciably and restored a ray of hope among us, but understandably, she also became a lightning rod attracting the ire” of some teachers, he wrote.

Around the same time, Ms. Fariña was asked by a reporter about the status of the investigation and said, “So far, the majority of things, in this case, have been unsubstantiated.”

Then, something changed. On July 8, the Education Department said investigators had found Ms. Elvin guilty of allowing students to earn credit for classes that did not meet academic standards. Ms. Fariña said in a statement that the department had begun the process to fire Ms. Elvin and that she would be removed from payroll.

Ms. Elvin fought her termination, and, the following spring, an arbitrator dismissed all of the charges against her, saying that the Education Department had subsequently validated the disputed credits. The arbitrator ruled that Ms. Elvin should be immediately reinstated and that the department should pay her the wages and benefits she had lost. The department said it was disappointed with the decision.

The day after the arbitrator’s decision became public, Michael Solo, the school’s teachers union chapter leader, sent a letter to the rest of the staff members saying that Ms. Elvin had gotten off on “a technicality” and assuring them that she would never come back to Dewey.

And she has not. Instead, she sits in an office in Brooklyn, ostensibly working with five truancy sites, though she says she feels she has been warehoused.

In March, the state Education Department released an audit of credit recovery and make up courses at Dewey during Ms. Elvin’s tenure that, like the city’s investigation, concluded that many students received credits that they should not have. But the audit appeared to contradict the city’s investigation on key issues, such as whether certain courses met for the mandated number of hours; the city said yes, the state said no. The auditors also spoke only to current administrators at Dewey, Mr. Solo, and officials from the Education Department and the mayor’s office. They did not interview Ms. Elvin or the other administrators who were responsible for the programs under review.

In an email, Mr. Solo said the state Education Department audit “substantiated what the faculty of John Dewey High School had been saying all along.”

“Ms. Elvin was not removed from John Dewey High School because she violated the contract and feuded with the U.F.T.,” he wrote.

Ms. Elvin said that rebuilding a troubled school without being able to remove ineffective teachers in a timely way all but guaranteed a backlash. It takes years of observation and documentation to begin the process of removing a tenured teacher for incompetence. “People are doing their level-best under incredibly challenging situations,” Ms. Elvin said of her efforts to turn Dewey around.

But, she said, “I just don’t think this is in the best interest of kids for people to be afraid to do their jobs.”

A School Divided

The trouble for Mr. Zeimer began in 2015 when he tried to remove a teacher named Catherine Owens. Ms. Owens, who taught Spanish, was smart and charismatic, Mr. Zeimer said in a recent interview, but she was frequently late to school and rarely had a lesson plan.

“I’d come in and she’d be shopping for shoes, and kids would be coloring,” he said. In early 2015, the Education Department brought disciplinary charges against her, and Ms. Owens was reassigned to another school. Then, in December, partway through the hearing process, the department dropped the charges, and in early 2016 Ms. Owens came back to Harlem Renaissance.

Her return coincided with a sharp change in the atmosphere, according to several staff members who testified in Mr. Zeimer’s disciplinary case. Some teachers celebrated her return as a victory over Mr. Zeimer, while others were discouraged, including Anne Palacci, an English and art teacher, who testified that it seemed to embolden a faction of teachers who were resistant to working hard.

An official from the teachers’ union, Patricia Crispino, began to appear at the school regularly, and what had been a collaborative atmosphere became combative and fractured, according to Ms. Palacci and other staff members who testified.

Ms. Crispino, in an email, said that union members at the school had become concerned over time about Mr. Zeimer’s behavior toward students and staff members, in particular, Ms. Owens, to whom he was “vindictive and unprofessional.”

After Ms. Owens’s return, Mr. Zeimer’s superintendent, Paul Rotondo, said in his testimony, he had warned Mr. Zeimer to be especially careful. “It’s a contentious situation in which the union is going to be watching every step you take,” Mr. Rotondo said that he told Mr. Zeimer, adding “the minute you step out of line, I’m going to get a phone call.”

Around this time, Mr. Rotondo began receiving many phone calls from Ms. Crispino, he testified. Ms. Crispino told Mr. Rotondo that Mr. Zeimer was allowing his wife to volunteer at the school without authorization. Soon the Office of Special Investigations began an inquiry. Ms. Owens alleged that Mr. Zeimer was breaking another rule: serving on the board of directors of the Friends of Harlem Renaissance, a nonprofit that he had helped set up to raise private funds to support the school. That, too, was soon under investigation. Ms. Owens also accused Mr. Zeimer of violating privacy laws by using photographs of students on the nonprofit’s website without proper permission. A third investigation was started.

On Monday, Feb. 6, 2017, Mr. Rotondo showed up at Harlem Renaissance and told Mr. Zeimer to gather his belongings — he was being immediately reassigned.

In May, the Office of Special Investigations released a report substantiating the charges made by Ms. Crispino and Ms. Owens: Mr. Zeimer had violated conflict of interest laws by serving on the nonprofit’s board, had failed to properly secure permission to use students’ names and photographs on the group’s website, and had allowed his wife to volunteer at the school without proper clearance.

In June, the department started the legal process required to terminate Mr. Zeimer, and he was removed from the payroll. There were a total of 24 charges, including that Mr. Zeimer had “participated in the preliminary hiring process of his wife without a conflict of interest waiver” — she had been an unpaid volunteer — and that he had “knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of a child.”

The hearings in his case stretched over eight days from August to October. At them, several staff members praised his leadership and described what they perceived as Ms. Owens’s and Ms. Crispino’s desire to see him removed. (In an email, Ms. Owens’s lawyer, Matthew I. Marks, said that his client denied shopping for shoes during work hours and said that, while Ms. Owens “complained about the discriminatory treatment to which she was subjected,” she did not try to have Mr. Zeimer fired.)

Earl Gray, a community coordinator at the school, testified that Ms. Crispino had taken credit for Mr. Zeimer’s removal, telling staff members, “Well, I am here to get rid of principals.” (Ms. Crispino, in her email, denied saying this.)

“It was very disheartening for me,” Mr. Gray said, adding that the “whole experience has been totally toxic.”

Some of the strongest testimony in support of Mr. Zeimer came from Mr. Rotondo, even though he appeared as a witness for the department. Asked by Mr. Zeimer’s lawyer from the principals’ union how Mr. Zeimer had succeeded in turning the school around, Mr. Rotondo said: “I think he had the ability to be able to build a community of like-minded folks who saw educating our students as the priority.”

“Honestly, there have been sometimes where there may have been some poor judgment calls when it comes to dealing with various rules and regulations,” he added, “but I don’t ever question his intention for the children.”

In her ruling, issued in December, the arbitrator said that the department had met its burden of proof for only two charges out of the 24 and that Mr. Zeimer should be reinstated as principal of Harlem Renaissance High School. Mr. Zeimer has filed a petition in state court seeking to force the city to comply with the arbitrator’s decision.

For now, instead of leading a school, he is working in an office in Brooklyn, processing applications for medical leave.

“It’s been over a year that I have not been working with kids,” he lamented in an email in March. “This is not what I signed up for as an educator.”

 

Click here for the article in the New York Times


Patricia Galteri Featured in The New York Community Trust, “Attorney’s Advice: Stretching Every Charitable Dollar”

“Nearly 20 years ago, my law partner introduced me to The New York Community Trust and its division, the Long Island Community Foundation (LICF). I found a top-notch organization that could assist my clients with charitable giving, even with finding the right nonprofits.

I tell clients that creating a private foundation requires a lot of administrative work. Instead, a donor-advised fund in either The Trust or LICF lets them achieve their goals, from helping disabled children to assisting people with impaired vision, or focusing on improving a particular community.

I joined the LICF board in 2008, then became the chair. We stretch donors’ dollars by working with other funders in efforts like preserving Long Island Sound or addressing the opioid crisis. We make charitable giving easy, meaningful, and powerful.”

The managing attorney of Meyer, Suozzi, English & Klein, P.C., in Garden City, Long Island, Patricia Galteri also chairs the Long Island Community Foundation.

Click here to view the article on The New York Community Trust

Photo credit: Ari Mintz for The Trust


Judge Randall Eng Honored at The Fund for Modern Courts

On May 16th, Judge Randall Eng was honored at The Fund for Modern Courts for receiving the 2018 Career Public Service Award. The award is presented to an individual who throughout his or her lifetime has demonstrated a commitment, through service in government, through service in government, to the pursuit of justice, fairness, inclusiveness and equal opportunity in the judicial system of New York State.


A. Thomas Levin Quoted in The LI Herald, “Former paramedic alleges Rockville Centre fire company tried to oust her after she sought financial records”

Former Rockville Centre Fire Department paramedic Donna Hitscherich filed a complaint with the New York State Division of Human Rights earlier this year, alleging that she was retaliated against after raising concerns about the practices and finances of Floodlight Rescue Company No. 1, the department’s EMS unit, according to documents obtained by the Herald.

Hitscherich, who is a business and finance law professor at Columbia University’s Business School, began questioning in 2015 why certain required equipment had not been installed in the company’s ambulances. Then, in 2016, she sought access to certain of Floodlight’s financial records, which she was denied. In February last year, the Fire Department filed unrelated charges against her. Those charges were dropped a month later. She then resigned from the company, and the department, in April last year.

Hitscherich’s complaint also alleges gender discrimination. She claims that although several male members of Floodlight had raised similar concerns to her, disciplinary charges were never filed against them.

“Allegations are allegations,” Village Attorney A. Thomas Levin said of Hitscherich’s claims. “They’re not proof.” He added that the village has a policy against commenting on such matters, stating, “We fight our cases in court.”

In a response to the allegations, the village filed a legal argument with the Division of Human Rights. In it, the village states that Hitscherich’s complaint, which it describes as “long-winded,” contained “no factual assertions … that support her claims,” and adds that while she does make allegations, “none [of them] have anything to do with” her claims of retaliation or gender discrimination.

Levin said Floodlight Company No. 1 is independent of the larger all-volunteer Rockville Centre Fire Department. Floodlight is one of seven independent companies within the department, each of which makes its own policies. The department, unlike the companies, is governed by the village. It owns all of the firehouses and equipment and acts as a coordinating body with limited oversight of the companies.

The attorney said neither the village nor the Fire Department are responsible for the internal affairs of the Floodlight Company, including its finances.

Hitscherich, who volunteered in the department for 12 years, wrote in her resignation letter that she became concerned in 2015 that Floodlight’s ambulances lacked state-mandated telemetry equipment, which transmits critical information about a patient’s vital signs from an ambulance to the hospital to help doctors treat them upon their arrival. It was not until December 2016 that the equipment was installed in the ambulances, according to an internal company email from then Capt. Robert Dunwoody.

Hitscherich said in her resignation letter that the EMS volunteers could have lost their Advanced Emergency Medical Technician or Paramedic certifications. State law requires that Advanced EMTs and paramedics have telemetry equipment on hand when providing care.

She first brought up the of lack of telemetry equipment at a Floodlight Company meeting in December 2015. According to the meeting minutes, the company rejected her motion to purchase the LifePak modems necessary to operate the telemetry equipment by a vote of 14 to 5.

Each LifePak modem costs about $1,000, according to a LifePak product list. The floodlight company needed three modems for three of its vehicles, as well as data plans amounting to less than $100 per month for each.

Around that time, Floodlight had more than $330,000 spread across two bank accounts, one called the fundraising account, and one called the investment account, according to treasurers’ reports in Floodlight meeting minutes. The company also had a number of other bank accounts, which were earmarked for specific purposes such as entertainment.

Documents show that Floodlight kept its Advanced Life Support status for a number of years, even though it did not comply with state requirements. In a December 2016 email to Floodlight members, Dunwoody acknowledged that “for several years, we have been non-compliant as an ALS bus,” or ambulance, because of the missing equipment.

During those years, Floodlight officials filed documents with the state attesting to the company’s ability to provide ALS care, according to its filings with the state Department of Health.

Two weeks before Floodlight members voted against purchasing the telemetry modems, Dunwoody and Floodlight’s medical director, Dr. Neil Kirschen, an anesthesiologist, signed applications filed with the DOH attesting that Floodlight was able to provide paramedic level care, which, like ALS, requires telemetry equipment.

Dunwoody declined to comment on the record. After several weeks of attempts, Kirschen could not be reached.

In its legal response to Hitscherich’s Division of Human Rights complaint, the village “categorically” denied any allegations regarding “Floodlight’s finances and the Advanced Life Support grading of Floodlight’s ambulances.”

Hitscherich had also sought the financial records of Floodlight’s “Corporation” in 2016.

Brad Pinksy is a lawyer who specializes in fire department matters, and who Floodlight retained in 2015 to help merge Floodlight, the fire company, with Floodlight, the corporation. The corporation, Pinsky said, is a separate body that operates like a firefighters’ benevolent association. The Syracuse-based attorney did not know, however, precisely what its purpose is. Members of the Floodlight company declined to comment. The merger between the company and the corporation is now pending state approval.

Hitscherich was seeking the corporation’s financial ledger, a list of shareholders and profit-and-loss statements in 2016. Pinsky told her in an email at the time that the financial reports in the corporation’s meeting minutes contained all the information that she was asking for. She contends, though, that they did not.

Hitscherich said in her resignation letter that the minutes did not sufficiently detail the “flow of funds through the Corporation.” On Feb. 21, 2017, two weeks after sending Pinsky a final request, she forwarded the email chain to Levin, the village attorney.

That same day, the Fire Department secretary notarized a letter, written by then-Chief Robert Seaman, outlining the disciplinary charges against Hitscherich. The letter was dated the day before.

The charges, which were dropped, stated that the department had “recently learned” that Hitscherich had been responding to EMS calls with the Montauk Fire Department, and claimed that made her an active member of two departments, which is illegal under state law. In addition to Rockville Centre, Hitscherich owns a home in Montauk.

Attached to her resignation, Hitscherich included a 2013 character reference for paramedic training from John Hennig, an ex-Floodlight captain and ex-department chief, acknowledging that “despite responding to calls with Montauk, Donna remains one of the top call responders in Floodlight Company # 1.”

At Hitscherich’s request, the Montauk Fire Department sent Floodlight a letter attesting to the fact that she was not an active member there.

It was unclear at press time how long the state would take to reach a decision.

 

Click here to read the article in the LI Herald


Unanimous Decision of NYS Supreme Court Appellate Division, Second Department To Uphold Rights of Garden City Professional Fire Fighters

A recent unanimous decision came from the N.Y.S Supreme Court Appellate Division, Second Department upholding the right of the Garden City Professional Fire Fighters to arbitrate a grievance against the Village of Garden City regarding the improper transfer of bargaining unit work to volunteers.

This is the third unanimous decision of the Appellate Division, Second Department against the Village of Garden City upholding the right of the Village’s Professional Fire Fighters to seek enforcement of their collective bargaining rights to operate first line fire apparatus, such as the Engines and Ladder trucks, which ensures the safety of the Village’s residents and businesses.

Meyer Suozzi Attorney, Richard Corenthal represents the Garden City Professional Fire Fighters.


Judge Randall Eng Honored at the AABANY

The Asian American Bar Association of New York (“AABANY”) is pleased to announce that Attorney General Barbara Underwood will be the keynote speaker at AABANY’s Annual Judges’ Reception to be held on May 31, 2018, at the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY.

AABANY honors newly inducted, elevated and retired judges of Asian Pacific American descent at its Judges’ Reception every year.  This year, AABANY is honoring:

Hon. Randall Eng

Justice Eng recently retired from the Appellate Division, Second Department of the New York State Supreme Court.  Born in Canton, China, Justice Eng was raised in New York City and attended public school there before going to college at SUNY Buffalo and onto law school at St. John’s. From 1970 to 2004, he proudly served his country as a member of the New York Army National Guard, retiring as State Judge Advocate with the rank of colonel. Justice Eng began his long and esteemed career in public service as an assistant district attorney in Queens and continued in top leadership positions at the New York City Department of Corrections. He first took the bench in the Criminal Court of the City of New York in 1983. Starting in 1991, he presided in Supreme Court, Queens County courts until he was elevated to the Appellate Division in 2008. Governor Andrew M. Cuomo appointed him to lead the Second Department in 2012. 

Additional honorees included: Hon. George Chew, Hon. Laurie Lau, Hon. Deepa Ambekar, Hon. Sanket Bulsara, Hon. Phil Hom, Hon. Charlie Liu (posthumously), Hon. Jeff Oing, Hon. Anil Singh, Hon. Jonathan Shim, Hon. Richard Tsai and Hon. Ona Wang

The Asian American Bar Association of New York is a professional membership organization of attorneys concerned with issues affecting the Asian Pacific American community. Incorporated in 1989, AABANY seeks not only to encourage the professional growth of its members but also to advocate for the Asian Pacific American community as a whole. AABANY is the New York regional affiliate of the National Asian Pacific American Bar Association (NAPABA).


Patricia McConnell Quoted In Law360, “Orchestra Can’t Fight Pension Fund Exit Fee, Judge Says”

By: Danielle Nichole Smith

 

Law360 (May 23, 2018, 9:25 PM EDT) — A Jewish music group can’t challenge a withdrawal fee imposed on it by a union pension fund since the group didn’t request to arbitrate the issue until after the deadline passed, a New York federal judge ruled Wednesday, awarding the fund a partial quick win.

U.S. District Judge John G. Koeltl said in his order granting the American Federation of Musicians and Employers’ Pension Fund partial summary judgment that Neshoma Orchestra and Singers Inc. had forfeited the right to dispute the fund’s demand for a $1.1 million withdrawal liability, finding that the group didn’t ask to arbitrate the fee until nearly two months after the Employee Retirement Income Security Act deadline for doing so.

The fund’s response to Neshoma’s perceived request for a review of the fee started the clock on the 60-day window for the music group to initiate arbitration, Judge Koeltl said.

“Because Neshoma did not meet the deadline to file for arbitration set by ERISA, the amount of withdrawal liability is fixed and Neshoma cannot challenge its imposition,” Judge Koeltl said in his
order.

The music group offered several reasons for why its tardy arbitration filing shouldn’t doom its challenge to the withdrawal fee, but Judge Koeltl was not persuaded.

The judge found that the rules for withdrawal liability between the group and the fund required that any arbitration requests be filed at the American Arbitration Association, rejecting the group’s
contention that its letter responding to the initial notice about the liability constituted an arbitration demand.
Additionally, the fund not using the music group’s precise name in its first letter about the withdrawal liability didn’t render the notice insufficient, Judge Koeltl said.
The judge also dismissed arguments about the validity of the American Arbitration Association’s $8,200 filing fee, finding that the music group’s challenges to the constitutionality and enforceability of the fee should have been brought in arbitration.

Further, the group’s objections to the fee didn’t explain why it filed for arbitration late and offered $275 in lieu of the required amount, Judge Koeltl said.
“The alleged unconstitutionality of the AAA fee does not excuse Neshoma’s failure to file a timely demand for arbitration together with a payment of whatever portion of the fee it could afford,” he
said. “The demand was untimely and therefore would have been ineffective regardless of what fee was required or submitted or whether that fee was unconstitutional.”

AFM-EPF told the music group in August 2015 that it owed a $1.1 million withdrawal liability because the group stopped making contributions to the fund in July 2012 after the expiration of a collective bargaining agreement it had with some of its employees, according to the order. The pension fund determined in June 2013 that the group no longer had an obligation to make contributions and had consequently withdrawn from the fund, the order said.

The music group disputed this claim and said that it had not withdrawn from the fund, arguing that the labor dispute between itself and its employees excused it from making contributions, the order said. The group’s response letter also said that if the fund didn’t rescind its request for payment, the correspondence should be considered as an arbitration demand, according to the order.
The fund construed the letter as a request to review the withdrawal liability and told the music group in September 2015 that it didn’t qualify for a labor dispute exception, the order said. The following January, the group sent an arbitration request and $275 payment to the American Arbitration Association, according to the order.

AFM-EPF sued Neshoma in April 2017 to compel payment of the withdrawal fee.

Counsel and representatives for the parties didn’t respond Wednesday to requests for comment.

Neshoma is represented by Ira A. Sturm of Raab Sturm & Ganchrow LLP.

AFM-EPF and its board of trustees are represented by Patricia McConnell of Meyer Suozzi English & Klein, P.C.

The case is American Federation of Musicians and Employers’ Pension Fund v. Neshoma Orchestra and Singers Inc., case number 1:17-cv-02640, in the U.S. District Court for the Southern District of New York.

–Editing by Adam LoBelia.

Click here to read article on Law360.