Appeals


In Term of Transition, Court Sides With Insurers
August 21, 2017 | Evan H. Krinick
It was a term of transition for the New York Court of Appeals, with Associate Judge Eugene Pigott Jr., retiring at the end of 2016, Associate Judge Rowan Wilson joining the Court in February 2017, Associate Judge Sheila Abdus-Salaam’s death in April 2017, and Associate Judge Paul Feinman joining the Court at the end of …
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Rulings Obtained by Preet Bharara Highlighted Insurance Fraud Problem
May 4, 2017
Over nearly eight years as U.S. Attorney for the Southern District of New York, Preet Bharara became recognized as a powerful prosecutor in many areas, including government corruption and white-collar crime. Another subject for which he certainly deserves mention is his strong record helping to fight insurance fraud in New York. Much can be learned …
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What Trump’s “Buy American and Hire American” Executive Order Means for Your Business
April 20, 2017
On April 18, 2017, President Trump issued an executive order entitled “Buy American and Hire American.” The Order states that the Executive Branch’s official policy is “to rigorously enforce and administer the laws governing entry into the United States of workers from abroad,” in an effort “to create higher wages and employment rates for workers …
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Social Media Is Shining Light on Fraudulent Insurance Claims
March 6, 2017
My January column, “Insurers Using Technology to Fight Insurance Fraud,” N.Y.L.J. Jan. 5, 2017, discussed various new forms of technology that insurance companies are using to fight insurance fraud. These efforts are producing results for insurers—and, in appropriate instances, for federal, state, and local prosecutors—in the battle against insurance fraud. This month’s column highlights a …
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Insurers Using Technology to Fight Insurance Fraud
January 5, 2017
Insurance fraud has been estimated by some to be as large as an $80-billion-per-year problem. See, e.g., Coalition Against Insurance Fraud, “By the numbers: fraud statistics.”1 To fight insurance fraud, insurance companies, working hand-in-hand with their lawyers, have begun to adopt new kinds of technology. These tools—ranging from social media to data analytics—are being used …
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Whistleblowers Play Key Role in Fight Against Federal Health Insurance Fraud
November 4, 2016
The federal False Claims Act (FCA)1 is a powerful tool in the fight against fraud involving federal health insurance programs such as Medicare and Medicaid. Indeed, one of the greatest areas of FCA success is in the health-care industry. From 1987 to 2015, the federal government recovered more than $31.1 billion in health-care-related FCA actions.2 …
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Ruling Boosts Fight Against Criminal and Civil No-Fault Fraud
September 2, 2016
In a civil case involving claims of insurance fraud, the fact-finder is properly instructed to consider factors beyond the formal indicia of ownership in determining the actual ownership of a medical services professional corporation (PC) for purposes of examining the PC’s entitlement to payment from an insurance carrier of claims assigned to the PC by …
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Six Rulings Range From Asbestos Claims to No-Fault Reimbursement
August 22, 2016
The six significant insurance law decisions issued this past term by the New York Court of Appeals covered a wide range of issues. Five of the cases were decided by a unanimous Court, with a dissent (by Judge Eugene M. Fahey) occurring only in one.1 Four different judges wrote an opinion for the Court (Judge …
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Companies with H-1B and L-1 Employees Are Subject to On-Site Audit — Are You Prepared?
August 8, 2016
When an employer sponsors an employee for an H-1B or L-1 visa, the employer agrees to comply with on-site compliance reviews.  The United States Citizenship and Immigration Services (USCIS), which conducts such on-site compliance reviews through the Fraud Detection and National Security (FDNS) directorate, will often visit an employer unannounced and will not typically reschedule …
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When Can a State Prosecute a Multistate Insurance Fraud?
July 8, 2016
Recent examples of criminal insurance fraud in New York1 and elsewhere across the country2 highlight the continuing nature of the insurance fraud problem, despite significant efforts by local and state prosecutors and insurance companies themselves to combat it. Increasing sophistication on the part of criminals, and increased resources available to them, is helping to make …
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Permissible Questions to Ask about Job Applicant’s Immigration Status
July 7, 2016
The Office of Special Counsel for Immigration-related Unfair Employment Practices (“OSC”) at the U.S. Department of Justice recently issued Technical Assistance Letter (“TAL”) regarding employer compliance with the anti-discrimination provision of the Immigration and Nationality Act (“INA”).  The OSC concluded that an employer does not violate anti-discrimination laws by 1) refusing to hire all applicants …
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L-1 Visa for Intracompany Transferees
June 2, 2016
An L-1 visa permits multinational companies to transfer qualifying employees from their foreign office to their United States office or to the office of its parent, branch, subsidiary, or affiliate in the United States.  L-1 visas allow multinational companies to facilitate their expansion and to help establish an office in the United States. L-1 visas …
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Unusual Finding of “Rehabilitation” After Insurance Fraud Sentence
May 6, 2016
Individuals and businesses engaging in insurance fraud can face significant civil penalties under various state and federal laws, including in appropriate cases under the federal Racketeer Influenced and Corrupt Organizations Act. The financial penalties that can result, however, may not truly be a deterrent for judgment-proof defendants. Criminal laws—with the possibility of prison time—clearly can …
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O-1 Visa: Individuals with Extraordinary Ability or Achievement
May 2, 2016
A foreign national with extraordinary ability in the sciences, arts, education, business, or athletics can obtain an O-1 visa to enter the United States and work in their field of expertise.  Due to the annual numerical cap set by Congress on the number of workers that can obtain an H-1B visa for workers in specialty …
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McAloon co-authors article for ABA’s Tort Trial & Insurance Practice Law Journal
April 5, 2016
Sean McAloon, a member of the Appeals Practice Group, was a contributor to Recent Developments in Property Insurance Coverage Litigation, which has been published in the Winter 2016 issue of the American Bar Association Tort Trial & Insurance Practice Law Journal. Click here to read the Article.   …
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Not Answering Material Questions at EUOs Can Doom Coverage
March 4, 2016
Examinations under oath (EUOs) are an important investigative tool used by insurance carriers to uncover fraudulently filed claims and to commit claimants to their story on the record. EUOs look like depositions but generally do not follow the rules that govern depositions. For example, a witness who refuses to answer questions at a deposition can …
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N.J. Supreme Court to Decide Breadth of Insurance Fraud Act
January 8, 2016
The New Jersey Supreme Court has agreed to hear Allstate Ins. Co. v. Northfield Medical Center,1 which has consequences for insurers across the country seeking to deter insurance fraud schemes intended to avoid the prohibition on the corporate practice of medicine. The issue before the court is whether a health-care lawyer (who was not admitted …
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Employee Benefit Plan Review – From the Courts – January 2016
January 1, 2016
Plaintiff’s Failure to Show Employer Knew She Was Working Overtime Without Pay Dooms Her FLSA Claim The plaintiff in this case was employed as a personal trainer and group fitness instructor at Equinox South Beach, a health and fitness club in Miami Beach, Florida. The plaintiff claimed that Equinox had violated the federal Fair Labor …
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Sentencing and Restitution Awards in Insurance Fraud Cases
November 6, 2015
As this column regularly observes, insurance companies frequently use civil litigation as a tool to fight insurance fraud,1 including fraud involving life insurance policies.2 Insurance fraud, of course, also is a crime,3 and prosecutors often bring criminal actions against those who commit insurance fraud. Generally speaking, a person convicted of insurance fraud faces a potential …
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From the Courts
October 1, 2015
Divorced Wife Was Not an “Eligible Spouse” Entitled to Survivor Benefits under Ex-Husband’s Pension Plan, Eleventh Circuit Rules The plaintiff’s husband was a participant in the El Paso Corporation Pension Plan, under which he received retirement benefits beginning in 1987. The plaintiff and her husband divorced in 2011, and he died about eight months later. After …
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The Science of Dioxin
September 30, 2015
Texas Panel Recommends Against San Jacinto River Cancer Cluster Studies A panel convened by the Texas Department of State Health Services has recommended that there should not be any studies to determine if there are cancer clusters near the San Jacinto River. The panel determined that there were insufficient cancer diagnoses to conclude that they …
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From the Courts
September 1, 2015
Oral Complaints to Employer Alleging FLSA Violations Could Serve as Basis for Retaliation Claim, Court Rules For more than 15 years, the plaintiff in this case worked as a truck driver for William C. Wernicki Trucking Co., a Connecticut company owned by Ena Wernicki that provides mail-hauling services pursuant to several contracts with the U.S. …
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Dioxin in the Courts
August 31, 2015
Federal Circuit Court Rejects Request to Broaden VA Regulation on Herbicide Exposure for Vietnam Veterans Who Served Near Korean DMZ The U.S. Court of Appeals for the Federal Circuit has rejected a request to broaden a regulation issued in 2011 by the Department of Veterans Affairs (“VA”) that provides a presumption of herbicide exposure for …
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From the Courts
August 1, 2015
U.S. Supreme Court Says that Fiduciary’s Duty of Prudence Involved Continuing Obligation to Monitor Investments and Remove Imprudent Ones In 2007, several individual beneficiaries of the Edison International 401(k) Savings Plan, a defined-contribution plan, filed a lawsuit on behalf of the plan and all similarly situated beneficiaries against Edison International and others. The plaintiffs sought to …
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From the Experts
July 31, 2015
Guest article for the Dioxin newsletter written by Michael E. Ginevan, Ph.D. and Deborah K. Watkins, M.S. Texas Health Department Report on Cancer Occurrence in East Harris County: An Expert Analysis Residents near the San Jacinto River Waste Pits (“SJRWP”) Superfund site expressed concern to the Texas Department of State Health Services (“DSHS”) about a …
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Dioxin Developments

Legislators Announce New Push for “Blue Water” Vietnam Vets U.S. Senator Kirsten Gillibrand (D-N.Y.) and two members of the House of Representatives are pushing to pass legislation to make Navy veterans from the Vietnam War known as “Blue Water” vets who claim that they were exposed to Agent Orange eligible to receive disability and health …
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International Dioxin Developments

Monsanto Empanels Group to Review IARC Classification of Glyphosate Earlier this year, the International Agency for Research on Cancer (“IARC”) classified the herbicide glyphosate as “probably carcinogenic to humans” (Group 2A). Now, Monsanto is reportedly forming a panel of scientists to review the analysis of the IARC, the specialized cancer agency of the World Health …
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The Science of Dioxin

Paper Finds Loss of Tiparp Increased Sensitivity to Dioxin Toxicity and Lethality A paper published in The Journal of Biological Chemistry has concluded that the loss of the mono-ADP-ribosyltransferase, Tiparp, increased sensitivity to dioxin-induced steatohepatitis and lethality. Tiparp is an aryl hydrocarbon receptor (“AHR”) repressor, but its role in dioxin toxicity has been unknown. Now, …
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From the Courts
July 1, 2015
Court Dismisses Wage-and-Hour Claims against Wal-Mart The plaintiff in this putative class action alleged that, during the time she had been employed by Wal-Mart Stores, Inc., as a pharmacist, she took the home study and test portions of the APHA Immunization Certification Training Course. The plaintiff contended that the training course was “directly related” to …
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From the Courts
June 1, 2015
Court Limits Prejudgment Interest on Plaintiff’s Award to Federal Interest Rate A jury reached a verdict in favor of the plaintiff in this case and against Pfizer, Inc., on her claims of discrimination and retaliation based on her disability under Title I of the Americans with Disabilities Act (ADA) and the Oregon Rehabilitation Act. The jury awarded …
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The Science of Dioxin
May 31, 2015
French Study Finds No Dioxin-Breast Cancer Link French researchers have found no association between estimated dietary dioxin exposure and breast cancer risk among a group of women studied. A research article published in Breast Cancer Research has found no association between estimated dietary dioxin exposure and breast cancer risk among the so-called “E3N cohort,” an …
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From the Courts
May 1, 2015
Plaintiff’s Statements to Social Security Administration Doom His ADA Discrimination Claim, Tenth Circuit Rules After the plaintiff in this case allegedly suffered a workplace injury, he sought and obtained Social Security disability benefits on the ground that he was unable to work. While the plaintiff was representing to the Social Security Administration that he was …
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From the Courts
April 1, 2015
U.S. Supreme Court Reverses Decision Finding that Collective Bargaining Agreements Created Right to Lifetime Contribution-Free Health Care Benefits The plaintiffs in this case had worked at, and in 1996 and 1998 had retired from, the Point Pleasant Polyester Plant in Apple Grove, West Virginia. During their employment, the plaintiffs were represented in collective bargaining by …
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Recent Developments In Business Litigation
March 31, 2015
Michelle Bholan, Michael Sirignano and Frank Tiscione co-authored an article for the Tort Trial & Insurance Practice Law Journal entitled, “Recent Developments In Business Litigation.”  Please click the link below to view the Article. Adobe Reader is required to view the bulletin. If Adobe Reader is not installed on your PC, click here to download …
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RICO Actions Fight No-Fault Insurance Fraud

Michael A. Sirignano and Frank P. Tiscione published an article entitled, “RICO Actions Fight No-Fault Insurance Fraud,” in the Spring 2015 issue of the ABA Tort Source, a publication of the Tort Trial & Insurance Practice Section. Click here to read the article. …
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New York’s Top Court Rules that Water Damage Exclusion Barred Coverage and Rejects Plaintiffs’ Interpretation of Ensuing Loss Protection
March 6, 2015
The New York Court of Appeals, in Platek v. Town of Hamburg, has reversed an appellate court’s decision and ruled that a water damage exclusion in a homeowners’ insurance policy precluded coverage for a claim that the insureds’ basement was flooded after a water main ruptured.  In so ruling, the Court also rejected the plaintiffs’ …
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Challenging Fraud by Employers in Workers’ Compensation

Workers’ Compensation insurance carriers face a variety of employer schemes intended to defraud them out of insurance premiums in one way or another. After briefly discussing the requirements of New York’s Workers’ Compensation Law (WCL), this column explores some of the methods disreputable companies sometimes use to avoid their obligations. It concludes with a discussion …
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From the Courts
March 1, 2015
U.S. Supreme Court Rules that Time Spent to Undergo Antitheft Security Screening is Not Compensable under the FLSA Integrity Staffing Solutions, Inc., a company that provides warehouse staffing to Amazon.com throughout the United States, required its employees to undergo a security screening before leaving the warehouse at the end of each day. During this screening, …
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New Jersey Legislators Seek to Expand Data Breach Notification
February 27, 2015
New Jersey legislators advanced a bill to expand notification requirements in the event of a data breach affecting New Jersey residents. The bill, Assembly No. 3146, passed on December 15, 2014, by a vote of 75–0 and was referred to the Senate Commerce Committee where it has not yet been addressed. The Assembly bill seeks …
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Carnaby v. Goodyear Offers a New Jurisdictional Twist
February 25, 2015
AMERICAN BAR ASSOCIATION – SECTION OF LITIGATION – MASS TORTS   The Carnaby v. Goodyear Tire and Rubber Co. action involving purported toxic workplace exposures in France presents something of a new strategic paradigm for the U.S. jurisdictional restrictions evolving out of the Daimler/Kiobel/Goodyear Dunlop line of cases. Carnaby v. Goodyear Tire and Rubber Co., No. …
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From the Courts
February 1, 2015
Plan Administrator Did Not Err In Requiring Plaintiff to Provide Objective Evidence of Her Fibromyalgia The plaintiff in this case alleged that her health began to deteriorate beginning in early 2009, with symptoms that included debilitating pain and fatigue. By the end of that year, according to the plaintiff, these symptoms forced her to leave her …
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N.J. Supreme Court to Decide Breadth of Insurance Fraud Act
January 11, 2015
The New Jersey Supreme Court has agreed to hear Allstate Ins. Co. v. Northfield Medical Center,1 which has consequences for insurers across the country seeking to deter insurance fraud schemes intended to avoid the prohibition on the corporate practice of medicine. The issue before the court is whether a health-care lawyer (who was not admitted …
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ERISA and Insurer Fraud Suits Against Health Care Providers
January 5, 2015
One of the significant legal issues facing an insurance company that brings a  federal lawsuit to recover allegedly improper payments that it has made to a  health care provider under an employee benefit plan is whether the carrier’s  complaint is preempted by the federal Employee Retirement Income Security Act of  1974 (ERISA). A finding of …
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McAloon co-authors article for ABA’s Tort Trial & Insurance Practice Law Journal
December 31, 2014
Sean McAloon, a member of the Litigation & Appeals Practice Group, was a contributor to Recent Developments in Property Insurance Law, which has been published in the 2015 Annual Survey of the American Bar Association Tort Trial & Insurance Practice Law Journal. Please click the link below to view the Article. Adobe Reader is required to …
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Craft a Stronger Defense by Distinguishing Parody from Satire

“Parody” is a technique used by artists in various forms of entertainment, from comedians to radio disc jockeys to authors. “Parody,” in the copyright sense, generally involves using someone else’s copyright-protected work and results in copyright infringement, absent a license for the use. In some cases, however, an infringer can successfully claim “fair use” as …
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From the Courts
December 1, 2014
Company Is Sanctioned for Failing to Issue a Timely “Litigation Hold” in ERISA Cases Foot Locker, Inc., was sued on June 23, 2006 and again on November 30, 2006 with respect to the conversion of its retirement plan from a “defined benefit” pension plan to a “cash balance” plan. The June 23, 2006 complaint alleged …
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State Legislatures Tackle Insurance Fraud
November 7, 2014
In an effort to combat insurance fraud, state legislatures across the country have passed a wide variety of bills this year that their governors have signed into law. While many other bills failed to make it to a governor’s desk for one reason or another, some that have been introduced may yet become law. Despite …
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International Litigation of Product Liability Claims
October 31, 2014
Paul Majkowski and Lawrence Han authored an article entitled, “International Litigation of Product Liability Claims: Korea,” which was published in the November 2014 issue of DRI For the Defense. Please click the link below to read “International Litigation of Product Liability Claims.” Adobe Reader is required to view the bulletin. If Adobe Reader is not installed on your PC, …
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From the Courts

Circuit Court Upholds Decision Rejecting FMLA Claims Against Employer The plaintiff in this case was employed by BT Americas, Inc., as a consultant for approximately three years. As a consultant, the plaintiff was assigned by BT Americas to work on telecommunications projects with client companies, and she often worked with employees of those companies. The …
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Second Circuit Seeks Guidance On NYC Regulation of Law Firms
October 30, 2014
Max Gershenoff is quoted in a Bloomberg BNA Banking Daily Bulletin article entitled, “Second Circuit Seeks Guidance On NYC Regulation of Law Firms.”  The law firms referred to in the article were represented by Mr. Gershenoff, Evan Krinick and Michael Versichelli. Please click the link below to view the Article. Adobe Reader is required to view …
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