February 1, 2016

Welcome to the February 2016 Issue of Electronically In Touch


We are pleased to submit the February 2016 issue of Electronically In Touch. This issue includes a message from the YLS Chair, Erica M. Hines, a note from the new Editor-in-Chief regarding diversity in the legal industry, and articles on the following subjects: a review of notable decisions in 2015 regarding the Freedom of Information Law, a summary of cases analyzing the "serious injury" threshold pursuant to Insurance Law Section 5102(d), the timeliness of permanent placement of children outside of their homes in child welfare cases, a recap of the Young Lawyers Section's Half Day MCLE Program that occurred on January 27, 2016 during the 2016 Annual Meeting, and a Co-Liaison Report from the Elder Law and Special Needs Section.

Electronically In Touch is a member driven publication and as such we welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life balance, and information regarding upcoming meetings and events. Please submit articles to Sasha R. Grandison, Esq. at srgrandison@gmail.com by the 25th of each month.

The Officers of YLS and the Editor of Electronically In Touch wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors and do not represent the thoughts and opinions of the New York State Bar Association, Young Lawyers Section, or its Officers or Executive Committee.

A Message from the Chair of the Young Lawyers Section

Welcome to the February edition of Electronically In Touch. This is a busy time of year for the Section. The NYSBA Annual Meeting took place during the last week of January, with thousands of attorneys gathering at the New York Hilton, Midtown for an entire week of fantastic programs and meeting.

The Young Lawyers Section (YLS) held our Executive Committee Meeting on Wednesday, January 27th. During that meeting we attended to business as usual and voted on the Executive Committee Slate for the June 2016 - May 2017 term. It is my great pleasure to welcome all of our incoming Executive Committee members, including our newest officer-to-be, Lauren Sharkey, who was elected as the incoming Secretary. Beginning in June, Lauren will be serving together with Erin Flynn (Chair), John Christopher (Chair-Elect), and Terrence Tarver (Treasurer) - a fantastic lineup of officers. Congratulations to all of them!

During the week of Annual Meeting, the YLS also held our Outstanding Young Lawyer Award Presentation, at which we were joined by NYSBA President David Miranda, who awarded the 2016 Outstanding Young Lawyer Award to a most deserving recipient, Jason Aylesworth. Lauren Sharkey chaired the YLS half-day CLE program on January 27th, and Nicholas Romano and Kristin Gallagher co-chaired our Bridging the Gap program, which was held on Thursday January 28th and Friday January 29th. Both of the programs were complete successes, and on behalf of the YLS, I want to thank Lauren, Nicholas, and Kristen for all of their hard work in chairing such fantastic programs that so many of us enjoyed.

I wish everyone a lovely February, and hope to see you next month at Trial Academy.

Erica M. Hines

A Note from the Editor-in-Chief: Is this Diverse Enough?


In recognition of Black History Month and in light of controversies such as #OscarsSoWhite, it seemed fitting to analyze the diversity, or lack thereof, in the legal profession today. According to the United States Bureau of Labor Statistics' 2014 Household Data Annual Averages, there were approximately 1,656,000 individuals employed in the legal services field in 2014 and only 6.6% were Black or African American, 4.4% were Asian, and 10.4% were Hispanic or Latino. Indeed, the 2014 figures revealed an increase in employed minority attorneys, as there were approximately 1,092,000 million attorneys employed in the United States in 2013 and only 4.2% were Black or African American, 5.1% were Asian, and 5.1% were Hispanic or Latino.

According to the New York State Bar Association's Fall 2015 Diversity Report Card, the Association's membership is 1.95% Asian/Pacific Islander, 1.26% Black or African American, 1.01% Hispanic, .13% Native American, and 39.91% White/Caucasian.

Interestingly, pursuant to the American Bar Association's 2015 Lawyer Demographics, minority enrollment in law school was approximately 28.5% during the 2013 to 2014 academic year, approximately 27.4% during the 2012 to 2013 academic year, and 26.2% during the 2011 to 2012 academic year.

If more than a quarter of law students are minorities, why do minorities make up such a small portion of employed attorneys? While taking into account the large percentage of seasoned attorneys that have been practicing law since the 1970's, 1980's, and 1990's, which are primarily White men, as well as a percentage of students that are unable to obtain their degree for a variety of reasons, including family obligations, lack of financial assistance, or inability to handle the rigors of law school; the reality of the lack of recruitment of attorneys of color cannot be ignored.

Notwithstanding the aforementioned, there are varying interpretations of what "diversity" actually means. Are we content with a few "token" attorneys of color to demonstrate that our firms are "committed" to diversity? In the New York Times Article, Has 'Diversity' Lost Its Meaning, Anna Holmes posed the following questions: "Is it raw numbers? Is it who is in a position of power to hire and fire and shape external and internal cultures? Is it who isn't in power, but might be someday?"

My answer is, all of the above.

Sasha R. Grandison, Esq.
Editor-in-Chief, Electronically In Touch

FOIL 2015: A Year in Review


By: Anthony Fasano, Esq.

In 2015, courts throughout New York State issued some notable decisions on the Freedom of Information Law ("FOIL"). This Article will outline some recent developments in the law and provide an overview of their impact moving forward.

Second Department Requires the Disclosure of Color Copies

In Baez v. Brown, 124 A.D.3d 881 (2d Dep't 2015), the Second Department held that a color photograph could properly be obtained through a FOIL request, even if the government agency did not have the equipment needed to produce a color copy. The case arose from a 2008 FOIL request by an inmate at the Sing Sing Correctional Facility. The request sought numerous types of records, including "a color copy of [the prisoner's] mug shot" and "color copies of all photographs taken by the crime scene unit the morning of the incident."i The lower court held that FOIL imposed "no requirement that an agency provide color photocopies or color reproductions of photographs."ii

On appeal, the Second Department reversed, holding that Public Officers Law § 87 mandated the disclosure of color copies in this instance. Interestingly, the court noted that a government agency may employ an outside agency to prepare the requisite copies of records where its information technology equipment is inadequate. Thus, a government agency can no longer simply deny a request for color copies of a record, even if it lacks a color copier. Rather, the government agency must engage an outside professional service to prepare the requisite copy. However, the government agency may still require the person or entity making the FOIL request to pay the costs associated with such reproduction.iii

This decision is consistent with prior advisory opinions of the Committee on Open Government. In FOIL-AO-19108 (2014), for example, the Committee opined that "if 'an outside professional service' is able to prepare a duplicate of the [record]. . . and if [the person making the request] is willing able to pay the actual cost of preparing the record in accordance with § 87(1)(c)(iii), the agency is required to engage the service in order to prepare and disclose the record."

Attorney's Fees

In December 2014, the First Department in Law Offices of Adam D. Perlmutter, P.C. v. New York City Police Dep't, 123 A.D.3d 500 (1st Dep't 2014), affirmed a New York County Supreme Court case that awarded attorney's fees to a law firm representing itself in an Article 78 proceeding to compel the disclosure of records through FOIL. The award of attorney's to a law firm representing itself brought the First Department in line with the Third Department, which had reached similar holdings in the past.iv Since then, courts have expanded or solidified this position.

The First Department took its decision in Law Offices of Adam D. Perlmutter, P.C. one step further when it decided Kohler-Hausmann v. New York City Police Dep't, 133 A.D.3d 437 (1st Dep't 2015). In Kohler-Hausmann, an attorney representing herself commenced an Article 78 proceeding against the NYPD after it constructively denied her FOIL request. The First Department, on appeal, held that the "attorney petitioner's self-representation does not preclude an award of attorney's fees."v In support of its holding, the court compared the statutory language of FOIL to "[o]ther similarly worded statutes" and how those statutes "have been interpreted to authorize an award of attorneys' fees to a prevailing litigant who represented himself or herself or had the benefit of free legal services."vi

The First Department's decision in Law Offices of Adam D. Perlmutter, P.C. and the Third Department's progeny was also recently expanded to courts in the Second Department. In Guercio & Guercio, LLP v. Nassau University Medical Center, Index No. 9251/2015 (Sup. Ct. Dec. 15, 2015), the Supreme Court, Nassau County, awarded attorney's fees to a law firm that commenced an Article 78 proceeding to compel the disclosure of records requested through FOIL.vii In that case, a law firm commenced an Article 78 action after a government agency failed to disclose records relating to a client and sought costs and attorney's fees. After awarding full disclosure, the court granted the law firm costs and attorney's fees.viii

Defining How a Government Agency Makes a "Particularized and Specific Justification"

Under FOIL, a government agency bears the burden to demonstrate that its denial of a records request qualifies for a statutory exemption.ix To satisfy this burden, the agency "is required to articulate particularized and specific justification" for its denial of a request.x Conclusory assertions that a record falls within a statutory exemption are insufficient.xi In 2015, several cases provided helpful insight on how this burden is met.

One such example is found in Chiaroscuro Found. v. New York State Dep't of Health, Index No. 3252/2013 (Sup. Ct. Apr. 9, 2015). In Chiaroscuro Found., the president of the Chiaroscuro Foundation submitted a FOIL request on the New York State Department of Health ("DOH") seeking records relating to abortion clinics and other records relating to abortion. After exhausting the administrative remedies available, the Foundation commenced an Article 78 action. The court granted disclosure and set dates for disclosure. Thereafter, the DOH produced the records but with numerous redactions. The Foundation then amended its petition objecting to the redactions. On review, the court ordered a privilege log be prepared for certain redacted records which indicate with specificity "each and every exemption which is claimed to be applicable to the redacted material." The court noted that a simple blanket exemption by the DOH was insufficient. Thus, this case illustrates that a privilege log can be utilized by a government agency to help meet its burden to make a "particularized and specific justification" for a claimed exemption.

Another important example is found in Weisshaus v. Port. Auth. of N.Y. & N.J., 49 Misc.3d 550 (Sup. Ct. July 1, 2015). In Weisshaus, the petitioner submitted a request for records regarding an increase in toll prices from the Port Authority of New York and New Jersey. The Port Authority denied the request, stating that responsive records were exempt from disclosure. In turn, the petitioner commenced an Article 78 proceeding. Although FOIL is inapplicable to the Port Authority, the Port Authority adopted a Freedom of Information procedure that "was intended to be consistent with New York's FOIL."xii In analyzing the matter under FOIL, the court noted that the Port Authority failed to meet its burden to make a particularized and specific justification for the claimed exemption because the responsive papers filed were of a "conclusory nature." However, rather than ordering an in camera inspection of the records or ordering disclosure, the court exercised its authority under CPLR 7804 (e) and "require[d] the Port Authority to remedy the defect with its responsive papers and provide, in some evidentiary form, a sufficiently detailed description of the responsive documents claimed to fall within the agency exception in order to allow this court to make a meaningful determination as to whether the [claimed] exception applies."xiii

The case of Loevy & Loevy v. New York City Police Dep't, 46 Misc.3d 1214(A) (Sup. Ct. Jan. 21, 2015) provides a salient discussion on the failure of a government agency to meet its burden of claiming an exemption from disclosure.In Loevy & Loevy, the petitioner commenced an Article 78 proceeding challenging the denial of its request for "the file of a criminal investigation of a 'cold case' murder investigation, which occurred more than 27 years ago." The NYPD initially moved to dismiss the petition and "defended its position with conclusory repetition of the statutory language . . ., with no particulars as to how the records in this matter qualify for the exemption." The court denied the motion because the "NYPD sought a 'blanket exception' to the FOIL request based upon a particularly brief and conclusory affidavit from an NYPD officer, and found that NYPD's proof did not meet the agency's 'significant burden to articulate a factual basis for the exemptions claimed."xiv In response, the NYPD sought to reargue and renew, providing the court with an additional factual affidavit. The court again denied this motion, holding:

[R]espondent has again failed to bring forward such facts as would indicate anything more than that the homicide is still unsolved, will remain open for however long it takes to solve, and that the file is updated every so often to check its status. These facts are no different from every other unsolved homicide investigation, and, if sufficient to bar a FOIL request, would effectively make all homicide investigation files off limits to Foil (sic) requests.xv

On its third bite of the apple, in answering the petition, the NYPD submitted the same factual affidavits that the court had previously found deficient. As the court stated, "[s]ignificantly, no new affidavit has been provided." The court took aim at the NYPD's attempt to shield from disclosure the sought-after records by "flood[ing] this case with generalities taken verbatim from statutory language in the [Public Officers Law], as a basis for a finding that the file in this matter is off limits to any FOIL request."The court continued, the "NYPD has again not cited to a single fact which would make this case any different from any other unsolved 'cold case' homicide."xvi

As this case demonstrates, a government agency must ensure that it supports its claimed exemptions by factual affidavits that do more than merely parrot the statutory language. The court stressed that a "particularized showing" was required for each and every record claimed to be exempt from disclosure.xvii An entire file may not be considered exempt simply because some of the records inside may be exempt. To meet its burden in this case, a privilege log or a factual affidavit that identified each record and its claimed exemption should have been filed by the NYPD.

Conclusion

As recent cases from 2015 show, the Freedom of Information Law is constantly evolving, requiring practitioners to stay abreast of recent trends. If not, government agencies can be on the hook for attorney's fees for something as trivial as not disclosing a color copy of a picture.

----------------------------------------
i Baez v. Brown, Index No. 24221/2009, at *2 (Sup. Ct. Jan. 2, 2013).
ii Id. at *13.
iii Pub. Off. Law § 87(1)(c).
iv See, e.g., Legal Aid Soc. v. New York State Dep't of Corrections and Community Supervision, 105 A.D.3d 1120, 1122 (3d Dep't 2013).
v Kohler-Hausmann v. New York City Police Dep't, 133 A.D.3d 437, 437 (1st Dep't 2015).
vi Id.
vii The author of this article was the counsel for the petitioner in this case.
viii Guercio & Guercio, LLP v. Nassau University Medical Center, Index No. 9251/2015, *11-12 (Sup. Ct. Dec. 15, 2015).
ix Twn. of Waterford v. New York State Dep't of Envtl. Conservation, 18 N.Y.3d 652, 657 (2012).
x Fink v. Lefkowitz, 47 N.Y.2d 567, 571 (1979).
xi Villalobos v. New York City Fire Dep't, 130 A.D.3d 935, 937 (2d Dep't 2015).
xii Id.
xiii Id. at 561-62. Another holding in this case is also worth some notoriety. The court held that the Port Authority's Freedom of Information procedures did not prevent the petitioner from making a request for documents even though a discovery stay was in effect in a separate proceeding. Id. at 262.
xiv Loevy & Loevy v. New York City Police Dep't, 46 Misc.3d 1214(A), *2 (Sup. Ct. 2015)
xv Id.
xvi Id. at *4.
xvii Id. at *6.


Young Lawyers Section's Half Day MCLE Program


By: Lauren E. Sharkey, Esq.

On January 27, 2016, the Young Lawyers Section hosted a half day program at the 2016 Annual Meeting in New York City entitled "Time for a Little TLC: Time Management, Leadership, and Career Development", which offered attendees one credit hour of Law Practice Management and two credit hours of Skills.

The half day program was presented by the Committee on Attorney Professionalism and the Committee on Leadership Development. To start off the program, Vivian Wesson of the Committee on Attorney Professionalism moderated an esteemed panel of attorneys on the use of social media: What to do and what not to do. The panel looked at LinkedIn, Facebook, and Twitter etiquette. Notably, we learned that "endorsements" on LinkedIn should be disabled or closely monitored by an attorney and that attorneys should strongly consider placing the statements "Attorney Advertising" and "Prior Results Do Not Guarantee a Similar Outcome" on both their LinkedIn and Twitter feeds when posting about their work. For more information, please see NYSBA's Social Media Ethics Guidelines, authored by one of the panelists, Mark Berman.

The Chair of the Committee on Leadership Development, Elena DeFio Kean, moderated a panel of two former NYSBA presidents, Stephen Younger and Glen Lau-Kee, and Mirna Santiago, the first Black and Hispanic leader of the NYSBA Torts, Insurance, and Compensation Law Section. Each leader traced their own diverse history of leadership through NYSBA and provided insights on how attendees could further their careers, improve communication skills, and gain professional development through leadership.

The final presentation was on Overcoming Procrastination, by Sheryl Randazzo. Her presentation focused on time management and organization skills to tackle any obstacle, as well as tips and insights on dealing with procrastination.

Why So Serious?

By: Robert Baer, Esq. and Nick Franchak, Esq.

Frequently, New York attorneys are presented with the task of litigating cases that fall into the "serious injury" threshold, or more specifically, Insurance Law 5102(d). These cases typically result in a great deal of motion practice, which can be critical in shaping a case and resolving issues on its merits prior to trial. Presented here is a summary of significant serious injury cases and decisions that will aid the young lawyer in constructing a winning motion practice whether as a defendant or plaintiff, as well as developing successful appeals. Helpful guidelines on how to effectively use the information contained in the decisions are also included.

In order to recover for non-economic losses in New York, plaintiffs must demonstrate that they have sustained a serious injury under Insurance Law Section 5102 (d). The definition of a serious injury looks simple on its face as outlined below. However, in practice, it has proven to be quite the opposite, as many of these categories are open to interpretation. In this article, we will provide an overview of the categories and then drill down to recent key cases that can be used by both plaintiff attorneys and defense counsel in their motion practice around this complex issue. The practice pointers will help guide the practitioner toward successful strategies as well as what to avoid in motion papers.

The defining statute for serious injury in the state of New York is the Insurance Law 5102(d) which states:
"Serious injury" means a personal injury which results in one or more of the following:
1. Death
2. Dismemberment
3. Significant disfigurement
4. Fracture
5. Loss of a fetus
6. Permanent loss of use of a body organ, member, function or system
7. Permanent consequential limitation of use of a body organ or member
8. Significant limitation of use of a body function or system
9. Medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 immediately following the occurrence of the injury or impairment.

Several of the categories are fairly straightforward with the only issue being that the injury was caused by an underlying automobile accident. Included in this group would be death, dismemberment, fracture, and loss of fetus.

The remaining categories of injury require, at the very least, medical evidence and deposition testimony from the claimant to establish a "serious injury." These are the areas where the case law on the matter is a key factor in determining whether a motion is granted or denied.

The primary issue in any motion for summary judgment is to establish the burden of proof. The law in New York is clear that the defense, as the moving party, has the burden of establishing proof, in admissible form, that they are entitled to summary judgment for plaintiff's failure to meet the "serious injury" threshold. This can be accomplished by submitting medical evidence and testimony that shows that the plaintiff did not meet any of the categories under insurance Law 5102 (d) or that the injury did not result from the underlying automobile accident. Once that burden has been met, the burden shifts to the plaintiff to present evidence in admissible form to create an issue of fact, which would preclude a finding of summary judgment by the Court. These are standard guiding principles for any motion practice as the movant or the opponent of the motion.

One other key issue is timeliness. C.P.L.R. section 3212(a) provides:
(a) Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined; provided, however, that the court may set a date after which no such motion may be made, such date being no earlier than 30 days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown.

The triggering event is the filing of a note of issue, which indicates that discovery has been completed. The motion must be brought no sooner than 30 days post note of issue and no later than 120 days after the filing of the note of issue. It is important to be familiar with the local court's rule of timeliness of a motion in the event that it may be substantially less than 120 days post Note of Issue.

The following cases are instructive and helpful in both the making and defense of summary judgment motions:

CASE: Armella v. Olson, 2015 N.Y. App. Div. LEXIS 9473 (N.Y. App. Div. 4th Dep't Dec. 23, 2015)

The plaintiff opposed the motion only with respect to the permanent consequential limitation of use and the significant limitation of use categories of serious injury alleged in the complaint, as amplified by the bill of particulars, and abandoned all of his claims with respect to the other categories of serious injury. The plaintiff defeated summary judgment by submitting the affidavit of his treating physician who reviewed plaintiff's cervical MRI. The physician opined that the plaintiff sustained a cervical whiplash superimposed on a degenerative cervical spine and at least two levels of cervical herniation. His physical examination of plaintiff revealed muscle spasms, which constituted objective evidence of injury including plaintiff's range of motion being limited to a moderate or marked degree. The physician further opined that, given plaintiff's absence of any neck pain, stiffness, or radiculopathy prior to the accident, it[the accident? What is it?] was a substantial factor in causing previously asymptomatic degenerative conditions in plaintiff's spine to become symptomatic and in causing plaintiff's neck pain, stiffness, spasms, and restricted range of motion. The Court ruled that it is well settled that the aggravation of an asymptomatic condition can constitute a serious injury.

  • PRACTICE POINTER: The key pointer is that the plaintiff brought forth medical proof in admissible form that injuries were objective, which satisfied one of the categories of the serious injury statute creating an issue of fact, resulting in the denial of the motion.

CASE: Walker v. Whitney, 132 A.D.3d 478 (N.Y. App. Div. 1st Dep't 2015)

The defendants in this case met their burden by submitting the affirmed reports of an orthopedist and neurologist who found full range of motion in all parts. They also submitted a report of a radiologist who found that the MRI films showed degenerative disc disease in the spine, mild acromioclavicular (AC) joint osteoarthritis in the shoulder, and no evidence of causally related injury. The plaintiff submitted no admissible medical evidence in support of his claim of serious injury to his cervical and lumbar spine. The records did not become admissible merely because defendants' experts reviewed them.

The only admissible evidence submitted by plaintiff was an affirmation from plaintiff's orthopedic surgeon, who last examined plaintiff shortly after the arthroscopic procedure. He indicated that following surgery, plaintiff had a "decreased range of motion in his left shoulder," but did not provide measurements of the actual ranges of motion or a normal value for comparison. Plaintiff also did not provide evidentiary support for his conclusory statement that plaintiff's shoulder condition was caused by the accident, nor did he address the opinions of defendants' experts that any shoulder injury was due to ongoing pathology and degenerative changes.

The surgeon's statement did not address the conclusions by defendants' doctors that, as of 2012, plaintiff had regained a full range of motion in his left shoulder, which is relevant to the claim of permanent injury.


  • PRACTICE POINTER: This case should be a warning to all practitioners to make sure not only that their proof is admissible to meet their burden, but also, once that hurdle is met, the evidence must be sufficient to establish an issue of fact as to whether the claimant had an injury that meets one of the categories of serious injury under the statute. The fact that the plaintiff had a limited range of motion after surgery did not satisfy his burden in the absence of evidence that rebutted the defense physician's finding of full range of motion subsequent to that examination. In addition, the plaintiff's proof failed to establish causation of the injury in opposition to defendant's proof, which showed that the symptoms did not arise from injuries caused by the underlying accident.

CASE: Smith v. Roberts, 131 A.D.3d 423 (N.Y. App. Div. 1st Dep't 2015)

The defendants met their burden on the 90/180-day category via plaintiff's testimony that he missed three days of work following the accident, even though plaintiff subsequently missed approximately a year of work following surgery that was conducted several months after the accident. The timing of the surgery and missed work did not meet the 90/180-day category for serious injury.


  • PRACTICE POINTER: The key concept here is to ensure proper pleading because, given the surgery, there should have been other categories where plaintiff could have established a serious injury. Here, it would appear that plaintiff was unduly confident in the missed time from work and overlooked the requirement that the 90 days of loss of activity must occur within the first 180 days post-accident to qualify under that category.

CASE: Cross v. Labombard, 127 A.D.3d 1355 (N.Y. App. Div. 3d Dep't 2015)

The procedural history is convoluted as the plaintiff moved for summary judgment on liability and the defendant cross-moved for summary judgment for failure to have sustained a "serious injury." The Court denied plaintiff's motion and partially granted defendant's cross motion, but concluded that summary judgment was not warranted as to a number of plaintiff's claims of "serious injury." The defendant appealed the decision.

The defendant met his initial burden as to plaintiff's cervical spine and left shoulder injuries by submitting the affidavit and report of a physician who conducted an independent medical examination of the plaintiff. The physician concluded that plaintiff's injuries were mild and related to a 2002 snowmobiling accident, a 2003 spinal fusion surgery and a one-vehicle accident that occurred in January 2010 (about two weeks after the subject accident). In response, plaintiff submitted the affidavit and records of a treating orthopedic surgeon, who provided a thorough and qualitative assessment of the current condition of plaintiff's neck and shoulder, and how these parts of her body were limited from otherwise normal use. He sufficiently distinguished the current symptoms from those attributable to the 2002 accident and related surgery by noting that plaintiff had returned to her normal daily activities without pain in the neck and shoulder for several years following the earlier accident, but she currently suffered from pain in those areas that prevented her from performing many typical daily functions.

As for distinguishing the January 2010 accident, the surgeon opined that the force of that accident would have propelled plaintiff in a different direction, such that she would have been less likely to receive the type of injuries that would be sustained in a forceful rear-impact collision, such as the December 2009 accident. The surgeon also noted that she complained of neck and shoulder pain during her visits to a chiropractor between the two accidents. The chiropractic records from those two visits, however, do not contain any quantitative or qualitative testing results; they only include information about plaintiff's subjective complaints of pain.

It also appears that the doctor did not have all of the accurate or necessary information about the two accidents to determine the true mechanisms of injury, such that he could validly conclude that the injuries from the December 2009 accident caused the limitations regardless of any injuries that might have been caused by the January 2010 accident. He described the January 2010 accident as lateral in nature, due to her vehicle striking a guardrail. According to other records, however, plaintiff had described the accident as more severe, in that her car was up on two wheels, almost flipped over, dragged along the guardrail to the extent that portions of the undercarriage were ripped away, and resulted in the vehicle being totaled. Considering the other record evidence and the fact that the doctor relied on incomplete or inaccurate information, he did not have a sufficient basis for reaching his conclusion that plaintiff's injuries were causally related to the December 2009 accident rather than the January 2010 accident. Hence, summary judgment based on significant limitation was properly granted but there is another category remaining.

The Court properly found a question of fact regarding the significant disfigurement category as to plaintiffs' surgical scars on her left shoulder. A scar falls within this category if a reasonable person would deem it unattractive or objectionable, or feel that it could subject the injured person to pity or scorn. The defense doctors opined that the one-half-inch and three-inch scars were not readily visible and did not constitute a significant disfigurement. However, plaintiff's doctor disagreed. The plaintiff averred that the location of the scars was uncomfortable because straps from dresses, swimsuits and bras rubbed in that area. If she were to wear clothing that exposed her shoulders, the scars would be visible, at least to some extent. She also noted, as supported by photographs, that the scars were different in color from the surrounding skin and that one scar was slightly puckered. While the photographs in the record are not of great quality, the evidence was sufficient to raise a question of fact on the significant disfigurement category.

As to the 90/180-day category, the Court correctly determined that defendant failed to meet his initial burden as to the plaintiff. Defendant relied on the lack of outright restrictions imposed by medical professionals in the medical records, but ignored deposition testimony by plaintiff that she could not perform many daily tasks or was restricted in her abilities, as well as evidence that she was told by medical professionals to limit certain tasks or engage in tasks only as able to do so. With defendant having failed to meet his burden, the court properly denied that aspect of the cross motion without even having to consider plaintiff's proof in opposition.


  • PRACTICE POINTER: The analysis used by the Court is an excellent explanation of the standard the Courts will apply to several categories of "serious injury." This is especially true for the significant disfigurement category. It is also important to review and understand the analysis regarding both prior and subsequent injuries and the proof necessary to either establish or rebut the existence of a "serious injury" arising from the particular accident which is the basis for the lawsuit.


CASE: Johnson v. American Transp. Corp., 2015 N.Y. Misc. LEXIS 4646 (N.Y. Sup. Ct. Dec. 17, 2015)

The plaintiff alleged that he sustained a herniated disc at level L5/SI, lumbar radiculopathy, disc bulges at levels Tl 2 through SI, lumbar myofascitis, left shoulder derangement, and exacerbation of a pre-existing degenerative disc condition. Plaintiff further alleges that as a result of the injuries he sustained in the subject collision, he was confined to his bed and home from December 13, 2012, until April 10, 2013.

In support of the motion, the defendants submitted copies of the pleadings, the plaintiff's deposition transcript, the uncertified medical records of the plaintiff regarding the injuries at issue, and the sworn medical reports of three defense IMEs. One of the doctors performed an independent radiological review of the magnetic resonance images films taken of the plaintiff's left shoulder and lumbar spine on February 14, 2013 and February 3, 2103, respectively. Another doctor conducted an independent orthopedic examination of the plaintiff on November 4, 2014. Lastly, the third IME doctor conducted an independent neurological examination of the plaintiff on December 4, 2014.

The defendant's examining orthopedist stated in his medical report that an examination of the plaintiff revealed that he had full range of motion in his spine and left shoulder; that there was no tenderness or spasm upon palpitation of the para spinal muscles; that there was no atrophy, crepitus or tenderness of the acromioclavicular ("AC") joint in the left shoulder; that the muscle strength of the lower and upper extremities was 5/5; and that the straight leg-raising test and impingement signs were negative. Although the doctor did note significant range-of-motion limitations in the plaintiff's right shoulder, the plaintiff failed to allege any injuries to his right shoulder in his bill of particulars; therefore, it cannot be said that the observed limitations in the plaintiff's right shoulder were causally related.

Moreover, another defense IME doctor opined that the injuries to the plaintiff's lumbar spine and left shoulder were resolved and that the plaintiff was capable of performing his normal activities of daily living. Likewise, the defendant's examining neurologist, in his examination of the plaintiff, found that he had full range of motion in his spine, that there was no active inflammation or swelling in the left shoulder, that the straight leg-raising test was "unlimited at 90 degrees," that there were no myelopathic signs, and that the plaintiff's gait and coordination were within normal limits with no evidence of foot drop or hip tilt.

Lastly, the radiologist retained by defendant states in her medical report that a review of the MRI studies of the plaintiff's lumbar spine and left shoulder revealed the presence of long-standing degenerative joint disease and disc desiccation, which were pre-existing to the subject accident, and that there was no evidence of a recent or acute post-traumatic abnormality or change in either the plaintiff's lumbar spine or left shoulder causally related to the subject accident.


  • PRACTICE POINTER: The plaintiff had difficulty rebutting all the medical evidence in favor of the motion. The plaintiff's subjective complaints of pain were insufficient to establish the existence of a serious injury. Moreover, the plaintiff's self-serving affidavit is insufficient to raise a triable issue of fact as to whether he sustained a serious injury that was causally related to the subject accident. Although the plaintiff has submitted the affirmed medical report of his treating physician showing that he sustained range of motion limitations in his spine and left shoulder contemporaneous with the subject accident, he failed to submit any objective admissible medical proof demonstrating the existence of such limitations based upon a recent examination.

  • One of plaintiff's doctor's reports impermissibly relies upon other doctor's unaffirmed reports in reaching his conclusions. Thus, it is without probative value as to whether the plaintiff sustained a serious injury within the meaning of the Insurance Law due to the subject collision. Moreover, even though there was a radiologist report that showed a herniated disc, it failed to meet plaintiff's burden because the mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration.
  • While this is a trial-level decision, it is important to note that the concepts and analysis contained therein will be applied by the Appellate Division. In this case, defendants did an excellent job of both obtaining and ensuring the evidence was admissible to meet their burden, while plaintiff did not. Given the time plaintiff claimed to have spent in bed, the plaintiff failed to capitalize on this favorable fact by submitting more proof based on that allegation to establish a 90/180 claim.

CASE: Murray v. Helderberg Ambulance Squad, Inc., 133 A.D.3d 1001 (N.Y. App. Div. 3d Dep't 2015)

The plaintiff did not seek treatment for her purported injuries for more than 11 months, and her expert failed to discuss or distinguish her relevant pre-accident and post-accident incidents and injuries. As such, the motion for summary judgment was granted. The facts of this case are compelling. The plaintiff had sought treatment about a year before the accident for soreness in her left shoulder. Following the accident, she continued her normal active lifestyle for about a year until November 2010, when she visited a doctor with complaints of pain in her left shoulder. This visit occurred shortly after a separate incident in October 2010, during which she injured her left arm attempting to move a 25-pound box.

A second post-accident incident occurred in March 2011 when a snowboarder collided with her, causing her to fall on her left side and sustain shoulder pain and numbness. The defendants met their burden of establishing entitlement to summary judgment with an IME doctor's sworn report. In opposition to defendants' motion, plaintiff's proof included a brief affirmation from Benjamin Chang, a general and vascular surgeon who began treating the plaintiff two years after the accident and who diagnosed thoracic outlet syndrome for which he later performed two surgeries Dr. Chang opined that plaintiff's thoracic outlet syndrome resulted from the November 2009 motor vehicle accident. However, he did not address plaintiff's pre-accident left shoulder problems or the impact of the two post-accident incidents in which plaintiff injured her left shoulder and/or neck. The November 2009 accident was not distinguished from or put in medical context with the other relevant injuries, and Chang's opinion regarding causation rested upon plaintiff's subjective complaints. Upon this record, the plaintiff failed to establish a triable issue of fact regarding a serious injury caused by the motor vehicle accident.

  • PRACTICE POINTER: Even though the evidence was sworn and addressed causation, the proof was defective on its face for failure to perform the proper analysis. Some might argue that an issue of fact was created and the defects in the proof could be the subject or the trier of fact, but there is no indication that the argument was made.

CASE: Johnson v. Salaj, 130 A.D.3d 502 (N.Y. App. Div. 1st Dep't 2015)

Plaintiff alleged a "serious injury" that required arthroscopic surgery to her left knee from an auto accident. Defendants moved for summary judgment on the basis that medical affirmations submitted into evidence showed that plaintiff did not suffer an injury that resulted in permanent or significant limitations in use of her left knee and, even if the affirmations did show a limitation, it was caused by pre-existing conditions rather than the accident.

The First Department held that the defendants' failed to meet their prima facie burden because the medical affirmations submitted by the defendants actually showed conflicting expert reports creating a question of fact as to the range of motion in plaintiff's knee and the cause of the plaintiff's anterior cruciate ligament tear. This evidence failed to demonstrate as a matter of law that the plaintiff's knee injury was caused by a pre-existing condition. Because defendants submitted conflicting expert testimony within their own evidence, the burden never shifted to the plaintiff to oppose the claim that the cause of her injury was pre-existing and summary judgment failed.


  • PRACTICE POINTER: It is paramount to ensure that the argument for summary judgment is based on consistent evidence to meet the initial burden of the prima facie case so as to not incur substantial costs of litigation over the "serious injury" issue needlessly.

CASE: Streeter v. Stanley, 128 A.D.3d 477 (N.Y. App. Div. 1st Dep't 2015)

Like Johnson, this plaintiff alleged a "serious injury" to her left knee. Defendants met their initial burden through evidence of an affirmed report of an orthopedist who found no objective evidence of injury and a full range of motion in plaintiff's left knee. Plaintiff opposed the motion based on a report from her own medical expert who, upon examination, noted limited range of motion in the plaintiff's left knee.

Defendants attempted to rebut this objection based on the fact that the plaintiff's expert did not examine the plaintiff until three years after the accident, giving to her alleged "serious injury." The First Department held that "there is no requirement that, to defeat summary judgment, a plaintiff must show quantitative measurements suggesting serious injury that are recorded contemporaneous to the accident." Id. at 477. The court further held that "some contemporaneous report of a plaintiff's condition may be necessary to establish causation," but the defendants in this case failed to raise causation in their prima facie showing. Id.


  • PRACTICE POINTER: A plaintiff can defeat a motion for summary judgment with objective findings that are not contemporaneous with the accident giving rise to her injury. If contemporaneous findings are an issue in the plaintiff's evidence, the defense needs to address this through a causation argument in its prima facie showing or risk losing the entire motion. This is another case that highlights the need for a thorough analysis of the evidence before deciding to move forward with a motion for summary judgment on the basis of a lack of "serious injury."

CASE: Clark v. Boorman, 132 A.D.3d 1323 (N.Y. App. Div. 4th Dep't 2015)

The plaintiff successfully moved for summary judgment on the issue that plaintiff suffered a "serious injury" pursuant to Insurance Law 5102(d) by way of the significant limitation of use of a body function or system category of the statute. Plaintiff submitted an affidavit of his own medical expert who found that plaintiff had multiple herniated discs based on a review of MRI reports. Defendants argued that this alone was not enough to establish a "serious injury" by way of the significant limitation of use of a body function or system category of the statute.

The court held, "[i]t is well established that proof of a herniated disc, without additional objective evidence, is not sufficient to establish a serious injury." Id. at 1323. However, plaintiff also submitted additional evidence of certified treatment records of his chiropractor and a report by a physician selected by the defendants to complete an IME on the plaintiff two years after the accident that showed significant limitations in range of motion in both the plaintiff's cervical and lumbar spine. The Fourth Department held that, by submitting evidence on range of motion limitations in addition to the evidence of the herniated disc, plaintiff successfully established the extent and duration of his limitation. Id.


  • PRACTICE POINTER: Evidence of a herniated disc without additional evidence will not qualify as a "serious injury." Rather, the plaintiff must produce additional evidence supporting that the herniated disc falls into the significant limitation of use of a body function or system category of the statute. The easiest way for a plaintiff to do this is to provide additional evidence of limitation in the plaintiff's range of motion in the same area of his spine as the herniated disc.

CASE: Green v. Jones, 133 A.D.3d 472 (N.Y. App. Div. 1st Dep't 2015)

The defendants successfully moved for summary judgment on the basis that the plaintiff did not suffer a "serious injury" to her left shoulder and lumbar spine due to a pre-existing condition argument supported by expert opinions. However, the plaintiff also alleged a "serious injury" to her cervical spine. While defendants' expert radiologist opined that plaintiff's herniated and bulging discs were degenerative and pre-existing to the accident, defendants' own orthopedic expert created a question of fact when he opined that the accident may have exacerbated or aggravated the plaintiff's pre-existing cervical condition.


  • PRACTICE POINTER: A defendant's motion for summary judgment must not contain evidence that would create an issue of fact as to whether the plaintiff has suffered a "serious injury." Here, defendants succeeded on their pre-existing argument as to the plaintiff's left shoulder and lumbar spine, but failed to see the flaws in their own expert's testimony as to the plaintiff's cervical spine. Any evidence that a change to the plaintiff's pre-accident condition was caused by the accident will eliminate the possibility of winning the case at the summary judgment phase. Therefore, it is critical that defense practitioners explore all of their own evidence for flaws before making the summary judgment motion.

CASE: Rumford v. Singh, 130 A.D.3d 1002 (N.Y. App. Div. 2d Dep't 2015)

The plaintiff alleged that she suffered a "serious injury" due to a traumatic brain injury. Plaintiff presented the testimony of her neuropsychologist who performed a range of tests to evaluate the plaintiff's cognitive functioning and concluded that plaintiff suffered a concussive brain injury as a result of the accident due to positive results for impairment to memory and concentration.

Defendants moved for judgment as a matter of law at trial, arguing that the psychologist's testimony was not sufficient to establish a "serious injury," but the Supreme Court denied. The Second Department overturned the Supreme Court on appeal finding that "[a]lthough the plaintiff's expert psychologist testified, based upon the results of certain tests, that the plaintiff was suffering from deficits in cognitive functioning, he failed to identify any objective medical evidence to support his conclusion that the plaintiff had suffered a concussive brain injury." Id. at 1004. Moreover, the court held that the psychologist's finding that the neurological condition was causally related to the accident was only speculative.


  • PRACTICE POINTER: Conclusory opinions by medical experts finding a "serious injury" fall short of the standard needed to survive summary judgment. Expert opinions must be supported by objective findings. Psychological testing is not objective evidence that will support an expert opinion of a traumatic brain injury.

CASE: Jallow v. Siri, 2015 N.Y. App. Div. LEXIS 8207 (N.Y. App. Div. 1st Dep't 2015)

This 24-year-old plaintiff alleged a "serious injury" to his left knee as the result of an automobile accident with defendants. Defendants successfully met their initial burden of a prima facie case by showing a lack of a permanent consequential and significant limitation of the plaintiff's left knee through an orthopedist report finding a full range of motion in that body part and the affirmed report of a radiologist opining that objective findings on plaintiff's MRI were the result of degenerative conditions. Plaintiff successfully opposed this showing by presenting his own experts' testimony that plaintiff's injuries were a traumatic result of the accident. Furthermore, the court found plaintiff's experts' testimony compelling because it addressed the duration of plaintiff's injuries to show that the injury to his left knee was permanent in nature. Plaintiff's experts pointed out that the plaintiff remained symptomatic after receiving ongoing physical therapy for a year evidenced by plaintiff continuing to take oral analgesics and wearing a knee brace.


  • PRACTICE POINTER: Duration of injury is a key factor in the Court's analysis in determining whether plaintiff's evidence creates a question of fact to get past the summary judgment phase in a "serious injury" case. Clear evidence of ongoing symptoms after a significant period of therapy will create a question of fact that plaintiff's injuries are permanent.

CASE: Uribe v. Jimenez, 133 A.D.3d 844 (N.Y. App. Div. 2d Dep't 2015)

The Second Department reversed the Supreme Court's decision to grant summary judgment in favor of the defendant. The Second Department agreed that the defendant met his prima facie burden by showing that the plaintiff did not suffer a "serious injury" to her ribs by submitting non-certified x-rays that revealed no fractures. The court specifically held that "[w]hile these medical records were not certified, the defendant could rely on them in order to demonstrate a lack of serious injury, as they were the records of the plaintiff's treating physicians The court ultimately denied the defendant's motion for summary judgment on the basis that plaintiff submitted competent medical evidence to counter these records creating a question of fact as to whether her ribs were fractured.


  • PRACTICE POINTER: The defendants in this case lost their motion but created good case law that can aid defendants in other cases. The same argument can also be used by plaintiffs in opposing the motion if there is evidence in the defendant's proofs of a serious injury having been suffered by their client. The court held that the defendant could rely on non-certified medical records of the plaintiff's treating physicians in order to demonstrate a lack of "serious injury." This loads more admissible evidence into the defense's arsenal to attack a plaintiff's claim of "serious injury." Additionally, it illustrates that courts will give more weight to records from plaintiff's own treating physician that show the absence of a "serious injury."

In conclusion, automobile accidents in New York are no laughing matter where the serious injury threshold is concerned. It takes time, preparation and marshalling of evidence to both make or oppose a summary judgment motion. It is important that defendants ensure that they have met their burden with admissible evidence to show their entitlement to summary judgment. It is also essential that the plaintiffs focus on the proof submitted and tailor their response to refute defendant's arguments with proof in admissible form which clearly shows that a category of injury under insurance law 5102(d) has been met.

Thus, the cases in this article help to answer the question "why so serious?"


Robert Baer was admitted to the New York Bar in 1988. He practiced
in New York for years as an insurance defense attorney for Royal &
SunAlliance USA. He no longer actively practices as he is now a Claims Executive with Arrowpoint Capital. Bob has a long history of developing CLE materials in New York. He is a professor for the Claim & Litigation Management Alliance at the Claims College and has also instructed at the Litigation Management Institute. Nick Franchak, who is assisting Robert, is a seasoned claims professional and an admitted Ohio attorney who was on Law Review at Capital University Law School. Nick recently joined Arrowpoint Capital and is a claims adjuster.

Enhancing the Quality of Hearings in New York State: Using Data to Drive Improvement

By: Alicia Summers and Christine Kiesel, Esq.

The law requires frequent judicial review to achieve timely permanency for children placed outside of their homes. How do you ensure quality does not get pushed aside for timeliness? Go to the frontlines - observe court hearings, talk to and survey jurists, child welfare clients, attorneys, foster parents and others. Gather data to gauge what is happening in court, what's working and what's not. This is the approach New York State is taking, with good results. This article shares that approach and offers ideas for other states looking to keep quality at the forefront in child welfare proceedings.

Background
In December 2005, New York enacted ambitious legislation to strengthen the judicial oversight of child welfare cases required by the Adoption and Safe Families Act (ASFA). That legislation created a new Article 10-A of the Family Court Act requiring more frequent permanency hearings for all children who are the subject of petitions alleging abuse or neglect, or for whom an application is sought seeking voluntary placement into foster care. The new law replaced a prior law which mirrored ASFA's timeframes.

New York State Family Court Act (FCA) Article 10-A provides that the initial permanency hearing for a child who is not freed for adoption begin generally no later than "...six months from the date which is sixty days after the child was removed from his or her home;"1 and that later permanency hearings "be scheduled for a date certain which shall be no later than six months after the completion of the previous permanency hearing..."2 This mandatory expedited timeframe for holding permanency hearings allows jurists and professionals to attend more often to the critical conversations that are necessary to achieve timely, safe, and appropriate permanency for children.

A review of New York State's data on the timeliness of permanency hearings shows the legislative effort to hold more frequent permanency hearings was successful. The data reveal that for the 2012 entry cohort of children, 83% of initial permanency hearings were completed within the statutory time frames, and 93% of subsequent permanency hearings were completed timely.3

Despite the legislation's success, requiring permanency hearings in a shorter time frame added pressure to an already overburdened court system and jurists' calendars. It also came without additional resources to support implementation.

In addition to increasing the number and frequency of permanency hearings Article 10-A aims "to provide children placed out of their homes timely and effective judicial review that promotes permanency, safety and well-being in their lives."4 To fulfill that purpose, jurists were required to hear these cases more frequently and address children's safety, permanency, and well-being. The challenge became carving out enough time to provide children with this "effective judicial review" in the face of existing stresses on the system.

Project Development: Using Data to Improve Hearing Quality
New York's Child Welfare Court Improvement Project (CIP), with support from Chapin Hall in 2011, first rolled out the Child Welfare Court Data Metrics. Enhanced funding from the Children's Bureau allowed CIPs to strengthen dependency court data collection and dissemination. National standards encouraged assessing court performance in child welfare cases. New York already had a robust data collection system for child welfare cases established by the Unified Court System Division of Technology. The Children's Bureau funds could therefore be used to turn the data into useable information.

Time to Permanency Data
The data revealed that despite the comprehensive statutory scheme promoting more frequent judicial review that promotes safety, permanency and well-being, New York State's time to permanency for children was far below the federal benchmarks set in Round 2 of the Federal Child and Family Services Review. Based on the Child Welfare Court Data Metrics observed at the end of 2012, for children who entered out-of-home care in 2011, 38% of them achieved permanency in 12 months. For children who entered out-of-home care in 2010, 2% of them achieved permanency by adoption within 24 months.

Since the data on timeliness and permanency were opposed, New York's CIP wanted to explore this dichotomy. Given the strong statutory goal to move children toward permanency through permanency hearings, CIP in 2012 began to examine how to enhance the quality of permanency hearings throughout the state.

Quality Improvement Model
A daunting task at first, the goal to improve permanency hearing quality was attainable by harnessing existing resources within the state, requesting help from our federal technical assistance provider, and dividing the process into distinct tasks with defined purposes and measurable outcomes. The CIP was guided by a Continuous Quality Improvement model that supports work at the state and local levels. The model's key elements include:
• collecting data and information;
• analyzing and interpreting the data to determine progress;
• applying lessons learned; and
• developing measurable outcomes and activities to support those outcomes.

Logic Model
CIP developed a logic model that will continue to guide the process in the future. An overarching strategy is working with counties to enhance their permanency hearings as a vehicle to improve outcomes for children and families statewide. The key steps contained within the logic model are:
• identify key indicators of a quality permanency hearing using existing national and state publications as well as local focus groups;
• develop court observation and review tools;
• provide for a data collection repository with reporting capability;
• seek out pilot counties and implement court observation and case file reviews
• provide feedback on strengths and areas needing improvement and support the county in developing an action plan for improvement;
• revise tools based on lessons learned in pilot counties;
• develop a toolkit for a county "self-review".

Data-Driven Approach

After exploring the quantitative data from the New York State Child Welfare Data Metrics, New York CIP used a two-stage data-driven approach to assess hearing quality. The CIP began a qualitative data "information gathering stage" with a plan to improve permanency outcomes for New York's children and youth. Focus groups solicited feedback about permanency hearings from child welfare practitioners. An online survey also gathered input from judges and judicial officers around the state.

Focus groups
Focus groups were held in four jurisdictions to gain a variety of perspectives. It was assumed the challenges and successes of permanency hearings would differ in rural versus urban locations. The locations included New York City, Westchester County, Oneida County, and Monroe County. CIP conducted role-specific focus groups with parent attorneys, children's attorneys, agency attorneys, and caseworkers in each of the four jurisdictions. Two more focus groups solicited the views of foster youth and foster parents. A total of 18 focus groups were conducted. Focus group questions asked about general perceptions and role-specific values concerning permanency hearings and what those hearings should (or should not) look like in practice. Sample questions included:
• In a perfect world, what is the purpose of the permanency hearing?
• Does the presence of youth and children add value to permanency hearings?
• What are some best practices that occur in permanency hearings?
• What are the most important elements to address during the permanency hearing?
• Do permanency hearings assist in achieving more timely permanency for children?

Online survey
The online survey supplemented the focus groups and was conceived as a more practical approach to gaining the views and experiences of judges and judicial officers. The focus group questions were copied into an online survey format and sent to judicial officers around the state, with 57 judicial officers responding.

Key Findings - Focus Groups and Online Survey
Several key findings emerged from the focus groups and online survey:
Responses were diverse, yet similar: The views shared by the professionals and parties involved in the focus groups and online surveys were diverse, yet the commonalities outweighed the differences. In fact, most themes noted were common across rural and urban jurisdictions alike. The results gave the CIP a solid framework of stakeholders' perceptions of permanency hearings across New York State.
Permanency hearings lacked impact: Many felt permanency hearings were too brief and pro forma and were not conducted in a thorough and meaningful way.
Little consensus on whether children and youth should participate in court: Despite efforts by the CIP and others to involve children and youth in court, there was much uncertainty about whether children and youth should attend, whether they add value to proceedings, and if they attend, how they should participate.
Youth voices not heard: Youth did not feel their voices were heard in the legal process, either in court or through representation by an attorney.
Focus on well-being needs to be improved: Well-being is broadly defined as any aspect related to the welfare of the child, including educational, physical, behavioral or emotional aspects. Many stakeholders felt there was not enough focus in permanency hearings on child and youth well-being. A focus on the parents' progress often took precedence over the child's well-being. The literature clearly shows the negative impact of abuse and neglect, and even foster care, on youth. It is therefore important for the courts to ensure efforts are underway to promote resilience and encourage positive well-being outcomes for youth whenever possible.

Data Analysis & Next Steps
When data collection was complete, the National Resource Center on Legal and Judicial Issues (NRCLJI) analyzed the data and consulted on next steps. The qualitative data from the focus groups and survey were used to:
1. design court observation and case file review tools; and
2. compile an executive summary with themes drawn from the data to share with local jurisdictions to support in-depth assessments of local permanency hearing practice.

Court Observation & Case File Review Tools
The court observation and case file review tools were designed to capture quantitative data about what is occurring in permanency hearings, how cases are progressing through the system, and case outcomes.

Court Observation Tool
The court observation tool assesses what is occurring in permanency hearings through real-time observations. It focuses on the court process, including the actions of the court and the interplay among the parties, attorneys, and the court. This gives a holistic picture of this snapshot in time. Observations include identifying:
• which parties were present;
• which permanency hearing was observed (first, second, etc.);
• whether the judge or judicial officer engaged the parties before him or her, including foster parents, relatives, children and youth;
• what topics were discussed;
• what findings were made; and
• whether reports were timely received.

Additionally the CIP developed a measure to identify whether the goal approved at the permanency hearing was appropriate for that child or youth.5 For each jurisdiction wanting this in-depth assessment, two members of the CIP staff observe approximately 20 permanency hearings in a three-day period.

Case file review tool.
The case file review tool focuses on all permanency hearings held during a child's journey from out-of-home care to permanency. It collects data on length of time between the start and end of a permanency hearing, time between permanency hearings, continuances, changes in permanency goals, and case outcomes. Two members of the CIP staff review approximately 20 recently closed cases, resulting in reviewing over 100 permanency hearings.

Local Assessments & Action Plans

Upon request, CIP reviewers assess local jurisdictions' permanency hearing process in a systematic way using the developed tools. Following a county-level assessment, data from the court observation and case file review are analyzed and reported back to the courts. The CIP then works with local jurisdictions to develop an action plan to implement recommended policy and practice changes, including establishing measures to determine success.

Self-Assessment Tool Kit
A final strategy in CIP's logic model is developing a tool kit for counties to assess their permanency hearings independently. Counties across the state have expressed a desire to closely examine their permanency hearing process, yet the CIP lacks the human resources to provide local assessments for every county in New York. The CIP will develop this tool kit to address this need.

Lessons Learned - Information Gathering Stage
Assessing and supporting hearing quality in New York is a long, ongoing process. Throughout the information-gathering stage, several valuable lessons were learned about the types of data collection and how to best use the information.
Securing the parent's voice is a challenge. Several dates and times were scheduled with a group of parents, but none of those dates were attended. Several issues arose in the planning of a focus group to capture the parental experience. First, there was a concern for confidentiality when the parents had an active case. Second, the CIP did not want to cause an undue burden on parents by asking them do additional tasks beyond their case plan. It might be easier to schedule a focus group with parents if (a) incentives are offered (e.g., gift cards), (b) food is provided, (c) daycare is provided, and (d) the parents have recently closed cases.
Feedback from child welfare practitioners and parties is critical. Seeking input from child welfare practitioners and parties helps define evaluation questions and refine data collection instruments. It also creates greater buy-in when those involved in the process have contributed.
Buy-in is crucial to continue the work. Having the same theme emerge from four different and diverse jurisdictions is a good counterargument to "that data isn't from my court." It is still not 100% effective, however. The CIP recognized that some jurisdictions may need to be guided by their own jurisdiction's results. In those situations, a survey tool for local jurisdictions was created.
Developing and translating survey questions requires expertise. When designing questions for a survey or a focus group always seek input on the nature of the questions. Someone experienced in survey design will spot if questions have dual meaning, or do not capture the information you seek. Further, focus group questions do not always translate well into survey questions. Focus group questions are meant to facilitate dialogue between group members. As such, the questions are often long and require follow-up. In an online survey, consumers get fatigued with too many open-ended questions and no one online to follow-up if the participant has a question. The grey area of a question cannot be explained in this format.
Note taking is vital to capture good focus group data. Ideally, one person facilitates and another person takes notes. Note taking should capture content as well as the quantity and intensity of discussion. For example, it is different if one person identifies a challenge than if the entire group agrees. Contested issues should also be documented to add context to findings.
When an outside consultant reviews your data, always review the results. A consultant may bring expertise to the process of turning the data into useable information. If the consultant was not the focus group facilitator or note taker, review the findings with those who served in those roles to ensure the results match the information conveyed on site.

Conclusion
Dependency cases are often complex, requiring judicial oversight across multiple hearings throughout the life of the case. While there are some standards as to what these hearings should look like, it is largely up to the judicial officers and system stakeholders to shape what occurs in each hearing. New York has begun an important process, examining the quality of these hearings with the ultimate goal of providing data back to the courts to identify challenges and successes so court practices may be improved. Improving the quality of these hearings should lead to better outcomes for children and families involved in the system. Using the methodology identified above, New York will be able to examine these outcomes and provide much-needed empirical support for this issue. Other courts can contribute to this growing evidence-base by examining quality of hearings and how it may be related to case outcomes.


Alicia Summers, PhD, is the Director of Research and Evaluation at the National Council of Juvenile and Family Court Judges.

Christine Sabino Kiesel, Esq. is the Coordinator of the Child Welfare Court Improvement Project for New York State's Unified Court System.

The content of this article represents the thoughts and opinions of the authors only and not that of the New York State Unified Court System.

[SIDE BAR]
Tips for Other States
Exploring hearing quality can be a complex process. The following list provides some ideas to simplify the process.
1. Have a plan! Identify your research questions. Figure out what you want to know. This will inform the scope of the project, including what data collection instrument is best suited for your work. Create a logic model and work plan to organize your plan in a linear and concrete way with identified outcome measures.

2. Ask frontline child welfare professionals and parties. Professionals and parties involved in child welfare proceedings can help define what constitutes a high-quality permanency hearings. They can provide insight into their perception of what quality means and can help direct the focus of more in-depth work.

3. Consider a multi-method approach. Data can be collected in many ways. Surveys, focus groups, court observation, and case file review (to name a few) all provide different information about hearing quality. Consider your audience to determine the most effective way to collect data and information.

4. Ask for help. Research or evaluation expertise is not necessary to get started. However, someone with experience in these areas could help inform the process, review or create appropriate instruments, and help interpret the data. Resources are available to help courts and court improvement programs do this work. Technical assistance providers such as the American Bar Association's Center on Children and the Law, National Council of Juvenile and Family Court Judges, or the Capacity Building Center for Courts may be able to assist. Creating academic partnerships with university faculty or students may yield additional resources.

5. Start small. Assessing hearing quality does not have to be a big process. Use the information gathered to identify a focal point and start there. For example, you may just want to explore how parents or youth are engaged in the process (e.g., do they have an opportunity to be heard, are they asked specific questions, etc.), or what topics are discussed at hearings.

6. Pilot test your instruments. Designing a valid and reliable instrument can be a challenge. Test the tool to see how it works before you implement it on a larger scale. This typically includes using the tools to code a hearing or review a file. Coders can determine if there are things that work well or items that are hard to capture. Testing also allows the coders to identify "tricky" items, or items that they have questions about how they should be coded. This provides an opportunity to hone the tool and clarify coding instructions.

7. Make the data meaningful. Think about how your data can be used. Data can inform next steps on the project, be used to design instruments for data collection, or be used to solicit funding or interest for more in-depth work. More importantly, providing data back to the court in a meaningful user-friendly way can help courts make data-driven decisions that improve practice.

8. Be flexible. Many things may not work out as you envision. Being flexible in your approach can help relieve some stress and lead to good alternatives.

9. Be patient. Engaging in a meaningful qualitative review takes time, persistence, and patience. Be thoughtful at each stage and focus on achieving better quality hearings.

10. Share your work. Hearing quality is a complex and nuanced. There is still much to learn in the field about what factors contribute to a quality hearing and how hearing quality may affect case outcomes. Disseminating information about methodology, tools, and findings can inform work in other jurisdictions and move the field forward.

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1 Family Court Act Section 1089(a)(2).
2 Family Court Act Section 1089(a)(3).
3 New York State Unified Court System, Universal Case Management System - Family Court - CWCIP Data Metrics. Progress of children followed through 12/31/2014.
4 Family Court Act Section 1086
5 Recognizing the great subjectivity that is embedded in a decision to render a specific goal, the goals that were identified as inappropriate had to meet special criteria: Reunification goal with noncompliant caregivers for more than 24 months; APPLA goal for a child less than 14 years of age, and reunification for more than 12 months where the caregivers have not made progress at alleviating the reasons for removal.

Elder Law and Special Needs Section's Co-Liaison Report

By Lauren E. Sharkey, Esq.

The Elder Law and Special Needs Section Executive Committee recently met at the 2016 Annual Meeting, followed by a five credit MCLE program on various topics including the annual Elder Law Update, Special Needs Update, and 17A Guardianships.

Notably, the Executive Committee discussed pending legislation with regard to the creation of a Health Care Proxy Registry, suggested changes to the Power of Attorney Statutory Short Form by the Power of Attorney Task Force, and the Governor's budget proposal on significant changes to the Medicaid Community Spouse Resource Allowance (a proposed reduction from $74,820 to the federal minimum of $23,844.)

The Section will host its "UnProgram" on April 14th to April 16th, 2016 in Poughkeepsie, New York. The UnProgram is limited to 80 participants to encourage close-knit discussions on Elder Law and Special Needs Law. The Summer Meeting will take place on July 21st to July 23rd, 2016 at the Logan Hotel in Philadelphia, Pennsylvania. The Fall Meeting is scheduled for October 20th to October 21st, 2016 at the Grand Cascades Lodge in Hamburg, New Jersey.

Join the Young Lawyers Section


Become the voice of newly-admitted and young attorneys in the New York State Bar Association. Designed to help make the transition from law school to practice an easier one for newly-admitted attorneys, the Young Lawyers Section connects you with experienced attorneys lending general advice, legal guidance, or expert opinions. Take advantage of educational programs, networking events, and the exclusive Young Lawyers Section Mentor Directory, which is just one of the Section's mentoring initiatives. The Section publishes Electronically In Touch and Perspective. Law students may also join the Section and get a jump start on their careers.

ALREADY A MEMBER OF THIS SECTION? JOIN A COMMITTEE!

Are you interested in volunteering for a Section Committee? Please email Megan O'Toole at motoole@nysba.org and Tina Rothaupt at trothaupt@nysba.org and indicate the committees you wish to join.

Disclaimer

Electronically In Touch is the electronic news-publication of the New York State Bar Association, Young Lawyers Section (YLS). It is a member-driven publication that encourages members to write articles. We welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life advice, and information regarding upcoming meetings and events. Please submit articles to Sasha R. Grandison, Esq. at srgrandison@gmail.com by the 25th of each month.

The thoughts and opinions expressed in the articles are those of the respective authors and do not represent the opinions of the New York State Bar Association, Young Lawyers Section, or its Officers and Executive Committee.

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