Category: Firm News

By Carl Campanile
Posted: December 5, 2014
NY Post

The union representing the city’s correction officers has quietly filed a lawsuit in Manhattan federal court, claiming ObamaCare will bankrupt its health-care fund, The Post has learned.

The Correction Officers Benevolent Association maintains a supplemental medical fund for members that sets a $10,000 annual cap per family on prescription-drug benefits. The fund also provides optical and dental benefits.

But the new federal heath-care law bars the union from imposing annual limits on drug purchases — in essence, making the Affordable Care Act unaffordable, the lawsuit alleges.

“ObamaCare will bankrupt us,” said COBA President Norman Seabrook.

The lawsuit, which lists President Obama and other federal officials as defendants, said the lifting of the cap has resulted in “skyrocketing costs.”

The union estimated that two dozen members exceeded the previously imposed $10,000 cap and two participants were running up prescription bills of more than $50,000 each.

The union said in the June suit that the cap — coupled with 30 percent co-payments and mandatory use of generic drugs — was put in place to control costs and keep the fund solvent.

The city is the main source of funding — kicking in $1,780 per member.

COBA complained that its petition to the Obama administration seeking an exemption “fell on deaf ears” — hence, the lawsuit.

The suit, before Judge Shira Scheindlin, claims ObamaCare is anti-union and unconstitutional.

“The regulators’ refusal to grant the requested exemption violates the equal-protection and free-association rights of union members and their dependents,” COBA lawyer Howard Wien claimed.

“The only reason they are threatened with the loss of their prescription-drug coverage is their association with a labor union and one another.”

The COBA suit said the health-law edict leaves difficult choices: shut down the fund, severely limit benefits — or put all its money into saving the fund at the expense of ­officers’ wages and retirement benefits.

COBA appears to have gotten the attention of Obama health officials.

In a Nov. 21 court filing, the federal defendants requested a four-month stay to examine whether they can exempt COBA from the cost rule and potentially settle the case.

“The administrative-assessment process might ultimately obviate the need for this litigation to continue,” said Assistant Manhattan US Attorney Rebec­ca Tinio, responding on behalf of the administration.

DAVID COX: Mysterious denial of benefits.
Posted: Monday, December 1, 2014

Chief Leader

By MARK TOOR

The Westchester County Department of Correction erred when it refused to pay the full salary of a Correction Officer for nearly five months between the day he was injured on the job and the day he had surgery to correct the injury, an arbitrator ruled Nov. 24.

Julie Schatz of Isaacs, Devasia, Castro & Wien LLP, attorney for CO David Cox, said in an interview last week that her client is one of a number of officers who were denied their full compensation for the period between injury and treatment. Those officers should now be able to proceed to arbitration, or have their cases dealt with favorably in light of the decision in Mr. Cox’s case, she said.

Injured During Struggle

He was injured Jan. 31, 2014, while struggling with an inmate who needed to be transported but didn’t cooperate. Mr. Cox went out sick and filed for Workers’ Compensation. He had surgery to repair a tear in his right shoulder on May 15 and returned to restricted duty Aug. 11.

According to state law and the union’s contract with the county, injured Correction Officers are entitled to their full salaries for 39 weeks, the arbitrator’s ruling said. According to the grievance filed on Mr. Cox’s behalf by the Westchester County Correction Officers’ Benevolent Association, however, county officials informed him that he would get only partial benefits for the period between the day he went sick and the day he had surgery.

The officials told Mr. Cox that the Workers’ Compensation Board had ruled him partially disabled. They maintained he would need a ruling of full disability in order to receive his full salary. Otherwise, they said, he should have been showing up at work on restricted duty.

‘Never Assigned Him Work’

But, Ms. Schatz said, “The county never tried to assign him any work. They never disputed the cause of the injury, they just didn’t approve any benefits for him.”

She said the county’s attitude was, “We’re going to make you wait until you get through the bureaucracy…Somebody else will decide what he’s entitled to.”

The arbitrator, Elliott D. Shriftman, wrote that “there is no document in the record that shows that the Workers’ Compensation Board, at any time in the course of the proceedings before it, advised Cox that he could work special duty.”

He said the county’s decision to rely on a note from an emergency-room physician saying Mr. Cox could return to duty was a mistake. The physician’s “one-line statement that Cox would be fit for limited duty the next day,

if wearing a shoulder immobilizer, does not manifest that the writer was aware of the functions Cox would be expected to perform, or whether they could be performed with an immobilizer, or whether it would be appropriate for him to work with severe pain.”

Violated Union Contract

He pointed to medical records from doctors more familiar with Mr. Cox’s case, the procedures he underwent and the pain he suffered as more probative than the emergency-room note.

“The county violated the collective-bargaining agreement by failing to credit David Cox and all similarly affected employees with his/their full 39-week benefit,” Mr. Shriftman ruled.

Mr. Cox has been on restricted duty since returning to work, meaning he has no contact with inmates, does not carry a weapon and does not lift or raise his arms above his head.

ALBANY, N.Y. (Reuters) – A Long Island town improperly stopped providing more than 40 employees with cars to commute to work without first negotiating the move with their union, the Court of Appeals has ruled.

The court Thursday rejected the town of Islip’s claim that it did not have to engage in collective bargaining before stripping the employees of their benefits to use town-owned cars for commuting in 2008.

The 20-year-old practice violated a local law that banned personal use of town-owned vehicles, the town said.

The court said that commuting did not qualify as personal use under the town law, and that Islip had violated Article 14 of the state Civil Service Law. The so-called Taylor Law bars public employers from unilaterally stripping unionized workers of “economic benefits” they have traditionally enjoyed.

“Whatever the merits of the town’s position, we do not reach and need not consider them because the relevant past practice was not, in fact, illegal under the local law,” Judge Susan Read wrote for the court.

Read said, however, that the board’s order for the town to give the cars back to the employees was impractical because many of the cars had already been sold. The court sent the case back to the board to devise a different remedy.

In dissent, Judge Eugene Pigott agreed with the town that commuting constituted a personal use of a vehicle, which is prohibited by the local law.

“The conduct engaged in by the town and its employees was against the law and PERB’s determination could not make it legal,” Pigott wrote, joined by Judge Robert Smith.

The decision Thursday upheld a 2011 ruling by the state Public Employment Relations Board.

Liam Castro of Isaacs, Devasia, Castro & Wien LLP, who represented the United Public Service Employees Union, said he was pleased with the decision.

The union had claimed the town changed the commuter-car policy to undermine stalled contract talks.

“Much time and taxpayer monies are spent on avoiding negotiations, both of which could have been saved if the town here simply negotiated with the union,” said Castro.

Ernest Stolzer, who represented Islip, was not available for comment. Anthony Zumbolo, the executive director of PERB, did not return a call.

Chief Judge Jonathan Lippman and Judges Victoria Graffeo, Jenny Rivera and Sheila Abdus-Salaam concurred with Read.

The case is Town of Islip v. New York State Public Employment Relations Board, New York State Court of Appeals No. 95.

For the town: Ernest Stolzer of Bond, Schoeneck & King.

For the PERB: David Quinn.

For the union: Liam Castro of Isaacs, Devasia, Castro & Wien LLP.

The partners of Isaacs, Devasia, Castro & Wien LLP announced Monday a new affiliation with the Rockland County-based Law Offices of David Fried.

David Fried said, “My practice is dedicated to serving the members of our community and their families. I have seen first-hand that the entire legal team at Isaacs, Devasia, Castro & Wien LLP shares that dedication at the core of their firm’s mission. Together, we will deliver the best legal representation possible on behalf of our clients.”

David Fried maintains a general practice in Chestnut Ridge, New York with services that include governmental advocacy and administrative representation, criminal defense, real estate, contracts and business law, immigration, wills and estates, and civil litigation among other practice areas.

He is currently mulling a run for County Court justice, as well. Clarkstown Judge Rolf Thorsen is running for the position. Previously, Judge Howard Gerber was considered a front-runner for the County Court position, but since being publicly rebuked by the chief of police in Clarkstown over alleged interference in the investigation into Peggy Nadell’s murder, he star has fallen.

Isaacs, Devasia, Castro & Wien LLP is a full-service law firm with twenty-four attorneys specializing in a wide range of practice areas including Labor and Employment, Criminal & Disciplinary, Personal Injury, Real Estate, and Matrimonial. The firm represents many high-profile clients including The Correction Officers’ Benevolent Association of Rockland County, The Westchester County Correction Officers Benevolent Association, The Dutchess County Sheriff’s Employees Association, The Ulster County Sherriff Employees Association, The Nassau County Correction Officers’ Benevolent Association and the New York City Correction Officers’ Benevolent Association.

Partner Steve Isaacs said, “We are thrilled to begin this affiliation with the Law Offices of David Fried. I’ve known and worked with David for over a decade. His legal knowledge and dedication to the community makes him a perfect addition to our firm. He will help extend our efforts to represent clients across Rockland County and the Hudson Valley.”

A litigator for over twenty-five years, Steve Isaacs serves as general counsel to a number of private and public sector labor unions both in Rockland County and the Hudson Valley region.

A graduate of Benjamin N. Cardozo School of Law, Fried is a former Rockland County Legislator, Criminal Court Judge, and the 2013 Democratic Party’s nominee for County Executive of Rockland County, a candidacy that was endorsed by New York Governor Andrew Cuomo and many elected local officials in Rockland County.

He formerly served as a presidential aide to William Jefferson Clinton and district representative to Congresswoman Nita Lowey, ranking member of the House Appropriations Committee.

COs Acquitted of Beating Inmate At Rikers and Then Attempting Cover-Up
March 10, 2014

A Bronx judge last week acquitted two Correction Officers charged with beating an inmate who was at the center of an alleged work stoppage by the Correction Officers Benevolent Association in November.
State Supreme Court Justice George Villegas declared Louis Pinto Jr. not guilty of assaulting a prisoner, and found both Mr. Pinto and Kevin Gilkes not guilty of 17 other charges, most involving falsifying reports.

‘Justice System Worked’

Justice Villegas, who decided the case instead of a jury, did not explain the reasons for his decision, said Mr. Gilkes’s attorney, Peter Troxler of Koehler and Isaacs. But, he said, “The justice system worked the way it should.”

Mr. Troxler said the verdict ended a period of “substantial hardships that nearly caused complete financial insolvency” for the two men, who were suspended without pay. He said they were looking forward to getting back to work.

Mr. Gilkes was charged with shoving inmate Dapree Peterson, 21, into a wall and then hitting him while Mr. Pinto watched. Mr. Pinto and Mr. Gilkes then filed reports saying that Mr. Peterson had threatened them by stepping forward aggressively, that Mr. Gilkes defended himself and that the two of them guided Mr. Peterson to the floor.

Prosecutors presented a video they said showed Mr. Gilkes attacking Mr. Peterson. Mr. Troxler said Judge Villegas had clearly taken a different interpretation from the video.

He said Mr. Peterson, who had been previously arrested in a dozen violent felonies and was nicknamed “Terror,” had told a fellow inmate he was going to stage an incident that would enable him to sue the city. When he eventually reached the courtroom, Mr. Peterson testified that Mr. Gilkes had hit him in the face after he requested that his handcuffs be loosened.

Union Assails DOC

The inmate is in Rikers awaiting trial on charges that he robbed and knifed a subway rider.
Norman Seabrook, president of COBA, used Judge Villegas’s decision as a vehicle to criticize the Department of Correction.

“This is indicative of the way the New York City Department of Correction continues to use Correction Officers as scapegoats for their shortcomings,” he said in a statement. “We applaud the judge’s decision and commend the legal system for its accuracy in interpreting the law. Hopefully, now these Correction Officers that have been vindicated can get back to a normal life after the complete embarrassment that the managers at the Department of Correction have put them through.”

Wouldn’t Take Him to Court

Mr. Peterson was aboard a bus on Rikers Island Nov. 18 for a trip to testify in the trial of Mr. Gilkes and Mr.Pinto when Correction Officers refused to drive any of the 33 buses taking inmates to court and medical visits, saying various defects made them unsafe to use. Court proceedings were delayed around the city.

The Bloomberg administration filed suit against the union a week later, charging that Mr. Seabrook and COBA’s executive board had led the COs in an illegal job action. “[D]efendants’ action to remove necessary buses from the fleet for was a subterfuge intended to protest the prosecution of other Correction Officers for illegal activity,” according to the suit.

The union has not commented beyond saying Nov. 26 that it was investigating the matter. “We are confident that when completed, our investigation will establish that the city’s allegations as set out in their complaint are entirely without merit and baseless,” COBA said.

Mr. Troxler detailed the hardships Mr. Gilkes and Mr. Pinto had faced while suspended. “Employment while suspended with an open felony criminal case presented nearly insurmountable obstacles for employment for both men,” he said.

Financial Hardships

Mr. Gilkes did find a job as a driver for a rental-car company, but it paid only one-sixth of his salary as a CO, Mr. Troxler said. As a result, the lawyer said, he was unable to pay some debts or contribute to the costs of educating two children.

“Louis Pinto’s hardship was even more pronounced, and had to rely on his extended family to make ends meet, straining the family beyond anything it had known,” Mr. Troxler said.

Mr. Gilkes and Mr. Pinto were advised by their attorneys not to speak to the media.

By NATE SCHWEBER
March 4, 2014

Two Rikers Island guards accused of assaulting a prisoner and covering up their actions were found not guilty Monday on all charges, after a trial that escalated tensions between the city and the correction officers’ union.

The guards, Louis Pinto Jr. and Kevin Gilkes, who chose to be tried by a judge rather than by a jury, were cleared of all charges stemming from what prosecutors said was an assault of a prisoner, Dapree Peterson, on Dec. 3, 2011.

Judge George Villegas of Bronx Supreme Court found Mr. Pinto not guilty of assault of a prisoner, and found both officers not guilty of 17 other charges, including official misconduct and falsifying a report.

“The justice system worked the way it should,” said Peter C. Troxler, Mr. Gilkes’s attorney. “I just wish it had happened quicker.”

The trial took an unexpected turn when Mr. Peterson failed to show up in court on Nov. 18 to testify against the officers. Correction officers had halted prisoner transports that day, claiming a wave of safety problems with the buses that usually ferried defendants between Rikers and the courts.

Mr. Peterson finally appeared in court the next afternoon, after which the judge suspended the trial for two weeks.

Dozens of defendants missed court appearances or other appointments because of the bus slowdown, but attention quickly turned to the case involving Mr. Peterson, who had been in custody after being arrested and charged with robbery and assault. When Mr. Peterson, 21, finally did testify on Dec. 5, he said Mr. Pinto had punched him in the face.

Norman Seabrook, president of the union, the Correction Officers’ Benevolent Association, praised the verdict and scolded city officials.

“Hopefully now these Correction Officers that have been vindicated can get back to a normal life after the complete embarrassment that the managers at the Department of Correction have put them through,” Mr. Seabrook said in a statement on Monday afternoon.

The flare-up between the union and City Hall roiled the final weeks of the administration of Mayor Michael R. Bloomberg. He charged Mr. Seabrook and the union with intimidating a witness and wasting public funds. Lawyers for Mr. Bloomberg filed suit in Manhattan Criminal Court, and sought to fine the union $1 million a day for any repeat of the shutdown.

Courts around the city ground to a near standstill during the two days in November that the buses did not run. According to court papers, 44 inmates missed court appearances and 49 missed health appointments.

Inside the Bronx courtroom where the officers were tried, Judge Villegas, who at times had criticized the union’s actions, made note that the trial received “an abundance of publicity last year.” Then he read his verdicts.

Mr. Pinto, 48, and Mr. Gilkes, 31, dressed in dark suits, stood with their heads bowed as Judge Villegas repeated “not guilty” eighteen times.

From the courtroom, filled with relatives and friends of the defendants, came a whispered woman’s voice: “Thank you.” Outside the courtroom, the two men hugged their supporters and their lawyers.

A spokesman for District Attorney Robert T. Johnson said the office had no comment on the verdict.

Mr. Gilkes and Mr. Pinto also declined to comment after the verdict.

PRESS RELEASE

Contact:
Michael Skelly
917-551-1354
mskelly@idcwlaw.com
Isaacs, Devasia, Castro & Wien LLP

CO Cleared of 11 Criminal Counts in Bronx State Supreme Court

Bronx, New York–March 3, 2014—In a major legal victory today in Bronx State Supreme Court, Isaacs, Devasia, Castro & Wien LLP Attorney Peter Troxler successfully won an acquittal for his client, a New York City Correction Officer, who was accused of getting into an unnecessary Use of Force Incident on December 3, 2011 with a Rikers Island inmate and then lying about it. The Correction Officer, Kevin Gilikes, had been indicted on eleven criminal counts and a fellow Correction Officer, Louis Pinto, who was also exonerated today, faced seven criminal counts.

“We are incredibly gratified by the verdict of Justice George Villegas today in acquitting Kevin Gilkes and Louis Pinto of all criminal charges,” said Peter Troxler, the attorney for Gilkes. “Both Officers have always maintained that the force used by Officer Gilkes in defending himself from a violent inmate assault was appropriate and commensurate with the force used by the inmate.”

Mr. Troxler continued, “It was particularly gratifying that the inmate who brought these allegations was found to have been incredible by the Judge in his review of the evidence contained in the surveillance footage, the inmate’s false testimony, and his extensive criminal history.”

“I would also like to applaud the diligent work of my co-counsel, Paul London, who successfully defeated the charges brought against Correction Officer Pinto. Justice has been served.”
Isaacs, Devasia, Castro & Wien LLP is a full service law firm, lead by Richard J. Koehler and Steven Isaacs. The office is located at 61 Broadway, 25th Floor, New York, New York 10006. For more information about their practice areas and attorneys, please visit www.idcwlaw.com or follow them on Twitter @koehlerisaacs.

In honor of his extraordinary generosity, loyalty and vision, a lecture hall in the New Building was named after Board member, alumnus and former John Jay tenured professor Richard J. Koehler, on September 24, 2013.

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