admin, Author at Isaacs Devasia Castro & Wien LLP

Magistrate Judges: A Primer for Young Lawyers

Posted on December 29, 2011

By: Cynthia Devasia, Esq. and Andreas Koutsoudakis, Esq.

Imagine your firm is representing a defendant in a § 1983 civil rights case. At the inception, the district judge assigned to the case seeks the parties’ consent to disposition of the case by a magistrate judge. This often occurs at the first Rule 16 conference before the district judge, so don’t get caught flat footed. As is often the case, the district judge may not disclose the name of the magistrate judge unless asked. Since your firm’s decision as to whether or not to consent may depend greatly on who the magistrate judge is, don’t be shy to ask that question immediately. Once you know who the intended magistrate is, and before you decide whether or not to consent, it is important that you know what a magistrate judge is and what authority she will have in your case.

WHAT IS A MAGISTRATE JUDGE?

Simply put, a magistrate judge is a judge who, pursuant to 28 U.S.C. § 631 et seq., is authorized to assist the district courts and judges in managing and resolving criminal and civil cases. The office of the magistrate judge was first created by the Federal Magistrates Act of 1968. With that legislation, Congress sought to improve the judiciary’s efficiency and assist federal district court judges facing overflowing dockets. The new magistrate judge system replaced the old commissioners system which had developed under the Judiciary Act of 1789 and operated within the federal courts for nearly 175 years. Since 1968, Congress has clarified and expanded the role of the magistrate judge through a number of other legislative enactments.

Today, magistrate judges conduct preliminary proceedings in both criminal and civil cases, conduct certain trials and perform any other duties delegated to them by the district judge as long as they are not inconsistent with the Constitution and laws of the United States. 28 U.S.C. § 636. In 2010, magistrate judges disposed of 1,027,191 matters. These matters included preliminary criminal proceedings such as search warrants, arrest warrants and summonses, evidentiary hearings, pretrial conferences, probation/supervised release hearings, and guilty plea proceedings. Civil proceedings conducted by magistrates included deciding dispositive and non-dispositive motions, fact finding for preliminary injunction motions, pretrial conferences, settlement conferences, mediations, evidentiary hearings, social security appeals, and special masterships. Trials conducted by magistrates included civil consent trials and misdemeanor/petty offense cases. Magistrate judges were also involved in prisoner litigation matters such as state and federal habeas corpus cases, civil rights cases, and evidentiary hearings.

There are currently 571 magistrate judge positions in the federal district courts with 527 fulltime positions, 41 part-time positions and 3 combined positions. The number of magistrate judgeships is determined by the Judicial Conference. Unlike district judges, magistrates are not appointed by the President and approved by the Senate; they are appointed by the respective district court judges based on recommendations from merit selection panels made in accordance with statutory guidelines and standards established by the Judicial Conference of the United States. Prospective candidates are subject to a rigorous screening process which includes background checks and interviews. Magistrate judges do not enjoy lifetime appointment. Full time magistrates serve eight-year terms that are renewable by vote of the federal district judges, with part-time magistrates serving four-year terms. There is also an age limit for service: 70 years of age with certain exceptions. A magistrate judge may be removed during her term by the district judges for “incompetency, misconduct, neglect of duty, or physical or mental disability”. 28 U.S.C. § 631(i). The Judicial Conference may also extinguish a position if it is deemed no longer necessary.

Since your district judge asked you whether or not to consent to the magistrate judge, you get to “opt-in” to the magistrate’s authority. You should be aware that some districts automatically assign cases directly to the magistrate judge and it will be up to the parties to decline consent. Parties may consent to the magistrate for all purposes including trial. A judgment issued in a case in which the magistrate is given full consent may be appealed the same way in which a judgment issued by a district judge is appealed. Absent consent, matters that are referred to the magistrate for Reports and Recommendations are reviewed and decided by the district judge.

HOW ARE MAGISTRATE JUDGE’S DECISIONS REVIEWED?

Non-dispositive Matters

Assume you or your adversary declined to provide full consent to the magistrate judge and the district judge still refers all non-dispositive pretrial discovery matters to the magistrate judge. After confirming a discovery plan with the magistrate judge and engaging in some discovery, you file a motion for a protective order seeking to prevent the plaintiff from obtaining certain information. The magistrate denies your motion. Now what?
Since the case is before the magistrate without the consent of all parties, and the motion you filed is a non-dispositive one – i.e., it does not involve a disposition of a claim or defense of a party – the ruling/order, while effective when it is made, is appealable to the district judge. Given the sensitivity of the information sought to be protected, you decide to do so. Accordingly, you file and serve a brief outlining your objections (along with a copy of the order) within 14 days of the date the magistrate’s order was issued. Your adversary has 14 days to respond to your objections.

Because the Federal Magistrate Judge Act (28 U.S.C. § 636(b)(1)(A)) authorizes magistrate judges to issue orders resolving certain pre-trial matters without the parties’ consent, the district judge will set aside the magistrate’s order denying your motion only if it is “clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). A finding is “clearly erroneous” when, after considering all of the evidence, the district judge is convinced the magistrate judge made a mistake in her ruling. A finding is contrary to law if the district judge concludes the magistrate judge misinterpreted or misapplied the law. This standard of review is significantly high, and provides great deference to the magistrate’s ruling. As such, litigants should be aware that the chance of success is often low in such cases.
Dispositive Matters

After unsuccessfully appealing the magistrate’s order, you are forced to provide your adversary the information you sought to protect. The information was so helpful to her case that she decides to file a motion for summary judgment on three of the five causes of action against your client. Since a summary judgment motion involves disposition of a claim – here, three claims – it is considered a dispositive matter; the magistrate does not have statutory authority to issue a final order. Because the parties declined to consent to the grant of such authority in this case, the magistrate is left with only the authority to provide a Report & Recommendation (“R & R”) for the district judge’s consideration when ruling on
the motion.

This time, unlike the protective order motion, the magistrate judge’s R & R is favorable to your client since it recommends the district judge deny plaintiff’s motion for summary judgment. While you would like the same deferential standard that applies to nondispositive motions to apply here, the district judge’s review is based on a de novo standard. Because of this, your adversary naturally files and serves her objections to the magistrate’s R & R. As with appeals of non-dispositive orders, the time limit to do so is 14 days from the issuance of the R & R and you have an additional 14 days to respond.

A de novo review gives the party objecting to the R & R a second opportunity to address the unfavorable aspects of her arguments, and requires the district judge to make her own determination after reviewing the facts and the law – as opposed to affirming or reversing the magistrate’s order on a non-dispositive matter only when it is “clearly erroneous”. Even though the R & R is not binding, the magistrate’s R & R still has a significant impact on the district judge’s decision. Specifically, the R & R provides a recommended ruling on the motion supported by a thorough analysis of the evidence, the applicable law and the parties’ arguments. Often times, the magistrate is one who regularly handles specific types of cases, and may, therefore, be more current on the applicable law than the district judge. Accordingly, the magistrate’s R & R has significant credibility with the district judge.

In addition to knowing what a magistrate judge is, what her authority is and how binding her rulings are, there are certain other considerations to keep in mind when deciding specifically whether you should consent to the magistrate judge’s jurisdiction in whole or in part. A good discussion of those considerations can be found in Should you Consent to the Magistrate Judge? Absolutely, and Here’s Why, 37 LITIGATION 2 (Winter 2011).

Now that you have an understanding of the magistrate judge’s purpose, role, and authority in federal court matters, you can make an informed decision the next time you are faced with this issue.

Cynthia Devasia and Andreas Koutsoudakis are litigation attorneys at Isaacs, Devasia, Castro & Wien LLP, a full service law firm located in New York City. They can be reached at cdevasia@idcwlaw.com and andreask@idcwlaw.com

THE CHIEF – Arbitrator Orders More Heat for COs at Court

Posted on September 26, 2011

Baby, It’s Cold Inside
Monday, September 26, 2011

By MARK TOOR

The Correction Officers Benevolent Association argued that for years the Department of Correction has been giving the cold shoulder to officers’ complaints about winter temperatures as low as 27 degrees inside the Intake Center in the Bronx Hall of Justice.

Arbitrator Haydeé Rosario gave the city until Oct. 15 to install four additional heating units in the area, something the DOC and the Department of Citywide Administrative Services had already been working on. In her opinion, dated Sept 2, Ms. Rosario retained jurisdiction in case the work was not completed on time.

No Heat, No Work

If the city misses the deadline, said the union’s attorney, Mercedes Maldonado of Koehler & Isaacs, Ms. Rosario could agree to the union’s request that she put the area in the deep freeze by forbidding the city from assigning COs to work there. “That would essentially shut the building down,” she said “…That threat is still hanging over the city’s head.”

City officials say they expect to meet the deadline.

“This was the most difficult, easiest case I ever had,” Ms. Maldonado said in an interview. A department directive issued in 1995 clearly set the temperature range for the work area, she said, but “the Correction Department fought tooth and nail every step of the way.”

“This decision reflects our continued success in fighting to ensure that those who patrol the toughest precincts in New York are not treated like animals by the Department of Correction,” COBA President Norman Seabrook said in a statement. “Under my direction, COBA Sergeant-At-Arms Benny Boscio spearheaded this grievance relentlessly for over a year until a favorable decision by the court was attained.”

A Chronic Problem

Since the building opened in 2008, COs working in the Intake Center and an adjoining area called Register 22 have experienced unusually low temperatures in cold weather. The law firm said the design of the building did not take into account the cold air let in by the sally-port doors, which provide an entrance to the intake area, when inmates arrive by bus to appear in court. The inmates are logged in at the Intake Center, then searched at Register 22 before being taken to cells.

“As soon as COBA was made aware of the issue, we addressed it at labor-management meetings,” said a union spokesman, Michael Skelly. “We learned that the city was in litigation with the architects over many design flaws with the building.”

After the meetings failed to achieve progress, the union filed a grievance in June 2010. “Sadly, the Office of Labor Relations thought that the affected members could always transfer out,” Mr. Skelly said in an e-mail. “I guess they thought that since Bronx Hall of Justice is a preferred command because it is not on Rikers Island, the officers should not complain. They were wrong! COBA complained and won.”

DOC officials asked CO Osvaldo Betancourt to record the temperature at the affected areas. Mr. Betancourt reported that throughout the month of December 2010, the average reading was in the 40s in the sally ports, in the low- to mid-50s in the Intake Center and in the low 60s at Register 22.

On Dec. 27, the sally ports dipped to 22 degrees, the Intake Center to 27 degrees and Register 22 to 57 degrees. On Jan. 31, 2011, the readings were 39 degrees, 45 degrees and 63 degrees respectively. On Feb. 1, 2011, the temperatures were 32 degrees, 39 degrees and 66 degrees respectively.

The union pointed to DOC Directive 3900, which says that in its facilities “a temperature of at least 65 degrees F shall be maintained when the outside temperature falls below 50 degrees F during the usual working hours of occupants.” The exceptions are buildings in which educational, nutritional, geriatric, social, mental-health, health-care or similar services are provided. Buildings in which inmates are transferred are not exempted from the rule.

DOC: Use Different Standard

DOC Assistant Commissioner Frank Eilam, an architect, argued that the arbitrator should be governed not by Directive 3900 but by the city Building Code. The Intake Center corridor should be classified as a garage, he said, for which there is no minimum temperature. He said that regardless of Directive 3900, DOC had never meant for every square foot of its facilities to be above 65 degrees, but only those areas where staff are assigned to desk work.

On a more-practical note, he said DOC had tried to install portable electric heaters, which tripped circuit-breakers because the building’s electrical panels were all used to full capacity. At a hearing, he said an additional electrical panel had already been installed and he expected additional heaters to be in place by Oct. 15.

The Bronx Hall of Justice is maintained by the Department of Citywide Administrative Services, Sharman Stein, a spokeswoman for DOC, said in a statement. “DCAS increased the electrical capacity in the intake area of the courthouse to accommodate four additional heating units, which are now being installed by a contractor,” she said. “The work was commenced well before the arbitrator issued the ruling and will be completed by Oct. 15.”

“It’s been a long time coming, but it looks like it’s finally on track,” Ms. Maldonado said.

THE NEW YORK TIMES – Tale of Glass in Burger Lingers

Posted on July 22, 2011

By Michael Wilson | July 22, 2011

The police officer, recalling that night, sounds like an actor in a fast-food commercial: “At some point, something told me, grab a Big Mac.” And so on a freezing January night in 2005, the officer, John Florio, then 39, stopped at the drive-through window of a McDonald’s in the Hunts Point section of the Bronx. He ordered the combo, a Big Mac with fries and a Coke.
“Have a nice night,” a young man in the cashier’s window said, according to Officer Florio.

“You, too,” the officer replied.

He drove away, with his dog, Dodger, a member of the Police Department’s canine unit, in the back seat. Officer Florio was heading toward Randalls Island to give Dodger a bathroom break and a run. As he drove, he bit into the burger. Top-row teeth met bottom-row teeth, and the course of two lives changed.

“I felt something hard and sharp on the left-hand side of my face,” he said on a witness stand five years later. Something had cracked: “My tooth.”

Inside the Big Mac were several shards of broken glass.

It is impossible to overstate the seriousness with which the police take any attempt to harm one of their own. To the passer-by that night, it must have looked as if an officer had been drawn and quartered in the McDonald’s: there were two inspectors, two captains, three sergeants and five detectives among other officers at 875 Garrison Avenue.

They combed the kitchen for glass and questioned employees and a manager, and they took the young man assembling sandwiches that night, Albert Garcia, then 18, into a back room, where he was questioned for about three hours. He confessed.

“I started to make the sandwich and I was about to finish it,” he wrote in a statement for detectives. “I put the little pieces of glass into the burger as a joke.” He wrote, “I didn’t know it was going to be sold to a cop.”

Then the case that seemed so open and shut just kept opening.

Five years passed before Mr. Garcia’s trial began in the Bronx, and by then he had not only renounced his confession, but his lawyer, Raymond J. Aab, had accused Officer Florio of planting the glass in his own burger to make a quick buck from McDonald’s.

The officer guessed that he bought the Big Mac around 11:30 that Saturday night, Jan. 29, 2005, but he had no receipt. He said Mr. Garcia had handed him the bag. He bit into the glass a couple of minutes later, he testified, but he did not call his sergeant until 12:07 a.m., after stopping at Randalls Island for his dog. He followed the sergeant’s command to get checked out at Long Island Jewish Medical Center, and he told doctors that he thought he had swallowed glass.

One doctor said, five months later, that he had had three foreign-objects-in-McDonald’s-food cases that week, all from different locations. Doctors found no sign of cuts to Officer Florio’s throat, and X-ray tests came back negative. But Officer Florio said he monitored his stool for several days after, going to the bathroom in a bucket and examining its contents, and he found five shards of glass that had apparently passed through him without causing injury.

Inside of two weeks, Officer Florio sued McDonald’s for $6 million. This would prove to be a tactical mistake, for the civil action allowed the defense team to question him and other police officers in depositions, a luxury unknown to most lawyers defending criminal cases. The depositions contradicted one another in various places, and a defense theory emerged: Officer Florio planted the glass and never laid eyes on Mr. Garcia that night; nor did Mr. Garcia see the officer. The cashier, a young woman, served him the burger.

But when detectives, believing Officer Florio’s story, interviewed Mr. Garcia and he appeared nervous, they pushed harder, and he confessed.

Officer Florio, the defense claimed, had learned of Mr. Garcia’s existence only many hours later, in a precinct station house, and, quite likely shocked that anyone had confessed to something that did not happen, said yes, that’s the guy.

The defense theory worked. A jury acquitted Mr. Garcia in March 2010.

Officer Florio, since retired, settled his lawsuit against the owners of that Bronx franchise restaurant for $15,000, his lawyer, Richard M. Kenny, said. It was a fraction of what he had sought.

Officer Florio declined to comment, but Mr. Kenny said: “I’ve kicked a lot of people out of my office who I believe are trying to perpetrate fraud. This guy is as legitimate a guy as I’ve ever met.”

Mr. Garcia said that he had gone on, improbably, to work at a White Castle restaurant a few months after his arrest, and that his new employer did not know it had hired “Burger Boy,” as people in Hunts Point called him. He now works for Walgreens, has two children, and has a lawsuit pending against the city and Officer Florio. A scheduling conference in that case is set for next month.

“The reason I made a false confession is because I was scared,” he said this week. “I’ve never been in that type of position before. I gave up mentally. I was exhausted. I was hungry. I was thirsty. The only thing I was thinking about was going home.”

A police spokesman, Paul J. Browne, shrugged off Mr. Garcia’s lawsuit.

“It’s no surprise that the plaintiffs’ bar seeks remuneration for clients, regardless of how dubious their claims,” he said.

The Big Mac remains in evidence six years later, in a city freezer. The case of the broken glass is not even its only mystery. Investigators found a strand of hair in the burger box, but forensic tests showed that it belonged to neither the young man who was accused in the case nor the officer who paid for a meal and drove away.

THE CHIEF – Union: Westchester Resists Awards from Arbitrators

Posted on July 11, 2011

By Mark Toor | July 11, 2011

The Westchester County Department of Correction is resisting arbitration awards and forcing the county Correction Officers’ Benevolent Association into court to enforce them, according to an attorney for the union.“In Westchester County, the m.o. is for the department to just not honor any arbitration agreement,” the attorney, Mercedes Maldonado of Isaacs, Devasia, Castro & Wien LLP, said in an interview last week about a decision reinstating a separation between Correction Officers who work at the main jail and those assigned to the Women’s Unit.

‘Fairly Intransigent’

Arbitration awards do not come with an enforcement mechanism, she said, so the union must go to court, sometimes even seeking a contempt citation, before DOC honors the rulings. In the meantime, she said, the department can continue old practices discredited by the arbitrator for several months or perhaps a year.

The department is “fairly intransigent,” she said. She blamed department management, not County Executive Robert P. Astorino, who was elected in November 2009.

“We have to keep litigating and re-litigating,” said WCOBA president Alonzo West. “It gets frustrating.” He added, “When we lose something, we lose. We don’t go back and try to reinvent the wheel.”

County: We Haven’t Stalled

The charge that the county is delaying arbitration orders “is certainly an irresponsible statement,” said Justin Pine of the DOC. He said his department wins most of the cases that go to arbitration but has gone to court in a case involving time off because “we didn’t agree with the way the arbitrator did the numbers.” The county, he said, is “seeking to confirm the arbitrator’s decision.”

Had Separate Schedules

The union and the county are still negotiating how to implement a decision in favor of the union made at the end of May. The case involved the reopening of the Women’s Unit at the county jail. Before it was closed in 2004, the Women’s Unit had been a separate division with its own procedures for equally distributing overtime, allowing vacation picks and scheduling personal leave. When it was closed, its staff was merged with that of the Jail Division for the purposes of overtime, vacation and leave.

When the unit was reopened last year, WCOBA asked that the DOC reinstate the former policy separating the staffs of the unit and the main jail as specified in the contract. The department declined to do so, saying that would cause scheduling problems and increase overtime costs. The arbitrator ruled that the contract and previous arbitration decisions required that the separate Women’s Unit be reinstated.

Mr. Pine and Mr. West said the union and the county are still discussing how to handle the 26 union members who work part of the time in the Women’s Unit and the rest of the time in the main jail. Under the contract, union members bid for specific posts, and the arbitration award contained no provisions for splitting bids between two units.

Problems for Split-Post COs

“We have to figure out what to do with their bids,” Mr. Pine said. The arbitration decision, he said, had created problems for those 26 union members who work split posts.

Mr. West said agreements already exist that allow members to work in assignments other than the post they bid on, such as training and special-tactics teams. He also noted that the prison ward at Westchester Medical Center is a separate unit like the Women’s Jail. Officers in the prison ward who work in both the jail and the ward are allowed to bid for two assignments, one in each place, and divide their vacation picks between the two assignments, he said.

“They don’t want to make those exceptions in this situation,” Mr. West said of DOC officials. He said he hopes the arbitrator can clarify the issues, because going to court will only create delays.

Mr. Pine said the county has no plans to delay the Women’s Unit decision. Mr. West said the bidding issue was the only sticking point resulting from the ruling.

THE CHIEF – Isaacs, Devasia, Castro & Wien LLP Attorney Mercedes Maldonado Featured in the Chief-Leader for Major Victory in Employment Case

Posted on June 7, 2011

Westchester Wrongly Denied CO Time Off, Arbitrator Decides
By Mark Toor

June 7, 2011 – The Westchester County Department of Correction must come up with a better system for ensuring that Correction Officers can take their time off, an arbitrator ruled last month.

The May 12 ruling by Dennis J. Campagna came in the case of Patrick Garrett, a member of the Westchester Correction Officers Benevolent Association who requested a day off during Memorial Day weekend in 2009. A Captain denied his request, noting that outside of those on vacation for the entire week, only one Correction Officer was allowed to take the day off and someone else had already signed up.

New Rule on Vacation Leave
The union charged that the county had violated the contract, which allows at least 8.33 percent of a unit’s workforce to take off at the same time. The contract calls for this rule to be followed in the case of personal leave or supplemental time off, said Mercedes Maldonado of Isaacs, Devasia, Castro & Wien LLP, who represented the union. However, she said, it does not cover holiday or vacation leave.

“Correction work is one of the most stressful jobs out there,” Alonzo West, president of WCOBA, said in an interview. “People need their time off so they can come to work with a clear head and have some kind of normality in their lives.”

“You had people who couldn’t use their time under a contract that said time off was guaranteed if you had it,” he said. “We gave up things years ago to get these provisions in the contract.”

Until recently, Ms. Maldonado said, the county had followed the 8.33-percent rule for holiday and vacation leave, but then instituted its one-at-a-time rule for such leave. “This reduced the opportunity to take time off,” she said an interview. Under its own guidelines, the county could have had nine COs off, and when Mr. Garrett asked for a day it had only six taking off.

The union reasoned that because the contract required that holiday time be used before the end of the next calendar quarter, the county was obligated to make all efforts to allow an employee to use that time.

The county responded that staffing was a management prerogative and that no one would lose a day off, since COs who do not use their accrued time by the end of the quarter are paid for it in cash.

Must Make ‘Reasonable Efforts’
The arbitrator agreed with the union’s contention that the county must do everything it can to ensure that COs can use their time off. Mr. Campagna also found that “there is no logical reason” why the county should deny a CO’s request for the day off when the maximum number allowed off had not been reached.

The decision ordered the county to stop denying days off when that maximum was not reached, and to make “reasonable efforts” to ensure holidays or time off outside of a full week could be taken.

“It balances the interests involved,” Ms. Maldonado said, meaning both the county’s desire not to go below minimum staffing and the union’s desire that members can take time off.

“We’re still reviewing the decision and drafting a memorandum as to how it would be implemented,” said Justin Pine of the Westchester Department of Correction.

Mr. West said the time-off dispute was further evidence that the Correction Department “doesn’t want to honor the collective-bargaining agreement. What they can’t take away in contract negotiations, they try to litigate away or legislate away.”

Westchester Wrongly Denied CO Time Off, Arbitrator Decides

Posted on June 7, 2011

By Mark Toor

June 7, 2011 – The Westchester County Department of Correction must come up with a better system for ensuring that Correction Officers can take their time off, an arbitrator ruled last month.

New Rule on Vacation Leave
The union charged that the county had violated the contract, which allows at least 8.33 percent of a unit’s workforce to take off at the same time. The contract calls for this rule to be followed in the case of personal leave or supplemental time off, said Mercedes Maldonado of Isaacs, Devasia, Castro & Wien LLP, who represented the union. However, she said, it does not cover holiday or vacation leave.

The county responded that staffing was a management prerogative and that no one would lose a day off, since COs who do not use their accrued time by the end of the quarter are paid for it in cash.

Must Make ‘Reasonable Efforts’
The arbitrator agreed with the union’s contention that the county must do everything it can to ensure that COs can use their time off. Mr. Campagna also found that “there is no logical reason” why the county should deny a CO’s request for the day off when the maximum number allowed off had not been reached.

The decision ordered the county to stop denying days off when that maximum was not reached, and to make “reasonable efforts” to ensure holidays or time off outside of a full week could be taken.

“It balances the interests involved,” Ms. Maldonado said, meaning both the county’s desire not to go below minimum staffing and the union’s desire that members can take time off.

“We’re still reviewing the decision and drafting a memorandum as to how it would be implemented,” said Justin Pine of the Westchester Department of Correction.

DAILY NEWS – Isaacs, Devasia, Castro & Wien LLP Attorney Mathew Paulose Featured in the Daily News

Posted on May 15, 2011

Manhattan mom sues preschool for damaging 4y/o daughter’s Ivy League Chance
By Jose Martinez

March 15, 2011 – A Manhattan mom is suing a pricey preschool for dumping her “very smart” 4-year-old with tykes half her age and boring her with lessons about shapes and colors.

In court papers, Nicole Imprescia suggests York Avenue Preschool jeopardized little Lucia’s chances of getting into an elite private school or, one day, the Ivy League.

She’s demanding a refund of the $19,000 tuition and class-action status for other toddlers who weren’t properly prepped for the standardized test that can mean the difference between Dalton and – gasp! – public school.

“This is about a theft where a business advertises as one thing and is actually another,” said Mathew Paulose, a lawyer for the outraged mom.

“They’re nabbing $19,000 and making a run for it.”

Impressed by the school’s pledge to ready its young students for the ERB – a test used for admission at top private schools – Imprescia enrolled her daughter at York in 2009.

A month into this school year, she transferred the child out of the Upper East Side center because she was forced to slum with 2-year-olds.

“Indeed, the school proved not to be a school at all, but just one big playroom,” the suit says.

The court papers implied the school could have damaged Lucia’s chances of getting into a top college, citing an article that identifies preschools as the first step to “the Ivy League.”

Fortunately, Imprescia’s lawyer said, the tot’s prospects aren’t doomed.

“Lucia Imprescia, for the record, will get into an Ivy League school – York Avenue Preschool notwithstanding,” said Paulose, of the firm Koehler & Isaacs.

“The child is very smart and will do well in life.”

York’s owner, Michael Branciforte, declined comment on the suit, but his lawyer said the school has a “great reputation, which is richly deserved.”

“They’ve never had a problem like this and they only hope the child has found a school that better suits her needs,” lawyer William Wachtel said.

On its website, York touts its music and physical education programs, weekly library trips, and French classes for four-year-olds.

The York Avenue Preschool Curriculum is designed for the specific age group: “Twos, Threes or Fours,” the site boasts.

Imprescia called that a “complete fraud.”

“They put a bunch of kids of different ages together and gave her some excuse about construction,” Paulose said.

At the York Ave. campus, where many kids were being picked up by nannies pushing luxury strollers, parents were wary of speaking with a reporter yesterday, saying it could endanger their kids’ slots.

But the mother of one 3-year said she’s had nothing but good experiences.

“She’s been happy. We’ve been happy,” the mom said.

DAILY NEWS – Manhattan mom sues preschool for damaging 4y/o daughter’s Ivy League Chance

Posted on March 15, 2011

By Jose Martinez

March 15, 2011 – A Manhattan mom is suing a pricey preschool for dumping her “very smart” 4-year-old with tykes half her age and boring her with lessons about shapes and colors.

In court papers, Nicole Imprescia suggests York Avenue Preschool jeopardized little Lucia’s chances of getting into an elite private school or, one day, the Ivy League.

“This is about a theft where a business advertises as one thing and is actually another,” said Mathew Paulose, a lawyer for the outraged mom.

“They’re nabbing $19,000 and making a run for it.”

Impressed by the school’s pledge to ready its young students for the ERB – a test used for admission at top private schools – Imprescia enrolled her daughter at York in 2009.

A month into this school year, she transferred the child out of the Upper East Side center because she was forced to slum with 2-year-olds.

“Indeed, the school proved not to be a school at all, but just one big playroom,” the suit says.

The court papers implied the school could have damaged Lucia’s chances of getting into a top college, citing an article that identifies preschools as the first step to “the Ivy League.”

Fortunately, Imprescia’s lawyer said, the tot’s prospects aren’t doomed.

“Lucia Imprescia, for the record, will get into an Ivy League school – York Avenue Preschool notwithstanding,” said Paulose, of the firm Koehler & Isaacs.

“The child is very smart and will do well in life.”

York’s owner, Michael Branciforte, declined comment on the suit, but his lawyer said the school has a “great reputation, which is richly deserved.”

“They’ve never had a problem like this and they only hope the child has found a school that better suits her needs,” lawyer William Wachtel said.

On its website, York touts its music and physical education programs, weekly library trips, and French classes for four-year-olds.

The York Avenue Preschool Curriculum is designed for the specific age group: “Twos, Threes or Fours,” the site boasts.

Imprescia called that a “complete fraud.”

“They put a bunch of kids of different ages together and gave her some excuse about construction,” Paulose said.

But the mother of one 3-year said she’s had nothing but good experiences.

“She’s been happy. We’ve been happy,” the mom said.

THE CHIEF – Isaacs, Devasia, Castro & Wien LLP Attorney Mercedes Maldonado Featured in the Chief-Leader

Posted on February 18, 2011

Unkind Cut Heals As Probie Fired Over Surgery is Rehired
By Mark Toor

February 18, 2011 – The city has agreed to give a Probationary Correction Officer her job back after she was fired for absenteeism because she took 13 days of sick leave for gall-bladder surgery.

The officer, Christina Maldonado, was hired Feb. 28, 2008 and was almost at the end of her probation on Jan. 20, 2010 when her gallstones were removed. Ms. Maldonado was paid for the sick leave; the Department of Correction has an unlimited-sick-leave policy like that of the NYPD.

Both her doctor and the agency’s Health Management Division agreed she could return to work with medical restrictions on Feb. 8, 2010. The DOC said she could work without restrictions starting Feb. 26.

About a month later, DOC gave Ms. Maldonado a “chronic absent” designation because of the surgery-related absences, and on April 16 she was terminated. According to court papers, the decision was based only on her sick-leave usage, and her job performance was not taken into account.

After her termination, she believed that her education in criminal justice would be rendered worthless, said her attorney, Mercedes M. Maldonado (no relation) of Isaacs, Devasia, Castro & Wien LLP. But even more stressful was the fact that her 5-year-old son was hospitalized for asthma at a time when she had no health insurance, attorney Maldonado said.

Uphill Battle
“Any probationary-termination case is an uphill battle,” she said. But because the case involved a city department, Mercedes Maldonado was able to bring suit in Manhattan Supreme Court under the city’s Human-Rights Law, which she said was far more liberal than state or Federal law. The city’s definition of disability is more expansive, she said, and it puts a greater burden on the employer in a dispute over reasonable accommodation of a disabled employee.

Under the settlement, Christina Maldonado was rehired effective Feb. 7 with back pay and allowances. She must serve a final three months of probation. The city does not admit any wrongdoing.

“We believe the settlement is in the best interest of all parties,” said a spokeswoman for the city Law Department.

THE CHIEF – Leader Features Isaacs, Devasia, Castro & Wien LLP attorney Mercedes Maldonado in Major Arbitration Victory on Behalf of a Westchester County Correction Officer

Posted on November 15, 2010

“People Starved Out”: Westchester Sanctioned For Docking Injured COs’ Pay
By Mark Toor

November 15, 2010 – The head of the Westchester Correction Officers’ Benevolent Association hopes that a recent court order will force the county to stop cutting off pay to Correction Officers who have been injured in the line of duty.

“When officers are injured, [county officials are] walking away from the provisions of the contract,” union President Alonzo West said in an interview last week. He said he hoped to sit down with attorneys for the county to discuss the way these cases should be handled.

Law Requires Pay
General Municipal Law 207-c requires that Correction Officers, along with law-enforcement and other first-responder-type workers, be paid “salary, wages, medical and hospital expenses” if they are injured in the performance of their duties until they retire or return to work. The county has the right to examine employees on 207-c leave to see whether they are healthy enough to return to work. Some of the officers contest a back-to-work order from county doctors.

Mr. West said the county pays medical expenses for members who contest the back-to-work orders, but puts them on leave without pay after their accumulated vacation and sick time—usually a maximum of five weeks—runs out.

The arbitration process takes three or more months, at the rate of two or three hearings in a three-month period, Mr. West said. With no money coming in to support their families, he said, some officers are forced to come back to work regardless of their illness or injury even as their cases are being adjudicated. “People are being starved out,” he said. “…It creates an unsafe situation. In a correctional facility, you need to be fully alert and healthy.”

“Contesting Cases Automatically”
“Westchester seems to be contesting 207-c cases automatically these days,” said Mercedes M. Maldonado, an attorney who represented a Correction Officer who recently won at arbitration. “I’ve seen cases that raise my eyebrows.”

Mr. West said that in some cases, a physician hired by the county cleared employees to go back to work but told them that in fact they should have returned to work earlier. For example, he said, an employee would be told that only two of the four weeks he or she had been on leave after an injury were justified, so the employee would be paid for only half the leave time.

The county is at fault here, he said, for dragging its feet on scheduling the medical exams. And, he said, the county improperly asked the doctor to consider how long the employee should have been out instead of just whether he or she could go back to work.

Violated Contract, Law
The court order, issued Oct. 20 by Acting State Supreme Court Justice James W. Hubert, ordered the county to immediately implement a 2009 decision by the Appellate Division that it cannot cut off pay to Correction Officers who contest a back-to-work order. By placing the officers on a “job-pending status” with no pay, the order said, “the county created a new status in violation of the collective bargaining agreement and in violation of lawful procedure.” The order prohibits the county from placing officers on job-pending status.

The order was underlined by two recent arbitration decisions restoring officers to 207-c status.

“We’ve been fighting with them over Article 20 [which covers 207-c and Workers’-Comp issues] for 2 1/2 years now,” Mr. West said.

He believes the court and arbitration fights actually make things more expensive for the county. “They’ve won a few,” he said, “but we’ve been very successful with 207-c and psychological issues.”

Westchester County responded with a statement: “Judge Hubert’s decision, and several decisions issued before it in this case, is clearly limited to four named Correction Officers, all of whom were made whole some time ago. Additionally, the department has already changed its procedures and is in full compliance with the court’s prior decisions. Despite the department having done so, the union is still attempting to reap a windfall by expanding this decision to officers that it does not apply to.”

Found Second Suicide
In one of the arbitration cases, Correction Officer Daphne Summa-Brown found an inmate after a suicide attempt in February and dressed him to go to the hospital. She was later treated at the Westchester County Medical Center emergency room for anxiety and stress disorder. She had been exposed to a suicide death in 1996 and “had a total breakdown,” according to Ms. Maldonado. She was out of work for six months.

Her psychiatrist diagnosed her after both incidents as having post-traumatic stress disorder, major depressive disorder and panic disorder. A psychologist who treated her diagnosed her with PTSD after the second incident. A psychiatrist hired by the county said she was temporarily totally disabled. A psychologist hired by the county said he could not draw a connection between her work and her mental illness.

In its argument, the county contended that “the Workers’ Compensation Board has held that inmate suicide, though uncommon, is part of the job of being a Correction Officer… the finding of such an inmate cannot be considered stress that is greater than what might be expected in the normal work environment,” according to the arbitrator’s decision.

The arbitrator found in favor of Ms. Summa-Brown, determining that the 2010 injury was an exacerbation of her 2006 injury, which was compensated under 207-c. Therefore, he said, the 2010 injury must be compensated under 207-c.

Fighting for a Paycheck
“She’d like to go back to being a Correction Officer,” Ms. Maldonado said. “When she’ll be well enough to do that we’re not sure. The condition is worsened by the stress of having to fight for your paycheck.”

In the second case, Correction Officer Robin James was injured Oct. 9, 2009, when she opened a malfunctioning dormitory door to allow a food cart through but hurt her hands in a collision with the food cart and the door. She missed seven workdays and returned to duty wearing a soft brace on her right hand.

The county claimed that her account of her injuries contained inconsistencies and that its re-enactment of the accident showed further inconsistencies. It also questioned whether her supervision of the inmates was part of her duties as a Correction Officer.

The arbitrator ruled on behalf of Ms. James, saying she was indeed performing her job duties, trying to open the door in order “to maintain proper control over the inmates,” who were becoming “agitated” and “impatient” that it was stuck. His own observation of the scene, he wrote, made Ms. James’ account of the injuries plausible.

Her attorneys noted that “incredibly, the county disputed Officer James’ version of the events…and even threatened her with disciplinary charges after bringing her in for an investigatory interview.”