Facts and Amounts

I've spoken with a number of attorneys who have expressed confusion to me as to whether a plaintiff's prima facie burden for a summary judgment motion (the subject of most Appellate Term decisions) differs from the applicable burden at trial. According to the App. Term, 2d Dep't, they are identical.

As to motions, the landmark App. Term decision on the matter is Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701(U) (App. Term, 2d Dep't, 2003). As per the most recent App. Term decisions, the rule has now boiled down to the following: "In an action to recover first-party no-fault benefits, a plaintiff establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue." Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co., 2006 NYSlipOp 51877(U) (App. Term, 2d Dep't, 2006) (citations omitted).

In Damadian MRI in Canarsie, P.C. v General Assur. Co., 2006 NYSlipOp 51048(U) (App. Term, 2d Dep't, 2006), the Court was called upon to determine the plaintiff's burden at trial, and they held that "[i]t is well settled that a health care provider establishes its prima facie entitlement to judgment as a matter of law by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue." (Citations omitted).

Thus, although methodology of proof will necessarily differ due to the procedural mechanics of each, plaintiff maintains the same burden at trial as it does when seeking summary judgment.

Keeping It Real, Part I(a)

As implied yesterday, the decision in West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 2006 NYSlipOp 51871(U) (App. Term, 2d Dep't, 2006) will be interesting in light of the decision just a few months prior in Long Is. Radiology v Allstate Ins. Co., 2006 NY Slip Op 51090(U) (Sup. Ct., Nassau Cty., 2006). I know my posts are getting a bit long as of late, so I'll provide a cut for quicker readability of the front page here.

Click here to toggle viewing the rest of the post...

Indeed, in Long Is. Radiology, Justice Phelan made explicit his understanding that West Tremont was under appeal. Moreoever, West Tremont is not binding authority upon the Supreme Court, the latter being a court of original jurisdiction. See, e.g., Westchester Med. Ctr. v. Liberty Mut. Ins. Co., 2006 NY Slip Op 50382U (Sup. Ct., Nassau Cty., 2006).

Nevertheless, at the very least, a split amongst courts has been presented to the Appellate Division, as Long Is. Radiology is currently under appeal. See, e.g., App. Div. Motion No. 2006-05943.

In his decision, Justice Phelan explains the background of the case as follows:

Plaintiff is a radiology office that performs MRI testing for persons involved in motor vehicle accidents and allegedly eligible for no-fault benefits. MRI testing is done pursuant to a prescription issued by the injured person's independent treating physician. For payment plaintiff receives an assignment of no-fault benefits from the injured person, and submits claims directly to one of the defendants. Defendants deny numerous claims for payment on the ground of an alleged "lack of medical necessity."

On this motion defendants argue that in the context of the no-fault statute and the regulations thereunder, "medical necessity" is a prerequisite for payment. They conclude therefore, that they have every right to deny plaintiffs' claims on the ground of "lack of medical necessity." This Court agrees with defendants' argument, but not their conclusion. 2006 NY Slip Op 51090(U).

The final sentence is not as hopeful for the carriers as it might appear. Although it was found that carriers could, indeed, defend the claims on the basis of a lack of necessity, it was held that they cannot do so against the radiology facilties directly. Instead, "[a]n insurer who can prove that a radiology test is unnecessary or duplicative, should be able to challenge through subrogation the treating physician or medical provider who prescribed the test." Id.

The Supreme Court based its holding upon the following rationale:

It is this Court's opinion that the results in West Tremont and Omega Diagnostic comport with the underlying intent of the no-fault statute, that claims be processed quickly and efficiently, and that economic losses be fully compensated. As noted in West Tremont, there is no statutory or regulatory pre-approval requirement for radiology tests requested by treating physicians in no-fault cases. Furthermore it makes no sense to argue "lack of medical necessity" against radiologists, because they do not assess medical necessity. Radiologists neither examine the no-fault patient, nor render a pre-test diagnosis. Any diagnostic opinion is based on the radiological test. To require radiologists to render a pre-test diagnosis would cause significant delay in treating the injured.

Under this rationale, if a no-fault patient (who we will assume is a layperson with no medical training) paid for her medical treatment out-of-pocket and then submitted timely and proper claims thereafter seeking reimbursement for same, a carrier could never defend on the basis of a lack of medical necessity. One can imagine the formulation of the argument: it makes no sense to argue "lack of medical necessity" against lay patients, because they do not assess medical necessity; that's why they go to doctors in the first place. This is an absurd conclusion that cannot stand without taking the entirety of the no-fault scheme down with it.

It also seems odd to your affirmant that the Court would give an ultimate finding that would, if implemented, double the amount of litigation in certain massive categories of no-fault claims while, as a predicate, recognizing that "[t]he court system is inundated with no-fault claims litigation." Id. Presumably, if the Long Is. Radiology decision became the rule, the court system would then be inundated with both no-fault claims litigation and subrogation claims litigation.

Can Long Is. Radiology withstand appeal? I either can't imagine so, don't want to imagine so, or both. To the extent that West Tremont is a factor, it should serve as a succinctly damning argument in favor of reversal. The Appellate Term said it all when they noted that "while it may be argued that a diagnostic center is in no position to establish the medical necessity of a prescribed MRI, it is well settled that the assignee stands in no better position than its assignor, and has no more right or claim than the assignor. If a claim is not assigned, and is submitted to the insurer directly by the eligible injured person, the insurer may assert a defense of lack of medical necessity which, if established, will shift the burden to the eligible injured person to provide his or her own evidence of medical necessity. If the defense may be asserted against the eligible injured person, it follows that it may be asserted against the provider as well." 2006 NYSlipOp 51871(U). Vague appeals to the underlying goals of no-fault, which could easily be molded to reach any conclusion under the sun,¹ pale in comparison to the actual law.

Really, it's a shame that radiologists don't independently assess medical necessity and yet still face the lack thereof as a defense. It's also a shame that doctors also usually don't assess whether a patient's injuries were the result of an intentional collision,² yet the appellate courts of this state have repeatedly held that they still must face the defense that such a thing occurred. See, e.g., Central General v. Chubb, 90 N.Y.2d 195 (1997); Metro Medical Diagnostics, P.C. v. Eagle Insurance Company, 293 A.D.2d 751 (2d Dep't, 2002).

Does a no-fault fact pattern get any more heartbreaking than the following?:

On August 31, 2000, Aferdita Suljovic, a passenger in a vehicle operated by her husband, was injured when her husband intentionally caused the vehicle to go over an embankment while he exited the driver's side of the vehicle. Mr. Suljovic was indicted, inter alia, for attempted murder and ultimately pleaded guilty to assault in the second degree.[³]

Mrs. Suljovic was hospitalized at Westchester Medical Center (hereinafter WMC). As her assignee, WMC sought to recover no-fault benefits from the defendant, Mr. Suljovic's automobile insurer, for the services it rendered. The defendant issued a denial of coverage on the grounds, insofar as relevant to this appeal, that the occurrence was not an "accident" within the meaning of the no-fault endorsement in the policy and that Mrs. Suljovic's injuries did not arise out of the "use or operation" of a motor vehicle. Westchester Med. Ctr. v. Travelers Prop. Cas. Ins. Co., 309 A.D.2d 927, 928 (2d Dep't, 2003).

The poor woman was almost murdered in a horrific manner and the hospital did the very thing hospitals are supposed to do. To be sure, the hospital had no part in the attempted murder, and it would have been cruel (and possibly some other things) for them to have refused to treat as soon as they found out her injuries were the result of an intentional act. But do they get reimbursed through no-fault? No. "The assault, committed through the use of a vehicle, was an intentional act, not an accident. Consequently, the...cause of action should have been dismissed." Id. The ability of a no-fault claimant or her assignees to assess a potential defense their claims has no relationship to the properness of a carrier employing such defenses. If the claims do not qualify, and the carrier has proven such in accordance with the applicable laws for proving a defense, that is the end of the judicial inquirty.

No-fault isn't just something where money gets tossed around for equitable reasons. It is based upon a contract, the terms of which are promulgated by the government. The contract has provisions. Those provisions are to be followed. The contract does not provide reimbursement for unnecessary services. The contract does not get changed around depending on whether those provisions would kinda sorta stink a little bit for an assignee of one of the parties thereto. Is this a revelatory stance? I think not, given decisions such as Westchester Med. Ctr. v. Travelers. And while the Appellate Term, 2d Dep't is no stranger to such wholesale no-fault contract re-writing,⁴ as I said yesterday, recent decisions appear to reverse that trend, or at least provide some balance. And, really, regardless of which party one is representing in a no-fault suit, is strict adherence to the laws and regulations really that bad of an idea?

MRI facilities giving a no-fault patient three MRIs a week after an accident are in no more of a sympathetic position than Mrs. Suljovic and Westchester Medical Center, and, in reality, are surely far less sympathetic. To hold that medical necessity defenses should be unavailable as against such MRI facilities due to unfairness is simply untenable in light of the result in Westchester Med. Ctr. and innumerable similar Appellate Division holdings. Well, it ain't keeping it real, at least.

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1. Really, does requiring subrogation against the referring provider after losing a no-fault suit shorten or lengthen the claim procedure? One could argue for the opposite result of Long Is. Radiology without changing the rationale.

2. Though maybe psychologists can if they broach that subject.

[3. Presumably, Justice Phelan would have the carrier subrogate against Mrs. Suljovic's incarcerated husband.]

4. "While the holding of the majority results in a plenary trial on the issue of lack of medical necessity, the insurer will have no evidence to present on the issue of 'medical necessity,' as the eligible injured person never appeared for the IME and consequently the company never examined that person. The eligible injured person would not be entitled to summary judgment but the insurer has no possibility to defend at trial. This, of course, ignores 11 NYCRR 65-1.1 (d) which provides that "No action shall lie against the Company..." Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins., 7 Misc. 3d 18, 25 (App. Term, 2d Dep't, 2004), dissent of Golia, J.

Almost Infamous

Much thanks for Nicole L. Black, Esq., she of the Sui Generis blawg, not only for pointing out to us that we are linked in a post today on PointofLaw.com, but also apparently for providing the method by which we got noticed in the first place.

Also a hearty welcome to the 3 people in the world that will read the PointofLaw.com post and be unable to resist checking out "a blog on New York no-fault auto law." ;)

Keeping It Real, Part I

The Appellate Term, 2d Department has been in engaging in some rather groundbreaking decision-making as of late: the application of "real" law (as opposed to solipsistic citation to prior no-fault decisions that had no particular basis in law on their own). For your consideration, we present the decision in West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 2006 NYSlipOp 51871(U) (App. Term, 2d Dep't, 2006). The "real" rule of law in question: "[I]t is well settled that the assignee stands in no better position than its assignor, and has no more right or claim than the assignor." Id., citing to Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121 (1975).

In the trial court opinion, Judge Judith R. McMahon held that "in a matter, such as the instant case, wherein the usual and customary medical procedure was utilized by the examining physician in referring a patient involved in a motor vehicle accident for radiological tests after a physical examination, and the patient assigned her rights to the diagnostic radiological establishment for reimbursement of No-Fault benefits, the affirmative defense of lack of medical necessity should not be available as the diagnostic center does not make an independent medical evaluation of the patient and the denial of benefits to the diagnostic establishment is in derogation of the intent of the Insurance Law 5106." West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 8 Misc. 3d 423, 427 (Civ. Ct., Richmond Cty., 2005). In sum, a carrier cannot deny MRI bills based upon a lack of medical necessity. This conclusion was based on that most vague and useless of arguments: that "the purpose and intent of the Insurance Law No-Fault Benefits statute which is expedient payment of benefits to automobile victims." Id.

The meat of the App. Term's rationale for overruling the Civil Court's order is as follows:

Under the Comprehensive Motor Vehicle Insurance Reparations Act (Insurance Law art 51), more commonly known as the No-Fault Law, "first party benefits" are available to reimburse persons for "basic economic loss" resulting from injuries "arising out of the use or operation of a motor vehicle" (Insurance Law § 5102 [b]). Insurance Law § 5102 (a) (1) defines "basic economic loss" as including, inter alia, "[a]ll necessary expenses incurred for: (i) medical, hospital . . ., surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services" and "(iv) any other professional health services." The Mandatory Personal Injury Protection Endorsement (11 NYCRR 65-1.1 [d]) defines "medical expenses" as consisting of "necessary expenses" for the services which are enumerated in the statute. Nowhere in the statutory or regulatory scheme is there any suggestion that services rendered by diagnostic centers or, for that matter, medical equipment suppliers, laboratories, or radiological facilities, all of which rely upon prescriptions or referrals from treating or examining medical providers, be exempt from the requirement that said services be "medically necessary." While it may be argued that a diagnostic center is in no position to establish the medical necessity of a prescribed MRI, it is well settled that the assignee stands in no better position than its assignor, and has no more right or claim than the assignor (see Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121 [1975]). If a claim is not assigned, and is submitted to the insurer directly by the eligible injured person, the insurer may assert a defense of lack of medical necessity which, if established, will shift the burden to the eligible injured person to provide his or her own evidence of medical necessity. If the defense may be asserted against the eligible injured person, it follows that it may be asserted against the provider as well. Moreover, "[t]o permit medical providers to receive reimbursement even when the insurer has proven that the service provided was not medically necessary would encourage fraud, rather than combat it . . . . In fact, the construction urged by plaintiff would require insurers to pay for MRIs of the entire spine when the insured suffered a broken toe, or for full body scans for broken arms" (Precision Diagnostic Imaging, P.C. v Travelers Ins. Co., 8 Misc 3d 435, 439 [2005]). 2006 NYSlipOp 51871(U).

This makes sense for a number of reasons, not the least of which is that the limitation of basic economic loss in § 5102 to "necessary [medical] expenses" doesn't have a subsection containing an exemption for instances where it would stink for the provider. To be sure, no one ever wants to write in a general exception to the laws and regulations when application of same would stink for the carrier.

Also, I think the end result of such a rule would be even worse than what the Civil Court posed in Precision Diagnostic: a no-fault applicant could have a single examination by a physician at which everything under the sun was prescribed, and then the resulting tens of thousands of dollars of no-fault claims would not be defensible on the basis of lack of necessity.

Indeed, I think the Court of Appeals has actually already decided the matter, anyway. The factual basis of Central General v. Chubb, 90 N.Y.2d 195 (1997) was as follows:

Central General Hospital provided medical treatment to Pamela Mandresh on four separate occasions for injuries allegedly sustained in an automobile accident. Chubb insured the automobile Mandresh was driving at the time she was allegedly injured. The hospital submitted standard requests for payment of no-fault billings totaling $ 2,403.50. Chubb rejected them on the grounds that the injuries were not related to the accident and the treatments were excessive. Chubb insists that Mandresh's injuries were sustained in a separate work-related accident about a year prior to the automobile accident. Id. at 198.

Although there was an allegation by Chubb that Ms. Mandresh had treated with the same physician for both injuries, this appears to be unrelated to the services rendered by the hospital. Either way, when a patient presents injuries and a given explanation to a physician, unless the injuries are somehow so blatantly unrelated that they cannot possibly have arisen as explained, the physician is in no position to determine the causality of the injuries. Nevertheless, the Court of Appeals concluded that "an insurer...may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident." If Judge McMahon's conclusion in the West Tremont trial decision was the correct rule, Central General should have held that carriers are precluded from raising the defense of lack of causality (unless the medical provider was actually a personal witness to the event that caused the injuries, I suppose).

Possibly more later on the potential effects of the App. Term's decision in West Tremont on the pending litigation in Long Is. Radiology v. Allstate Ins. Co., 12 Misc. 3d 1167A (Sup. Ct., Nassau Cty., 2006).

Fee, Fi, Ho, Hum

As Matthew S. Lerner, Esq. of the New York Civil Law blawg recently posted¹, Judge Peter Paul Sweeney of Civil Court, Richmond County has issued an opinion on the proper calculation of attorney's fees. See Marigliano v NY Cent. Mut. Fire Ins. Co., 2006 NY Slip Op 26395 (Civ Ct., Richmond Cty., 2006).

Judge Sweeney (now sitting once again in Civil Court, Kings County, and in fine spirits concerning the move as per conversations between His Honor and the undersigned yesterday) adopted the interpretation of the attorney's fees portions of the Regulations opined upon by the NYS Insurance Department on October 8, 2003. As the Ins. Dep't concluded therein:

The minimum amount of attorney's fees awarded to an assignee health provider who has prevailed in a court action brought against a No-Fault insurer is based upon the aggregate amount of payment required to be reimbursed based upon the amount awarded for each bill which had been submitted and denied. The minimum attorney fee amount of $60 is not due and owing for each bill submitted as part of the total amount of the disputed claim sought in the court action.

In Marigliano, plaintiff favored a calculation whereby each individual bill would be entitled to a separate fee calculation, each with its own $60/$850 boundaries (actually, plaintiff probably argued for a minimum of $80, but that's a recurring issue for a future post on No-Fault Urban Legends). Given that there were three (3) assignors in the suit, the Court's ruling will result in three (3) separate fee calculations, with the same $60/$850 bounds. Without having seen the underlying briefs, I am guessing that plaintiff's preferred calculation would have led to attorney's fees in excess of $1,200. Using the calculation set forth by the Ins. Dep't, attorney's fees probably didn't even exceed $850 (although the theoretical maximum for fees in a suit with three separate assignors would actually be $2,550, it is unlikely that the bills for each assignor reach that level).

This has been a pressing issue for some time, and I almost hope that the plaintiff appeals so that we can get a an on-point determination from the Appellate Term. Plaintiffs often break up very small bills into multiple causes of action in a Complaint in order to multiply their attorney's fees (and plaintiff's counsel in Marigliano is certainly no exception). Any bill lower than $300 will bring in attorney's fees at the $60 minimum, so sometimes plaintiffs will have 20+ causes of action per assignor, each with bills of around $150, in order to greatly boost the fees. Whereas using the calculation on which the Ins. Dep't has opined might not even result in fees that hit the $850 ceiling, using the plaintiffs' preferred calculation can far exceed $850, as seen in my rough guesses re: Marigliano above. It's obviously very frustrating when negotiating on behalf of a carrier that is otherwise dead in the water on their defense in a given action - a carrier either must face paying the full amount of the bills plus interest, fees (with a calculation likely done by the plaintiff and accepted by the clerk, anyway), and costs or give in to a demand that flouts regulatory limits. This often hardly constitutes a "settlement."

I am inclined to believe that if the Appellate Term of the 2d Dep't hears this matter, faced with a very clear opinion letter from the Insurance Department and no contrary and on-point Appellate Division holdings, they will be likely to uphold the Civil Court determination and memorialize the opinion letter as binding common law. In the absence of contrary Appellate Division holdings, the Appellate Term appears to favor adopting the opinions of the Ins. Dep't, as seen on the matter of whether providers can be reimbursed for services performed by independent contractors. See A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc. 3d 36 (App. Term, 2d Dep't, 2005).² The Appellate Term also seems concerned of late with systemic abuses by no-fault medical providers and their attorneys, another factor weighing in the carriers' favor. See, e.g., the fairly recent scheduling of sanctions hearings by the Appellate Term for Marylou A. Paolucci, Esq. and Alden Banniettis, Esq.³ Of course, the Appellate Term is highly unpredictable, and I have surely been wrong before.

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1. The post at bar is a modified version of a comment I posted to the subject New York Civil Law post.

2. However, the Appellate Term has never paid any attention to Ins. Dep't opinions that conflict with established appellate case law. For example, the Appellate Term has never given any weight to the January 11, 2000 opinion letter that medical necessity may be part of a plaintiff's prima facie burden (even where a carrier is precluded from raising the lack of medical necessity as a defense), as this is surely contradicted by the seminal Court of Appeals holding in Presbyterian Hospital v. Maryland Casualty Co., 90 N.Y.2d 274 (1997) and numerous appellate decisions holding that a plaintiff need only prove that it submitted claim forms to the carrier on which it stated the fact and amount of the loss sustained and that such claims have not been paid or properly denied.

3. Although the Appellate Term has published a motion decision whereby they declined to sanction Ms. Paolucci, I have not yet seen a decision either way concerning Mr. Banniettis.

Nobody Knows What "Custody" Law Guardians Can Do

Yesterday we spoke to an attorney who is involved in a contested custody case in New York. He had just received a call advising him that the principal of the child's school had called Administration for Children's Services (ACS) to file a child abuse report because it had noticed that the child had come to school with bruises on his face. This was the third time the school had called ACS this year. The last two complaints were dismissed as "not indicated" after the law Guardian reported to ACS that the child was not injured. The attorney sought advice as to how to handle the matter. He said that the Law Guardian had already interviewed his client and the parent whom the child lived with and had spoken to the other attorney but had not yet contacted him, nor spoken to the children. He said that the Law Guardian apparently intended to conduct an investigation and then would determine what to do.

I was disturbed by the fact that the earlier ACS investigation was halted based upon the Law Guardian's "investigation". If the child was injured at the hands of one of his parents ACS should make it's own investigation. I was also disturbed by the fact that the Law Guardian apparently believed he had the right to communicate directly with the parties in his investigation of the matter.

While the law guardian has a legitimate role in a few custody cases, the role of the Law Guardian is so ill defined, that he or she offers nothing in most cases but additional work and added expense to the parents, who usually can not afford to pay for his fees. This is because most lawyers do not know exactly what is the role of the Law Guardian

Law Guardians are appointed daily by New York courts in contested custody cases in both the Supreme Court and the Family Court. A few years ago Judge Silbermann, the Administrative Judge for Matrimonial Matters adopted Law Guardian Standards, but no one seems to be acknowledging their existence other than the First Department. These Standards for Law Guardians define a law guardian as an attorney representing a child in a custody or visitation proceeding and in any appeals therefrom. “It is the responsibility of the law guardian to act as an advisor to the child, and to advocate for the child's position in the litigation. The law guardian shall assess whether the child is impaired or unimpaired. Impairment is a child's inability to make knowledgeable, voluntary and considered judgments or to work effectively with his/her attorney.” The standards provide that assessment of impairments by the law guardian shall include consideration of the child's age, level of maturity, developmental ability, emotional status, ability to articulate his/her desires, and any other facts that impact upon the child's ability to make knowledgeable, voluntary and considered judgments or to work effectively with his/her attorney. Assessment of a child's impairment may also take into account factors external to the child including a parent's mental illness, substance abuse or domestic violence. The law guardian is required to advise the Court of his/her conclusion of impairment and, if the child expresses a position, report to the Court the child's stated position. Thereafter, the role of the law guardian is to assist the Court in making an informed decision in the best interests of the child by ensuring that relevant evidence is obtained and presented to the Court, including evidence that otherwise might not be presented to the Court, and by fully participating in the adjudicative process. The law guardian is directed by the rules not to assume the role of social worker or mental health professional, but to seek the assistance of such professionals on behalf of the child when appropriate. The standards also provide that a law guardian for a child shall not act as a witness or submit any written reports to the court at any point during the proceedings or in any subsequent proceedings.

Recently, in Rogovin v Rogovin, 27 A.D.3d 233, 812 N.Y.S.2d 41( 1st Dept, 2006) the Appellate Division, First Department found no basis exists to disqualify the Law Guardian, who, having determined that the child was unimpaired in accordance with local standards, properly acted as the child's advocate in urging retention of the custodial status quo, rather than as an aide to the court in determining the child's best interests (citing Family Ct. Act 241; see Matter of Albanese v. Lee, 272 A.D.2d 81, 707 N.Y.S.2d 171 [2000]; Law Guardian Definitions and Standards, State of New York Unified Court System, Statewide Administrative Judge for Matrimonial Matters). It stated that: Argument from the Law Guardian in support of the child's stated preferences is to be expected.

We believe that these Standards define the role of the Law Guardian exceptionally well. Yet, every attorney who we have spoken to about Law Guardians tell us that these Standards are ignored by most law guardians and trial judges every day.

The Appellate Divison, Third Department has been outspoken recently in explaining what a law guardian can not do. In Matter of Graham v Graham, --- N.Y.S.2d ----, 2005 WL 3489247 (N.Y. A.D. 3 Dept.), a custody case, the Appellate Division strenuously voiced its opinion that it was improper for Family Court to direct the child's attorney, the Law Guardian, to file a "report" in this case. Although the Law Guardian was careful to characterize his written submission at the end of the proof as his "summation" and appropriately relied solely on record evidence in support of his position. Family Court, however, not only referred to the "summation" as a "report" but, in lieu of making independent findings, adopted--in its own decision--the Law Guardian's submission in its entirety. The Law Guardian also made "recommendations" in his submission; evidence that he, as well as Family Court, may have misunderstood his role. It stated: " The use by a court of the "recommendation of the Law Guardian" has too long been tolerated in Family Court and matrimonial proceedings. When a court asks the child's attorney to make "a recommendation," it improperly elevates the Law Guardian's position to something more important to the court than the positions of the attorneys for each of the parents. Attorneys
representing parents do not advocate on behalf of their clients by making "reports" and "recommendations." The Law
Guardian should take a position on behalf of the child at the completion of a proceeding--whether orally, on the record, or
in writing --and that position must be supported by evidence in the record."

Earlier the same court expressed its views of the role of the Law Guardian. In Usack v Usack, 2004 WL 3258905 (N.Y.A.D. 3 Dept.), 2005 N.Y. Slip Op. 02712 the Appellate Division specifically emphasized (citing Weiglhofer v. Weiglhofer, 1 AD3d 786, 788 n 1 [2003] ) that it is not proper for a Law Guardian to make a "report" to a court. There the Law Guardian submitted, at Supreme Court's direction, a report containing her own unsworn observations regarding the parties, recounting personal interactions or opinions about them, all of which, it noted, could have been explored and elicited by calling witnesses and upon cross-examination of the parties and other witnesses.

Conclusions

The Law Guardian is the attorney for the child. As the attorney for a person who has a position he should advocate for his clients position in accordance with the Law Guardian Standards. While the definition of the role of the Law Guardian, as the attorney for the child, seems to elude most of the courts and counsel there should be not disagreement upon what the Law Guardian can not do.

The Law Guardian is an attorney. He is an attorney for a person who is not a party to the action. Therefore, he should not have standing to advocate on an issue other than the issue of custody and visitation. He should not be involved in any aspect of the litigation other than custody or visitation. He should not be present for any aspect of the litigation other than custody or visitation aspects and, as the attorney for a person other than a party to the action, he should not communicate with any litigant unless he has the prior consent of their counsel.

The Law Guardian does not have the right to interview either of the parties.

The Law Guardian does not have the right to communicate with either of the parties.

The Law Guardian does not have the right to express a pesonel opinion as to the veracity of either of the parties, or on any other matter, to the court or to forensic experts, who may rely upon that opinion.

The Law Guardian does not have the right to investigate and report to the court.

The Law Guardian does not have the right to make a recommendation.

The Law Guardian does not have the right to express a position with regard to any issue in the the litigation between the parties, other than custody or visitation.

The Law Guardian does not have the right to express a positon on the child support issues between the parties.

The Law Guardian does not have the right to be present during the financial aspects of the trial.

The Law Guardian does not have the right to communicate with the judge or his court personnel or report to the judge during any stage of the proceedings.

Right to Assignment of Counsel in Divorce and Custody Cases

We applaud the New York Legislature for finally recognizing that indigent litigants in custody and visitation cases broght in the Supreme Court should have the same right to the assignment of free counsel as litigants in custody and visitation cases brought in the family court. Judiciary Law 35 has been amended to require Judges in the Supreme Court to assign counsel in such cases. It would appear that the Supreme Court judges are now required to notify defendants of the right to counsel, as well as the right to an adjournment to obtain counsel, and to the right to the appointment of free counsel if they can not afford to retain an attorney. It would also appear that these rights apply, even in divorce cases, where custody or visitation is in issue.