Land Mark Cases

Rosner v. Rosner, Supreme Court, Nassau County.  Two years of a substantial matrimonial case on trial, 200 exhibits, expert testimony from two forensic accountants. Mr. Liotti represented the wife.  The husband is a prominent medical malpractice plaintiffs’ attorney.  The case was settled for undisclosed sums and property in 2011.  Three reported decisions in the Appellate Division, all dated May 25, 2010 and decided in our client’s, the plaintiff’s, favor.  See 2010 NY Slip Op. 04566 - downward modification of pendente lite award denied; 2010 NY Slip Op. 04567 - application to vacate an order appointing a referee is denied; and 2010 NY Slip Op. 04568 - application to obtain more discovery/information about plaintiff’s business is denied.

Young v. Young, (Family Court, Suffolk County; Supreme Court, Suffolk County; U.S. District Court, E.D.N.Y., and Appellate Division, Second Department, 2008-2011).  Mr. Liotti represented Deborah Young, a Suffolk County mother of three in a custody; neglect and divorce battle.  Prior to Mr. Liotti’s representation the Youngs signed a Stipulation of Settlement in their divorce action.  A few months later while Deborah and her children were away on vacation, Mr. Young broke into the marital residence and according to Deborah trashed it, blaming her for the squalor.  On the advice of prior counsel, Deborah admitted to neglect and her children were placed into foster care.  Mr. Young filed and obtained an Order staying enforcement of the Stipulation and a Supreme Court Justice referred the matter to the Family Court for a determination on custody.  A twenty day trial ensued.  At the end of it custody was given to Mr. Young.  The children remained in foster care for three years.  An appeal on the custody issues is pending.  In collateral actions, Mr. Young sued Suffolk County; the Archdiocese; all the psychologists in the case; Deborah Young and her parents and his former attorneys.  He has lost all of these actions.  Recently the children sued Suffolk County for negligence relating to the case.  Deborah has sued Mr. Young and his former attorneys in federal court for conducting a media campaign against her. See, Vesselin Mitev, Father Given Custody of Children Despite Their Preference For Mom, New York Law Journal, February 10, 2010 @ 1 & 2. Decision of the Day, New York Law Journal @ 25, 40 & 41.  Kieran Crowley and Josh Margolin, Lawyer Clients Want Fee-Dom, DA Probes “Bilker” Barbara, New York Post, March 15, 2011 at 18; Kieran Crowley, Pigpen Girls in “Filthy” Suit, N.Y. Post, August 22, 2011 at 10.

Estate of Isabella Grasso v. County of Nassau, et. al., Village Justice, Attorney Liotti Representing High School Actress, The Westbury Times, May 12, 2011 at 14.  Ann Givens, Suit:  Airlift Delay Deadly, Newsday, July 13, 2011 at A26.  Charleen Famiglietti, Grasso Family Alleges Cover Up in Daughter’s Death, Parents of Lattingtown Teen Isabella Grosso Say County Was Negligent, Glen Cove Patch, July 17, 2011.  Alexa Rivadeneira, Family Claims Negligence In Daughter’s Death, The Locust Valley Leader, July 13, 2011 edition.  Michael Bruschini, Video:  Grosso Family Announces Claims Against County, Glen Cove Patch, July 13, 2011; David J. Criblez, Grasso Family Investigates Daughter’s Death, July 15, 2011 at 1 and 5.

Shapiro v. Glen Cove, No. CV-03-0280 (WDW), 2005 WL 1076292 (E.D.N.Y., May 5, 2005). “In any event whatever motivation Horvath may have had in calling in the complaint and alerting the media is irrelevant to the question of whether she was a state action.”  And, Shapiro, supra, 236 F. App. X 645 (2d Circ., 2007). “No evidence supports Shapiro’s contention that Weiss-Horvath acted jointly with the Glen Cove defendants to deprive her of her constitutional rights, and ample evidence shows that the Glen Cove officials who searched her home exercised independent judgment rather than acting at Weiss-Horvath’s direction.” The defendant, Marilyn Shapiro, an Administrative Law Judge was charged with multiple misdemeanors of animal cruelty. They were reduced to violations and she pled guilty. See, Erik German, Glen Cove, Court: Raid Was Proper, June 8, 2005 at A34.

Durazzanese Societa Italo-Americano Di Mutuo Socorso Corp. Of New York v. Nassau County Treasurer, Supreme Court, Nassau County, Hon. Roy S. Mahon.  Trial on stipulated facts and Memos of Law. Mr. Liotti and his Associate, Lucia Maria Ciaravino, Esq. Represented the plaintiff. The plaintiff won in October 22, 2010 with the County being ordered to vacate all taxes, penalties, liens or other encumbrances nunc pro tunc, going back to when the organization was granted tax exempt status in 1993.  Durazzano is a philanthropic, charitable organization deeply involved in religious and community affairs which primarily assist the Italian community in Westbury, Long Island. The Society is named after a small valley town in southern Italy near Naples by the same name. There are a great many Italians in Westbury formerly from Durazzano. The County has also been ordered to pay costs, disbursements and interest to the Society.  See New York Law Journal, November 16, 2010 at 1 and 25. Also, dec.nylj.com 1202474841055:

Prior Order Declaring Property Tax Exempt

Granted Res Judicata Effect; Liens Vacated

Durazzanese Societa sued defendants regarding the tax exempt status of plaintiff’s property. In a previous petition by the same parties, plaintiff society began an Article 78 proceeding in 2002 challenging the denial of its application for real property tax exemption. The court found petitioner met its burden of establishing its entitlement to the exemption. This court noted the prior determination regarding the exempt status of the property was not reargued, modified or reversed. As such, it stated the prior determination had res judicata effect regarding the issues herein, finding the parties and issues were the same. Plaintiffs sought vacatur or all liens and that all real estate tax assessments, arrears and liens be null and void nunc pro tunc as of October 1996. Defendants argued the requested relief was time-barred by the four-month statute of limitations. But the court found such assertion misplaced as plaintiff was afforded tax-exempt status by the prior court and any denial of said exemption and assessment of real property taxes would be in direct violation of that order. Therefore, plaintiff was granted judgment.
 

See also, The Westbury Times, November 18, 2010 at 2 -

“Tax Win for Charity”

 Justice Roy S. Mahon, Supreme Court, Nassau County, recently decided the case of Durazzano Society v. Nassau County, et al. Justice Mahon found that the Society was entitled to tax exempt status since 1993 and that taxes, liens and assessments leveled against it and amounting up to $1 million are vacated. The Society is named after a valley town in Italy by the same name. The Society is a philanthropic organization, which raises money for various causes, both here and abroad. There are a great many residents in Westbury, the home base of the Society, from Durazzano, Italy.  Thomas F. Liotti, Esq., the legal counsel to the Society and a Village Justice in Westbury, said, ‘The Society is truly grateful and delighted by the decision. It is a long awaited and big win for the Society. The Society does wonderful work for the church and the community as a whole.  Justice Roy S. Mahon and Lucia Maria Ciaravino, Esq. of my office are both to be commended for their work. I knew that once we were assigned Justice Mahon that we could expect justice, fairness and a well-reasoned decision. That is what we received from a most able jurist.’”
 

See also, Village Justice, Attorney Liotti Announces Durazzano Society Decision, The Westbury Times, July 5, 2012 at 11; Betsy Abraham, Dropped Penny Ends 17 Year Lawsuit, The Westbury Times, June 7, 2013 at 3 and 4.

U.S. v. Alfred Caronia , 576 F.Supp.2d 385 (E.D.N.Y. 2008), reversed 703 F.3d 149 (2nd Cir. 2012).  Jury trial before Judge Vitaliano.  Defendant convicted of one misdemeanor count.  Conviction vacated by United States Court of Appeals for the Second Circuit on December 3, 2012 (Docket No. 09-5006-cr).  See also, Second Circuit Upholds Free Speech Rights in Off-Label Case, Bloomberg BNA, December 3, 2012 3:15 p.m. E.T. See, Noeleen G. Walder, Judge Rejects Commercial Free Speech Defense in ‘Off-Label’ Drug Promotion, New York Law Journal, September 26, 21008 at 1 and 6 and Decisions of Interest, New York Law Journal, September 26, 2008 at 1, 25, 33 and 34 - Commercial Speech Restriction Challenge to Charge of Promoting Medication for “off-Label’ Uses Rejected - Defendant drug firm sale representative was charged with violating the Food, Drug and Cosmetic Act’s (FDCA) misbranding provisions by conspiring to promote a medication for a doctor’s prescription for “off-label” uses not approved by the U.S. Food and Drug Administration (FDA). His dismissal motion challenged the misbranding charges as an unconstitutional restriction of commercial speech under the First Amendment. Despite deeming the promotion of “off-label” uses of an FDA-approved prescription drug speech, not conduct, the court denied dismissal. Applying the tests in Bolger v. Young Drug Products Corp. and Central Hudson Gas v. Public Service Commission of New York the court, discussing Washington Legal Foundation v. Friedman and United States v. Caputo, determined that the restriction of manufacturer promotion of off-label uses directly advanced the government’s substantial interest in promoting the health and safety of its citizens, and that the FDCA’s restrictions on manufacturer promotion of off-label uses were not more extensive than necessary. Mr. Liotti’s client, the defendant herein, was initially charged with felonies that were reduced to misdemeanors. He went to a jury trial in October, 2008 and was found guilty of conspiracy and not guilty of misbranding. Rule 29 and 33 motions were denied.  Defendant sentenced to no jail.  Case is currently on appeal to Second Circuit. The Washington Legal Foundation by the law firm of Jones Day has appeared as amicus curiae counsel with the consent of the parties and on behalf of Mr. Liotti’s client. Jennifer L. McCann. Esq., Mr. Liotti’s former Associate, acted as co-counsel to Mr. Liotti throughout the case. See also, Frederick R. Ball, Erin M. Duffy and Nina L. Russakoff, How Hard Should It Be To Imprison Someone For Telling The Truth? FDA Advertising Regulation Enforcement, Food and Drug Law Institute Newsletter, Sept./Oct., 2009 @ 6, 7, 8, 9, 10, 11, 12 and 13.  This is an entire article about the Caronia case; Thomas M. Burton, The Free Speech Pill, Drug Firms See Opening to Push for End to Off-Label Marketing Ban, The Wall Street Journal, November 3, 2011 at B1 and B2.  Mark Hamblett, Circuit Finds Conviction Violated First Amendment, New York Law Journal, December 4, 2012 at 1 and 4.  Katie Thomas, Ruling Is Victory for Drug Companies in Promoting Medicine for Other Uses, lead story, Business Day, The New York Times, December 4, 2012 at B1 and 7; Thomas M. Burton, Conviction Overturned in Drug-Marketing Case, Marketplace, The Wall Street Journal, Corporate News, December 4, 2012 at B6.  Jonathan Stempel, Reuters Report, December 3, 2012, “A divided federal appeals court on Monday threw out the conviction of a sales representative for promoting off-label use of a prescription drug, a ruling that could make it harder for the government to police how drugs are marketed and sold.”  See also, Howard J. Bashman, How Appealing, the Web’s first blog devoted to appellate litigation, December 3, 2012.  Jan Wolfe, Litigation of the Week: Michael Carvin and Eric Murphy of Jones Day; N.Y. Solo Jennifer McCann, The Litigation Daily, American Lawyer Blog, December 6, 2012.  Frederick Robinson, “Court of Appeals Invokes First Amendment to Reverse Conviction of Sales Rep for Off-Label Promotion”, Fullbright Briefing, a Newsletter by the Law Firm of Fullbright & Jaworski, LLP, December 6, 2012.  Jan Wolfe and Andrew Keshner, Solo Teams With Big-Firm Attorneys for Circuit Victory, New York Law Journal, December 26, 2012 at 2. Drug Sales Rep. Wins on Appeal, Newsday, December 5, 2012 at A42; Ashby Jones, Wall Street Journal Law Blog, December 3, 2012, Off-Label Drug Promotion Protected by First Amendment, Rules Second Circuit; Jonathan Stempel, Reuters, December 3, 2012, Court Voids Drug Rep’s Conviction Cites Free Speech; Matthew Arnold, Court Says Off-Label Decision Against Jazz Rep Ran Afoul of Free Speech Protection , Medical Marketing and Media, December 3, 2012.  The Roundtable, January, 2013 at 2 Tidbits re: Alfred Caronia case, a synopsis together with reprint of the Wall Street Journal article entitled:  The F.D.A. vs. Free Speech from December 4, 2012.  Thomas M. Burton, Pharmaceuticals, FDA Won’t Appeal Ruling on Marketing As Speech, The Wall Street Journal, Thursday, January 24, 2013 (Media & Marketing Section) at B6.  Marcia M. Boumil, J.D., LL.M., Off-Label Marketing and The First Amendment, The New England Journal of Medicine, January 10, 2013 at 103-105.  Harvey Silvergate, A Doctor’s Posthumous Vindication, The Wall Street Journal, December 26, 2012 at A13.  This is an opinion piece subtitled: Peter Gleason Spoke His Mind About a Drug’s Benefits - then Saw His Career Ruined By the FDA and Federal Prosecutors.  Jan Wolfe and Andrew Keshner, Solo Teams With Big Firm Attorneys for Circuit Victory, The New York Law Journal, December 26, 2012 at 2.  Op-Ed, The Wall Street Journal, December 4, 2012 at A18, The FDA vs. Free Speech, a Court Decision Guts the Agency Crackdown on Off-Label Drug Promotion.  Bloomberg BNA, Pharmaceutical Law & Industry Report, Second Circuit Upholds Free Speech Rights in Off-Label Case, December 3, 2012.  Peter G. Neiman, Seth B. Orkand and Peter K. Vigeland, Outside Counsel, Revisiting “Off-Label” Drug Promotion, Resolutions In Light of Caronia, New York Law Journal, February 28, 2013 at 4 and 8.  Thomas Sullivan, U.S. v. Caronia: A Victory for Free Speech vs. Off Label Promotion, Policy and Medicine, December 5, 2012 in HHS-OIG, Medical Legal/Permalink.  Thomas Sullivan, DOJ to Target Pharma and Device Current Good Management Practices (CGMPs) Violations, Policy and Medicine, February 26, 2013/Permalink; Tracy Staton, If Ex-Intermune CEO’s Conviction Goes to the Supreme Court, Fierce Pharma, September 25, 2013.  See, Government Bypasses Petition for Rehearing, The Roundtable, American Board of Criminal Lawyers, February, 2013 at 2.  Greg Cima, Ruling Could Let Drug Sellers Say More: Court Vacates Conviction for Off-Label Promotion, Journal of the American Veterinary Medical Association, AVMA News: February 1, 2013, vol. 242, no. 3 at 291-293; Tracy Staton, FDA Weighs the Free Speech Case for Off-Label Marketing, Fierce Pharma Marketing, May 21, 2014