By: Patricia Kane November 28, 2023
Maxwell Bottini, counsel at Coffey Modica
Joseph Hopkins, counsel at Coffey Modica
• Coffey Modica has promoted associates Maxwell Bottini and Joseph Hopkins to counsel.
Coffey Modica Attorneys Named Super Lawyers
Three Coffey Modica LLP attorneys were honored by Thomson Reuters for their annual Super Lawyers and Rising Stars lists in 2023.
Founding Partner Michael W. Coffey and Partner Joseph A. D’Avanzo were selected as 2023 Super Lawyers, which recognizes the top-rated practicing attorneys across America, selected through a rigorous four-step nomination and evaluation process.
Coffey was also ranked as one of the top-rated construction litigation attorneys in White Plains, New York. Over the past 25 years, he has successfully arbitrated and mediated more than 300 cases. Having managed numerous high-profile insurance-related claims and litigated cases in the state of New York, Coffey has also acted as defense counsel in over 175 trial matters, representing various companies and syndicates in state and federal courts across the United States.
D’Avanzo, who serves as Chair of the Complex Litigation team and Senior Member of the Excess Trial team, was also named as one of the top-rated Business Litigation attorneys in White Plains, New York. His extensive legal practice encompasses intricate commercial and civil liability litigation in both state and federal courts. He has represented a diverse clientele, consisting of individuals and businesses from various sectors, such as aerospace, biotechnology, life sciences, construction, entertainment, fashion, sports, product manufacturing, real estate, and technology.
Associate Maxwell Bottini was selected as one of 2023’s Rising Stars, an honor given to attorneys who are under 40 years old or have been in practice for no more than 10 years. He was also named one of the top-rated Construction Litigation attorneys in White Plains, New York. Practicing out of the firm’s New York and Connecticut offices, Bottini has adeptly advocated for clients in intricate cases related to construction disputes and defects, product liability disputes, transportation issues, premises liability claims, both domestic and international reinsurance transactions, including captive insurance matters, as well as excess liability and casualty cases, achieving favorable outcomes.
“It is an honor to have multiple attorneys from Coffey Modica recognized as Super Lawyers across a variety of practice areas and geographic locations. As our firm marks its second anniversary, we are proud that the tireless work and strong results achieved for a wide array of clients has merited such recognition from the legal community. We look forward to continued success and growth in the years ahead,” said Michael W. Coffey.
Paul Golden Explains the Legal Issues Around Real Estate Class Action Ruling
In a recent Money Magazine article, Partner Paul Golden explains some of the legal issues surrounding the ruling on real estate commissions by brokerage firms.
Here’s What’s Next for the Housing Market After a Massive Realtor Lawsuit
By: Leslie Cook Nov 09, 2023
Change is coming to how homes are bought and sold.
The U.S. real estate industry was shocked last week when the jury in a class action lawsuit against the National Association of Realtors and two major brokerage firms, Keller Williams and HomeServices of America, decided they conspired to keep real estate commissions higher than needed. After a two-week trial that ended Oct. 31, jurors awarded the plaintiffs $1.78 billion in damages.
Now, everyone from brokerages to independent agents is trying to figure out what the future will look like once the dust has settled. The decision, says Steve deGuzman, CEO of rehavaPress, a software development company for real estate brokerages, could bring benefits “not only to consumers but to the industry all around.”
The lawsuit, known as Sitzer/Burnett, centered around the NAR’s participation rule and the practice of agent commission sharing. Under the rule, in order to advertise a property on a listing site, the seller’s agent must offer compensation to buyer agents. The aim is to attract more people interested in purchasing a home.
When it sells, the listing agent’s commission, which typically averages between 5% and 6% of the sales price and is paid from the proceeds, is split with the buyer’s agent. But the plaintiffs in the lawsuit alleged — and the jury agreed — that this practice unnecessarily increased the real estate transaction cost for sellers.
What happens next?
The next step in the process is for the judge hearing the case, Stephen Bough, to determine the final damages, which could exceed the amount the jury awarded, says Paul Golden, partner at the Coffey Modica law firm.
Golden says Bough could decide to “issue treble damages — that is, three times the damages” awarded by the jury, which would increase the judgment amount to over $5 billion. He could also grant the plaintiff’s court costs, including attorney’s fees and prejudgment interest.
More broadly, Bough could make changes to the commission sharing rule, ban it altogether on a national level or decide to modify the system. If the judge opts to outlaw commission sharing altogether, home sellers and listing agents would no longer be able to determine how much to offer a buyer’s agent or include the information on a listing site — a change that would drastically alter the industry.
Who qualifies for NAR damages?
Sitzer/Burnett is a class action lawsuit in Missouri representing over 500,000 home sellers in that state. Only members of the class are eligible to receive damages as a result of the lawsuit.
But anyone expecting to get a nice chunk of change has a long time to wait. NAR, Keller Williams and HomeServices of America have all signaled their intent to appeal the verdict. (Re/MAX and Anywhere Real Estate, two other defendants in the case, reached settlements with the plaintiffs before the trial and are not included in this decision.)
“These lawsuits are probably going to take years to work through the court system,” says Laura Ellis, chief strategy officer at brokerage Baird & Warner.
It could take up to two years after all the appeals have run out for the plaintiffs to receive any compensation if the damages are confirmed. The amount paid out will depend on how much the final award is after attorney fees and court costs are subtracted.
But Missouri residents aren’t the only ones in line for a payout. There’s another class action lawsuit against NAR, known as Moerhl, set to go to trial sometime next year. Potential damages in that case, which is also targeting commission sharing, could go as high as $40 billion.
A third lawsuit, known as Gibson, with similar claims against NAR was filed within hours of the Sitzer/Burnett decision, naming other major brokerages, including Redfin, Douglas Elliman and Compass, as co-defendants. The class action lawsuit covers home sellers nationwide and could seek damages of up to $200 billion.
What does the NAR lawsuit ruling mean for buyers?
While the monetary outcome of the jury’s decision is unclear, the future of agent commissions is downright murky — and it all depends on what the judge decides.
If Bough strikes down the commission sharing rules, entirely or partially, it opens up a world of possibilities. Buyer agents would no longer be able to advertise their services as free (though they have never been free because the seller has always paid them). Instead, they’d have to be upfront about their fees, regardless of who pays them.
Buyers will still have the option of omitting the services of a realtor and working directly with a listing agent. But for those who want the expertise of an agent to guide them through the negotiation process, the upfront costs of buying a home could increase.
Ellis says some brokerages, including hers, could require clients to sign a buyer’s agreement specifying the services the agent will provide, their commission and the buyer’s responsibility to pay the fee if the seller doesn’t cover it. If the buyer has to pay their agent, it could add thousands of dollars to the cost of a home purchase — on top of the down payment and closing costs.
In the end, “the market is ultimately going to determine the value of that buyer agent’s services,” says Ellis.
What does the NAR decision mean for sellers?
Home sellers are likely to see a more immediate benefit. If commission sharing is no longer allowed, a seller would negotiate a fee with their agent, and a buyer would do the same with their representative. For sellers, this could be a positive: They would no longer have to pay another agent out of their home sale profits.
Indeed, some brokers are already taking steps to eliminate commission sharing from their listings, says deGuzman of rehavaPress, adding, “that’s going to immediately save the seller anywhere from 3% or more.”
A business model based on fixed-fee compensation, where the seller or buyer pays a flat fee for their respective representative’s services, could also emerge and help keep home selling and buying costs down for both parties.
There’s a lot about the Sitzer/Burnett decision that has yet to be determined. The full effects of not only this lawsuit but also others still working their way through the courts will certainly have an impact on the housing market, but the scope isn’t clear.
In the meantime, deGuzman says, “it’s going to be chaos for about a year.”
Second Department Rules That Cooperative Apartment Owners’ Rights Are Precarious
BY PAUL GOLDEN
This article appeared in the September Issue of New York Real Estate Law Reporter
On June 14, 2023, the Second Department decided Walsh v Ocwen Loan Servicing, LLC. The court, with little fanfare, appeared to rule that cooperative apartment owners are saddled with an unavoidable risk of loss.
That is, if a lender alleges that the owners have defaulted, and then conducts a nonjudicial foreclosure sale, the former owners are left with few remedies. Re-gardless of whether the owners were truly in default, and regardless of whether they were notified of the sale, they can lose their home — for good.
A co-op shareholder does not have the same protections that a traditional homeowner has. The owner of a house, for example, who defaults on a mortgage, would not lose the home in a foreclosure sale until and unless the lender con-ducted a judicial foreclosure action, and until and unless the homeowner had the opportunity to present defenses to the court, and then only if the court specified at the end that the foreclosure would take place.
Shareholders of co-ops do not have those protections. Shareholders do not use the mortgage system — they obtain loans which are secured by their shares. If a lender deems the shareholder to have defaulted, the lender can ultimately conduct a nonjudicial foreclosure sale. This is just as it sounds — the court is not involved at all.
In any event, Walsh concerned a couple that owned cooperative shares to their home, an apartment, for fifteen years. Their position was that their shares (and corresponding lease) were inexplicably sold at a non-judicial foreclosure sale on Jan. 29, 2019. The closing then took place on July 18, 2019. The couple only found out that their cooperative shares had been sold at a foreclosure sale when the successful bidder arrived at their doorstep and claimed that he was the new owner of those shares. That bidder eventually filed a holdover proceeding to evict the couple from their home.
In September 2019, the couple filed an action against Ocwen Loan Servicing, LLC (Ocwen), the alleged assignee of the underlying note. They claimed they were not in de-fault of their promissory note and security agreement, and that they were not even served with any no-tice about the auction.
In the context of their case, the couple moved for a preliminary in-junction, seeking, among other re-lief, to enjoin the eviction during the pendency of the action. In May 2020, Hon. Jimenez-Salta of the Kings County Supreme Court granted the preliminary injunction, based in part on her ruling that there were serious questions on whether plaintiffs were actually in default of the promissory note and security agreement. The successful bidder then appealed.
On appeal, there were two diametrically opposed ways of viewing property rights. The successful bidder argued that UCC 9-617(b) gave him absolute rights of ownership. Under that statute, after there is a sale, a “good-faith transferee” obtains full rights to the collateral “even if the secured party [i.e. the lender] fails to comply with this article ….” The couple, conversely, argued that UCC 9-617(a) applied – which indicated that a secured par-ty only disposes of collateral after a “default.” The couple argued that the Legislature sought to make sure, when they passed UCC 9- 617(a), that parties such as plaintiffs would have to be in “default” in order for the purchaser to potentially obtain rights. They also argued that, to allow them to lose their home even if they were not in default, would violate the Due Process clause of the New York Constitution.
The court did not explicitly discuss the meaning of “default” in the stat-ute. Instead, the court simply ruled that “Where, as here, a debtor pledg-es cooperative shares and a corre-sponding proprietary lease as secu-rity for a debt, article 9 of the UCC applies to the enforcement of the se-curity interest.” Then the court held that the plaintiffs had not established that “that the relief they seek, in ef-fect, to vacate the sale of the shares and proprietary lease following the closing, is available under article 9 of the UCC.” Therefore, it held that the plaintiffs’ remedy was to seek monetary damages against Ocwen. Finally, it held that plaintiffs were not entitled to a preliminary injunction.
There are several critical issues that arise from this order.
One is that, at least in the Second Department, it appears a potential bidder has relatively few worries about whether he or she will actu-ally obtain viable and enforceable rights, in a nonjudicial foreclosure sale, at least once the closing takes place. Therefore, theoretically, such bidders will be willing to offer clos-er to the full value of the shares in a nonjudicial foreclosure sale. This is potentially beneficial for a de-faulting shareholder; the higher the sales price, the less the debt to the lender. There is even a chance the defaulting shareholder could obtain proceeds, to the degree they exceed the sum owed.
Second, a shareholder’s rights are extremely precarious, especially if dealing with a lender that cannot handle accounting records or notic-es properly. In the lender makes a mistake about: 1) whether there was a default; 2) how and when to serve the borrower with notice about the alleged default; or 3) both, then the borrower may suddenly find he no longer owns the shares at all. In such a case, the borrower apparent-ly has few options except to seek relief against the lender. But the chance to potentially win a money judgment against a lender, years af-ter the sale, will be cold comfort to a person kicked out of his home.
Third, lenders should take ex-tremely strong precautions in mak-ing sure that their accounting re-cords are in order, and that they serve notices on an alleged default-ing debtor perfectly, and that all t’s are crossed and i’s are dotted.
Otherwise, the former debtor may be unable to vacate the sale, and will have no choice but to seek full relief against the lender.
Fourth, the courts may eventually need to further clarify how far the law goes. In an extreme case, one could have borrowed funds, but fully paid them back to the lender. In such a case, if the lender makes an incredible error, and “sells” these same shares to a high bidder, which were formerly a security for the debt, how would the court handle it? A bidder would point to the Walsh case and argue that there is no way to seek to vacate a sale of shares under article 9 of the UCC. But presumably, even an extremely cold-hearted court would not go that far.
Read the full September 2023 issue of New York Real Estate Law Reporter.
The Constitution Has Entered the ‘Chat’: AI Violates the Right to Effective Assistance of Counsel
Coffey Modica Counsel, Mostafa Soliman, was quoted in Legal Drive, offering insight on the ethical use of generative AI.
By Kerianne Morrissey | September 06, 2023
Artificial intelligence (AI) has permeated various industries and professions because the technology has many benefits. The legal profession has slowly adopted this kind of technology as an aid to tasks such as research and writing. Many commentators have discussed the ethical considerations of using this technology in the context of the Model Rules of Professional Conduct. Nicole Yamane, Artificial Intelligence in the Legal Field and the Indispensable Human Element Legal Ethics Demands, 33 Geo. J. Legal Ethics, 877, 878 (2020); Augustus Calabresi, Machine Lawyering and Artificial Attorneys:Conflicts in Legal Ethics With Complex Computer Algorithms, 34 Geo. J. Legal Ethics 789, 797 (2021); Amy B. Cyphert,A Human Being Wrote This Law Review Article: GPT-3 and The Practice of Law, 55 U.C. Davis L. Rev., 401, 423 (2021).
However, little has been written about the constitutional implications of the use of AI, in particular, the Sixth Amendment right to effective assistance of counsel in the criminal context. Given the rate at which AI continues to develop and anticipating a future that may present artificial lawyers or judges, this issue must be addressed. Cade Metz, ‘The Godfather of A.I.’ Leaves Google and Warns of Danger Ahead, N. Y. Times, (May 1, 2023).
While AI technology may have some benefits, they are substantially outweighed by the prejudice and harm to people in contact with the criminal justice system. Because of the dark prospect that technology, namely an artificial lawyer, may be the only gatekeeper between a person and their liberty, this technology must be prohibited in the criminal justice system or, in the alternative, strictly regulated.
Attorneys have a duty to uphold the Constitution and must not let the appeals of AI’s convenience and profit infringe on our constitutional right to effective representation.
Landscape for the Future
Dr. Geoffrey Hinton invented the technology that led to the development of AI language processing programs. Cade Metz, ‘The Godfather of A.I.’ Leaves Google and Warns of Danger Ahead, N. Y. Times, (May 1, 2023). Tech giants Google and OpenAI acquired this technology and began creating powerful AI programs, the latest of which is Generative Pre-Training Transformer-4 (“GPT-4”). Cade Metz, ‘The Godfather of A.I.’ Leaves Google and Warns of Danger Ahead, N. Y. Times, (May 1, 2023); Alan Truly, GPT-4: how to use the AI chatbot that puts ChatGPT to shame, Digital Trends, (June 16, 2023).
ChatGPT-4 is the technology behind the latest chatbot from OpenAI that is capable of conversation. Luca CM Melchionna, Bias and Fairness in Artificial Intelligence, N.Y.L.J., 95(4) 29, 30 (2023). These programs are language processing tools that process massive data sets, recognize patterns and then predict language. Cyphert, supra, at 403. Notably, AI’s output is limited to the data set used to train the algorithm, making this technology susceptible to bias. Melchionna, supra, at 30.
With AI’s ability to predict language, the legal profession has been using this technology to assist in various tasks pertaining to research and writing, such as legal research, discovery, drafting briefs or contracts and contract review. Yamane, supra, at 882.
Driven by profit, companies are racing to develop AI to advance the capabilities of this technology in a presently unregulated environment. Cade Metz, ‘The Godfather of A.I.’ Leaves Google and Warns of Danger Ahead, N. Y. Times, (May 1, 2023). Dr. Hinton fears that companies will create technology that will outsmart human beings and become a threat to humanity. Cade Metz, ‘The Godfather of A.I.’ Leaves Google and Warns of Danger Ahead, N. Y. Times, (May 1, 2023).
With this threat on the horizon, the creation of artificial general intelligence (AGI), with the “flexibility and resourcefulness of human intelligence,” is closer than we think. Gary Marcus, Artificial General Intelligence is Not as Imminent as You Might Think, Sci. Am., (July 1, 2022); Alan Truly, GPT-4: how to use the AI chatbot that puts ChatGPT to shame, Digital Trends, (June 16, 2023).
With the present use of AI technology in practice and AGI technology on the horizon that may provide a substitute for attorneys, the use of this technology and its potentially grave consequences in the criminal justice system must be closely scrutinized.
The Right to Counsel
The Sixth Amendment right to counsel is clearly established, tracing back to the purpose of the Bill of Rights to guarantee “. . . fairness and justice before any person could be deprived of ‘life, liberty, or property.’” Adams v. U.S. ex rel. McCann, 317 U.S. 269, 276 (1942). The Supreme Court has explained, “The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.” Strickland v. Washington, 466 U.S. 668, 692 (1984).
The constitutional requirement of counsel is not met simply by “… a person who happens to be a lawyer is present at trial alongside the accused.” Strickland, 466 U.S. at 692. It is the counsel’s role in the adversarial process to use their skills to afford the defendant an opportunity to test the prosecutor’s case to ensure fairness and reliability on the outcome of a criminal proceeding. Adams, 317 U.S. 269.
To succeed on a claim of ineffective assistance of counsel, a defendant must show that the conduct of counsel was deficient, falling below an objective standard of reasonableness, and that it resulted in prejudice. 466 U.S. at 668. Counsel’s deficient performance is prejudicial if the defendant shows, but for the attorney’s deficient conduct, there is a reasonable probability that the outcome would have been different. 466 U.S. at 668.
A narrow exception to the prejudice prong of the Strickland test would be circumstances that amount to a constructive denial of effective assistance because they erode the inherent fairness in the adversarial process and undermine the outcome. U.S. v. Cronic, 466 U.S. 648 (1984).
Examples of such circumstances are a conflict of interest or counsel’s failure to test the prosecution’s case. Cronic, 466 U.S. 648. A defendant must overcome the presumption that the counsel’s conduct was reasonable. Cullen v. Pinholster, 563 U.S. 170, 179 (2011).
Prejudice Outweighs Benefits
The use of AI in the context of criminal legal representation falls well below the Strickland and Cronic standards for effective assistance of counsel. 466 U.S. 668; Cronic, 466 U.S. 648. While AI may have some benefits, the risks of AI’s deficiency would prejudice a defendant in violation of their right to effective assistance of counsel.
The benefit of using AI in the legal profession is generally to improve the speed and quality of the services rendered. AI achieves this by completing tasks at a faster pace than a human lawyer, which improves efficiency, accuracy, and is thus cost-effective. Yamane, supra, at 882. Attorneys are using AI to assist in legal research, writing briefs and drafting and reviewing contracts. Yamane, supra, at 882.
Additionally, because the technology predicts a response based on the data it learns from, the technology can be customized to a specific area of practice. Mostafa Soliman, Navigating the Ethical and Technical Challenges of ChatGPT, N.Y.L.J., 95(4), 27-28 (2023).
Further, commentators propose that AI could resolve the equity issue of access to justice for those who cannot afford representation. Yamane, supra, at 886. It is apparent that most of the benefits of AI are predominately related to the efficiency of tasks, increased output, cutting costs for clients, more business and raising profits for the private sector.
The use of AI to complement or substitute for the work of an attorney raises concerns about possible ethical violations under the Model Rules of Professional Conduct, such as competence, unauthorized practice of law, or bias. Yamane, supra, at 883. The basis for any such ethical violations may present a myriad of problems including producing false or biased information or the risk of disclosing client confidentiality. Cyphert, supra, at 434; Roy D. Simon, Artificial Intelligence, Real Ethics, 90 N.Y. St. B. J. 34, 36 (2018).
In the criminal context, because of the problems with this technology, the use of AI and any benefits it may confer are undercut by the enormous risks posed that could result in an attorney’s deficient conduct. Such deficiency may substantially prejudice a defendant and erode the structural fairness of our cherished adversarial system.
First, the use of AI may be a silent element in the course of representation where attorneys may not even realize they are using AI. Calabresi, supra, at 800. Many commonly used legal research databases, such as Westlaw and Lexis, are already using AI technology to improve research results. Calabresi, supra, at 800.
Generally, legal research and writing are fundamental skills an attorney must possess to represent anyone in any matter adequately. One of the main problems with AI technology is producing false or biased information. Yamane, supra, at 882. If an attorney were to rely on this technology to conduct research or draft legal documents, these risks, if they came to fruition, would clearly lower the standard of reasonable attorney conduct under the Strickland framework. 466 U.S. 668.
Furthermore, as a silent element in the course of representation, it would be impossible for a defendant who is challenging the effectiveness of their representation to meet their burden to show that the role of AI changed the outcome of their case. In particular, it would be a hefty burden to overcome when attorneys enjoy the presumption of effective assistance. Cullen, 563 U.S. at 179.
This lack of transparency and accountability in the use of AI through the course of representation may substantially prejudice a defendant.
Second, the use of AI, not only in tasks like research and writing but in the development or analysis of evidence, provides a loophole in our adversarial system to admit untested evidence. The adversarial design of our system provides a truth-seeking forum where the evidence presented is challenged and tested through crossexamination.
However, if the court prohibits counsel from cross-examining admitted evidence that was generated using AI, it creates an inherently unreliable outcome that may amount to a constructive denial of effective assistance.
For example, in People v. Wakefield, the New York Court of Appeals held that the technology used to analyze genotyping DNA evidence was not considered a declarant and the defendant did not have a right to test the evidence through cross-examination. People v. Wakefield, 38 N.Y.3d 367 (2022). While Wakefield involves the confrontation clause of the Sixth Amendment, the inability to test evidence admitted raises the issue of constructive denial of effective assistance of counsel.
Third, one commentator has cited the use of AI as potentially having the benefit of closing the gap in access to justice for those who cannot afford representation because of AI’s capability to generate answers to legal questions. Yamane, supra, at 885-7.
However, if the prospect of AGI is actualized, it would not close the gap to access to justice but create a two-tiered justice system. The issues and limitations of AI are not de minimus: potentially providing output consisting of false information or even racist or sexist information. Cyphert, supra, at 414.
Using AI as a substitute for those who cannot afford human representation would further disadvantage people who would receive legal answers that may not be correct or provide information that is discriminatory or offensive. Melchionna, supra, at 31.
The greater equity that would result from the possibility of closing the access to justice gap is an exciting prospect. However, the massive social problem of inequity in accessing legal representation will not be realized using a technological solution embedded in a neoliberal ideology that plagues our society. Jeff Sugarman, Neoliberalism and psychological ethics, J. of Theoretical and Phil. Psychol., 35(2) 103-116 (2015); Evgeny Morozov, The True Threat of
Artificial Intelligence, N. Y. Times, (June 30, 2023).
Lastly, legal representation involves human elements that are irreplicable. Attorneys are not robots, and they do not simply intake information and spit out answers. There are nuances that accompany the role, such as building a relationship with the person you are representing. The assignment isn’t to represent a case but a person who selected, or was assigned an attorney, to assist in their defense to stand between themselves and the possibility of incarceration.
One of the most critical aspects of an attorney’s role, particularly in the criminal context, is the unwavering loyalty and zealous advocacy for the person they are representing. As the Supreme Court recognized, an attorney is not “simply a person who happens to be a lawyer . . . standing alongside the accused,” but the Constitution requires much more. 466 U.S. 668 at 685.
To strip the art of legal representation of these elements would undoubtedly prejudice a defendant, for no technology is capable of zealous advocacy, loyalty, and empathy. There are some characteristics, “understanding, self-awareness . . . emotions, desires . . .” that are uniquely human. David Brooks, ‘Human Beings Are Soon Going to Be Eclipsed,’ N. Y. Times, (July 13, 2023).
In the criminal context, the use of AI presently and the potential of AGI as a substitution for attorneys creates an unlevel playing field that strikes at the heart of fairness, which is the essence of our
constitutional right to counsel.
Safeguarding Liberty
Despite the proposed benefits of AI, mainly in the private sector, they are substantially outweighed by the enormous harm and prejudice sustained, particularly in the criminal justice system. People will continue to be subjected to harm as AI continues to develop and infiltrate the legal profession.
However, the Constitution requires effective representation of persons at risk of losing their liberty, and the use of AI results in a grossly prejudicial outcome.
Some “solutions” that commentators propose to impose safeguards when using AI in the course of legal representation are appropriate oversight and limiting the use of AI as a tool, not a substitute.
Yamane, supra, at 889.
These proposed safeguards are inadequate not only in the criminal context but for what is to come with the lightning speed advancements occurring with this technology. Cade Metz, ‘The Godfather of A.I.’ Leaves Google and Warns of Danger Ahead, N. Y. Times, (May 1, 2023). The only measure that is adequate when liberty is at stake is prohibiting the use of AI in the criminal justice system or strict regulations that at least permit cross-examination.
The legal field is a self-regulating profession, and attorneys are stewards of the Constitution. Innovative technology can be exciting and appealing, but there are no shortcuts to justice, truth, and defending liberty. The legal profession cannot be complicit in the encroachment of unregulated and unbridled technology infringing on the cherished constitutional rights of the people they serve. Liberty is too great a cost for convenience.
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New York Owners Must Go Beyond a New Law to Prevent E-Bike Fires
BY LARRY LUPPI
On any given night, a hungry New Yorker will pull up their favorite food delivery app and place an order.
Within minutes, a delivery driver will arrive with the food and a miracle of modern technology will have satisfied one person’s hunger for at least one more night.
But what the hungry New Yorker perhaps does not fully appreciate is that the same technology powering their phone also powered the delivery driver’s e-bike: a lithium-ion battery. And they may also be unaware that lithium-ion batteries are a leading cause of fatal fires in New York City.
In 2022, there were 220 fires started by lithium-ion batteries in New York City, causing six deaths. So far this year, we’ve seen 87 injuries and 13 deaths in Manhattan, including four deaths and two injuries in a Chinatown apartment fire when an e-bike battery purportedly exploded in the repair store below.
In an effort to contain the scourge of deadly e-bike fires, New York’s Local Law 39 will go into effect on Sept. 16, 2023, prohibiting the sale, lease or rental of e-bikes, and their batteries, that do not meet standards set forth by the Underwriters Laboratories or other standards established in consultation with the Fire Department of the City of New York.
While landlords may welcome any legislative action aimed at curbing these deadly blazes, they cannot rely on Local Law 39 alone to prevent all property damage or injuries associated with such fires.
The law may put parameters on the new stock of e-bikes being sold in New York City shops, but there are an estimated 65,000 e-bikes already traversing the five boroughs. Rounding up the old bikes that may thereafter fall below the new standards is impractical.
In August, several major international e-bike manufacturers either filed for bankruptcy or issued warnings about their ability to remain in business. This can result in greater opportunity for older, vintage bikes to fall into disrepair, as warranties evaporate and sources for replacement parts dry up.
Without access to proper customer support, someone who spent valuable money on such a bike, only to find that the battery is just not holding a charge, may have no choice but to log onto the Internet to buy what they think is a replacement battery that fits. What few understand is that while it might fit the device, the voltage may not be compatible. The result may eventually set a home or building ablaze.
And with many lithium-ion batteries being imported, it is also important to note that obtaining jurisdiction over the battery manufacturers is far from a sure thing.
As FDNY Commissioner Laura Kavanagh explained in the spring, lithium-ion fires are “not a slow burn; there’s not a small amount of fire, it literally explodes.” In addition, the fires are “very difficult to extinguish” and therefore “particularly dangerous.”
When deliveries became an essential service during COVID, this spurred the city’s legalization of e-bikes and scooters. Outside of relying on Local Law 39 or waiting for the state legislature to institute a wholesale prohibition on owning or using e-bikes, property owners have limited means to protect their buildings or their occupants from these devices.
Until a more comprehensive solution is reached, building owners would be wise to pay attention to the storage and charging of e-bikes inside their facilities, and some have even decided to ban e-bikes or their batteries within residential and commercial buildings. The New York City Public Housing Authority initially proposed a complete ban on battery-powered bikes because of the fire risk, but reconsidered after residents who use the devices for work and as a method of transportation complained.
To strike a balance between these competing interests, Mayor Eric Adams and U.S. Sen. Chuck Schumer secured a $25 million grant to install electric charging hubs at several housing facilities.
An estimated 112 million Americans reported using food delivery in 2020, and the industry is still going strong today, with food delivery expected to be a $32 billion industry by 2024. Those deliveries in a metropolitan region like our own will happen using e-bikes. Landlords and property owners must be aware of this ongoing threat that appears not to be going away.
Larry Luppi is a litigator and a partner at Coffey Modica representing insurers and their insureds.
Deeper Investigation Will Determine Cause of Manhattan Crane Collapse
Fire and insurance attorney Michael Mezzacappa weighs in on what, “at first blush, does not appear to be a typical crane collapse accident.”
By Michael P. Mezzacappa
The calm on Manhattan’s west side was shattered in the early morning hours of July 26 when a 45-story tall construction crane collapsed onto the streets below.
The crane was working on an under-construction 54-story, mixed-use skyscraper located between 41st and 42nd streets, a few blocks west of Broadway’s ‘Great White Way’ and a few streets north of the Jacob Javits Convention Center.
The crane was holding 16 tons of concrete at the time of the accident, according to city officials. Twelve people were reported as being injured and, on the way down, a part of the crane hit another nearby occupied tower.
Initial reports indicated that a fire started in the cab of the crane due to hydraulic fluid leaking onto a heated metal plate. When incidents like these occur, there is no shortage of whispers and speculation as fingers quickly point to who or what companies could be to blame.
After more than 35 years litigating high profile cases, especially catastrophic New York fires for major corporate defendants and on behalf of underwriters, at first blush, this does not appear to be a typical crane collapse accident.
It also does not initially appear that the rigging of the crane was done in a faulty manner. Instead, this accident appears to have resulted because of a fire that, in turn, caused failure of mechanical systems and devices that normally keep the crane operational and erect.
What was exceptionally-different here from any other crane collapse or accident was that the mechanical section of the crane was on fire 45 flights up.
Video and photos from the scene show that the mechanical section of the crane was heavily ablaze as FDNY companies arrived to tame the flames and the prevent the possible spread of any falling debris that might ignite other surrounding properties or vehicles below. 200 FDNY personnel were on the scene, according to FDNY Deputy Commissioner Joseph W. Pfeifer.
Reportedly, the boom of the crane was fine the days and weeks prior. Instead, it is highly likely that the high temperature within the mechanical section, specifically as result of the flames, caused degradation of the cables and other mechanical systems, compromising their ability to continue controlling crane operation and stability.
As was seen in the World Trade Center terrorist attack, high heat and flames often result in gradually weakening the strength and integrity of any metal—including, in this instance, those devices that control movement and action of a construction crane.
In any metropolitan area, and especially in the City of New York, there are very stringent testing, compliance and permitting protocols for construction sites and the safe operation of cranes. What’s more, there are always fail safes built in.
In a vertical city like New York, towering construction cranes regularly dot our landscape. They are essential to the city’s real estate ecosystem and their safety and operations are highly necessary.
In the end, the investigation of this accident is going to be conducted by multiple agencies, including the FDNY, the New York City Department of Buildings, OSHA and likely other agencies.
From years of experience in dealing with major investigations that involve fires, the forensics and laboratory reports alone can take a year or more in a jurisdiction like New York City.
In the end, it is highly likely that standards established by the National Fire Protection Association (NFPA) 921: Guide for Fire and Explosion Investigations will be used for the determining factors in this incident, to get to the root cause of how the first fuel ignited, which eventually led to the demise of control over the crane and part of its ultimate collapse to the construction site below.
Michael P. Mezzacappa is a partner & general counsel with Coffey Modica LLP. based in New York. He is a trial attorney who represents clients including insurers, property owners and managing agents, manufacturers, construction companies and trucking companies.
Coffey Modica O’Meara LLP Changes Its Name To Coffey Modica LLP
White Plains, NY (August 4, 2023) –Since launching in 2021, rapid growing insurance defense firm Coffey Modica O’Meara LLP has become Coffey Modica LLP, reflecting continued growth and appellate success.
Michael Coffey, who is known for defending insureds in catastrophic, high-exposure cases, has set a high bar for the firm with the recent addition of partners Joseph D’Avanzo, Paul Golden, and Michael Mezzacappa.
“Our litigation and appellate practice,” said Mezzacappa. “sets a high standard in a unique niche practice that delivers results on the highest exposure cases in the country. We provide strategic litigation and trial support, monitoring, consulting and drafting as needed from start to finish, from discovery onward. This early intervention ‘full-court press’ provides our clients and their counsel added-value services that improve their ability to evaluate legal issues and liability exposure, implement tactics and arguments to craft compelling summary judgment motions, and position themselves for a successful appeal or favorable negotiation.”
Working with Coffey Modica’s strategic framework for trial litigation, the entire process of the trial team through appellate risk. The firm’s teams have an enviable success record in dealing with international and national excess insurers and private clients in a wide variety of fields. Clients rely on the team to identify, evaluate, monitor, mitigate, and defend their risk in catastrophic property and casualty matters including claims of catastrophic personal injury, construction defect, product liability, subrogation, professional liability, premises liability, labor law, employment law, mass torts, complex torts, toxic torts, insurance coverage, and general commercial litigation.
“In today’s climate, nuclear verdicts are a real threat to insurers,” said Michael Coffey, founding partner of Coffey Modica LLP. “Joe, Paul and Michael bring a strong record of attention to detail and successfully minimize their clients’ risk by not only accurately evaluating legal issues and liability exposure. They totally understand the insurance industry and how the judiciary addresses these cases. This directly informs how they counsel clients.”
Coffey Modica opened its doors in September of 2021 with its three founders and the firm now boasts a roster of 35 attorneys. In addition to top-tier client service, the firm prides itself on a positive, creative, and collaborative culture.
Coffey Modica represents numerous private clients and all major insurers, as well as Lloyd’s of London syndicates and leading self-insured companies with the following primary practice areas: Property & Casualty; Community & Homeowners’ Association Law; Construction & Construction Defect; Cyber, Technology, & Media; Directors and Officers; Employment Law; Medical Malpractice; Professional Liability and Trucking &Transportation. It services a wide range of industries.
“We are moving full steam ahead,” explained Coffey. “We are busy servicing clients, litigating and trying cases, and onboarding laterals. We are thrilled to close out 2023 with a new name and such an accomplished team.”
About Coffey Modica LLP
Coffey Modica LLP is a New York-based defense litigation firm with offices in Manhattan, White Plains, Buffalo, New Jersey, and Connecticut. The firm represents defendants in high-profile, high-exposure matters across many disciplines and industries. Known for being aggressive trial attorneys and litigators, Coffey Modica resolves matters on behalf of its clients with the most cost-effective resolutions that are aligned with their short- and long-term business goals and culture.
Coffey Modica Welcomes Counsel Jeffrey Gasbarro to the Firm
WHITE PLAINS, N.Y., May 16, 2023 /PRNewswire/ — Coffey Modica, a leading law firm specializing in insurance defense, is excited to announce Jeffrey Gasbarro has joined the firm as Counsel and will be based in the firm’s White Plains office. A renowned lawyer known for his legal skills and high aptitude, he will be part of the Appellate and Litigation Strategy Group and assist in the firm’s National Excess Trial Team with motions in limine and litigation. He has a particularized knowledge and insight into the NY Labor Law and brings a wealth of experience and background to the firm.
Coffey Modica is one of the fastest-growing law firms in the tri-state area specializing in insurance defense.
“We couldn’t be happier to welcome Jeffrey to our team,” Michael Coffey, founding partner of Coffey Modica. “Gasbarro’s depth of experience will be a valuable addition to our existing and future clients.”
In addition to his law practice, Jeffrey serves as a Reporter to the committee comprised of New York Judges that publishes the New York Pattern Jury Instructions–Civil. Known by practicing attorneys and judges simply as the “PJI”, it is a four-volume treatise containing jury instructions and commentaries that is used in every civil jury trial in the State of New York.
Previously, Jeff worked as a court attorney and law clerk for a total of ten years at the Appellate Division, Second Department, where he handled all types of civil, criminal, matrimonial, and family court matters. Jeff’s experience working behind the scenes at one of the busiest appellate courts in the country gives him a unique perspective to craft the best approach to successfully defend the client’s interests that will be an asset to the firm.
About Coffey Modica LLP
Coffey Modica LLP is a New York-based defense litigation firm with eight offices in New York, New Jersey, Connecticut, and Pennsylvania and is among the fastest-growing firms in the nation. The firm represents defendants in high-profile, high-exposure matters across many disciplines and industries around the country. Known for being aggressive trial attorneys and litigators, Coffey Modica resolves matters on behalf of its clients with the most cost-effective resolutions aligned with their short- and long-term business goals and culture.