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LAW OFFICE OF
COHEN & JAFFE
December 27, 2019
Law Office of Margaret G. Klein & Assoc.
Partners 2nd
200 Madison Avenue,
New York, NY 10016
STEPHEN M. COHEN
RICHARD S. JAFFE
Attn: Michele Schuster, Esq.
56th
Associates RE: Gelzer v. Realty LLC, et al.
S/Queens Index No.: 704591/2018
STEPHEN B. TIGER
TRICIA C. SMITH Dear Ms. Schuster:
CAITLIN A. McNAUGHTON
Kindly permit this writing to confirm that this office received notification that
defendants wish to have Vincent Gelzer appear for a defense neuropsychological
assessment with Dr. Barr.
Please be advised that as per Mr. Gelzer's legal right, there will be a representative
from my office present during the entire interview and testing, observing the same.
The representative will not participate in any way nor interrupt the assessment but
rather, will simply take notes and observe the assessment.
Finally, as you may be aware, separate from the test manuals, answers and scoring
sheets will be generated during the assessment, along with other materials. This is
data."
referred to as the "raw Raw data produced during a neuropsychological
assessment forms the sole basis from which a neuropsychologist scores the assessment
and renders conclusions. It also forms the sole basis by which one can determine
whether the neuropsychologist accurately scored and/or reported the scores.
As you most assuredly are aware, unless a defendant exchanges the raw data prepared
during a neuropsychological assessment, the examining neuropsychologist will be
precluded at trial. As a professional courtesy, here for your review is a list of citations
wherein Courts have unequivocally held that the raw data from a neuropsychological
assessment must be disclosed. See The People of the State of New York v.Almonor 93
(4d'
N.Y. 2d 571 (1999); Jessica H v. Spagnolo 41 A.D. 3d 1261 Dept., 2007)(Court
erred in not compelling plaintiff to exchange records relative to a neuropsychological
assessment of plaintiff's treating psychologist); Marble v. Hughes 38 A.D. 3d 1344
(4th
Dept., 2007)(Court properly granted defendant's access to all records relative to
2001 Marcus Avenue, W295 neuropsychological assessment performed plaintiff's Anderson
by psychologist); v.
Lake Success, NY 11042
516-358-6900
www.CohenJaffe.com
info@CohenJaffe.com
Siegel 255 A.D. 2d 409 (2d Dept., 1998); Drago v. Tishman Construction Corp.,
supra. Moreover, the failure to exchange the same is grounds for preclusion.
Additionally, we are entitled to the test manuals as well as scoring protocol.
(4th
Andruszewski v. Cantello, 247 A.D. 2d 876 Dept., 1998); Arasim v. Residential
Management Group, LLC (Supreme Court, New York County, January 21, 2017)
Hollenberger v. RJB Development, LLC (Supreme Court, Onondaga County, July 21,
2016); Collins v. Preschern,_(Supreme Court, Westchester County, May 26, 2015);
Witsch v. Schuylerville Central School District (Supreme Court, Saratoga County,
November 6, 2014); Agosto v. City of New Rochelle (Supreme Court, Westchester
51³'
County, February 7, 2012); Nakaasato v. 331 West Street, (Supreme Court, New
York County, August 3, 2012); Blasi v. McKeough (Supreme Court, Nassau County,
December 3, 2009).
Not only does legal precedent require the disclosure of raw data, so too does the
psychologist's code of ethics. Section 9.04 of the Principles of Psychologists and
Data" data"
Code of Conduct 2002 entitled "Release of Test refers to the "raw test
that is produced during the course of a neuropsychological assessment. More
importantly, it specifically addresses the release of this raw data where, as in the
instant matter, a proper authorization has been provided. Section 9.04 reads as
follows:
The term test data [emphasis added] refers to raw and
scaled scores, client/patient responses to test questions or
psychologists'
stimuli, and notes and recordings
concerning client/patient statements and behavior during
an examination. Those portions of test materials that
include client/patient responses are included in the
definition of "test data". Pursuant to a client/patient
release, psychologists provide test data to the
client/patient or other persons identified in the release.
[Emphasis added.]
Pursuant to this authority, I am enclosing a Stipulation which calls for the exchange of
the raw test data along with a copy of Dr. Barr's report. Since Dr. Barr will likely
object to the release of the raw data, the Stipulation, which shall be so-Ordered,
obviates the need for motion practice regarding the same and will undoubtedly, satisfy
any and all of Dr. Barr's concerns. The Stipulation also addresses the need for
confidentiality regarding the data, as well as a provision that the same will be returned
to Dr, Barr at the conclusion of the litigation. I am also enclosing an authorization
pursuant to Section 9.04 permitting the release of the data directly to my office.
Please be advised that absent an executed Stipulation, we will be forced to move for
the relief sought. Our office and Mr. Gelzer does not wish to further delay this matter
by engaging in needless motion practice to obtain the raw data and test booklets.
With respect to plaintiff having a representative present during the assessment, there is
ample case authority supporting that position, and it is very clear that a legal
(4*
representative is permitted. See Jessica H v. Spagnola, 41 A.D.3d 1261 Dept.,
(4*
2007); A.W v. County of O'Neida, 34 A.D.3d 1236 Dept. 2006); Ramsey v. New
(1"
York University Hospital Center, 14 A.D.3d 349 Dept., 2005); Lamendola v.
(3rd
Slocum, 148 A.D. 2d 781 Dept., 1989); McNeil v. State, supra (claimant has the
"right"
to have his counsel attend a neuropsychological examination). See also Quito v.
PCS Management LLC (Supreme Court, New York County, June 30, 2016); Collins v.
Preschern_(Supreme Court, Westchester County, May 26, 2015); Ramirez v. 45
Overlook Terrace Owners Corp. (Supreme Court, New York County, January 21,
2015): Kugler v. Art in Motion Dance Academy (Supreme Court, Albany County, May
30, 2014) (the testing psychologist fails to offer any illumination as to how the
presence of an un-intrusive third-party observer would skew the test results); Conklin
v. Setauket Knolls Associates (Supreme Court, Suffolk County, 2013)(a
neuropsychologist's conclusory statement that exam is negatively impacted by
presence of anyone in room . . .is patently insufficient to meet burden for excluding
plaintiff's doctor); Suarez v. Harrison & Burrows Bridge Constructors, Inc. (Supreme
Court, Westchester County, June 24, 2013); Agudelo v. Iffland (Supreme Court,
Westchester County, November 29, 2011); Delgado v. Frovar (Supreme Court, Bronx
County, October 19, 2010) Arasim v. Residential Management Group, LLC, (Supreme
Court, New York County, January 26, 2017); Ramirez v. 45 Overlook terrace Owners
Corp. (Supreme Court, New York County, January 21, 2015); Hollenberger v. RJB
Development, LLC. (Supreme Court, Onondaga County, July 21, 2016); Ferland v. Lee,
(Supreme Court, Oneida County, August 11, 2016).
Please return the Stipulation within five (5) business days to avoid uññecessary motion
practice.
Your anticipated cooperation is greatly appreciated. Thank you,
Y s truly yours,
HEN B. TIGER, ESQ.
Enclosure
SBT/dw
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS STIPULATION
________________ x
VINCENT GELZER, Index No.: 704591/2018
Plaintiff,
-against-
56TH REALTY, LLC, Individually, 56TH REALTY, LLC,
d/b/a MANHATTAN ART AND ANTIQUES CENTER, and
GLENWOOD MANAGEMENT CORP,
Defendants.
_____------ ---- -------- X
IT IS HEREBY STIPULATED AND AGREED, by and between the üñdersigned attonieys for the
respective parties to this action, that:
1) Defendant shall provide the scoring protocol, all writings of plaintiff, and raw data
geñêrated during the neuropsychological assessment performed by the neuropsychologist on
plaintiff, Vincent Gelzer within thirty (30) days;
2) The parties agree that the materials shall not be released to any third party outside
counsel's office other than to a licensed psychologist and/or neuropsychologist;
3) The parties agree that the materials and/or copies thereof shall not be placed in the
public Court file; and
4) The parties agree that no copies of the raw data and/or scoring protocol shall be
made and that all materials are to be returned, unahered, to counsel at the conclusion of the
litigation.
ted: Lake Success, New'York
December 27, 2019
B : STEPI EN B. TIGER, ESQ. BY: MICHELE SCHUSTER, ESQ.
Law Office of Cohen & Jaffe, LLP Law Office of Margaret G. Klein & Assoc.
Attorneys for Plaintiff Attorneys for Defendants
2001 Marcus Avenue, 200 Madison Avenue, Second Floor
Suite W295 New York, New York 10016
Lake Success, New York 11042 (646) 392-9250
(516) 358-6900
Preview
LAW OFFICE OF COHEN & JAFFE December 27, 2019 Law Office of Margaret G. Klein & Assoc. Partners 2nd 200 Madison Avenue, New York, NY 10016 STEPHEN M. COHEN RICHARD S. JAFFE Attn: Michele Schuster, Esq. 56th Associates RE: Gelzer v. Realty LLC, et al. S/Queens Index No.: 704591/2018 STEPHEN B. TIGER TRICIA C. SMITH Dear Ms. Schuster: CAITLIN A. McNAUGHTON Kindly permit this writing to confirm that this office received notification that defendants wish to have Vincent Gelzer appear for a defense neuropsychological assessment with Dr. Barr. Please be advised that as per Mr. Gelzer's legal right, there will be a representative from my office present during the entire interview and testing, observing the same. The representative will not participate in any way nor interrupt the assessment but rather, will simply take notes and observe the assessment. Finally, as you may be aware, separate from the test manuals, answers and scoring sheets will be generated during the assessment, along with other materials. This is data." referred to as the "raw Raw data produced during a neuropsychological assessment forms the sole basis from which a neuropsychologist scores the assessment and renders conclusions. It also forms the sole basis by which one can determine whether the neuropsychologist accurately scored and/or reported the scores. As you most assuredly are aware, unless a defendant exchanges the raw data prepared during a neuropsychological assessment, the examining neuropsychologist will be precluded at trial. As a professional courtesy, here for your review is a list of citations wherein Courts have unequivocally held that the raw data from a neuropsychological assessment must be disclosed. See The People of the State of New York v.Almonor 93 (4d' N.Y. 2d 571 (1999); Jessica H v. Spagnolo 41 A.D. 3d 1261 Dept., 2007)(Court erred in not compelling plaintiff to exchange records relative to a neuropsychological assessment of plaintiff's treating psychologist); Marble v. Hughes 38 A.D. 3d 1344 (4th Dept., 2007)(Court properly granted defendant's access to all records relative to 2001 Marcus Avenue, W295 neuropsychological assessment performed plaintiff's Anderson by psychologist); v. Lake Success, NY 11042 516-358-6900 www.CohenJaffe.com info@CohenJaffe.com Siegel 255 A.D. 2d 409 (2d Dept., 1998); Drago v. Tishman Construction Corp., supra. Moreover, the failure to exchange the same is grounds for preclusion. Additionally, we are entitled to the test manuals as well as scoring protocol. (4th Andruszewski v. Cantello, 247 A.D. 2d 876 Dept., 1998); Arasim v. Residential Management Group, LLC (Supreme Court, New York County, January 21, 2017) Hollenberger v. RJB Development, LLC (Supreme Court, Onondaga County, July 21, 2016); Collins v. Preschern,_(Supreme Court, Westchester County, May 26, 2015); Witsch v. Schuylerville Central School District (Supreme Court, Saratoga County, November 6, 2014); Agosto v. City of New Rochelle (Supreme Court, Westchester 51³' County, February 7, 2012); Nakaasato v. 331 West Street, (Supreme Court, New York County, August 3, 2012); Blasi v. McKeough (Supreme Court, Nassau County, December 3, 2009). Not only does legal precedent require the disclosure of raw data, so too does the psychologist's code of ethics. Section 9.04 of the Principles of Psychologists and Data" data" Code of Conduct 2002 entitled "Release of Test refers to the "raw test that is produced during the course of a neuropsychological assessment. More importantly, it specifically addresses the release of this raw data where, as in the instant matter, a proper authorization has been provided. Section 9.04 reads as follows: The term test data [emphasis added] refers to raw and scaled scores, client/patient responses to test questions or psychologists' stimuli, and notes and recordings concerning client/patient statements and behavior during an examination. Those portions of test materials that include client/patient responses are included in the definition of "test data". Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. [Emphasis added.] Pursuant to this authority, I am enclosing a Stipulation which calls for the exchange of the raw test data along with a copy of Dr. Barr's report. Since Dr. Barr will likely object to the release of the raw data, the Stipulation, which shall be so-Ordered, obviates the need for motion practice regarding the same and will undoubtedly, satisfy any and all of Dr. Barr's concerns. The Stipulation also addresses the need for confidentiality regarding the data, as well as a provision that the same will be returned to Dr, Barr at the conclusion of the litigation. I am also enclosing an authorization pursuant to Section 9.04 permitting the release of the data directly to my office. Please be advised that absent an executed Stipulation, we will be forced to move for the relief sought. Our office and Mr. Gelzer does not wish to further delay this matter by engaging in needless motion practice to obtain the raw data and test booklets. With respect to plaintiff having a representative present during the assessment, there is ample case authority supporting that position, and it is very clear that a legal (4* representative is permitted. See Jessica H v. Spagnola, 41 A.D.3d 1261 Dept., (4* 2007); A.W v. County of O'Neida, 34 A.D.3d 1236 Dept. 2006); Ramsey v. New (1" York University Hospital Center, 14 A.D.3d 349 Dept., 2005); Lamendola v. (3rd Slocum, 148 A.D. 2d 781 Dept., 1989); McNeil v. State, supra (claimant has the "right" to have his counsel attend a neuropsychological examination). See also Quito v. PCS Management LLC (Supreme Court, New York County, June 30, 2016); Collins v. Preschern_(Supreme Court, Westchester County, May 26, 2015); Ramirez v. 45 Overlook Terrace Owners Corp. (Supreme Court, New York County, January 21, 2015): Kugler v. Art in Motion Dance Academy (Supreme Court, Albany County, May 30, 2014) (the testing psychologist fails to offer any illumination as to how the presence of an un-intrusive third-party observer would skew the test results); Conklin v. Setauket Knolls Associates (Supreme Court, Suffolk County, 2013)(a neuropsychologist's conclusory statement that exam is negatively impacted by presence of anyone in room . . .is patently insufficient to meet burden for excluding plaintiff's doctor); Suarez v. Harrison & Burrows Bridge Constructors, Inc. (Supreme Court, Westchester County, June 24, 2013); Agudelo v. Iffland (Supreme Court, Westchester County, November 29, 2011); Delgado v. Frovar (Supreme Court, Bronx County, October 19, 2010) Arasim v. Residential Management Group, LLC, (Supreme Court, New York County, January 26, 2017); Ramirez v. 45 Overlook terrace Owners Corp. (Supreme Court, New York County, January 21, 2015); Hollenberger v. RJB Development, LLC. (Supreme Court, Onondaga County, July 21, 2016); Ferland v. Lee, (Supreme Court, Oneida County, August 11, 2016). Please return the Stipulation within five (5) business days to avoid uññecessary motion practice. Your anticipated cooperation is greatly appreciated. Thank you, Y s truly yours, HEN B. TIGER, ESQ. Enclosure SBT/dw SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS STIPULATION ________________ x VINCENT GELZER, Index No.: 704591/2018 Plaintiff, -against- 56TH REALTY, LLC, Individually, 56TH REALTY, LLC, d/b/a MANHATTAN ART AND ANTIQUES CENTER, and GLENWOOD MANAGEMENT CORP, Defendants. _____------ ---- -------- X IT IS HEREBY STIPULATED AND AGREED, by and between the üñdersigned attonieys for the respective parties to this action, that: 1) Defendant shall provide the scoring protocol, all writings of plaintiff, and raw data geñêrated during the neuropsychological assessment performed by the neuropsychologist on plaintiff, Vincent Gelzer within thirty (30) days; 2) The parties agree that the materials shall not be released to any third party outside counsel's office other than to a licensed psychologist and/or neuropsychologist; 3) The parties agree that the materials and/or copies thereof shall not be placed in the public Court file; and 4) The parties agree that no copies of the raw data and/or scoring protocol shall be made and that all materials are to be returned, unahered, to counsel at the conclusion of the litigation. ted: Lake Success, New'York December 27, 2019 B : STEPI EN B. TIGER, ESQ. BY: MICHELE SCHUSTER, ESQ. Law Office of Cohen & Jaffe, LLP Law Office of Margaret G. Klein & Assoc. Attorneys for Plaintiff Attorneys for Defendants 2001 Marcus Avenue, 200 Madison Avenue, Second Floor Suite W295 New York, New York 10016 Lake Success, New York 11042 (646) 392-9250 (516) 358-6900