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Two plaintiffs attorneys who won the right to videotape a deposition, then immediately handed the tape over to a tabloid TV news show, have been slapped with $7,500 in sanctions by a Nassau County, N.Y., judge. The judge, Supreme Court Justice Kenneth A. Davis, last week also heard testimony from the defendant’s counsel on the fees and costs incurred in first opposing the plaintiff’s request to tape the deposition and then to win a protective order blocking the dissemination of the video and other discovery materials. Should the judge grant the full amount sought by the defense, the total award could surpass $40,000. Costs and sanctions are governed by Part 130-1 of the rules of the chief administrative judge. The maximum sanction for any single occurrence is $10,000. Attorney Joseph R. Gagliano Jr. of Manhattan was hit with $5,000 in fines. Andrew P. Karamouzis, a partner of Moran & d’Arcambal, was ordered to pay $2,500. Receiving the video was “A Current Affair,” the recently revived news magazine airing locally on WNYW, Fox’s affiliate on channel 5. In a joint telephone interview, Karamouzis and Gagliano said they would appeal the ruling. They asserted that there was no extant court order or rule barring their distribution of the tape. Davis, however, ruled otherwise, noting that attorney disciplinary rule 7-107 prohibits lawyers from pursuing pretrial publicity. The plaintiffs “never informed this court that the deposition was to be distributed to the media, nor did defendant or this court anticipate that such an action would be taken,” he said. The conflict arose in Seaman v. Wyckoff Heights Medical Center, No. 004018-2003, a hotly contested wrongful discharge case. The plaintiff, Carol T. Seaman, alleges that Wyckoff Heights Medical Center in Brooklyn, fired her for threatening to report to the state Department of Health and Joint Commission on Accreditation of Healthcare Organizations what she asserts were a series of medical errors made by staff. Some of those mistakes, according to her complaint, resulted in fatalities. Seaman, a registered nurse, was employed for four years as the hospital’s director of risk and insurance management. She was fired in April 2002 and filed suit one year later. She is seeking $5 million in damages as well as reinstatement. Lead defense counsel Barbara E. Hoey, a partner in Manhattan’s Kelley Drye & Warren, said that Seaman was fired “for a variety of reasons related to her performance,” not because she was a whistle-blower. Gagliano was Seaman’s original attorney when the case was filed in 2003. The Moran firm signed on as trial counsel one year after that. Last month, after winning the right to tape the deposition of the hospital’s president and chief executive officer, Dominic J. Gio, Gagliano — who regularly practices entertainment law — made arrangements to pass a copy of the tape to “A Current Affair” producers. Professional and personal contacts with the show’s production staff dictated his choice of media outlet, Gagliano said. According to Davis’ March 29 sanctions order, Gagliano and Karamouzis proffered many reasons for requiring the taping of Gio’s deposition, but did not mention the connection to the news program. The plaintiffs attorneys were “duplicitous in the way they handled this,” Hoey said. “They gave a million different reasons for why they wanted to video,” she added. “I was suspicious from the outset. Gagliano disagreed with that characterization. Noting that parties are not required by statute to identify any reason for wanting to videotape a deposition, he added, “There was no improper conduct, whatsoever.” Because of the contentious nature of the case, Davis had already assigned labor law attorney David Gabor of Garden City, N.Y.’s Gabor & Gabor as special referee to supervise discovery. According to the ruling, Gagliano and Karamouzis had pressed for the taping on the grounds that neither Seaman nor her brother, attorney Thomas Seaman — who is also co-counsel in the case — would be present at Gio’s deposition. Hoey opposed the application, arguing that the need to record Gio’s answers was motivated by the desire to embarrass him. Immediately after the five-hour deposition, which was held on March 15 at Gabor’s office, both Gagliano and Moran & d’Arcambal partner Siobhan Moran resisted Gabor’s entreaties that they remain to discuss some outstanding discovery items and soon left. When Gio and Wyckoff general counsel David Hoffman left Gabor’s offices, they were set upon by a reporter and camera crew from “A Current Affair.” The pair drove away, resisting the reporter’s interview attempt. Hoey filed her motion for sanctions the next day. She also moved the court for a protective order banning the dissemination of all discovery materials and deposition transcripts produced in the case thus far. Davis granted the application in his March 29 order. In that ruling, he said, “To permit the dissemination of discovery to the public prior to the commencement of a trial violates the doctrine of fairness.” Although they were invited to participate in the protective-order proceedings, no attorney for “A Current Affair” appeared in court. The program’s general counsel, Christine Hagen, did not return a call for comment. Because they declined to submit to the court’s jurisdiction, Hoey said she did not think the producers of the Secaucus, N.J.-based TV show are bound by Davis’ order. Gagliano agreed, stating that the protective order binds only those parties who are before the court. Grace D. Moran, of counsel to Moran & d’Arcambal, appeared with Karamouzis and her daughter, attorney Siobhan Moran, for oral argument of the sanctions motion. Moran served on the state Grievance Committee for the 10th Judicial District, which covers Nassau and Suffolk counties, for 22 years, the last three as chief counsel. She joined her daughter’s firm in 2002. “I’m not backing away from this,” Grace Moran said in a phone interview. “No firm likes to be sanctioned.” Moran also disagreed with Davis’ application of Disciplinary Rule 7-102, which states in part that a lawyer should not take action on behalf of a client when the lawyer knows “such action would serve merely to harass or maliciously injure.” Moran said that “merely” is the operative word. She added that Seaman wanted to alert the media about the alleged improprieties at Wyckoff, but that Gagliano had discouraged her from doing so. Backing the decision to alert “A Current Affair,” Moran said that Gagliano had fallen into “one of those damned if you do, damned if you don’t situations that many lawyers fall into.” There were protective measures in place to guard Gio’s privacy, including an order that the camera be turned off when personal questions were asked, all sides agreed. Also, the referee, Gabor, sat in on the examination, and was available to vet questions before they were put to the witness. At Thursday’s hearing, Hoey testified that her client had incurred more than $32,000 in attorney’s fees as a result of its application to tape Gio’s examination and then as a consequence of her being compelled to seek a court order blocking its dissemination. Under cross-examination by Karamouzis, however, Hoey conceded that the billing records she put before the court did not include her hourly rate or that of two associates who also worked on the case. She later told the court that her rate was $450 an hour, and those of the associates were $355 and $285 an hour. Gabor, whose $400 an hour fees are ordinarily split evenly by both sides, told the court that the parties had incurred $3,200 in fees arising from the taping dispute. If the defense succeeds, a greater portion of those fees may be shifted to the plaintiff and her lawyers. Davis has not yet ruled on the fee application.

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