FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

STATE OF NEW YORK
SUPREME COURT : COUNTY OF WESTCHESTER
_______________________________________________
KUSHTRIM LAJQI,
AND OTHERS SIMILARLY SITUATED,
Plaintiffs,
Index No.: 68266/2017
-vsBAR TACO PORT CHESTER, LLC d/b/a “bartaco,”
Defendant.
_______________________________________________

DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO THE MOTION FOR
A HIPAA QUALIFIED ORDER FOR HEALTH DEPARTMENT RECORDS, AND
APPOINTING A THIRD-PARTY ADMINISTRATOR

RUPP BAASE PFALZGRAF CUNNINGHAM LLC
Attorneys for Defendant
R. Anthony Rupp III, Esq., of counsel
Phillip A. Oswald, Esq., of counsel
424 Main Street
1600 Liberty Building
Buffalo, New York 14202-3694
(716) 854-3400
rupp@ruppbaase.com
oswald@ruppbaase.com

1 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

TABLE OF CONTENTS
Page
TABLE OF DEFINED TERMS ...................................................................................... ii
PRELIMINARY STATEMENT .................................................................................... 1
STATEMENT OF FACTS AND PROCEDURAL POSTURE ....................................... 2
ARGUMENT ................................................................................................................. 4
POINT I .............................................................................................................. 5
PLAINTIFF’S REQUEST FOR A HIPAA QUALIFIED
ORDER DIRECTING THE RELEASE OF NAMES AND
ADDRESSES FROM HEALTH DEPARTMENT’S
RECORDS SHOULD BE DENIED.
A. Individual Notice is Not Required in New York ................................ 5
B. Individual Notice is Not Proper Because the Health Department’s Proposed
List May Be Over-inclusive ............................................................... 8
C. Disclosure of Names and Addresses on Medical Records is Not Proper
Because This Information is Protected By CPLR § 4504(a) ............. 11

POINT II .......................................................................................................... 12
PLAINTIFF’S REQUEST TO APPOINT NOTICE
COMPANY AS THIRD-PARTY ADMINISTRATOR
FOR THIS CLASS ACTION SHOULD BE DENIED.
CONCLUSION ............................................................................................................ 13

i

2 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

TABLE OF DEFINED TERMS
Term

Definition

bartaco

The defendant, Bar Taco Port Chester, LLC d/b/a
“bartaco,” in this action

The Health Department

The Westchester County Department of Health

Oswald Aff.

The Attorney Affirmation of Phillip A. Oswald In
Opposition to the Motion for a HIPAA Qualified Order for
Health Department Records, and Appointing a Third-Party
Administrator, dated December
, 2018

Plaintiffs’ Memorandum

The Plaintiffs’ Memorandum of Law In Support of Motion
for a HIPAA Qualified Order for Health Department
Records, and Appointing a Third-Party Administrator,
dated October 25, 2015

The health advisory

The health advisory for potential Hepatitis A Exposure at
the defendant’s Port Chester restaurant released by the
Westchester County Health Department on October 25,
2017.

ii

3 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

PRELIMINARY STATEMENT
Based on the federal standard requiring individual notice, plaintiffs’ counsel
argues that the Health Department’s release of names and addresses of individuals who received
preventative treatment for Hepatitis A is necessary to provide individual notice to potential class
members. Unlike its federal counterpart, however, New York’s notice rule imposes no strict
requirement of individual notice. Furthermore, plaintiffs have failed to meet their burden that
providing notice to individuals from the Health Department’s list would not be over-inclusive.
In this case, there is no indication that the Health Department ensured or how it ensured that
treatment was given only to those who actually ate at the restaurant within the applicable time
period and only to those who did not have a history of Hepatitis A infection or vaccination.
Moreover, even if disclosure of the names and addresses is authorized under HIPAA, New
York’s physician-patient privilege is more stringent than HIPAA and bars disclosure here.
Lastly, there is no need for the parties to incur the unnecessary cost or risk entailed with
appointing a third-party administrator. Therefore, this Court should deny this motion and the
notice plan proposed by plaintiffs’ counsel in its entirety.

STATEMENT OF FACTS AND PROCEDURAL POSTURE
A more complete statement of the factual and procedural history of this case is
provided in bartaco’s opposition papers to plaintiffs’ initial motion for class certification, which
are submitted with this opposition as well (Oswald Aff., Ex. B). Briefly, this case arises out of a
health advisory from the Health Department advising members of the public to obtain testing and
vaccination for Hepatitis A if they ate at bartaco’s restaurant in Port Chester between October 12,
2017 and October 23, 2017 (id., Ex. D). On October 24, 2017, bartaco first learned that one of

1

4 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

its employees had tested positive for Hepatitis A (id.). Bartaco immediately reported this to the
Health (id.). On the same day that it reported this, bartaco closed the restaurant for cleaning and
did not open again until receiving permission from the Health Department (id.).

On October 25, 2017, the Health Department issued the health advisory, in which
it stated that it “is recommending that individuals who ate or drank at bartaco . . . between
October 12th and 23rd seek preventive treatment against Hepatitis A” (Oswald Aff., Ex. D). The
health advisory was publicized through ordinary media, rather than individual notice to those
who ate at bartaco (see id.). The health advisory noted that preventive treatment was being
recommended only for those who could obtain the treatment within two weeks after eating at the
restaurant and who did not have prior exposure to or vaccination for Hepatitis A (id.). The
health advisory then listed three specific dates on which the Health Department would provide
preventive treatment — i.e., on October 26th, October 27th, and October 28th (id.). Plaintiffs’
counsel has alleged that approximately 2,900 people sought preventive treatment through the
Health Department as a result of the health advisory (Plaintiffs’ Memorandum at 1).

No evidence, however, has been presented in plaintiffs’ papers to demonstrate
that the Health Department performed any kind of screening to ensure that those seeking to
obtain preventive treatment fit the criteria listed in the health advisory. In fact, this omission is
telling because thousands of pages of documents have been obtained from the Health
Department through judicial subpoenas, as well as requests under the Freedom of Information
Law (Oswald Aff., Ex. F; Ex. G). Specifically, plaintiffs’ counsel have not produced any
evidence showing that any screening occurred or whether such screening was sufficient to

2

5 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

exclude those who did not eat at the restaurant at all, who did not eat there during the specific
dates, who previously had a Hepatitis A infection, or who had previously had a Hepatitis A
vaccination. Accordingly, obtaining a list of those who received treatment vis-à-vis the Health
Department does not necessarily mean that the individuals on that list meet the criteria of the
health advisory and, therefore, the criteria of this class.

Additionally, following the Health Department’s announcement, bartaco set up
vaccination and testing clinics at various commercial locations (Oswald Aff., Ex. C at ¶ 13).
Bartaco also coordinated with private physicians for customers who felt that they needed
additional medical treatment and/or evaluation (id.). To coordinate and facilitate medical
treatment for those affected by the Health Department’s health advisory, bartaco publicized a
hotline for customers to call in the same manner in which the health advisory was published (id.
at ¶ 13-15). In fact, the hotline itself was included in the health advisory (id., Ex. D). Bartaco
hired an independent contractor to organize and administer an out-of-court reimbursement
process through this hotline (Oswald Aff., Ex. C at ¶ 13-15). This hotline remains open, and
bartaco continues to resolve claims through it (id.).

ARGUMENT
Plaintiffs’ counsel now seeks a HIPAA Qualified Order for the Health
Department to release their list of the names and addresses of those persons who received
preventative treatment following the health advisory (see generally Plaintiffs’ Memorandum).
However, plaintiffs’ counsel has not offered any reason for why individual notice is necessary or
why less-intrusive means of notice is not sufficient, plaintiffs’ counsel has not shown that the

3

6 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

Health Department’s list is not over-inclusive, and plaintiffs’ counsel has not even addressed the
physician-patient privilege under New York law (Point I, infra). Plaintiffs’ motion also requests
this Court to appoint the Notice Company as a claims administrator in this case (see generally
Plaintiffs’ Memorandum). Appointing a third-party administrator, however, is an unnecessary
cost and presents an unnecessary risk of disclosure of confidential health information of those
who have not consented to its disclosure (Point II, infra).

POINT I
PLAINTIFF’S REQUEST FOR A HIPAA QUALIFIED ORDER DIRECTING THE
RELEASE OF NAMES AND ADDRESSES FROM HEALTH DEPARTMENT’S
RECORDS SHOULD BE DENIED.
Unlike its federal counterpart, under Article 9, a party must present proof for why
individual notice is required in a class action over other less intrusive forms of notice. See CPLR
§ 904; Cox v. Microsoft Corp., 2006 WL 6554176 (Sup. Ct. 2006). Here, as discussed in greater
detail below, plaintiffs’ counsel has not even attempted to meet their burden, and, accordingly,
this Court should deny this motion because: (1) individual notice is not required in New York;
(2) individual notice is not proper because the Health Department’s proposed list likely is overinclusive; and (3) the names and addresses on the Health Department’s list are protected from
disclosure under CPLR § 4504(a).

A.

Individual Notice is Not Required in New York.
It is clear that under both New York and federal rules, “[t]he law requires . . . the

best notice practicable under the circumstances.” Drizin v. Sprint Corp., 7 Misc. 3d 1018(A),
2005 WL 1035823, at *1 (Sup. Ct. 2005) (citing Eisen v. Carlisle and Jacquelin, 417 U.S. 156
(1974)). Moreover, although “[f]ederal jurisprudence is helpful” in analyzing Article 9 of the

4

7 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

CPLR, this Court must follow precedent from New York courts with respect to class actions
under Article 9 to the extent that it conflicts with the federal rules for class actions. See City of
New York v. Maul, 14 N.Y.3d 499, 510 (2010); Saska v. Metropolitan Museum of Art, 57 Misc.
3d 218, 231 n.7 (Sup. Ct. 2017) (“while adopting the wisdom of the federal courts would
certainly be beneficial to our state class action public policy, deference to such wisdom must
give way to the bedrock legal principal that a court may not simply ignore the plain meaning of a
statute merely because it does not like the public policy implications of such a meaning”).

With respect to notice of a class action, federal law and state law are different. In
particular, the applicable federal rule “require[s] that individual notice be sent to all class
members who can be identified with reasonable effort.” Oppenheimer Fund v. Sanders,
437 U.S. 340, 349 (1978); Fed. Rule Civ. Proc. 23(c)(2)(B). Unlike its federal counterpart,
however, New York’s notice rule — N.Y. CPLR § 904(b) (McKinney’s 2018) — imposes no
strict requirement of individual notice. Rather, class actions under Article 9 merely require
“reasonable notice of the commencement of a class action . . . in such a manner as the court
directs.” CPLR § 904(b); Cox v. Microsoft Corp., 2006 WL 6554176 (Sup. Ct. 2006) (“[n]either
the CPLR nor due process requires that each class member . . . receive individual notice.”); see
also In re Colt Indus. Shareholder Litig., 155 A.D.2d 154, 157, 160 (1st Dep’t 1990), aff’d as
modified, 77 N.Y.2d 185 (1991) (approving the sufficiency of notice where notice of class action
is published in two New York newspapers on one day).

More importantly, the New York Legislature’s omission of a strict individualnotice requirement is a deliberate rejection of that requirement because the Legislature used the

5

8 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

federal rules to “model[]” Article 9 and, therefore, any deviation from the federal rules must be
presumed to have been intentional. Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 93
(2d Dep’t 1980); see also Diegelman v. City of Buffalo, 28 N.Y.3d 231, 237 (2016) (a court
cannot imply a provision into a statute if it was intentionally omitted). Furthermore, the
intentional omission of a strict, individual-notice requirement is consistent with the well-settled
law that the Legislature intended and contemplated a flexible and pragmatic approach for class
actions in general and for notice of the same in particular. Colt Industries Shareholder Litigation
v. Colt Industries, Inc., 77 N.Y.2d 185, 196 (1991) (“CPLR Article 9 is remarkably flexible and
provides for a wide range of procedural and administrative approaches in the handling of class
action disputes”); Vickers v. Home Federal Sav. And Loan Ass’n of East Rochester, 56 A.D.2d
62, 65 (4th Dep’t 1977) (“CPLR 904(c) gives the court broad discretion in directing the form and
manner of notice to be given to class members”)

In Plaintiffs’ Memorandum, their counsel argues that the Health Department’s
release of names and addresses of individuals who received preventative treatment for
Hepatitis A is necessary to provide individual notice to potential class members (see Plaintiffs’
Memorandum at 5-7). To support their argument, plaintiffs’ counsel relies solely on the federal
standard requiring individual notice (Plaintiffs’ Memorandum at 3). Blindly relying on federal
law, however, is incorrect because it conflicts with New York law on this issue, as individual
notice is not required by Article 9. Instead, plaintiffs’ counsel must present proof for why
individual notice is required over a more reasonable and less intrusive form of notice. 1

1

In fact, empirical evidence has shown that notice by publication is less costly and is just as
effective, if not more, at providing notice of a class action. In re Coordinated Proceedings in
Antibiotic Antitrust Actions, 410 F. Supp. 706, 710 n. 3 (D. Minn. 1975); In re Domestic Air
6

9 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

Plaintiffs’ counsel has not done so and, in fact, has not addressed any of the three factors that this
Court is required to consider under CPLR § 904.2 Therefore, plaintiffs’ counsel utterly has failed
to meet their burden, and this Court must deny this motion to the extent that it seeks an order
requiring individual notice.

B.

Individual Notice is Not Proper Because the Health Department’s Proposed List is
Over-inclusive.
For the purposes of providing notice to potential class action members, a list is

over-inclusive if there is no way to determine who on the list is actually a class member.
Carlough v. Amchem Products, Inc., 158 F.R.D. 314, 327 (E.D. Penn. 1993) (finding that the
proposed list would be over-inclusive because there was no way of knowing who on the list was
likely to have been exposed to asbestos and which individuals were not); In re Domestic Air
Transp. Antitrust Litigation, 141 F.R.D. 534, 546 (N.D. Ga. 1992) (court found list overinclusive when there was no way to determine who on the list was a class member). The burden
is upon the plaintiff to provide evidence that the list is not over-inclusive, and that individual
notice to those on the list would not provide notice to non-class members. DeHoyos v. Allstate
Corp., 240 F.R.D. 269, 296 (W.D. Tex. 2007) (finding that the notice program proposed by the
plaintiffs was overbroad and that plaintiff provided no evidence that notice to non-class members
could be avoided). Courts routinely modify proposed notice plans that are overbroad and that

Transp. Antitrust Litigation, 141 F.R.D. 534, 550 (N.D. Ga. 1992); Fiala v. Metropolitan Life
Ins., 17 Misc. 3d 1102(A), 2007 WL 2772230, at *2 (Sup. Ct. 2007). Notably, here, any person
on the Health Department’s list presumably is on it solely because she or he received notice by
way of the publication of the health advisory in ordinary media (Oswald Aff., Ex. C at ¶ 13-15).
Hence, if publication by way of ordinary media is sufficient to create the class in the first place,
then it should likewise be sufficient to notify the class of the lawsuit.
2
Much like they did in the underlying motion for certification, plaintiffs’ counsel expects this
Court to rely on their experiences in other unrelated matters without any thoughtful or
meaningful discussion of the applicable precedent on this issue.
7

10 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

provide notice to individuals who do not qualify for the class action. Tolentino v. C & J SpecRent Services, Inc., 716 F. Supp. 2d 642, 654-55 (S.D. Tex. 2010) (modifying the plaintiff’s
proposed notice plan that provided notice to individuals who were not “similarly situated” to the
proposed class members).

Even in federal courts, where individual notice is required if class members can
be identified, courts have unanimously held that it is not proper to send individual notices to
people from an over-inclusive list because it may confuse recipients and encourage responses by
non-class members.


In re Agent Orange Product Liability Litigation MDL No. 381, 818 F.2d
145, 169 (2d Cir. 1987) (rejecting argument that individual mail notice
should be provided because list included a far greater number of
individuals than those who were actually exposed to Agent Orange and
thus notice would have been “considerably overbroad”);



Carlough, 158 F.R.D. at 327 (“courts have held it is not necessary to send
individual notices to an over-inclusive group of people simply because
that group contains some additional class members whose identities are
unknown”);



Marcarz v. Transworld Systems, Inc., 201 F.R.D. 54, 64 (D. Conn. 2001)
(allowing notice by publication because, where list also included non-class
members, “sending notice to the admittedly over-inclusive group here
would ‘most likely confuse the recipients and encourage responses by
non-class members’”);



In re Domestic Air, 141 F.R.D. at 539-46 (sending notice to larger group
“would most likely confuse the recipients and encourage [responses] by
non-class members”);



Skeleton v. General Motors Corp., 1987 WL 6281, at *3 n. 3 (N.D. Ill.
Feb. 3, 1987) (rejecting use of over-inclusive list because it “could
mislead thousands of ineligible [persons] into thinking they qualify to
recover in this action” and would “generate considerable confusion and
additional expense in administering the settlement.”).

8

11 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

In this case, a list of individuals that received preventative treatment from the
Health Department would be over-inclusive, as there is no way to determine who on the list is
actually within the parameters of the class. In fact, there is no indication that the Health
Department ensured or how it ensured that treatment was given only to those who actually ate at
the restaurant within the applicable time period and only to those who did not have a history of
or a vaccination for Hepatitis A. Instead, the Health Department likely administered preventive
treatment liberally out of precaution to anyone who dined at the restaurant on any recent date, to
anyone who came into contact with someone who dined there, or to those who were unsure
whether they had prior exposure to or a vaccination for Hepatitis A. 3 In other words, it is
reasonable to conclude that the Health Department administered preventive treatment to a
substantial amount of people who are outside of the class that has been certified. More
importantly, plaintiffs’ counsel has not met their burden to prove that the preventive treatment
from the Health Department was strictly limited to those who fit the criteria of the class.

Therefore, any proposed list from the Health Department for individuals who they
treated would be overbroad because the class is limited to those who actually dined at the
restaurant between October 12th and October 23rd. Moreover, any such list would be overbroad
because it will likely include individuals who had prior exposure to Hepatitis A or were
previously vaccinated against it. Plaintiffs’ counsel have not offered any type of evidence
showing that it performed any kind of screening process to ensure that only individuals received
3

Bartaco certainly is not suggesting that the Health Department erred or did not respond
appropriately because broadly and liberally administering preventive treatment to anyone who
even possibly could have been exposed was the best way to ensure that the disease did not
spread, especially since there are no significant adverse effects from the treatment. However, for
the purposes of liability, the class must be limited to those who actually dined at bartaco, those
who actually were exposed to Hepatitis A, and those who needed preventive treatment.
9

12 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

preventive treatment if they absolutely met the criteria provided for in the health advisory. This
omission by plaintiffs’ counsel is telling given that the parties now have thousands of pages of
documents from the Health Department (Oswald Aff., Ex. F; Ex. G). Accordingly, blindly
providing notice to people on a list from the Health Department would be over-inclusive and,
therefore, should not be ordered by this Court based on the case law discussed above.

C.

This Court Should Not Order the Disclosure of Names and Addresses on Medical
Records Because This Information is Protected By CPLR § 4504(a).
Plaintiffs’ counsel has asserted that HIPAA authorizes the disclosure of names

and addresses from medical records (see Plaintiffs’ Memorandum at p. 3). Even if disclosure is
permitted under HIPAA, however, New York’s physician-patient privilege, which is more
stringent than HIPAA, bars disclosure here. N.Y. CPLR § 4504(a) (McKinney’s 2018)
(a medical professional “shall not” disclose information gained during treatment) (emphasis
added); Pal v. New York University, 2007 WL 1522618, at *3 (S.D.N.Y. 2007); In re Antonia E.,
16 Misc. 3d 637, 644-45 (Sup. Ct. 2007). Although a patient’s identity normally is not
privileged, it becomes privileged under CPLR § 4504(a) and thereby protected from disclosure
when the surrounding circumstances would indirectly reveal the patient’s medical condition.
See In re Grand Jury Investigation in New York County, 98 N.Y.2d 525, 531-32 (2002); Kneisel
v. QPH, Inc., 124 A.D.3d 729, 729 (2d Dep’t 2015); Pal v. New York University, 2007 WL
1522618, at *3 (S.D.N.Y. 2007) (“New York law is absolute in that regard”).4

4

Courts in other jurisdictions likewise have refused to order the release of patients’ names and
addresses from a public health authority. Hannis ex rel. Hannis v. Sacred Heart Hosp., 789 A.2d
368, 372 (Pa. Cmwlth. 2001) (“[t]he names and addresses of persons identified by the Bureau of
Health in connection with its investigation. . . are confidential information contained in
confidential records, and they are not discoverable apart from the records themselves.”);
Guardian Home Nursing, Inc. v. Medina Cty. Health Dept., 113 Ohio App. 3d 734, 736 (Oh. Ct.
10

13 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

Here, the disclosure of an individual’s name and address, even to a nonparty
notice company, from the Health Department obviously would reveal the medical condition for
which they sought treatment. In fact, the sole reason why their identities and their addresses are
being revealed is because they sought preventive treatment for Hepatitis A in the first place.
Accordingly, this information is confidential and cannot be disclosed pursuant to CPLR
§ 4504(a), irrespective of whether HIPAA would authorize its disclosure. Plaintiffs’ counsel
does not even give passing reference to the confidentiality requirement of the CPLR and, instead,
merely expects this Court to go along with their assembly-line litigation strategy that they have
used elsewhere. Nonetheless, under Kneisel and the other authorities cited above, disclosing this
confidential information clearly would be improper — especially since, as discussed above, the
identities and addresses of those who are not even eligible for participation in the class likely will
be disclosed.

POINT II
PLAINTIFFS’ REQUEST TO APPOINT THE NOTICE COMPANY AS A THIRDPARTY ADMINISTRATOR FOR THIS CLASS ACTION SHOULD BE DENIED.
As demonstrated above, individual notice is not proper for this case, and,
therefore, there is no need for the parties to incur the added cost of appointing a third-party
administrator. However, assuming, arguendo, that this Court were to find that individual notice
is proper, the parties should not incur the added cost and added risk of employing a third-party
administrator. Instead, the list of names and addresses can be maintained by the parties’

App. 1996) (finding it was an error for the trial court to order the Health Department’s release of
names and addresses).
11

14 of 17

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

attorneys for purposes of disseminating the individual notices and then destroyed in order to
ensure that no confidential medical information is disclosed. Moreover, any and all
communications with these individuals prior to them signing up as members of the class should
require preapproval from the Court. Therefore, this Court should not appoint a third-party
administrator because it would be an unnecessary cost and, more importantly, an unnecessary
risk of unauthorized disclosure of confidential medical information that is protected under state
and federal law.

{The remainder of this page has been intentionally left blank}

12

15 of 17

 INDEX NO. 68266/2017

FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

RECEIVED NYSCEF: 12/04/2018

CONCLUSION

Individüal

is

not

New

under

required

evidence

to

Court

this

plaintiffs'
case;

Department

of

disclosure

CPLR

the

§

and

addresses

and

risk.

plaintiffs'

as

relief

this

that

the

December
Saratoga

third-party

deems

Court

4,
Springs,

met

to

from

this

appointed

for

a

just

and

New

York

the

deny

a claime

for

this

would

and

well

those

the

as

grant

such

(3)

for

an

deny

the

Notice

other

and

the

further

proper.

2018

RUPP

BAASE

Attorneys

for

CUNNINGHAM

PFALZGRAF
Defendant

By:
R.

Anthony
A.

Phillip

424
1600
Buffalo,

(716)

Main

Rupp
Oswald,

III,

Esq.

Street

Liberty

Building

New

York

854-3400

rupp@ruppbaase.com
oswald@ruppbaase.com

13

16 of 17

14202-3694

Esq.

the

violate

presents

Court

this

this

the

counsel

of

it

and

class;

so

appointment

for

by

üññccessarily

doing

that

notice

treated

plaintiffs'

from

requests

as

case,

of

because

Order

Qualified

of

of

it

(1)

no

presented

form

best

criteria

request

respectfully

has

a list

list

adminictvator

bartaco

sddistrator

the

reasons:

following

the

that

Department's

sheüld

HIPAA

within

fall

is

show

to

the

ammaal

notice

burden

who

for

plaintiffs'

and

Health

Court

action

individual

those

the

as

class

law,

their

Accordiñgly,

c0üñsci

by

Company

be

not

limited

Furthermore,

cost

motion

have

this

that

discovery

be

to

for

action

class

during

would

Compañy

unnecessary

Dated:

names

4504(a).

Notice

or

improper

is

York's

cmmcal

(2)

Health

notice

LLC

 FILED: WESTCHESTER COUNTY CLERK 12/04/2018 10:04 PM
NYSCEF DOC. NO. 85

TO:

INDEX NO. 68266/2017

RECEIVED NYSCEF: 12/04/2018

UNDERBERG & KESSLER LLP
Attorneys for Plaintiff
Paul V. Nunes, Esq.
300 Bausch & Lomb Place
Rochester, New York 14604
(585) 258-2800
MARLER CLARK LLP
Attorneys for Plaintiff
William D. Marler, Esq.
1012 First Avenue, Fifth Floor
Seattle, Washington 98104
(206) 346-1888

14

17 of 17