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Court Grants Summary Judgment Against School District that Failed to Provide Necessary Services for Disabled Child.

Albany, New York (August 12, 2021) – United States District Court Judge Hon. Lawrence E. Kahn issued a decision and order granting summary judgment to the parents of a disabled child suing the North Syracuse Central School District (the “School District”) for discrimination after the School District refused to provide recommended services to their autistic child.

The lawsuit was filed in May 2018 alleging that the School District had violated the child’s rights under Section 504 of the Rehabilitation Act of 1973 (42 U.S.C. §794[a]), which prohibits recipients of federal financial assistance, such as a School District, from excluding from participation in, denying benefits of, or discriminating against a student on the basis of his or her disability.  In their lawsuit, the parents allege that the North Syracuse Central School District discriminated against their child by denying the child autism-related services necessary for the child’s education in spite of experts’ recommendation and the family’s offer to pay for the services.  The lawsuit also alleges that the District failed to, among other things, (1) provide a certified special education teacher to the child, (2) provide a full-time 1:1 teaching assistant for the child and subsequently removed the teaching assistant from the child’s IEP without the parents’ consent, (3) complete a Functional Behavior Analysis (“FBA”) to address the behaviors impeding on the child’s learning at the time an FBA was recommended, and (4) provide the child with an augmented assistive communication device necessary for the child’s communication in class.

Judge Kahn granted summary judgment to the parents finding that the District discriminated against the disabled child by deliberately reducing speech services recommended to the child with the knowledge that the child was not making progress with speech in school.  In his decision, Judge Kahn writes:

Here, no reasonable juror could conclude that reducing services to G.F. after he failed to make progress does not constitute deliberate indifference.  It is undisputed that G.F.’s IEP did not provide for a minimum of 30 minutes of speech and language services daily as required.  Instead, during the 2015-2016 school year, Defendants only provided for 30 minutes of speech and language therapy four times per week, and then reduced the amount of speech therapy to 30 minutes three times per week the following school year.  Considering that G.F.’s hours were reduced after not meeting his goals in speech, the School District demonstrated deliberate indifference by providing fewer services than deemed necessary for G.F.’s speech and language needs.  For this reason, the Court grants summary judgment on Plaintiff’s claim that Defendants failed to provide G.F. with appropriate speech therapy. (Decision pp. 15–16).

The Court found that a jury must decide whether the School District’s conduct in failing to provide other services recommended for the child, in particular, autism related services constituted deliberate indifference or mere negligence or professional misjudgment.  The Court noted, however, that “a rational juror could conclude that Defendants chose to ignore the scientific and medical evidence supporting the provision of intensive ABA therapy to G.F. in school, even though various experts agreed that without intensive ABA therapy services in school, G.F. would not be able to make social and academic progress, and that this decision rises to the level of gross negligence or reckless indifference.” (Decision pp. 18–19).

Plaintiffs are represented by attorney Carlo A. C. de Oliveira of Cooper Erving & Savage LLP, an Albany based law firm that specializes in civil rights litigation.

Robert F., et al. v North Syracuse Central School District, et al., 5:18-CV-00594 (N.D.N.Y.) (LEK/ATB).

Whistleblowing Doctor Challenges Job Loss, Systemic Neglect, Mistreatment of Sickest Patients Under NY Dept. of Corrections Care


Contact:   Tyler Prell, 202-210-1203                                                                                           

Albany Bureaucrats Overruled Doctor’s Orders Causing Unnecessary Suffering

ALBANY, N.Y. (July 13, 2021) — In a whistleblower lawsuit filed in United States District Court, Northern District of New York in Albany, New York, Dr. Michael F. Salvana alleges violations of his rights under the First and Fourteenth Amendments to the United States Constitution to engage in speech about patient health and safety free from discrimination and retaliation. Dr. Salvana worked for the New York State Department of Corrections & Community Supervision (“DOCCS”) as a Clinical Physician from 2003 until he was forced to resign in 2020.   He was forced from his position because he openly opposed and refused to provide substandard care to some of the sickest patients under his care and the care of the New York Department of Corrections.

“Guided by his Hippocratic Oath ‘to do good or to do no harm,’ Dr. Salvana’s primary concern throughout his professional career has been patient care and safety in underserved communities,” said Carlo A. C. de Oliveira, Esq. an attorney with Cooper Erving & Savage and co-counsel in Dr. Salvana’s whistleblower lawsuit. “He believes strongly that physicians have an ethical responsibility not to discriminate against patients on the basis of personal or social characteristics relevant to their care, which includes incarceration status.”

Dr. Salvana was subjected to discrimination and retaliation because he took actions to protect the human and constitutionally protected rights of seriously ill patients – many of whom were in pain or otherwise suffering needlessly because of the creation and implementation of DOCCS’ Medications With Abuse Potential (“MWAP”) policy. This policy denied necessary medical treatment to patients in violation of basic medical standards and quality of care requirements.

Over the course of several years since the implementation of the MWAP policy, Dr. Salvana struggled to insure medically necessary care for many critically ill patients. On many occasions, Dr. Salvana’s treatment plans were materially interfered with or denied. As a consequence, day after day, Dr. Salvana observed unnecessary suffering and inhumane treatment. At every turn, his efforts to improve the quality of care for many seriously ill patients was attacked and he was subjected to constant hostility and anger. Due to these intolerable work conditions, Dr. Salvana was forced to leave the Walsh Regional Medical Unit (RMU), denied other opportunities to serve as a physician, and ultimately was forced to retire.

The reality is that incarcerated patients have a higher-than-average prevalence of disease, as well as substance use disorders and psychiatric illness, often in combination. Prison populations also have a higher-than-normal incidence of patients with major spinal cord injuries, due to traumatic events and gun violence. Treatment protocols are also necessarily different in prisons. Diet modification, exercise and non-medicinal treatments are not as available. Patients in prisons often wait months to see specialists, receive diagnostic testing, surgeries and follow-up care. Therefore, pharmaceuticals, which already play an important role in the U.S. health care system, may take on an even greater therapeutic importance in prisons. As a result, Dr. Salvana states in his complaint that the MWAP policy was resulting in the unnecessary infliction of pain and suffering to patients in violation of the United States Constitution.

Dr. Salvana opposed DOCCS MWAP Policy from its inception because it prevented him and other doctors from providing the proper quality of care to inmates under DOCCS custody.

In or about June 2017, Dr. Salvana supervised the treatment of 152 patients at Walsh RMU who had extreme medical pathology, some whose medical histories exceeded 1,000 pages.

After the MWAP policy went into effect, many patients were denied medications that effectively treated their serious pathologies and had been previously prescribed by their treating doctor or recommended by specialists. For example, Defendant Henderson also prohibited Dr. Salvana from treating a quadriplegic patient with documented case of gastro-esophageal reflux, who often vomited while laying on his back. This patient was susceptible to aspiration, choking, and asphyxiation. He was also on a blood thinner (Coumadin), which  increased his risk of death from suffocation and bleeding from a tear in his esophagus.

This quadriplegic patient was also on increased risk of death from suffocation from bleeding from a tear of his esophagus. Dr. Salvana sent this patient to the hospital on multiple occasions due to dehydration caused by vomiting. Dr. Salvana prescribed the drug Marinol for the patient, which was the only medication that controlled the patient’s vomiting, but his request to administer this drug was denied. Without medication to control his vomiting, Dr. Salvana feared that this quadriplegic patient could need immediate medical assistance in the event that he began to vomit and choke. Dr. Salvana asked that this patient’s room be unlocked, but this request was also denied. As a consequence of speaking out and trying to protect the patient from harm, Dr. Salvana was prohibited from treating the patient and was prevented from entering this patient’s room to treat him.

“Dr. Salvana was harassed, threatened, and otherwise treated with hostility because he challenged the inhumane and negligent treatment of patients incarcerated by the state, said Richard E. Condit, an attorney with Mehri & Skalet and co-counsel on the lawsuit. “He was singled out because he spoke out and it cost Dr. Salvana his career.”

It is noteworthy that a class action lawsuit has also been filed on behalf of inmates that have been denied proper medical care because of the MWAP policy. Much of what is alleged in that case supports Dr. Salvana’s observations and concerns. The case is: Allen, et al. v. Koengismann, et al., Case No. 19-8173 (S.D.N.Y.).


Cooper Erving & Savage LLP obtains a significant decision in support of victims of sexual assault.

Cooper Erving & Savage obtained an important decision that will significantly protect victims of sexual assault in civil actions.  In Lisa I. v Manikas, 183 A.D.3d 1096 (3d Dept 2020), the Appellate Division, Third Department affirmed the trial court’s decision granting a protective order pursuant to CPLR 3103(a) to bar defendants’ counsel from questioning the minor plaintiff about her past sexual history.  The action involved claims of sexual assault and battery committed upon a 14-year-old girl, who was sleeping over a friend’s house.  During discovery, plaintiffs’ counsel, Carlo A. C. de Oliveira, moved for a protective order, pursuant to CPLR 3103(a), to preclude defendants from questioning the child during her deposition about her sexual history and drug use.  The trial court granted plaintiffs’ motion finding that the Rape Shield Law protections to victims of sexual assault in criminal proceedings applied equally to victims of sexual assault in civil actions. In affirming the trial court’s decision, the Appellate Division did not decide whether the Rape Shield Law applied to civil cases.  However, the Appellate Division, in essence, brought the policy considerations of the Rape Shield Law to civil actions, thereby protecting victims of a sexual assault from being questioned about their prior sexual history in civil actions.  The evidentiary significance of the Manikas decision is significant in that victims of sexual assault may seek the same protections available to sexual assault victims in criminal proceedings through the Rape Shield Law to civil action via a protective order.


New York Court Declines to Enforce Non-Compete Clause Against Veterinarian.

On December 4, 2018, Judge Richard D. Northrup, Jr., of the New York State Supreme Court, County of Delaware, declined to grant an employer’s motion for a preliminary injunction and temporary restraining order in the case of Jonathan H.F. Davis, DVM v. Mathew R. Zeh, DVM, Index No. 2018-1073 (Sup Ct., Delaware County 2018).  Dr. Davis owns a veterinarian clinic that used to employ Dr. Zeh.  After terminating Dr. Zeh’s employment, Dr. Davis sought to prohibit Dr. Zeh, a veterinary doctor, from continuing to practice veterinary medicine in his own clinic.  Dr. Davis relied on a non-compete agreement clause in the employment agreement that prohibited employees from engaging in any business that competed with Dr. Davis’ veterinarian business for a period of 3 years.  In a decision that recognizes New York’s disfavored view of restrictive covenants, Judge Northrup, Jr., denied the employer’s injunctive relief finding that the employer failed establish likelihood of success on the merits and that the non-compete provision was enforceable. Click here for decision.

Teacher will go to trial in sex and age discrimination lawsuit.

On July 4, 2018, Judge Brenda K. Sannes of the NDNY denied summary judgment in the case of Colistra v. Cairo-Durham Central School District. Against opposition from the School District, the Court ruled that Ms. Colistra, the former Director of Special Education and Curriculum and Instruction, was entitled to a trial on her claims of sex and age discrimination, concluding that there were issues of fact for a jury to decide as to whether she was belittled in her position because she was female and whether she was retaliated against because she asserted that the District operated as a “boys’ club.”

Steck re-elected for New York State Assembly.

On November 6, 2018, Phil Steck won re-election as a member of the New York State Assembly. Steck received 10,000 more than his opponent out of about 49,000 votes case. Steck’s 29,000 votes are among the highest for any Member of Assembly in a competitive district. Steck, a Democrat, represents the Town of Colonie, the Town of Niskayuna, and the City of Schenectady.

Court grants permanent injunction against RPI.

Court annulled determination by Rensselaer Polytechnic Institute (RPI) that unaffiliated student violated RPI’s Student Sexual Misconduct Policy, and issued injunction preventing RPI from disseminating improper investigation materials and allegations to unaffiliated student’s academic institution.  Court ordered RPI to delete and purge John Doe’s statement and annul their determination that John Doe allegedly violated RPI’s student sexual misconduct policy.  Matter of John Doe v. Rensselaer Polytechnic Institute, and Larry Hardy as Title IX Coordinator for Rensselaer Polytechnic Institute (Rensselaer. Cnty. Sup. Ct. 2017).


Greene County man, in lawsuit, alleges excessive force by two Saugerties police officers

Cooper Erving & Savage, LLP files a civil rights lawsuit on behalf of a disabled man assaulted by Saugerties police officers working undercover for a drug enforcement inter-agency task force operated by the County of Ulster and the Ulster County District Attorney’s Office [Johndrue Mabb v. The Town of Saugerties et al., 1:18-cv-0866 (N.D.N.Y. 2018)].

Ex-Mayor Sues Village for Injunction and Damages for Creation of Nuisance, and for Interfering with his Right to Maintain the Parking Lot Adjacent to his Property.



Contact: Carlo A. C. de Oliveira, Attorney
August 29, 2017 (Cooper Erving & Savage LLP)

Ex-Mayor Sues Village For Injunction and Damages for Creation of Nuisance, and for Interfering with his Right to Maintain the Parking Lot Adjacent to his Property.

Mark Nadeau, a local contractor and former Mayor of the Village of Cobleskill, filed a civil action with the Supreme Court, County of Schoharie seeking injunction and punitive damages for the Village of Cobleskill interference with his rights to maintain the parking lot adjacent to his property at Union Street.

The Verified Complaint alleges that the parking lot in the intersection of Union and Main streets is a right of way easement that was intended to provide access from the property formerly known as the “United States Hotel” to Main and Union Streets. In 2002, the Village created a defect on the pavement when it paved over old fuel tanks buried under the surface of the parking lot. The Village also repaved the parking lot to a much higher elevation in order to address a long standing drainage problem, and to divert water toward Union Street. In his Complaint, Mr. Nadeau alleges that the Village created a hazardous condition on the parking lot, which prevented prospective buyers and tenants from buying or leasing his property. Mr. Nadeau offered to re-grade the parking lot at no cost to the Village but the Village refused. The Village has since barricaded the parking lot and prohibited Mr. Nadeau from repairing it. Mr. Nadeau alleges that the Village’s conduct substantially interfered with his right to use and enjoy the right of way easement, where the parking lot now sits, including his right to maintain and repair said parking lot.

Mr. Nadeau is being represented by attorney Carlo A. C. de Oliveira of Cooper Erving & Savage LLP.




Contact: Carlo A. C. de Oliveira, Attorney
Phillip G. Steck, Attorney
April 3, 2017 (Cooper Erving & Savage LLP)


In an important case that defines the FMLA (Family and Medical Leave) rights of women after childbirth, the United States Court of Appeals for the Second Circuit, based in New York City, and the United States District Court for the Northern District of New York, based in Syracuse, have ruled that an employer must notify a pregnant woman of any adverse consequences which taking FMLA leave may have on her employment benefits.

On March 30, 2017, after a 7-year long court battle, which included an appeal to the Second Circuit, District Court Judge Norman A. Mordue ruled that the Cairo-Durham Central School District interfered with a former teacher’s FMLA rights by failing to give her notice that she would lose seniority while on unpaid FMLA leave. The plaintiff, Donna Scarpinati de Oliveira, was terminated from her employment after the former Superintendent of the Schools deducted the time the plaintiff spent on unpaid FMLA maternity leave from her seniority, resulting in her layoff.

Ms. de Oliveira, grew up in Cairo and graduated from the Cairo-Durham Central School District. After beginning her teaching career, also at the District, she moved to Maryland, where she taught and became a tenured teacher. In 2007, she returned to New York to be near her family and friends and to teach at Cairo-Durham. Ms. de Oliveira’s fate changed after she gave birth to her child in the summer of 2009. Ms. de Oliveira sought unpaid FMLA leave to care for her newborn child for 23 days. Unbeknownst to her, the District reduced her seniority by those 23 days. As a result, Ms. de Oliveira lost her job as part of a layoff of the four least senior teachers in the school. Had she been advised that her seniority status would have been affected by her unpaid FMLA leave, she would have not taken as much unpaid leave and would not have been terminated from her employment.

Judge Mordue stated that “Plaintiff’s testimony and affidavits clearly and consistently show that that she would not have taken unpaid FMLA leave if the District defendants had properly notified her that she would not accrue seniority while on such leave.” (deOliveira v. Cairo Durham Case No. 1:11-cv-0393, p. 9. Judge Mordue further found that Plaintiff “had child care available whenever she decided to return to teaching; she and the baby were both healthy; she wanted to work; she came back to work after using only about half of her FMLA leave; she knew that she and a few other teachers had the least seniority; she was aware that layoffs could occur any year due to budgetary reasons, a decline in enrollment, or voter rejection of the school budget; and when she decided to take unpaid FMLA leave, she believed that all her terms and conditions of employment – including seniority – would not be adversely affected.” A trial is scheduled to take place on August 21, 2017, at which time a Jury will determine what damages the School District must pay Ms. de Oliveira for violation of her FMLA rights.

Ms. deOliveira was represented by attorneys Carlo A. C. de Oliveira and Phillip G. Steck of Cooper Erving & Savage LLP. Mr. Steck commented: “Labor laws are passed such as FMLA but unfortunately they are often ignored. This is the second case we have had where a public employer ignored the clear requirements of the FMLA.” Last year, Mr. Steck and Mr. de Oliveira obtained a federal injunction to stop a school district from terminating the employment of a teacher who took leave to care for her newborn children.