Archive for May, 2016

NEWS – Introducing Mei

05/31/2016

 

20160523_121114Ladies and gentlemen, drum roll please. I give you Mei. Mei is a master barber. For twenty years she has trimmed my beard and shaved me every ten days or so and cut my hair every few months. I don’t shave inbetween visits. Mei is the only one who puts razor to my face.  Each meeting keeps to the formula; each meeting is a little different. Lately, she has been putting less time into the shaving portion of the ritual but has added more hot towels and more time to the facial and cranial massage. It more than compensates. Frequently, I’ll prepare myself with a little herbal stimulation before the proceedings, lay back in the chair, and let the pampering take me somewhere close to transcendence. Mei works at 40th and Lex in a not-ironically-retro beauty parlor type establishment where the predominate clientele are geriatric  ladies getting their hair done by the Russian stylists who are pretty exclusively  the staff of the shop. Mei’s clientele are overwhelmingly men.20160523_132157

When I closed my law office my intention was to work as a freelance journalist and I told Mei so. “Do you want a story to write?” she said. “I have a story. About me.” We meet the following week at Bloom’s Deli after her last of the day. Over hamburgers and french fries, she told me a tale of herTaiwanese youth, fraught with Dickensian challenges. She was the third child, the third daughter, and was not a very healthy baby which, together, earned her the contempt of her despotic father. He made it known around their village that he would give Mei away to any taker. While she was still a little girl she was given to another couple who returned her soon after, adding to her father’s anger even more. This was the story she wanted to tell, the life of a child unloved but the story I thought I was more interested was her later life, how she learned her trade and then her version of the immigrant experience in New York City, so I didn’t pursue the child’s tale. In retrospect, her’s is the better story. She lives alone in Elmhurst now, close to her mother and to five of her six siblings. Relations within the very hierarchical family are a constant source of complication in her life. She’s the kind of person who always smiles, is open and chatty but dig a little and you’ll find she always seems to have the blues. She likes her work, though, and her clients. Jolean and I have had dinner with her at her local Taiwanese in Elmhurst. I consider her a friend. If you’d like to make an appointment with her, call the shop at 212-532-0692.

NEWS – Does Peter Thiel’s Participation In The Gawker Case Constitute an Unpermitted Assignment of a Chose In Action?

05/31/2016

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I’m sure somewhere someone with greater knowledge than I have is writing a more scholarly consideration of this matter than I am capable of but this question occurred to me when I learned of Peter Thiel’s sponsorship of Hulk Hogan in his action against Gawker for defamation and for the more newly conceived tort of invasion of privacy. First, a little black-letter law as gleaned from USLEGAL.COM.

“Law stipulates that personal tort claims are not assignable and hence, injuries which are purely personal in nature, such as  distress, cannot be assigned to another person.[i] In the absence of a statute allowing the survival of personal torts, unliquidated and unvested personal torts claims are not assignable.[ii] Therefore, individuals are prohibited from assigning to a third person, a cause of action in tort for a personal injury that does not survive the death of the person injured.
Examples of personal tort claims that are not assignable include assault and battery, personal injury, false imprisonment, malicious prosecution, invasion of privacy, conspiracy and unfair and deceptive trade practices. In addition, courts have held that defamation is a personal injury claim and hence is not assignable. The court differentiated the nature of defamation and observed that defamation invades the interest in personal or professional reputation and good name, vindicating personal interests.[iii]”
Now, a little issue spotting: Is Hogan’s action a personal tort? The defamation claim certainly is and I see no distinction in the invasion of privacy claim that would cause a different conclusion. Was there an assignment? Superficially, it would seem the answer is no. The elements of an assignment are, I think, an intention on the part of the parties that the property be assigned and the receipt of consideration by the assignor. Surely the funds advanced by Thiel constitute consideration whether or not there is an agreement for reimbursement. Is there an outright assignment of the case such that Thiel became the plaintiff of the action? No, there wasn’t but, then again, we know the court would not have permitted the substitution of parties. Is there an assignment of the monetary proceeds of the action? That’s a question of fact but for our purposes let’s assume there is not. Is there a de facto or equitable assignment of some benefit resulting from a successful outcome for Hogan in the case? This is where I would argue things get sticky. Assuming the Hulkster keeps the dough, Thiel is still getting the benefit he most desired out of the action – vengeance. He and Hulk wanted to do damage to Gawker and it’s fair to say they shared in that reward. Now, maybe this is all gobbledygook. It’s been a long time since I’ve engaged in this kind of exercise. I’m no maven on the law. I don’t even know what I’m citing in the USLEGAL excerpt above. Still, there’s something about the bankrolling of someone else’s personal grudge that’s troubling. Could Hogan have pursued his action without Thiel’s animus? Would he have found counsel willing to take the case on contingency after an evaluation of it’s merits? If the action was found against Hogan and the case turned out to be nothing but a nuisance suit, does that change the evaluation? I dunno. I’m better at raising issues than I am at resolving them. Seems worth considering, though.
### This is the more expert piece I knew was out there: http://overlawyered.com/2016/05/champerty-maintenance-explainer-gawkerhoganthiel-edition/

NOT NEWS – DJT Is No Big Macher

05/29/2016

3EF0A7E9-EF19-4D5E-9B42-FE9AAEEC4569Having worked for thirty years in the highest echelons of the New York City real estate industry, I have a perspective on Donald j. Trump which is, perhaps, not unique but is certainly underreported. I have done deals with Harry Macklowe, Gary Barnett, Steve Ross, Steve Witkoff, Larry Silverstein, Aby Rosen and many other smaller developers in the Manhattan market and I can tell you with certainty that DJT is not only not respected by the development community in New York, he’s not even regarded as a developer. Let’s start with the most important fact – DJT only holds equity in three properties in Manhattan: the retail condominium at Trump Tower on Fifth Avenue, 40 Wall Street (an old FIDI building Trump bought to convert to residential which remains undeveloped and largely unoccupied) and a partial interest in a Sixth Avenue office building. That’s it. All those other buildings which bear the Trump name have been sold by Trump, have been taken by lenders in satisfaction of guarantees Trump lacked the cash to pay, are licensing the Trump name, are managed by Trump or were required to keep the Trump name as a condition of sale. DJT does not have a single penny of ownership in them. Not a penny. And the properties he does own have significant mortgages on them because, as DJT has proudly admitted, he is highly reliant on debt. Not that that’s a bad thing. All development is reliant on debt, usually personally guaranteed or bonded debt, and the most successful developers are admired as risk takers, the swashbucklers of the industry. And they often fail and face foreclosure or bankruptcy but the best ones come back and are even more respected for it. That’s not the DJT story. Every construction project Trump has undertaken was guaranteed by his father Fred. Donald was not taking the risk. Fred was. Fred was very well connected with the Brooklyn democratic machine and City Hall and every one of Trump’s projects benefited by that connection in the form of tax abatements given by the City to encourage the development of housing. Of housing! First the Hyatt Hotel and then Trump Tower were deemed to be housing according to Comptroller, then Mayor, Abe Beame. And during Fred’s lifetime, when Donald had access to his credit line, there were a few successes, including, initially, the Atlantic City casinos. Then came the Taj. It was to be the largest and most luxurious of the Atlantic City casinos. DJT got construction financing, all of which was personally guaranteed and guaranteed by the entities which owned the other casinos. Costs exceeded estimates and the lenders were squeezed into lending new money to protect the old. When the project was finally completed, the debt was too high, and the actual income too low, to support a permanent loan to take out the construction lenders so the Taj defaulted on it’s loans, the lenders called in the guarantees and, in the end, the bankruptcy court left DJT with NOTHING but the aforementioned three properties (and, I believe, Mar-a-Lago) and the Taj, which, despite renegotiation of its debt many times, remains underwater. How, then, does DJT value his worth at $10 billion? He has determined that a bonanza fide purchaser in an arm’s length transaction would pay him $8 billion for the exclusive right to put the Trump name on hotels, residential buildings, golf courses, ties and all the other things DJT is receiving income from. Now, does Trump naming rights have any value whatsoever to someone who is not named Trump? Probably not. Does the current cash flow support a valuation of $8 billion? We won’t know until we see the tax returns, which is undoubtedly why he is so reticent to provide them. Look, DJT’s not worth nothing. He probably has a legitimate balance sheet of a couple of billion which is not chump change. The problem is the outlandish claims he makes for himself. The NYC real estate industry is full of Trumps, loudmouth wheeler dealers trying to make themselves grander, more fabulous than they really are. Dozens of them, many of whom have real assets valued way higher than Trump’s. In the end, Trump has produced not so many successful projects but a whole lot of schadenfreude among the NYC players.

NEWS – The Conclusion of the Medical Story

05/28/2016

Writing about my medical problems is an unpleasant chore for me. It’s not very interesting and I don’t like reliving it. I feel an obligation to bring the record up to date, though, so here goes. The last time I wrote about this was last Friday when I was on my way home from Lenox Hill. My hemoglobin was over 10, I didn’t seem to have any active bleed (at least not one that an endoscopy or colonoscopy could find) and I anticipated doing a pillcam test sometime the following week. Monday morning, I went to Dr. Horbar’s office and had my level taken. My hemoglobin was still over 10 and from there I went on to have a fairly normal day. By afternoon, though, I was close to bedridden (I had to forego seeing The Chills, a band I love, at Monty Hall in Jersey that night – they hadn’t been in town for over twenty years). The following morning I called the doctor, finally reached him in the afternoon, told him my condition and was told to come in the next morning. Was there at 8:30AM. Rectal exam showed copious fresh blood. Go right to Lenox Hill emergency room, get tested and my hemoglobin is down to 5.5! My normal is 14.8 so I’m down to about 40% of my baseline. Receive transfusion of two bags of blood. Get a “bleeding” cat scan which reveals nothing. Sent up to surgical ICU since it’s anticipated that they’re going to need to open me up to find and stop the bleed. Take another test where they remove some of my blood  and zap it so it becomes radioactive, then they inject the blood back into me and do a scan. The scan shows a little blush in the small bowel. The surgical team gets ready to do an angioplasty to correct whatever the condition is but Dr. Horbar decides to try the pillcam first. Meanwhile, through all of this, my hemoglobin is holding steady at 7.2 which indicates there is no active bleed. Remember, this is my second day admitted. I swallow the pillcam
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(technology devised by the Israelis for espionage purposes) which transmits images for eight hours to a walkman sized device hanging from my neck. No one is available to read the results until the following, Friday, morning. The pillcam pictures reveal an ulcer in the small bowel but also shows that the ulcer has scabbed over and isn’t bleeding anymore which explains why my level is holding steady. I receive another transfusion which brings my level to over ten and, at 10:00pm last night, I’m sent home. So over the course of three days and two nights I’ve been tested three times, been transfused three times and have not undergone any surgery or corrective procedure because the condition corrected on it’s own. Today, Saturday, I’m home and feeling pretty good. I’m guessing I’m over 11. Tuesday I’ll go back to Dr. Horbar to have my hemoglobin taken and, if it’s moved up, then I’m done. It’s been an ordeal. This last hospital stay was especially punishing, what with my physical condition and all the uncertainty and the grim possibilities and just being sick of the whole damn thing. Shout outs to, as always, my love Jolean, Samara, my Mom, Don Grubman, Deb Stein, Mark Gompertz and everyone who stayed in touch and was so concerned during my stay. Sorry to put you all through it.

NOT NEWS – Chores

05/23/2016

We’re all adults here so it shouldn’t create a scandal if we acknowledge that men, even men with hot and loving wives like lucky me, enjoy the occasional masturbation. It’s something we’re drawn to. It was our first erotic experience. I don’t know  why i’m even trying to justify it here. We all know what’s good about masturbating. In my current case, though, well, let’s say I expect that my hands are going to be filled a lot more with free time. It’s not that, if i undertake the journey, i don’t reach my destination but at a certain point it becomes a bridge too far. First of all, I wake up and take a fistful of anti-depressants with the side effect of rigidity hostility. Next, since infection destroyed all but a little tail of my pancreas, I am diabetic. Even under control, that can be erectile deficiencing. Being 60 years of age is less than a benefit. Now, already paddling upstream, I’m anemic. Not having attended medical school, I can’t opine on the effect of reduced red blood cell capacity on that most blood-greedy organ but, with my new symptom of running out of breath File_000 (1)easily, I’ve reached a tipping point. A question that was always answered (subject to the usual guilt restraints) “yes” is now sometimes no. Which will at least have the happy effect that a higher percentage of my flights will not be solo.

NEWS – A Good Dog

05/22/2016

Please note the passing of Roxy Grubman, a ten and a half year old labradoodle and a very sweet, very warm and very well behaved dog. She had the habit of putting her head on my lap or on my foot whenever I came to visit her and I always felt chosen when she did.  I will miss the sparkly dark button eyes peeking through her cottony face. Needless to say,  Roxy will go where the good doggies go. My sympathy to her family.

NEWS – Guess That I Just Wasn’t Made For These Times

05/20/2016

Pet Scans are a diagnostic tool which require you to be injected with nuclear material. Rather than bestowing super powers, the material mimics sugar in your body. Tumors and lymphomas eat a lot sugar so the nuclear material is drawn to them and make them visible in a scan. In order for them to work effectively, there can not already be sugar circulating throughout and that requires that you do not eat beforehand. My colonoscopy earlier today required a cleanse which in turn required my drinking very large quantities of laxative which, as you might imagine, resulted in large and frequent defecation last night. The endoscopy yesterday required that I only have clear liquids prior to the test. The upshot of all of this is that between my delicious variety burger from Hearth Tuesday night and now I have only eaten/drunk chicken broth and jello and not a whole lot of that. So, as I lie here in the nuclear prep room, giving the material an hour to flow through all the nooks and crannies of my body, I am hungry. Really, really hungry. It’s about 3:00 now. I’ll be done with this around 4:00. Oh by the way, the colonoscopy which revealed diverticuli? They weren’t bleeding so we have still not solved the anemia issue. When I am done with this scan I will be able to eat. I will also then get a transfusion which will take a few hours. Accordingly I will be able to leave Lenox tonight at about 7:30. That means I will not make it to the May edition of the Cabinet of Wonders at City Winery where the author  of “My Cousin, My Gastroenterologist ” will be reading. Additionally, I must return to the hospital on Monday at which time I will swallow a little camera. The camera will photograph my entire GI track (or is it tract) looking for the source of the bleeding. Please get in touch if you’d like to join me for a weekend of gourmandaise  gluttony, excessive alcohol consumption and veritable clouds of marijuana smoke but only until 6:00 pm on Sunday which is when I will begin the prep for the little camera (nobody debauches  with Jolean but me).

NOT NEWS – COLONOSCOPY, COLONOSCOPY (They Whisper It All Over Turkey)

05/20/2016

It was never my intention to be writing a medical blog so I’m going to make this short (also because I’m writing this from a stretcher in the recovery room). Turns out, no surprise, I’m a bloody ass, as the Brits would say. Yesterday’s endoscopy revealed nothing but a couple of  sutures left over from the cancer surgery so, accordingly, today I had the colonoscopy which, as Soupy says, sounds so romantic in Turkey, and which revealed bleeding diverticuli which, further, if you’re not familiar, are sort of pimples on the colon. Why were they bleeding? Stigmata is my guess but probably a diet low on fiber is more likely (though, based on last night’s cleanse, I’m good on solids).  So that’s the story. O! Anemia, city in the sky! It’s time for me to leave you (and Lenox Hill). Sorry Jolean. No more strap-ons. 

NOT NEWS – LENOX AGAIN

05/19/2016

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Generally speaking, any day you receive anal stimulation three times is a good day. This time, no. Three doctors have pierced the booty looking for blood in the stool…and they found it. Hence my shortness of breath – anemia. Dr. Horbar examined me in his office and then sent me to Lenox Hill to get a scope put down my throat to examine my stomach (there’s a word for that ending in -scopy but I don’t remember what it is) to see if any of the several surgical sites from last time are bleeding. We arrived at 11:00am. I got a bed in the ER at about 1:00 and waited for my exam. At about 3:00 I was told I had to stay overnight because not only was I getting a downyourthroatoscopy but a colonoscopy in the morning under sedation. At 5:00 I was moved into a room (private thanks to Jolean – more on that to follow). At 6:30 I was told no colonoscopy tomorrow which means only the down the throat thing which, of course, I could have had as an outpatient during the day today. So here I am, back at Lenox, where I resided for 86 days in the fall of 2014. It sucks. As I said, I have a private room and a delicious container of chicken broth from Pastrami Queen and those are the least of what Jolean’s taken care of today. She came home last night despite my wishes that she not fuss and, truth be told, I greeted her in the most disagreeable asshole way. It was a little ugly for a while. She wanted to be with me though because, well, she’s my wife and loves me. And, really, I was grateful she was there because I love her madly. And and I would have had a difficult time getting through the day without her and not because she bought me soup (though I can’t recommend the soup highly enough). It’s because I’m lonely for her when she’s not with me and it would have been impossible to endure that in addition to of everything else.

NEWS – I Got Sweaty 

05/18/2016

One of the annoying things about being a cancer survivor is that friends and relatives, with the best of intentions, express their enduring anxiety about your health, asking, “Are you okay?” and “How do you feel?” and that makes you feel babied and weak and like a special case when you’re trying to be chill and leave it behind and feel normal and deny your own anxiety which, covertly, is probably even greater than theirs. It’s not the kind of thing you want poked at. Today and last night I became winded just getting out of a chair and started to feel the burn (the Jane Fonda burn, not the Bernie bern) in my legs after a block or two of walking. My endurance hasn’t been great since the 12 week hospital stay a year and a half ago but this feels a little different. I went to the IFCC at the Javits Center with Samara this morning and I stood up out of one of the thousands of lovely couches being displayed and walked ten feet over to the booth of a Spanish lighting manufacturer who was showing a beautiful hanging lamp and I was too out of breath to speak (they give out catalogues on thumb drives now!) so the saleslady went into her whole spiel and I was stuck there standing for five minutes at least. After that I needed to sit so I selected a couch (the covering of which seemed unusually durable, perhaps able to stand up to Toshi the cat) and, having seated, I start sweating like I had just done the 100 except that it would be inches, not meters. Sami gets very concerned and keeps asking, “Do I have to take you to the hospital?” and, of course, I’m not going to the hospital because I feel fine, I’m fine, I just need a few minutes. Then, when I’m not looking, she texts Jolean and snitches on me so Jolean calls, concerned, and I’m all “Relax, it’s nothing.” And it’s true. I feel perfectly fine except that I’m perspiring away on a well constructed sofa on the floor of the Javits Center. I’m trying to both triage and ignore what I’m feeling. I truly don’t want to be sick again, I truly, truly don’t. We get a cab, head home, I lie down. Sami’s gone off to work but she wants to stay over tonight. Jolean wants to come down from Tarrytown. I don’t want it, not either. I don’t want the tsimmes. I’ve spoken to the doctor and I’m going in to see him tomorrow at 10:15.  I can take care of this and I’m sure it’ll be nothing. Really – I can take care of this.