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Long IslandInvestigations

Four cases, one sealing order by Judge Leonard B. Austin

As Nassau Supreme Court judge in 2008, Judge

As Nassau Supreme Court judge in 2008, Judge Leonard B. Austin sealed four cases with one pen stroke after reviewing a request from Howard Fensterman, a prominent, politically connected lawyer. Photo Credit: James Escher

Judge Leonard B. Austin, acting on a request by a prominent, politically connected lawyer, signed the most sweeping sealing order Newsday found in its review.

It was also the only order by Austin that the paper found.

As a Nassau Supreme Court judge in 2008, Austin sealed four cases with one pen stroke after reviewing a request from Howard Fensterman, who has coordinated fundraising on Long Island for Sen. Chuck Schumer and Gov. Andrew M. Cuomo.

The cases Austin sealed involved Fensterman and his longtime client and business associate Ben Landa, who in the last quarter century has overseen the rise of the state’s largest for-profit nursing home network, SentosaCare LLC. Landa and his partners have been major donors to several governors. Harmful conditions have been alleged at some Landa nursing homes, and he owned a large stake in a home health care company that agreed to pay a $3.7 million settlement to the state attorney general’s office in 2009 over charges of having defrauded Medicaid.

Austin issued his omnibus sealing order while hearing a lawsuit that Landa had brought against Helen Webster, a former business partner turned adversary. A Newsday reporter found a settlement in the case included as an exhibit in other litigation.

In part, the case involved a dispute between Landa and Webster over who was responsible for repayments to the state following an audit by the New York Medicaid inspector general.

The settlement resolved two other lawsuits that Austin concealed with his 2008 sealing order. One was a 2007 action that Webster brought against Landa in Brooklyn, the other a case she brought against his Avalon Gardens Nursing and Rehabilitation in Smithtown the same year. The settlement prohibited the parties from discussing the three cases with the press.

In his sealing order, Austin provided no basis for favoring the privacy interests of the parties over the public interest in the cases. Available records show no evidence that files held information generally accepted as confidential, such as personal medical records or the identity of child victims.

There is strong evidence that the cases held public interest, however.

The Medicaid Fraud Control Unit of the attorney general’s office subpoenaed the case file and related litigation in 2005 as part of a criminal investigation. Files included details of negotiations between Landa, a prominent nursing home operator, and the state agency that regulated his industry. Those negotiations dealt with payments to Medicaid, a taxpayer funded health program. And the parties had agreed in three of the sealed cases not to discuss them with the press — not a step typically taken when litigants feel the public has no interest in a case.

In the remaining case Austin sealed with his single order — one not covered by the settlement agreement and prohibition on speaking with the press — a plaintiff sued Fensterman in a dispute over money deposited in his firm’s escrow account to purchase a stake in a Great Neck nursing home in Landa’s Sentosa network.

In addition to sealing the four case files, Austin barred the parties from releasing transcripts of depositions.

Austin declined an interview request. Fensterman did not return telephone calls to his office. In an email, Fensterman declined to answer questions, saying it would be inappropriate to discuss sealed cases. Asked in an email whether his client Landa, who did not return a call to his office, could answer questions about the sealed cases, Fensterman did not respond.

Then-Gov. David A. Paterson appointed Austin, a Democrat, to the Appellate Division in 2009. When Austin was up for re-election in 2012, Fensterman’s firm donated $3,000 to his successful campaign.

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