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Prosecutors, defense in LIRR disability fraud case claim conspiracies

Marie Baran, second from left, exits Federal Court

Marie Baran, second from left, exits Federal Court after testifying in her own defense on in Manhattan. (July 30, 2013) Photo Credit: Charles Eckert

Federal prosecutors called two consultants and a doctor the "engines" of a conspiracy of phony disability claims while defense lawyers accused the government of engineering a phony case during a full day of charged summations at the Long Island Rail Road fraud trial in federal court in Manhattan Wednesday.

With the two-week trial expected to go to the jury Thursday, lawyers for orthopedist Dr. Peter Lesniewski and retiree consultants Marie Baran and Joseph Rutigliano argued that the government was stampeded by news reports of high LIRR disability rates into criminalizing a dispute over the benefits for aging railroad workers responsible for keeping riders safe.

"This is a conspiracy . . . adopted by the government because it's easier to deal with the issue of fraud than deal with what do we do with this union contract, what do we do with this complex social problem," said Lesniewski lawyer Thomas Durkin. "This is a guess case, a leap."

But prosecutors told jurors it was a case of simple fraud built on the testimony of a half-dozen witnesses who said the defendants helped them make fraudulent claims to the federal Railroad Retirement Board. She said the three defendants together had made more than $1 million by aiding hundreds of bogus claims and exploiting the system.

"They would and did say anything they had to say to make a quick buck," prosecutor Nicole Friedlander told jurors. "They deliberately exploited a safety net designed to protect the disabled, and they did it out of sheer greed."

Lesniewski, 62, of Rockville Centre, is accused of manufacturing medical "paper trails" for fake claims. Baran, 65, of East Meadow, a former Long Island manager for the retirement board, and former LIRR union official Rutigliano, 66, of Holtsville, are accused of using their insider knowledge to help retirees successfully lie.

The three face charges of conspiracy, mail fraud, wire fraud, health care fraud and false statements. They are the first defendants to go to trial among 33 doctors, retirees and so-called "facilitators" who have been charged. Twenty-five others have pleaded guilty in the case, but none testified for the government that fraud was openly discussed. Friedlander said that the LIRR had a 79 percent disability rate compared to 21 percent at Metro North, because of an early retirement option at the LIRR and the fraud scheme.Employees preplanned an optimal retirement date, she said, rather than quitting when disability forced them to stop work.

She called Lesniewski a "go-to" doctor for the scheme whose fees provided critical income for his medical practice, but said it was all a "charade" that never involved treatment. He admitted to federal agents that he "exaggerated" many claims.

Durkin, however, said that wasn't a "confession," and prosecutors had no patient who could say Lesniewski admitted faking diagnoses. "Can you convict anyone on that evidence?" he asked.

Friedlander said Baran had made $370,000 by filling out "cookie cutter" applications filled with made-up information, and said she had learned the ropes from her husband, a retired LIRR electrician who had received $200,000 in disability payments while globe-trotting and golfing during an active retirement.

But her lawyer, Joe Jackson, said Baran had only reported information she was given by her clients, and called the attack on her husband a cheap shot. "Because they don't have evidence against Ms. Baran, they're going to attack Mr. Baran," he said.

Prosecutors said Rutigliano had gotten $409,000 in disability benefits by telling a "sob story" that included a claim in 1999 that it was "hard" for him to grip a pen, and then became a regular golfer in retirement.

"Hard to grip a pen but not a golf club?" Friedlander said. "It is a work of fiction."

But Rutigliano lawyer Joe Ryan laughed off the golf evidence. "This whole idea that four hours on a manicured golf course means you could spend 40 hours working on a railroad," he said, "seems absurd."

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