Barclay Damon
Barclay Damon

Brian M. Culnan

Brian M. Culnan

Partner

p: 518.429.4214

f: 518.427.3497

icon_email bculnan@barclaydamon.com
icon_download Vcard

Albany Office

80 State Street
Albany, New York 12207

Brian has over 25 years of experience litigating complex civil matters in state and federal courts and handling administrative proceedings before state and federal agencies. His clients include hospitals, health maintenance organizations, not-for-profit organizations, physician practices, individual health care professionals and executives, manufacturers, retailers, and proprietary schools.

A past chair of his former firm’s Labor & Employment Law Practice Group, Brian has represented clients in cases involving a wide range of employment-related issues, including employment discrimination, discharge and termination, enforcement of restrictive covenants, protection of trade secrets and other proprietary business information, whistleblower and retaliation claims, wage-and-hour claims, and ERISA and other matters related to employer-sponsored benefits. In addition to litigating claims when necessary, Brian provides clients with general business and employment-related counseling, ensuring compliance with state and federal labor laws and regulations, and he reviews and drafts employment contracts, separation agreements, and employee handbooks. He also advises his clients on matters involving discipline for workplace misconduct.

Brian’s extensive experience in health care-related matters brings him before New York courts and administrative agencies. On behalf of his health care clients, Brian has litigated matters pertaining to hospital credentialing and discipline decisions; managed care liability; health insurers’ contractual rights of recovery; Medicaid and Medicare reimbursement; investigations into possible professional misconduct by health care professionals; governmental investigations of providers for possible violations of the federal Stark, HIPAA, EMTALA, and ADA statutes; a New York attorney general investigation into hospital compliance with the state’s charity care pool requirements; and Article 78 proceedings pertaining to challenges to governmental action and regulation. Brian has also counseled alcohol and mental health treatment facilities regarding the specific confidentiality requirements to which they are subject under federal and state law.

Representative Experience

  • Represented a hospital in a class-action antitrust lawsuit alleging that five Capital District area hospitals conspired to suppress nurses’ wages. A partial denial of plaintiffs’ motion for class certification led to a settlement favorable to the client.
  • Represented a health maintenance organization in an action to enforce a restrictive covenant against a former executive. After the court decided a motion for a preliminary injunction, the action settled favorably for the client.
  • Defended a cardiac anesthesiologist against a former employee’s gender-discrimination and retaliation claims. The court granted the client’s motion to have all claims dismissed.
  • Defended a grocery store chain against an employee’s age discrimination claims. The court granted the employer’s motion for summary judgment.
  • Represented a former New York State-employed attorney who challenged the denial of a claim for long-term disability benefits. After the court denied the insurer’s motion to dismiss the employee’s General Business Law 349 claim, the case settled favorably to the client in mediation.
  • Represented a hospital in an Article 78 proceeding in which petitioners sought to annul the Department of Health’s determination authorizing a hospital to discontinue the provision of maternity services. The court upheld the DOH determination, allowing the hospital to discontinue services.
  • Represented a hospital in an Article 78 proceeding in which the nurses’ union sought to annul the DOH’s determination to approve the client’s certificate of need application to operate a part-time emergency department at one of its locations. The court upheld the DOH determination.
  • Represented a provider of blood-factor product to hemophiliacs seeking to compel the DOH to provide Medicaid reimbursement for claims submitted. The court directed the agency to pay the client’s claims for reimbursement.
  • Defended a provider of private-duty nursing care that terminated the provision of services to a disabled Medicaid recipient. The court determined the client was not a “state actor” for purposes of Plaintiff’s Section 1983 claim and that the county social services department bore ultimate responsibility for providing services to the Medicaid recipient.
  • Defended a health maintenance organization in an action brought by a member seeking coverage for Lasik eye surgery. The court granted summary judgment to the client, dismissing the member’s claims.
  • Defended a motor-home manufacturer in a subrogation action in which an insurer sought recovery for the cost of a motor home destroyed by fire. The court decided that the Economic Loss Rule barred the subrogor’s strict products liability and negligence claims against the manufacturer.
  • Represented a retailer that challenged the constitutionality of a city’s transient business tax. The court ruled the tax violated the Commerce Clause, resulting in a refund of all taxes paid by the client.
  • Represented an off-campus bookstore seeking access under New York’s Freedom of Information Law to faculty booklists compiled for an on-campus bookseller. The court ruled that faculty booklists are public records that must be provided to the client.
  • Represented a natural gas supplier that had sought Public Service Commission assistance in resolving a contract dispute with the utility that was required by statute to receive natural gas produced by the client. The court annulled the PSC decision, leading to a favorable resolution of the client’s contract dispute with the utility.

Practice Areas

Education

  • University of Virginia School of Law, J.D.
  • Holy Cross College, B.A., magna cum laude, Valedictorian

Admitted To Practice

  • New York
  • U.S. District Court, Northern District of New York
  • U.S. District Court, Southern District of New York
  • U.S. District Court, Eastern District of New York
  • U.S. District Court, Western District of New York
  • U.S. Court of Appeals, 2nd Circuit

Memberships & Affiliations

  • New York State Bar Association, Labor and Employment Law Section
  • Albany County Bar Association
  • Saratoga County Bar Association
  • Capital District Trial Lawyers Association

Civic Activities

  • International Association of Approved Basketball Officials, Former President
  • Christian Brothers Academy, Finance Committee Member and Former Board of Directors Member

Speaking & Publications

  • Rivkin Radler LLP Alert, “Can NY Employers Legally Terminate a Rally Protester?,” September 2017

Honors

  • The Best Lawyers in America®: Commercial Litigation, 2017-2018

Prior Experience

  • Rivkin Radler LLP, Partner
  • Iseman Cunningham Riester & Hyde, LLP, Partner

Alerts