Scott J. Kreppein, Esq.

Published Decisions

2012-02-09T12:30:00.000-05:00

While most day-to-day court orders are not published beyond the county clerk's file in the particular case (public record for most cases, and sealed for matrimonial and some others), decisions from the appellate courts, as well as select trial level decisions, are published and used as guidance for deciding future cases. Below is a list of published decisions where I have been the lawyer writing the briefs and/or arguing the appeal or motion:

PERSONAL INJURY

Murphy v. NYC Transit, 74 A.D.3d 1158 (2d Dept. 2010) - Reversing dismissal of claim against municipality for failure to properly respond to assault.

Morris v. Bianna, 69 A.D.3d 910 (2d Dept. 2010) - Affirming denial of summary judgment in dram shop claim related to stabbing in a bar.

Funk v. UPS, 73 A.D.3d 851 (2d Dept. 2010) - Dismissing claim for trip and fall based upon inadequate lighting during a charity event.

Luo v. Mikel, 625 F.3d 772 (2d Circuit, 2010) - Reversing summary judgment on issue of serious injury in a motor vehicle accident case.

Wang v. 161 Hudson, 60 A.D.3d 668 (2d Dept. 2009) - Affirming jury verdict on liability, and remanding for new trial on damages.

Strickland v. PAL, 2009 NY Slip Op 50067(U) (Kings County, 2009) - Denying summary judgment in case regarding negligent crowd control.

Zheng v. Cohen, 52 A.D.3d 801(2d Dept. 2008) - Affirming denial of motion to dismiss construction accident claim.

Stawski v. Pasternack, 54 A.D.3d 619 (1st Dept. 2008) - dismissal reversed, and summary judgment granted in Plaintiff's favor, in legal malpractice claim based upon failure to timely file a construction accident claim.

Vignapiano v. Herbert Construction, 46 AD3d 544 (2d Dept. 2007) - Dismissed negligence case against property manager.

MATRIMONIAL, DIVORCE, AND FAMILY LAW

Stolte v. McLean, 2012 N.Y. Slip Op 50115(U) (Suffolk County, 2012) - granting declaratory judgment to claimants in a post-divorce action over life insurance and pension proceeds.

Gaffney v. Romanello, 82 A.D.3d 930 (2d Dept. 2011) - Affirming order regarding interim counsel fees.

Wallach v. Wallach, 2007 NY Slip Op 30864(U) (Suffolk County, 2007) - granting motion for discovery in post-divorce action for breach of settlement agreement.

BUSINESS

Bharucha v. Greenberg, 2011 NY Slip Op 30171(U) (Nassau County, 2011) - denial of motion for summary judgment in breach of contract action regarding escrow agreement in a real estate transaction.

Salomon v. Burr, 769 F.Supp.2d 83 (E.D.N.Y. 2011) - Denial of summary judgment on personal guarantee in a real estate transaction.

Abuelhija v. Chappelle, 08-cv-3679 (S.D.N.Y., 2009) - dismissal of claim for breach of settlement agreement in an entertainment/management dispute.

Kremen v. Morelli, 54 A.D.3d 596 (1st Dept., 2008) - Legal malpractice claim dismissed.

Rothman v. Morelli, 43 A.D.3d 769 (1st Dept., 2007) - Dismissing claim in attorney fee-sharing dispute.

EMPLOYMENT

Graham v. Fareed, 55 AD3d 405 (1st Dept. 2008) - dismissal claim in contract/employment action reverse.

Divorce Attorney: Pension and Life Insurance Benefits Agreement Enforced Post Judgment

2012-02-08T17:01:00.001-05:00

I recently received a much awaited decision on one of my cases in the Suffolk County Supreme Court in a post-judgment matrimonial matter. In this case, the stipulation of settlement in the prior divorce had provided for certain rights regarding one of the parties' pension and life insurance proceeds. That spouse, however, then made his second wife the beneficiary, who received the proceeds upon his death. The first wife and children moved to enforce their rights, and the Court found:

Separation agreements purporting to equitably assign pension benefits should be given the same protection as Court Ordered benefits... a Separation Agreement expressly distributing pension benefits as marital property pursuant to the Equitable Distribution Law is enforceable...

Similarly, the court found:

A promise in a separation agreement to maintain an insurance policy designating a spouse as beneficiary vests in the spouse an equitable interest in the policy specified, and that spouse will prevail over a person in whose favor the decedent executed a gratuitous change in beneficiary...

The full decision can be read here.

Save Sanity And Trees

2012-02-03T10:26:00.000-05:00

Other attorneys may disagree, but my general philosophy with legal drafting, whether drafting a contract or a litigation document, is to make things as simple, concise, clear, and efficient as possible. “Papering” the other side can have some strategic advantage in rare instances, and often even a concise legal document would be considered voluminous by a lay person. As a general rule, however, my contracts are written so that they can be easily understood without ambiguity or excess verbiage; my pleadings tell people what a case is actually about; my discovery demands and responses are short and to the point; and my motions are relatively easy to read and understand.

One prime example where trees weep over the inefficiency of the legal profession is in discovery. Many lawyers will preface their document demands with pages upon pages of meaningless instructions and definitions, followed by an unnecessarily large number of duplicative and barely intelligible demands. The only “instructions” necessary for responding to a discovery demand are the CPLR and the Administrative Rules (in State Court), or the Federal Rules (in Federal Court), and the rules of the individual judge. No matter what “instructions” an attorney puts on their demands, a party cannot unilaterally override those rules.

Personally, with respect to discovery, I am a big fan of Rule 26 in the Federal Rules. Under that rule, a “party must, without awaiting a discovery request, provide to the other parties… (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information… (ii) a copy of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment… and (iii) a computation of each category of damages claimed… [and] documents or other evidentiary material… on which each computation is based, including materials bearing on the nature and extent of injuries suffered” and (iv) insurance information.

Thus, under Rule 26, or a State Court discovery demand that parrots its language, everything should be disclosed - period. Obviously, you may need some specifically tailored requests to ensure that everyone knows what is considered relevant, and so that you have a basis for seeking court intervention if there is noncompliance. A laundry list, however, does not help anyone. In fact, clever efforts to turn 10 demands into 200 only serve to create more work for everyone, including the Courts if they become involved. Addressing discovery disputes over a handful of well-written requests is relatively simple when compared with fighting over dozens, or hundreds, of separate requests. In fact, I think the reason for some of the overkill is lawyers being fearful that they will forget something, but it is a lot easier to overlook an issue buried within an encyclopedic demand than to monitor compliance with a tightly drafted one.

The same rule applies with virtually all legal drafting. I recently filed a motion to dismiss for a defendant in a case where the Plaintiff's claim against my client, although highly defensible, was relatively simple. The Plaintiff's attorney probably spent days drafting a complaint that rivaled war and peace. They speculated all over the place "upon information and belief," and asserting dozens of far-fetched causes of action, but somewhere along the lines forgot to include the one basic claim that actually made sense.

With motion practice, all the time lawyers will write tomes, expecting judges (who are, believe it or not, human beings), to parse out the one or two really important aspects of their argument -- which were conveniently placed in the middle of a footnote on page 145 of their brief.

Keeping things concise and simple (which requires knowing what is important and what isn't), makes everything easier, and more cost effective, for lawyers, clients, and the courts.

Divorce Attorney

2012-01-28T19:40:00.001-05:00

"A civilized divorce is a contradiction in terms... l'm going to urge you to be generous to the point of night sweats. The all-important thing is to get you through this as quickly and cleanly as possible so that you can begin rebuilding your life." - War of the Roses

Constitutional Rights Attorney -- Criminal Harassment

2012-01-25T15:27:00.000-05:00

The laws criminalizing "offenses to public order," (i.e. the "disturbing the peace" family of crimes such as harassment and loitering), need to be carefully drafted to avoid constitutional issues. Frequently, the phrase "for no legitimate purpose" is added to these statutes, letting the courts define what constitutes a "legitimate purpose," so that constitutional issues can be avoided. See People v. Shack, 86 N.Y.2d 529 (1995).

Subsection One of New York Penal Law 240.30, defining Aggravated Harassment in the Second Degree, however, has some drafting issues that need to be addressed by the State Legislature. The law criminalizes any communication where someone "with intent to harass, annoy, threaten or alarm another person... communicates... by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm." This crime is classified as a Class A Misdemeanor, meaning that it carries a sentence of up to one year in prison and/or up to a $1,000 fine.

Essentially, as phrased, the law criminalizes being intentionally annoying or causing alarm, for any purpose. This could describe any other emergency communication or warning, such as reporting a fire or telling someone they need to go to the hospital right away; it could almost any argument over the telephone; or it could describe someone engaging in parody that is protected by the First Amendment.

The problem with the law's phrasing has been known for decades. Rather than throwing out the statute, however, the courts would interpret the statute as containing additional elements or limitations, and would evaluate each case to see if the statute was unconstitutional "as applied." People v. Dupont, 107 A.D.2d 247, 253 (1st Dept. 1985). People v. Smith, 89 Misc. 2d 789 (App Term. 2d Dept. 1977).

In 2003, the Court of Appeals found this statute unconstitutional. People v. Mangano, 100 N.Y.2d 569, 571 (2003).

By that point, however, the legislature had already amended the statute, and thus Mangano was based on the pre-2001 version and is not necessarily binding on charges brought under the latter version. Rather than address the Constitutional concerns, however, the 2001 amendments were mostly stylistic. Whereas the statute previously said "communicates, or causes a communication," now it is divided into two paragraphs, one starting with "communicates," and the other starting with "causes a communication."

In 2008, the U.S. District Court for the Southern District of New York found the current version of the statute unconstitutional, and found that the City of New York could be civilly liable for enforcing it. Although the constitutional issue was not appealed, the Second Circuit sent the matter back for further submissions on whether the City had an option to enforce the law, or if it was required by the State. The matter was settled prior to another written decision being issued. Vives v. City of New York, 524 F.3d 346, 357-358 (2d Cir. 2008).

Following Mangano and Vives, some courts have held that this subdivision one of Penal Law 240.30 is unconstitutional and dismissed charges brought under that section, while others continue to enforce it depending upon how it is being applied. See People v Louis, 2011 Slip Op 21254, 927 N.Y.S.2d 592, 597 (Nassau County Dist. Ct., 2011).

The overbroad wording is a problem that could probably be fixed by simply adding the phrase "with no lawful purpose" to the law, but given the emerging phenomena of cyber-bullying and related issues, the legislature may want to do additional re-writing. There are other disorderly conduct laws on the books that deal with general "threatening behavior," so it is not as if people are permitted to run amock, but this law, if properly worded, is supposed to deal directly with threatening or harassing phone calls and similar written/electronic communications.

Personal Injury Attorney

2012-01-07T21:58:00.001-05:00

Personal Injury litigation has been one of my main practice areas since I started law school. Among other things, I clerked with several personal injury law firms, won my school's first year award and graduation prize in torts, and was president of the school's trial lawyer's association.

After law school, I worked for a Manhattan law office with a prominent personal injury practice, and published several articles on personal injury law. I managed a decent-size caseload, and settled or tried numerous cases.

After several years of commuting, I joined a Suffolk County law firm. I plan to stay here, raise a family, and build a successful career. With my current firm, we have solid matrimonial and business practices, and I am trying to build in the areas of employment and personal injury.

I am an extremely good personal injury attorney. I understand the law, and I am adept at valuing cases. I treat my clients with respect and compassion, and work hard to obtain the best recovery for them that I can. I can negotiate settlements, but also have no hesitation in trying cases to verdict when appropriate.

Divorce Lawyer - Happily Married

2011-11-15T11:37:00.001-05:00

Can you have a happily married divorce attorney? Of course you can - I am. I love my wife very much, and even if we fight divorce isn't on the table.

Divorce isn't a good thing. You may be looking at my site because you're in the middle of a fight, and things seem terrible, and your not happy - it happens. But should you get divorced?

If you're not sure, then the answer is probably no. It's not something to do lightly.

People do, however, get divorced. Some people are sure. However the marriage ended, it ended, and it's done.

As lawyers, whether as a divorce attorney, personal injury attorney, or many other areas, we help people move forward in their lives after bad things happen. Not on an emotional level necessarily, but with practical and financial matters.

So, if you are looking at this site wondering if you should get divorced, you're not going to find an answer. You can learn about the process, and what your rights are, but whether you should get a divorce is not something a divorce lawyer will help you with.

If you have decided to get divorced, I'm sorry to hear it, and I'm sure you have your reasons. Good reasons, bad reasons, your fault, their fault - whatever it is, I'm not here to judge.

You will need someone on your side throughout the process, who can protect your interests, help you understand what your legal rights are, help you make reasoned decisions, and not just be in your corner but get in the ring with you or for you as needed. That's what a divorce attorney is here for.

Divorce Attorney - Do-it-yourself divorces

2011-11-15T11:08:00.001-05:00

Driving back from court this morning, I saw a sign that said "Divorce: $399." Realize, the filing fee for starting a divorce action is $210, and the fee for getting a judge assigned is $95, and those are just the filing fees.

I generally charge $400 per hour, but I make money out of these sort of gimmicks. Not directly, of course, but when people do a DIY divorce, there is a chance they will later have to go out and hire a real lawyer to unravel the mess they created.

To resolve a divorce action, in addition to child custody and support issues,if any, you need to work out a distinution of assets and debts, and evaluate potential maintenance (i.e. alimony) issues.

Divorces can get extremely adversarial and expensive, but you are also dealing with issues that will significantly affect the parties family and financial lives.

You want the experience and insight of someone you can trust, who knows the law and the legal process, who will help you make informed and reasoned judgments, and who will fight for your interests.

Personal Injury Attorney - Liability First

2011-11-15T10:45:00.001-05:00

When I evaluate a personal injury case, my first concern is liability. Many personal injury lawyers focus too much on the injury. Damages are based on the injury, but there are no damages without liability.

Liability in a personal injury case is based on the law of Torts, i.e. the law governing compensation for damages caused by beaching a duty implied by the relationship between the parties. Tort Law is broader than just personal injury, and encompasses business and other relationships as well. A personal injury attorney, however, is generally dealing with mechanical injuries caused by often-replicated circumstances.

Thus, with many cases, a personal injury lawyer can assess liability with a fair amount of confidence. I have litigated complicated and difficult cases, and I am not opposed to it. If it is an interesting issue, or something where the client has really been wronged, I am happy to fight even knowing that the legal issues may be difficult and there may be a chance of losing.

From a business perspective, however, I want to take cases involving rear-end car accidents; pedestrian collisions; accidents caused by a drunk driver; or construction accidents where workers fell from a ladder or scaffold, or were hit by a falling object. With those types of cases, I can get results.

Business Attorney

2011-11-12T20:10:00.002-05:00

A business lawyer's greatest resource can be the clients themselves. Last week, I had a meeting with one of my favorite clients, and the guy constantly impresses me with his exceptional business accumen. Some very successful people make you scratch your head as to how they got where they are. With others, however, it makes sense.

Clients look to us for information, insight, and experience with the law and the legal system. Clients, however, know their own businesses and industries, and can often offer business solutions and strategic approaches that are outside of what most attorneys would think of when "thinking like a lawyer."

EMPLOYMENT ATTORNEY

2011-10-20T18:04:00.000-04:00

There are a few different methods for litigating employment discrimination and harassment cases. For a Federal title VII claim, you need to file an EEOC complaint and wait six months. With a state claim, you can either proceed directly in the New York State Supreme Court, or file an administrative complaint with the State Human Rights Commission. The EEOC and NYS Human Rights Commission have dual filing, so filing with one counts for the other as well. In New York City, there is a third entity, the NYC Commission on Human Rights, that functions similarly to to the State agency.

There are pros and cons to each approach. In general, the Federal Courts are efficient and push cases through relatively quickly. Although each judge is different, as a general rule Federal Judges are highly intelligent and analytical, and will carefully scrutinize the theory of liability under which a case is brought. Additionally, Federal Courts have a broader jury pool. On Long Island, Federal jurors can come from Nassau, Suffolk, or even Queens or Brooklyn.

State Court Judges can be just as intelligent, if not more-so, than their Federal counterparts, but they are usually dealing with a much larger case load. The effect is that discovery moves slower, and the State courts can be more tolerant of cases with less-crystallized theories of liability. Additionally, in a State court, your jurors all come from the county where you filed.

With the Division of Human Rights administrative hearings, or equivalent hearings in the City, there are no juries, but the procedure is simplified and, in some circumstances, expedited, as well as significnatly more friendly to pro se litigants.

PERSONAL INJURY ATTORNEY

2011-10-06T11:00:00.001-04:00

In some respects, personal injury lawyers can manage cases in a mechanical fashion. With car accidents, slip or trip and falls, and many construction accidents, personal injury attorneys deal with the same fact patterns over-and-over again, and are negotiating with insurance carriers who look at the cases as statistics.

In other respects, however, a personal injury lawyer needs to be able to make jurors, the defense attorneys, and the insurance adjuster, understand that their client is more than a mere statistic. The bulk of the money awarded in personal injury cases is for pain and suffering, and statistics do not suffer -- people do.

Thus, there needs to be a balance. In order to effectively maneuver a case towards resolution, a personal injury attorney needs to step back and process a case in an efficient manner. Evaluating liability, and the procedure for bringing a lawsuit, generally has little to do with the manner in which the particular individual involved in the suit was injured. At the same time, however, a personal injury lawyer needs to be able to seamlessly switch back from "robot" to "human" when speaking with or about their client.

Divorce Attorney

2011-10-06T10:46:00.002-04:00

With matrimonial and family llitigation, there is a fuzzy line between legal and personal advice. Divorce attorneys have an expertise and training in one, but usually not the other. For many issues, howrver, the two overlap.

Clients may ask how a particular decision will affect their "case," but often the more significant impact of that decision will be on the client's life, relationships, and overall well-being.

A divorce lawyer needs to be able to listen and understand the whole situation, along with the client's goals and concerns, and identify and seperating the legal issues from the personal ones. A lawyer's advice may include reiterating fundamental principals such as the "best interest of the child," but that advice can also include helpig the client identify the issues, or portions thereof, that are better addressed through personal reflection (and, perhaps, consulting with medical professionals, clergy members, or trusted friends/relatives).

BUSINESS ATTORNEY

2011-09-09T11:43:00.000-04:00

A business attorney can obtain three types of relief through litigation: equitable, legal, and declaratory. Equitable remedies, such as an injunction preventing a particular action, or an order requiring someone to perform a particular act (including transferring possession or title to property). Legal remedies, or remedies "at law," are money damages. Declaratory relief is an adjudication by the court of a party's rights, such as an interpretation of a contract.

Divorce Attorney

2011-09-06T11:36:00.000-04:00

When a divorce lawyer commences a divorce action, it is often done through a Summons with Notice, meaning that the other spouse will be served with a notice that an index number (i.e. file number) has been purchased with the court, but no documents have yet been filed with any substantive allegations. If what you are looking for is an opportunity to present a neutral third party with a laundry list of all the things that annoy you about your spouse, the venue for that would be therapy, Confession (or the religious counseling of your choosing), or (preferably) a heart-to-heart with your spouse.

When a marriage is irretrievably broken, divorce attorneys and the courts are concerned not with fixing the marriage, but rather with facilitating the parties' transition into separate lives and households. Aside from any child custody issues (which may or may not be addressed in the same proceeding), a divorce action is a winding-down of the financial partnership of a marriage. Your lawyer may file or defend an application for pendente lite relief, meaning interim relief while the action is pending regarding such issues as temporary child custody, use and occupancy of the marital residence, or continued support and maintenance from the more-monied spouse to the less-monied spouse. A divorce lawyer will assist you in preparing a statement of net worth, where you catalog your marital and non-marital assets and debts, and there may be discovery (i.e. depositions and document requests) regarding those assets and debts. Eventually, there is either a settlement or a trial, resulting in a Judgment that finalizes the dissolution of the marriage and unwinds the financial relationship between the parties.

Personal Injury Attorney

2011-09-02T11:30:00.001-04:00

A personal injury attorney enables a person who has been hurt in an accident to receive compensation for their injuries. The area of law that personal injury lawyers practice is known as Tort Law, which governs the non-contractual rights and responsibilities inherent in everyday relationships. In general, every relationship implies a duty of reasonable care under the circumstances. The scope of that duty, and what is considered "reasonable," depends on the nature of the relationship and various public policy factors.

While many people focus on damages, in my view a personal injury attorney should always focus on liability first. Many situations have been repeatedly addressed by the courts, providing guidance as to what does and does not constitute reasonable care. Decisions from prior lawsuits, as well as experience, help provide a guideline for the amount of money can be obtained for a particular injury, but without liability there is no basis for forcing a third party or insurer to pay that amount.

This is an area where I have substantial experience. My first few years as an attorney were with a law firm that focused largely on personal injury cases, and in law school I received both a first year award and graduation prize for Torts.

Employment Attorney

2011-09-01T17:28:00.001-04:00

Employment attorneys serve an important function. Many legitimate claims of employment discrimination or harassment are never reported, and many claims that are reported are not legitimate. Overall, however, the laws against discrimination based on race, sex, age, and religion have become ingrained in our social consciousness. Racial and gender bias, religious intolerance, and ousting older workers in favor of young cheap labor, is not acceptable. Employment lawyers help balance the application of these laws: providing an opportunity for employees who have been discriminated against to receive compensation, while at the same time protecting employers from overreaching and guarding against employment law becoming a general civility code.

Consumer Attorney - Hurricane Irene Power Outage

2011-08-30T11:37:00.001-04:00

Image from Nasa.gov, captured by the
GOES-13 satellite at 8:32 a.m. EDT
(Credit: NASA/NOAA GOES Project)

[Click here for the Public Service Commission general claim form.]

Multiple people have asked me about the idea of a lawsuit or class action against LIPA based upon their response to the Hurricane Irene power outage. A significant swath of the North Shore of Long Island has been without power for days, with minimal information as to when we can expect power restored. While some areas are being restored, reports suggest that in many locations the power outages caused by Hurricane Irene may remain out for the rest of the week, if not until next week.

Hopefully, LIPA is doing everything it can to get the power restored as quickly as possible and, when all the details are finally known, the utility will be lauded for its exceptional work. Ideally, New York will be able to provide the rest of the country with an example of how to prepare for and respond to a natural disaster.

Nonetheless, it is always good for people to know and preserve their rights. I have some experience with this area of law, having handled the initial filing of a number of cases related to the Queens blackout in 2006. (See Wikipedia; NY Times).

As a utility, LIPA operates under a Tariff with the State, which is basically the equivalent of its contract with its customers. Under LIPA's Tariff, "the Authority shall try, at all times, to provide regular and uninterrupted service," but it is not liable for "interruption of service to make permanent or temporary repairs." It is, however, liable for up to $150 in food spoilage if it "by mistake, does not restore service within twelve (12) hours to a Customer whose service it has disconnected intentionally" and the customer makes a claim within ninety days. LIPA Tarriff, Section I(C)(1)(a, f).

At common law, a utility is not responsible for losses caused by service outages except where there has been "gross negligence." Strauss v. Belle Realty Co., 65 N.Y.2d 399 (1985). The reason why utilities are only responsible for "gross" negligence, rather than ordinary negligence, is because, as public service providers, the courts decided “to limit the legal consequences of wrongs to a controllable degree and to protect against crushing exposure to liability” as a matter of public policy. Id.

Right now, we have no idea whether LIPA was negligent at all, let alone grossly negligent. What we do know is that there were numerous trees down, and undoubtedly a tremendous amount of work to be done to restore power in certain areas.

Anyone desiring to claim losses should preserve their rights by filing a PSC Complaint within ninety days. With such a large event, it would be appropriate for the Public Service Commission to conduct a review, and odds are they will. Although the Tariff does not explicitly cover this situation, the most comparable scenario, where LIPA mistakenly fails to restore power that it intentionally cut off, requires a complaint to be filed within ninety (90) days. In the event LIPA is culpable for failing to timely restore power, causing food spoilage (save your receipts), or there are power spikes causing equipment damage (which would be much harder to prove), the PSC process may provide some recovery for your uninsured losses, albeit likely not 100%. The PSC's general complaint form is here, or you can send a letter to: 3 Empire State Plaza, Albany, New York 12223.

Business Attorney

2011-08-22T18:23:00.002-04:00

Business disputes can be dealt with either before or after they happen. Where the lawyers draft a contract that anticipates potential problems, dealing with a dispute can be as simple as enforcing the agreement. When, however, an agreement is ambiguous, silent on an issue, or non-existant, even the best attorneys can disagree over the parties' rights.

Divorce Attorney

2011-08-22T18:22:00.000-04:00

The partners at my firm are all experienced matrimonial lawyers. I started working on divorce cases shortly before New York's new "no-fault" law went into effect. It is a unique area of law, and I have heard multiple judges refer to divorces a the "most difficult" cases in the Court system. A divorce is, procedurally, simply a lawsuit: an action is commenced, there's discovery, and if the parties are not able to resolve their dispute then a trial is held. The substantive law is also not particularly complicated. Most of the "law" is set forth in the governing statutes, and many issues are subject to common sense -- albeit fact-specific -- concepts such as equity, fairness, and the "best interest of the child."

What makes these cases unique, however, is the personal nature of the issues the clients are facing. As attorneys, our job is often to advise our clients and protect their legal rights when dealing with issues that are particularly difficult and stressful. In the context of a divorce, the issues faced by a client can be uniquely personal.

Personal Injury - Construction Accident Attorney

2011-08-21T22:26:00.002-04:00

Construction accident injuries involving ladders, scaffolds, and hoists are given special consideration through the worksite safety provisions contained in New York's Labor Law. These laws impose an affirmative obligation upon site owners and contractors to protect against gravity related risks. This area of personal injury law was one of my first niche practice areas upon becoming a lawyer. If you are interested in consulting with an experienced attorney in this area, please contact me. If you would like to learn more about New York's worksite safety laws, click here.

First Amendment Civil Rights

2011-06-12T11:11:00.002-04:00

The First Amendment, made applicable to State action through the Fourteenth Amendment, states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Among other things, including protecting public dissemination of information and opinions from unreasonable government interference, "the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006). "A plaintiff making a First Amendment retaliation claim under § 1983 [the statute permitting a private right of action for constitutional torts] must initially demonstrate by a preponderance of the evidence that: (1) his speech was constitutionally protected, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and the adverse employment determination against him, so that it can be said that his speech was a motivating factor in the determination. If a plaintiff establishes these three factors, the defendant has the opportunity to show by a preponderance of the evidence that it would have taken the same adverse employment action even in the absence of the protected conduct." Morris v. Lindau, 196 F.3d 102 (2d Cir. 1999).

In a First Amendment Retaliation claim, “the causal connection must be sufficient to support the inference e that the speech played a substantial part in the employer's adverse employment action." Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000) quoting Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775, 780-81 (2d Cir. 1991). Such causation may be established through a "showing that the protected activity was closely followed in time by the adverse action." Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996).

The damages that may be awarded in a First Amendment retaliation case include injunctive relief, compensation for economic loss (i.e., lost wages), attorneys fees, and emotional distress.

Emotional distress awards within the Second Circuit can generally be grouped into three categories of claims: garden-variety, significant and egregious.” Olsen v. County of Nassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009). The amount of damages in any particular case is a highly fact-sensitive inquiry, and the amount awarded is subject to judicial review. See e.g. Thorsen v. County of Nassau, 722 F. Supp. 2d 277, 292 (E.D.N.Y. 2010)(reducing $1.5 Million Award to $500,000 for a ‘serious’ emotional distress claim in the context of retaliation for supporting the losing political camp in an election); Phillips v. Bowen, 278 F.3d 103, 106 (2d Cir. 2002)($400,000 emotional distress award for First Amendment Retaliation based upon supporting an opposing candidate for Sherriff where “defendants' animosity permeated plaintiff's work environment). See also Long Island Legal News, "Jury Awards 350K in First Amendment Civil Rights Lawsuit.")

Constitutional Civil Rights Litigation

2011-06-12T10:54:00.004-04:00

I find Constitutional cases extremely interesting. In addition to providing an avenue of redress for people who have had their civil rights violated, these types of cases also deal with larger policy issues. The Judicial branch is an important component of our system of checks and balances, but it only works by deciding upon the cases and controversies that are presented by litigants. Thus, this is an area of law where, through litigating over harms that have been caused to specific individuals, the courts define the rights of broad classes within our society. The same can be said for any type of litigation, but in constitutional litigation the larger issues are more easily apparent.

The main articles of the Constitution deal mostly with the structure and administration of the Federal government as an entity. The Bill of Rights, however, is directed at the rights of individuals, and sets boundaries against governmental overreaching and intrusion. Initially, the Bill of Rights was only applicable to the Federal government, not the individual states (and thus not state and local entities, like police departments). The Fourteenth Amendment, however, made these rights applicable to state actors as well. Additionally, each individual state has its own constitution, which may provide broader protections than the Federal constitution.

THE FIRST AMENDMENT - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

THE SECOND AMENDMENT - A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

THE THIRD AMENDMENT - No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

THE FOURTH AMENDMENT - The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

THE FIFTH AMENDMENT - No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

THE SIXTH AMENDMENT - In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

THE SEVENTH AMENDMENT - In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

THE EIGHTH AMENDMENT - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

THE NINTH AMENDMENT - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

THE TENTH AMENDMENT - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

THE FOURTEENTH AMENDMENT (SECTION 1) - All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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New Job

2011-01-11T20:40:00.000-05:00

Announcing (after 6 months) my new job. (Read more).

File A Lawsuit: Drafting The Complaint

2010-11-26T16:50:00.003-05:00

Every complaint has the same basic framework. The idea is to tell the court, and your adversary, why you are seeking judicial intervention. You have to explain what happened, what you want, and why you think you deserve it. Thus, every complaint should do at least five things: (1) give a quick overview of the case; (2) identify the parties; (3) state sufficient facts to show that the plaintiff is entitled to relief; (4) explain the legal basis for the relief sought; and (5) explain what relief you are seeking. In addition, sometimes you are required to include in the complaint statements explaining that you are in the right court and you have jumped through all the required hoops prior to filing a lawsuit.

<< Format and Procedure || "Pleadings" Table of Contents || The Introductory Paragraphs >>

How to File a Lawsuit: Pleadings

2010-11-26T16:50:00.001-05:00

Although it is often considered merely administrative, drafting a pleading can be an art. In law school, I spent a while working part-time for a small firm that did mostly personal injury work. While I was there, they took on a complicated severence dispute. The plaintiff was an international finance executive who had gone blind from diabetes. He was pursuaded to resign with a reduced severance package based on the promise that he would also be receiving long term disability benefits. Then, his benefits were denied. Because employee benefits were involved, we had to sue in Federal Court under ERISA.

The complaint I drafted was very unlike the firm's usual fodder. I learned the area of law, read everything I could on drafting a pleading, and modeled it on samples from similar cases. The attorney assigned, however, didn't like it. She cut it down, took out the headings, and turned it into a list of vague, non-specific, allegations similar to the complaints filed for the firm's day-to-day car accident cases. After the now-gutted complaint was filed, the judge required it to be re-drafted, saying it was "not a model of clarity." The criticism stung, but I took some satisfaction in knowing that my original work had been right, or at least more in the right direction.

The point of the story is that "a model of clarity" is a good standard for any written work, and a pleading is no different.

TABLE OF CONTENTS

* Types of Pleadings

* Format and Procedure

* Drafting The Complaint

   - Intro Paragraphs

   - Jurisdictional Statement

   - Parties Section

   - Facts Common to All Causes of Action

   - Conditions Precedent

   - Causes of Action

   - Demand for Relief

Filing A Lawsuit: Types of Pleadings

2010-11-26T16:25:00.001-05:00

Pleadings are the first papers in a litigation, where the parties lay out their respective positions. The most basic pleadings are the complaint and answer. In the complaint, the plaintiff explains why they are invoking the court's jurisdiction and what their claims are. In the Answer, the defendant either admits or denies the plaintiff's allegations, asserts its affirmative defenses, and may also assert counterclaims against the plaintiff, cross-claim against a co-defendant, or third-party claims bringing in a new party.

A complaint initiates what's called a "plenary action," meaning that it's a broad-scope litigation following all applicable procedural formalities. The defendant can either move to dismiss or answer.

In New York State practice, there is a second round of pleadings called a Bill of Particulars, where the parties ask for more detail concerning the allegations of the complaint or affirmative defenses. Although bills of particulars are echanged (and at times supplemented or amended) during the discovery process, they are pleadings, not a discovery device, and so are really only meant to clarify the claims and issues.

Once an answer is received, there's discovery: first the exchange of documents and things, then depositons. In New York State practice, Once discover is completed, there's motion practice to determine what, if any, issues can be decided as a matter of law. Then, there's pre-trial proceedings; then a trial.

Other types of proceedings have their own pleadings. One example is a special proceeding, which is a summary proceeding wherein a hearing date is scheduled immediately. Landlord-tenant disputes, Article 78 proceedings,, and foreclosures are typical examples of special proceedings. The initiating pleading in a special proceeding is usually called a "petition" and the equivalent of an answer is usually called a "response and objections at law."

"Pleadings" Table of Contents || Format and Procedure >>

Filing A Civil Complaint: Format and Procedure

2010-11-26T16:22:00.001-05:00

A complaint is the standard pleading for a civil action. A complaint is a "short plain statement" showing why the plaintiff is entitled to relief. Plain, of course, does not necessarily mean boring, vague, or bland. The minimum requirements are not a goal. It just means not to include irrelevant garbage, character attacks, or emotive argument

Individual courts have different formatting requirements, so it is important when practicing in an unfamiliar court to review the local rules.

The summons serves as a cover page for the complaint, telling the defendants how long they have to Answer and notifying them of the risk of default. You can find a form summons relatively easily online.

The complaint should be in at least 12 point font, on regular letter-sized paper.

Unless the local rules require the law firm's name and address on the very top of the page (some do), the complaint starts with a caption, which lists the court and the parties. All of the parties must be listed. Next to the caption, the document is titled ("complaint" or "verified complaint"), and identifies the index or docket number.

Every paragraph, other than the opening paragraph, "wherefore" clause, and headings, is numbered.
The opening pragraph, as in many legal documents, identifies the speaker or speakers in all caps, and ends with a colon. "PLAINTIFF, through his attorneys, LAW FIRM, as and for a verified complaint, alleges as follows:" then the headings and numbered paragraphs begin.

The first paragraphs should be intro paragraphs, explaining what the case is about. Some courts will then require a jurisdictional statement, explaining why that particular court is a proper forum for the dispute. Then there is a section identifying the parties; then the facts common to all causes of action; then the causes of action; then the demand for relief.
A complaint is verified (some jurisdictions call it certified) if it is sworn to as true by one of the plaintiffs. If a complaint is verified, it can serve as an affidavit of merit. An attorney can make the verification if the plaintiff is not within the same county, but an attorney's verification has no probative value.

<< Types of Pleadings || "Pleadings" Table of Contents || Drafting the Complaint >>

Drafting a Complaint: The Intro Paragraph

2010-11-26T16:20:00.001-05:00

I generally put a preliminary statement in the first few paragraphs of every complaint. This preliminary statement is not long, but contains a few short, punchy, sound-bites. That way, when anyone looks at it, they can tell in a few seconds what the case is about.

The Preliminary Statement is a brief overview. Paint with broad strokes, and don't try to cram in every fact. The thing to be careful with, however, is not limiting yourself. Be sure to phrase things broadly and qualify facts with words such as "among other things," "including," "such as," or "for example."

A few of my cases have made national news. Without giving any comment, the reporters had a great quote right from the first page of the complaint. This can be extremely helpful in high-publicity cases, since as a general rule attorneys should keep their media comments to a minimum. Having done some freelance reporting and media relations work, I can tell you that reporters - like any other professional writers - appreciate a well-turned phrase. Sadly, that can be a rarity among practicing attorneys.

More important than providing information for reporters, you want to give the court and the other side a clear sense of what the case is about.

The complaint is the first basis the defendant, their attorney, or their insurer has for assessing the value of the case. Similarly, the first thing that happens in any trial is that the judge is given copies of the "marked" pleadings, which is a copy of the complaint and answer with notes in the margin as to whether each defendants admits or denies the individual allegations.

A great complaint gives a good first impression; a poor complaint gives a bad first impression. It is the first salvo in a litigation, and should suggest the quality and competance that can be expected from the plaintiff.

<< Drafting the Complaint || "Pleadings" Table of Contents || Parties >>

Drafting a Complaint: The Jurisdictional Statement

2010-11-26T16:18:00.001-05:00

Many courts require a jurisdictional statement. Always check the local rules. If something is required, put it in.

In New York State practice, a jurisdictional statement is not required, but it is customary when seeking money damages in the state Supreme Court to put a statement in the Demand for Relief that the anticipated damages exceed the jurisdiction of the lower courts. The New York State Supreme Court is a court of general jurisdiction: you can file any case, about anything (unless it is exclusively Federal), for any monetary amount. When dealing with smaller amounts, however, there are lower courts where, as a matter of administrative convenience, such cases should be filed. Cases below $25,000 belong in the County Courts ("Civil Court" in New York City); below $15,000 belongs in the District Courts; and below $3,000 should go to a small claims court. If you file in the Supreme Court, and the Judges feel the case should go somewhere else, they will send it to a lower court under C.P.L.R. 325(d).

The Federal Courts are where Jurisdictional Statements are typically required. For a Federal Court to have power to hear a case, it must be either a Federal Question (i.e. arising under either a Federal Statute, the U.S. Constitution, Maritime law, or a Treaty), or be between citizens of different states and involve more than $75,000 in dispute. See 28 U.S.C. § 1331 and 1332.

<< Intro Paragraphs || "Pleadings" Table of Contents || Facts Common to All Causes of Action >>

Drafting A Pleading: Identifying The Parties

2010-11-26T16:17:00.001-05:00

In the "Parties" section of the complaint, you should identify each party's legal name, any known aliases, and their residences (just the county, not the actual address). For a New York corporation, you can check their official name and address in the Department of State's online database. Many other states have similar databases.

This section has several practical implications. First, in New York, venue (i.e. what courthouse you go to) is usually based upon the residence of either of the parties. If the venue is inconvenient for the defendant, the court may consider a transfer or dismissal based on "forum non-conveniens." Thus, if the defendant has a connection to the venue, this is an appropriate section to include allegations such as that the defendant "resides in," "maintains its principal office in," or "regularly conducts business in" a particular county.

Second, if your case is a business dispute, the type of business entity makes a difference. There are different rules governing the procedures for internal disputes between owners, and the owners' individual liability to third parties, depending on what type of business entity is involved (i.e., corporations, partnerships, limited liability companies, professional corporations, etc.).

Third, sometimes a party can be misnamed or listed as John/Jane Doe. Misnaming sometimes happens, for example, when dealing with corporate subsidiaries. There are also a variery of situations where a John Doe defendant is appropriate, although in my experience the designation is over used.

If there's enough information in the complaint describing the proper defendant, even if there was a mistake in the name, it can make a correction go more smoothly. If the defendant had notice that it was the entity that should have been named, a later correction may "relate back" to the original pleading date, thereby avoiding statute of limitation problems.

<< Jurisdictional Statement || "Pleadings" Table of Contents || Facts Common to All Causes of Action >>

Drafting A Pleading: Facts Common To All Causes of Action

2010-11-26T16:15:00.001-05:00

Generally, the facts in a complaint should be very simple assertions, with each individual factual statement contained in its own paragraph. One fact per paragraph. The reason for this is that the answering party only has so many options. They can: admit; deny; deny knowledge or information sufficient to form a belief; or refer a question of law to the court.

The simpler your factual statements are, the harder they are to deny. In making your statements simple, avoid adjectives and compound sentences, which only give the responding party more things to disagree with. Using the disjunctive "or," such as "agent or employee," makes statements broader and more likely to be admitted. Similarly, any uncertaintly about a date should be qualified with "in or around" the Month, or "on or about" the date.

Of course, clarity comes first. One fact per paragraph is not always a hard-and-fast rule. It is not improper to have narrative paragraphs that tell the underlying story. Such paragraphs can be helpful in explaining what actually happened. When you write a paragraph like that, however, it can easily be denied. Thus, you should also put in seperate one-fact paragraphs stating hard simple facts that, taken together, lead to the inferences found in the more complex statements.

Overall, the facts contained in the facts section are supposed to be things that demonstrate entitlement to the relief being requested. Before deciding what facts to include, or how to phrase them, you need to understand the law that governs the claims you are making.

<< Parties || "Pleadings" Table of Contents || Conditions Precedent >>

Drafting A Pleading: Conditions Precedent

2010-11-26T16:13:00.002-05:00

In some cases, there are conditions precedent to starting a lawsuit. Where applicable, the fact that you have completed these hurtles should get their own section within the complaint. Some examples of conditions precedent include demand upon the board of directors in a shareholders derivative action, filing a notice of claim in an action against a municipality, and filing an EEOC or NYS Division of Human Rights complaint in an employment discrimination or harrassment suit. These requirements can be imposed by statute, or by contract, and will require a party exhaust their administrative remedies (i.e., complete an internal grievance or appeal procedure) prior to filing suit. This requirement is fairly common in employment disputes, insurance disputes, and when dealing with government agencies.

<< Facts Common to All Causes of Action || "Pleadings" Table of Contents || Causes of Action >>

Drafting A Complaint: Causes of Action

2010-11-26T16:12:00.001-05:00

A legal basis for relief is called a cause of action. Sloppy complaints will list facts in this section, not properly label each cause of action, or not include the actual elements of each cause of action.

If you are suing someone, you need a basis. Did they breach a contract, commit a tort, violate a statute? In the facts section, you described what happened, in the causes of action, you explain - in terms of the Law - why you are entitled to relief.

Each cause of action should be labeled. By labeled, I don't mean just "first," "second," "third." Claims always arise under either a statute or an area of common law to which the Courts have assigned a name.

If you think you are pleading a novel heretofore unrecognized cause of action, you are probably wrong. In the event you are correct, and you've come up with a never before seen legal theory, the Court will probably dismiss your case and explain that you haven't pleaded a legally recognized cause of action. Even in the extremely rare situation where you are actually dealing with uncharted legal waters, the courts will still operate within certain legal frameworks based on precedent. Where changes in society bring about new types of relationships, the conduct between those parties is still governed by either the common law of torts, a statute, a contract, equity, or some similar claim.

Most claims have "elements," meaning the items all of which must be proven to establish a claim. In a Negligence action, for example, the elements are: duty, breach, causation, and damages. Other claims, especially equitable claims, rest on concepts like "fairness," where the court will weigh various factors, not all of which are required. Asserting a cause of action, provided the facts are there to support it, is as simple as identifying each of these elements and linking them to the particular case. When asserting a statutory cause of action, parrot the language of the statute.

Asserting causes of action also becomes more complicated when you are dealing with multiple plaintiffs or multiple defendants. Each cause of action should designate which plaintiffs assert what that claim against which defendants. In a shareholder's derivative case, for example, the business owner may assert claims both individually and on behalf of the company, but the court won't accept such a hybrid complaint unless the individual and derivative claims are clearly distinguished.

As a general rule, you want to be over inclusive with the causes of actions asserted. It is easier to drop a cause of action than it is to amend the complaint to add one.

<< Conditions Precedent || "Pleadings" Table of Contents || Demand For Relief >>

Drafting A Complaint: The Demand For Relief

2010-11-26T16:10:00.001-05:00

WHEREFORE, this is where you tell the court what you are asking for. You are literally pleading for something. Some jurisdictions follow an old rule of practice where the demand for relief begins, after the word "wherefore" in all caps, "Plaintiff prays the Court enter Judgment against" the defendant. The more modern way to phrase it is "Plaintiff demands Judgment against" the defendant. However you phrase it, the point is the same. You need to specifically say what you want. Are you looking for compensatory damages, statutory damages, punitive damages, injunctive relief, a declaratory judgment, attorneys fees, costs, interest? If you don't put it in, you might not be able to claim it.

This section is organized in different ways for different cases. Like the opening paragraph, it is not numbered. Sometimes, a single unified paragraph will work for the whole complaint. Other times, each cause of action needs it's own damages paragraph, or there are seperate paragraphs for each defendent or each type of damages. Overall, the point is that you clearly state which plaintiffs are seeking what relief against which defendants.

When dealing with compensatory damages, the rule was formerly that you had to demand a specific dollar amount. A specific amount is no longer required, and the phrase ordinarily used is "in an amount that will fully and fairly compensate Plaintiffs for the damages they have suffered" or something similar. A specific dollar amount is still used in actions such as collection matters, or other actions where a set amount is readily capable of calculation. The advantage is that, in those cases, a default judgment can easily be entered for the amount demanded without the need for an inquest if the defendant doesn't answer.

Where damages are for pain and suffering, emotional distress, or other non-economic losses, however, you cannot avoid an inquest merely by putting a specific dollar amount. Some practitioners still put a dollar amount in these cases, mostly for shock value. By doing so, you are capping your damages, but the dollar amounts are usually so outrageosly high that it doesn't matter.

I am generally against putting a dollar amount where it is merely for shock value. Unsophisticated defendants may be surprised, and media outlets will almost always state the dollar amount if you put one in, but if the number is meaningless then it only serves as a distraction. At best, it is a meaningless number that draws attention to your case as something you deemed "serious" enough to put a large number on. More likely, however, the number sounds outrageous, you are playing a role in proliferating the inaccurate view of an out-of-control legal system, and you may have made an otherwise meritorious case sound frivolous.

<< Causes of Action || "Pleadings" Table of Contents" ||

Products Liability Case Discussed in NY Law Journal

2010-11-23T20:56:00.001-05:00

Almost two and a half years ago, back in June 2008, I wrote a post about the de facto merger doctrine. (Prior post here). At the time, I was working on products liability case where the issue came up. The case was hotly litigated. Not only had the company gone through several incarnations since the manufacture, there were also issues of third-party alterations, warnings, and everything you could think of in a defective product case. This Spring, the motions for summary judgment were litigated, and the Court found factual issues precluding summary judgment and permitted the case to go to trial. You can read the decision, here. Tonight, I'm reading through blog posts, and I come across an article on law.com, from the New York Law Journal, discussing the case! The article is by Steven F. Napolitano and Peter Luneau, entitled "Determining Successor Liability."

Personal Injury Attorney - Car Accident Appeal Decided by Second Circuit

2010-09-18T12:38:00.003-04:00

Most car accident cases are dealt with in State Court, but can occasionally end up in Federal Court if the parties are from different states and the amount in controversy exceeds $75,000. Thus, the Federal appellate courts rarely have an opportunity to address car accident cases.

Recently, I wrote and argued an appeal in the Second Circuit Court of Appeals. The lower court had dismissed the case on summary judgment, deciding it based upon papers without a trial, and the issue on appeal was whether the defendant (represented by their insurance company) had satisfactorily proved that the plaintiff did not meet the minimum "serious injury" threshold. Nearly all states have enacted a no-fault laws to the effect that everyone must maintain car insurance, and either parties' insurance has to pay the medical bills for anyone who is injured in an accident. The trade-off, however, is that people then cannot sue unless they are "seriously" injured, such as having sustained death, a fracture, loss of a fetus, etc. So-called "soft tissue" injuries can also be considered serious if they present a "significant limitation" or a "consequential limitation" to the person's everyday activities, or prevents them from doing substantially all of their everyday activities for at least 90 of the first 180 days following the accident. (The law is NY Insurance Law 5102).

In Luo v. Mikel, the plaintiff suffered a torn meniscus, had corrective surgery, and regularly attended physical therapy for three months. Although the lower court dismissed the case, on appeal the Second Circuit reversed and found that there was a question of fact as to serious injury. (You can read the decision at the Second Circuit website and Findlaw, and read coverage at the NY Daily Record). [Note: although I wrote and argued the appeal, it was through my old firm, and I take neither credit nor responsibility for all of strategic choices made in the case].

How to Negotiate and Settle A Personal Injury Case

2010-07-31T18:37:00.000-04:00

Most cases result in settlement. Some are dismissed outright, and a small handful make it to trial, but most cases are resolved through an agreement between the parties. Thus, the ability to value, negotiate, and settle a case is an incredibly important skill for a civil litigator. Valuing and negotiating a case is a difficult process, which requires experience and talent. Ultimately, the settlement value of any given case is what one side is willing to pay and the other side is willing to take. Sometimes, these amounts never meet and the case should be tried.
There are four major factors to consider when evaluating a personal injury case: liability, sustainable value, comparative fault, and collectability.
STEP 1: ASSESS LIABILITY

The first step in evaluating any case is liability: how sure are you that your side will win. In some personal injury cases, such as a pedestian knock-down or a ladder/scaffold failure, liability generally strongly favors the plaintiff. In others, such as most slip and fall cases, liability tends to favor the defense.

In some cases, where liability is clear for one side or the other, the case may be subject to dismissal or summary judgment, meaning that the judge looks at the undisputed facts and decides which side wins as a matter of law. In most cases, however, there are questions of fact and credibility that must be answered by a jury if the case does not settle. When a jury gets involved, there is always a level of unpredictability.
Once you've evaluated the odds of winning, that number should be assigned a percentage or a range of percentages. Knowing how likely you are to win, and what percentage your client will be held responsible, requires knowing the law, knowing both sides' arguments and evidence, and being able to objectively apply the law to the facts.
STEP 2: ASSESS THE DEFENDANT'S EXPOSURE

A defendant's exposure is the amount it will cost if the defendant loses the case: its worst case scenario. This value is derived by examining the sustainable value of the case (your best case scenario) and factoring in comparative fault. Conversely, the plaintiff's worst case scenario is losing and getting nothing.

A - determine the sustainable value of the case

To know what a case is worth, you need to have some idea of the full value under the best possible circumstances. In a personal injury context, there are often records of settlements and verdicts in cases with similar injuries. There are some commercial publications, such as the jury verdict reporter, but the most valuable records are published court decisions.

With most jury verdicts, the parties have a right to ask that the amount be reviewed by the trial judge and, if necessary, the appellate court. In New York State Court, the Appellate Division takes an active role in reviewing jury verdicts, and will lower or increase the award if it "deviates materially from reasonable compensation." The Federal Courts are less active in reviewing jury verdicts, and will only change an award if if "shocks the consience." Federal juries, however, must decide civil cases with a unanimous verdict of eight jurors; whereas a NY State jury in a civil case can issue an award with 5 of 6 jurors agreeing.

When the injury you are dealing with has been examined published decisions, there may be case law that provides a range of "sustainable value" for that injury. By "sustainable value," I mean the amount, if everything goes in your favor, that the court will let the plaintiff walk away with. One notable blog, John Hochfelder's New York Injury Cases Blog, focuses on discussing these decisions. As John often notes, the courts often leave these decisions purposely vague.

Every person, and every injury, is unique. Just as with evaluating liability, determining damages is as much of an art as it is a skill. The plaintiff's age and other unique factors (pre-existing conditions, unique limitations, etc.), are important to consider when comparing cases.
Juries generally award personal injury damages in two parts: past and future. Within that, the damages may further be divided into lost earnings and pain and suffering. To compare a case, you will need to break down this number by year so as to compare it to your plaintiff.
In examining comparative injuries, you also need to take into account the type of case and the venue. For example, a spinal injury is generally worth more in a construction accident case than in a motor vehicle case. With respect to venue, there are conservative counties and liberal counties. A Bronx verdict is not particularly informative when assessing the value of a Nassau County case.
B- If applicable, assess a range for comparative fault

In some cases, comparative fault (the plaintiff's level of responsibility) is not an issue. It is not an issue, for example, where the plaintiff was a passenger in a car, or where liability is "strict," such as in a ladder/scaffold failure. In contrast, comparative fault is nearly always an issue in slip or trip and fall cases.

When the plaintiff's fault is an issue, comparative fault can be one of the most difficult factors to evaluate. It is extremely fact sensitive, and something over which different people will have varied opinions. Also, many times, comparative fault overlaps with the liability inquiry.

The choice of law can make this inquiry particularly important. In personal injury cases, the law of the state where the accident happened usually governs. In New York, in most cases, a person can recover even if they are mostly (but not entirely) at fault, although the award will be reduced by their proportionate share of negligence. Other states, such as New Jersey, do not let the plaintiff recover if they are more than 50% at fault.
C- Do Some Math

The full sustainable value of the case, minus comparative fault, gives you a sense of the defendant's exposure. From that, you can determine a settlement range by discounting liability. Say a case has a full sustainable value of $750,000 to $1 million, but the plaintiff was 25-50% at fault and there's a 30-40% chance the defendant won't be held responsible at all. In that scenario, the defendant's exposure is between $375,000 (750k - 50% comparative) and $750,000 ($1 million - 25% comparative). Thus, the settlement value is between $225,000 (375k - 40% liability discount) and $525,000 (750k - 30% liability discount).

These numbers, of course, are fictitious, and would need to be adjusted to reflect the facts of any particular case. Realize also, both sides will likely have a different assessment.
STEP 4: COLLECTABILITY, LIENS, AND OTHER FACTORS

Often, defendants have limited insurance coverage. Because of the difficulty collecting a judgment, the reluctance of insured defendants to contribute to a settlement beyond their policy limits, and the fact that the average individual does not have significant assets, the insurance coverage frequently serves as a cap on the amount of money someone can receive. You can have a million dollar injury, but a basic $25,000 motor vehicle policy and an impecunious defendant, leaving no-where else to look for additional compensation (other than, perhaps, social security).

Liens may also pose a problem with settlement. Any Workers Compensation lien or Medicare/Medicaid lien must be paid from the client's share. These don't interfere with the settlement per se, but are factors that can make it more complicated.

Litigation cost can also be an issue. If a case goes to trial, both sides have to pay for doctors to testify, which can be expensive. This should never be a decisive factor, but it is (along with the unpredictability of a jury) a justification for the plaintiff giving a small discount to avoid trial, and the defendant offering "nuisance value" to make the case go away. Not all cases warrant such a discount, but in some situations it is appropriate.

STEP 5: NEGOTIATE

Negotiating a settlement is a back-and-forth process of demands and offers. The starting point is almost always absurdly low or absurdly high. You never start off telling the other side exactly what you want because then you have no room to negotiate.

Generally, the plaintiff leads off the negotiations with a demand. Having evaluated the case, the plaintiff's attorney should have a target number in mind, and will make a demand that is significantly higher than that. The defendant, in turn, responds to the demand with some sort of offer. Based on the defendant's response (the number will, of course, be extremely low), the plaintiff can get a sense of how the defense has valued the case.

Both sides will at least appear set in their ways, but that is just how attorneys work. It is not just an exchange of numbers, but also a discussion of the merits of the case.

Especially if your side has a strong case, you don't have to settle. One of the most pursuasive things you can say in settlement negotiations is that you want to try the case (as long as you mean it). In fact, some insurers will keep their offers low until you prove that you have no problem going to the jury; conversely, some plaintiff's attorneys will cave rather than take a case to trial.

As a case progresses through discovery, there are several instances where the parties exchange information. These are the ideal points to discuss the case with the other side and revise the demand/offer. Each move is goal-oriented. If you give your bottom line, you probably won't get it: they aren't telling you what they are really willing to pay; why should you tell them what you are willing to take?

Bidding against yourself, generally, is a mistake. When one side moves, its the other side's turn. That's just how it goes.

Choosing whether to accept or reject a settlement is up to the client. Some clients are risk takers, while some are risk-averse. It is important to get authority, to manage the client's expectations, and to make sure the client is on-board with your perspective of the case. That said, clients, generally, have no experience on which to value their own case. That's what they hired you for. It is up to you as their attorney to explain what the case is worth, and to make them feel confident that their attorney is fighting to get them the best result.

KINGS COUNTY (BROOKLYN) SUPREME COURT

2010-02-21T14:54:00.003-05:00

KINGS COUNTY (BROOKLYN) SUPREME COURT

360 Adams St.

Brooklyn, NY 11201

Phone: (718) 675-7699

Webpage

HISTORY OF THE COURTHOUSE

The courthouse located at 360 Adams Street is the ninth of Brooklyn's courthouses. The first was erected in 1668, four years after Brooklyn was seized from the Dutch. It was in Gravesend, the only area where the British had a solid foot-hold, . The Gravesend courthouse lasted twenty years, and was followed by a series of small courthouses in Flatbush. For one hundred and forty years, the Flatbush courthouse was continually rebuilt on the same site, with each version keeping the original stocks and whipping pole in front.

By the turn of the nineteenth century, "the Town of Brooklyn," now Downtown Brooklyn and Brooklyn Heights, had seen significant growth. This was attributable, in part, to the Fulton Ferry creating a reliable connection with Manhattan. The Brooklyn Bridge wasn't built for another 100 years. As soon as Town of Brooklyn received permission from the State to build its own courthouse, the residents immediately rented space in a library. Later, they rented space above a hardware store.

Finally, in 1846, Brooklyn's iconic Borough Hall was built. The statue of Justice, the building's most notable feature, however, was not added until a 1988 restoration. After less than twenty years of use, Borough hall was too small for the growing county's needs. As the civil war raged, a spectacular domed structure was built in downtown Brooklyn. It opened in 1865, and -- despite being overshadowed in the press by the impending Union victory -- received tens of thousands of visitors in its first few days. This courthouse served the County through the turn-of-the-century merger of New York City, but was demolished in the 1950s and 1960s.

The present courthouse, 360 Adams Street, adjacent to Borough Hall, was built in 1958. It is a "modern style" rectangular courthouse, with a limestone facade. The planning began in the 1940's as part of a larger project to rebuild the then-delapitated downtown Brooklyn. It was designed by the same architects as the empire state building, but was immediately criticized for its cold straight lines.

While the courthouse itself may place function over form, picturesque Cadman Plaza makes up the difference. On the east end of the park is Borough hall (which is nicely decorated for every holiday), and on the west end (near the federal courthouse) is a huge war memorial. Frequently, there is a farmers market in front of the courthouse.

In 2005, a new courthouse was erected at 330 Jay Street. It is a 32 story state-of-the-art skyscraper. Although the courthouse has 82 courtrooms, most of the supreme court civil cases are still handled at the 360 Adams Street courthouse.

FOOD

View Where To Eat Near the The Kings County (Brooklyn) Supreme Court in a larger map

(The map above is public, if anyone has additional suggestions, they are welcome to add them, both to the map and in the comments section)

Chipotle - incredible burritos, and supposedly healthy.

La Traviata - A tasty casual italian restaurant. I don't know if they still make them, but they used to have a terrific deep dish pizza. While you wait, you can snack on a bread basket and olive oil.

Five Guys Burgers - relatively new, but I liked it.

Clinton Market - There's no-where to sit, but they make a great sandwich. During law school, I pretty much survived on roast beef with cheddar on a roll.

Sushi Garden- decent, inexpensive, sushi.

Starbucks - I'm a big fan of the coffee, and the sandwiches and baked goods are usually very good. This particular Starbucks is usually very efficient. There may be seem to be a line, and it may seem crowded, but it tends to move quickly.

MontyQ's - Good service, consistently good pizza and pasta, a lot of seating, and a nice clean restaurant with a good atmosphere.

Fast food: There's a Burger King, Wendy's, White Castle, and a Subway in the Fulton Mall. There's also a McDonald's on Court Street. Burger Kings has the most seating, but tends to be crowded. Subway is smaller, but you can usually find a place to sit. Service at any of them is hit or miss.

Other: Every courthouse in the City tends to have a cart in front of it, and Brooklyn's cart is actually one of the best. Also, within the courthouse, on the main level (technically the second floor), there's a snack stand and soda machines.

A bit of a walk (Fulton Ferry, Historic Area, Brooklyn Bridge, etc.):

Grimaldi's - Frank Sinatra supposedly had pizzas from this place flown across the country. It's a good walk from the courthouse, but if you have a little time to kill, it's worth the trip. The pizza is unique: a thin fire-touched crust, with fresh mozzarella. Be aware, the "small" calzone will feed a family of four. (Alternate Website; Wikipedia; Citysearch; NY Magazine; About.com).

Brooklyn Ice Cream Factory - There's an old lighthouse at Fulton Landing that's been converted to an ice cream shop (or maybe it was always an ice cream shop, I really don't know). In addition to the best view of downtown Manhattan, the Ice Cream is fantastic. (NY Magazine); (About.com).

The River Cafe - I haven't been here yet, but I've always wanted to go. This restaurant sits under the Brooklyn bridge, jutting out into the water, and offers an incredible view of Manhattan.

PRACTICE NOTES

Note: court rules frequently change and these comments may be out of date. Be sure to check the local rules. Anyone reading this is free to add additional practice tips in the comments.

Motions- Substantive motions (not dealing with discovery) are made returnable to the assigned justice, each of whom has a set motion day (i.e. some judges only hear motions on Tuesdays, others on Thursdays, etc.). You can make the motion returnable on any day, but it may be automatically rescheduled to the assigned judge's next motion day. Motions for summary judgment in Brooklyn must be made within 60 days after the note of issue is filed (or 120 days, if the City is a party).

Discovery - Discovery is handled through relatively informal Preliminary Conference and Central Compliance Parts. Discovery motions are also returnable in this part, and are expected to be stipped out. If you can't agree to a stipulation, you'll be seen by a court attorney (all of whom really tend to know what they are talking about), and may have to wait.

Trial - Trials are bifrucated (i.e. split in two parts: liability and damages). There is a central trial assignment part, with the supervising judge rotating quarterly. In the trial assignment part, the parties answer either application (meaning they want an adjournment); conference (meaning they want a settlement conference); "ready" (meaning you're ready to pick a jury); or "ready pass," meaning you're pretty much ready to pick a jury, but just need to come back in the afternoon or a day or two. If you are ready to pick a jury, you have two options: first, pick and go, meaning you pick a jury and go immediately back the assigning judge, who then picks a judge to try the case in front of; or, second, "pick and pass," meaning you pick a jury and then they give you a date a week or two later to come back, get assigned a judge, and try the case.

OTHER WEBPAGES:

* NYC DCAS, http://www.nyc.gov/html/dcas/html/resources/brook_boroughhall.shtml

* NY Courts Historical Society, http://www.nycourts.gov/history/elecbook/Brooklyn_Ct_hse/pg1.htm

* Citizens Jury Project, http://www.moderncourts.org/CJP/Reports/pdfs/brokfacrep.pdf
* New York Personal Injury Law Blog, Photo Essay of Chambers

Personal Injury Attorney - Bar Fight Injury Triggers Dram Shop Claim Where Assailant's "Speech Was Slurred and His Eyes Were Red and Watery."

2010-02-07T13:35:00.005-05:00

The Appellate Division, Second Department, recently released its decision in Morris v. Bianna. The case involved a bar assault, and the Appellate Division found that there was a question of fact as to whether the assailant had been sold alcohol in a "visibly intoxicated" state, thereby making the bar liable under the Dram Shop Act. The strongest evidence in the plaintiff's favor was testimony from "the manager of the bar on the night of the occurrence ... that, when he observed [the assailant] shortly after he had stabbed the plaintiff, Penzo's speech was slurred and his eyes were red and watery."

As many of you may be aware, courts tend to take the path of least resistance. They won't, for example, address a Constitutional claim if they don't have to. Similarly, where there are multiple legal issues, appellate courts will often decide the case based upon the simplest, most straight-forward, argument.

In this case, there was another issue that the Appellate Division didn't comment on and, instead, left for the trial court. The Dram Shop Act, N.Y. General Obligations Law § 11-101, creates a private right of action against a drinking establishment for injuries caused by the unlawful sale of alcohol. Under Alcoholic Beverage Law § 65, unlawful selling includes sale to minors, to "any visibly intoxicated person," or to "any habitual drunkard known to be such."

This case had a solid "visibly intoxicated person" argument, but I also threw in an argument that the assailant was a habitual drunkard. There was plenty of evidence to support this but, to my knowledge, the particular issue had never been addressed in New York case law.

Every State has a Dram Shop act, and many of them are similarly phrased. They derive from an old English law. A "dram" is a British word for a shot. So, when the defendant made an issue of the fact that New York courts hadn't defined "habitual drunkard," I found a few courts that did.

Colorado and Florida's highest courts have squarely addressed the issue. The Colorado court found that "'known habitual drunkard' is a term of ordinary and common usage, and fact finders may apply its plain and ordinary meaning.... Whether a person is a habitual drunkard and whether the vendor of alcohol knew the patron was a habitual drunkard when served alcohol are factual inquiries based on the circumstances of each case.” K & S Corp. v. Greeley Liquor Licensing Auth., 183 P.3d 710, 713-714 (Colo. 2008). Similarly, Florida's court found that knowledge of whether a person is a habitual drunkard “can properly be established by circumstantial evidence,” and “serving an individual a substantial number of drinks on multiple occasions would be circumstantial evidence to be considered by the jury in determining whether the vendor knew that the person was a habitual drunkard.” Ellis v. N.G.N. of Tampa, 586 So. 2d 1042, 1049 (Fla. 1991).

There were also a few old cases that defined the term in contexts other than the Dram Shop Act. See Kendall v. Ewert, 259 U.S. 139, 42 S. Ct. 444 (1922)(a “known drunkard” is someone who is “generally recognized in a community as a common drunkard,” having “sacrificed themselves, to the craving for strong drink”); Sawyer v. Sauer, 10 Kan. 466, 471 (Kan. 1872)(“Proof of drunkenness so habitual as to be generally known in the community is sufficient to raise a presumption of knowledge.” )

Needless to say, the Appellate Division declined my invitation to decide a question of first impression in a relatively straight-forward Dram Shop case.

RELATED POSTS

* Establishments Serving Alcohol Can Be Held Liable For Injuries Caused By Intoxicated Patrons

* Drunk Driving Dunce Hat (Long Island Legal News)

How To Argue An Appeal

2010-01-23T14:07:00.003-05:00

Below are ten tips for appellate argument. The tips are: keep it simple; don't make unnecessary concessions; respectfully disagree with a hostile judge; focus on the issues; don't be a jerk; engage the court; be organized; use verbal signposts; use case law intelligently; and, above-all, be sincere.

* Keep it simple.

To be persuasive, you also need to be concise and straight-forward. No-one will be receptive to your argument if it's too drawn out to follow. Overall, put your best points up front to make sure they get out.
Prior to actually arguing before the court, go over the arguments again and again so that you can squeeze your best points into as few words as possible. Trim your argument down to your best sound-bites, and the rest will flow naturally. A short focused argument is better than a long and rambling one, and the simplest argument is often the most compelling.

Also, you don't always have to repeat everything in the briefs. Don't concede anything about your weak arguments, and be prepared for everything, but there is nothing wrong with focusing on the strong issues (or the ones that you feel the court will deem most important). If you are going to concentrate on one or two things, tell the court. You can say something like: Unless the Court has questions about the other issues, I would like to focus on X and Y. This is particularly helpful if you are the respondent in a scattershot appeal.

Different courts have different policies regarding time limits, and you should plan accordingly. For example, in lower New York where I practice, we have the First and Second Departments of the Appellate Division. In the First Department, time limits are relatively strictly adhered to, with colored lights signifying that you are running out of time. In the Second Department, they are more prone to being flexible with time limits, but you need to get the hint when the judges are suggesting that you sit down. Whatever the court's rules, you have a finite amount of time and need to make the most of it.

* Don't make unnecessary concessions.

The judges will occasionally cross-examine litigators with yes or no questions, trying to get them to concede points. On a rare occasion, such a judge is trying to help you strengthen your argument, or is using you to mouth their own argument in your favor. More often, however, the judge is trying to make you see the weaknesses of your case, or to concede something that may be fatal to your argument. I try not to say never, but be extraordinarily careful about conceding any issue during your argument. If you are going to concede a point, that decision should be made at the briefing stage, or at least prior to argument, not in the middle of your presentation. Don't press weak points, but you don't need to roll over if you disagree.

On the other hand, former Judge Wesley of the Second Circuit has argued that lawyers are often too-wary of conceding a point, thereby losing credibility with the court, saying "I would think that you would immediately concede it, if you're convinced that the judge is right and then immediately distinguish it." (NYLJ).

Overall, whether to concede a point is a fact-sensitive issue, and should not be done lightly. If you don't agree with what the judge is saying, you should confidently say so. If you think the judge may have a point, the best approach is to treat the question as meaning: even if this were true, why should you still win?

* Respectfully disagree with a hostile judge.

Dealing with a judge who clearly opposes your case is possibly the most difficult part of arguing an appeal. Most often, unless there is also a judge who seems to be on your side and they decided to play good cop/bad cop, an overtly hostile judge may signal that at least that judge (if not the entire panel) will side against you. If no-one else on the panel is bolstering your argument, they didn't give your adversary a hard time, and one or two judges attack your arguments vehemently, the panel is probably going to side against you.

At that stage, when you see a loss looming, don't give up. Don't unnecessarily drag it out, but your client has a right to be heard. Not only is it possible that you are misreading the judges, but in an appeal your arguments have a broader implication than just the case before you. Even if the judges disagree, you need to make sure they understand and respect your reasoning and issue a decision that is not bad precedent. Possibly, if your arguments are strong enough, you'll get a dissent. There are judges -- albeit relatively rarely -- who are more timid and won't speak up against a colleague during oral argument. Moreover, although the merit of an appeal is usually decided based on the briefs, there is always a possibility that a strong argument will sway one or more judges.

"With all due respect," is a phrase that very strongly signals that you disagree with someone. It can be seen as a polite F-U. I recently used it where a judge kept cutting me off, and the judge quickly cut me off again and said "the respect is implied counsel." (He then compared me to Charlie Brown listening to his teacher - but that's neither here nor there). The phrase "with all due respect" generally does not help you persuade the judge you are speaking to, or any that agree with that judge. It is adversarial, and its only real purpose is to draw the attention of any other judges on the panel who may be leaning (or teetering) in your favor.

* Focus On The Issues

Generally, appeals involve questions of law, and the judges are already familiar with the record and the issues. Get to the point, and stick to the real issues. It is not a jury argument, and shouldn't be treated like one. Be concise and straight-forward.

As a general rule, do not overtly appeal to sympathy or other emotive factors, but this rule very flexible and depends on what issues you are dealing with. When the panel is reviewing a jury verdict, for example, your argument may sound similar to a dense, evidence-focused, closing statement.

I watched a rather entertaining argument a couple months ago where a local Brooklyn business purchased an investment property at a foreclosure sale. The property had been owned by a rich old woman, there had been some confusion with the water bill, and it eventually went up for a foreclosure sale without the woman realizing it. The business was obviously a good faith purchaser, and had no knowledge that the woman intended to pay the bill. The old woman, however, wanted the building back because it had sentimental value (she grew up in one of the apartments) and wanted it to be part of a bequest in her will towards a complex for a medical school.

The lower court put a hold on the sale until a hearing could be held as to whether the woman's default could be vacated, and the business appealed. An overly-cocky lawyer represented the business, and started with a story about how he went to his son's class for career day and explained what lawyers do. The story had some moral about telling the truth, and the argument was that the other lawyer was lying about having served papers. While the lawyer snarkily grinned with pride that the judges let him finish his story before lashing into him, I thought to myself: I hope this guy didn't sound as sleazy when he spoke to his son's class.

Starting off with a story, and accusing the other side of lying, really didn't seem to sit well with the court. In fact, may have made the panel more sympathetic to the other side. Since the issue was whether the lower court had the equitable discretion to set aside the foreclosure, focusing on the grey area of credibility rather than black-letter law may have been very poor move.

Not helping the Old Lady's side, of course, was that her lawyer was a hot mess. The two attorneys were like Felix and Oscar. The Old Lady's lawyer argued that he had personally filed and served documents (which neither the Court nor opposing counsel received - but he was apparently permitted to submit during argument below), but the clerk had lost them and opposing counsel was lying. He refused to accept even the possibility that he didn't send them, despite the fact that it probably would have been easily excusable. Adding to this, the business had appealed from a motion to renew/reargue, filing two seperate briefs rather than consolidating, and the old lady's attorney didn't respond to the second appeal because he had changed offices apparently forgot to forward his mail.

As entertaining as it was watching this train-wreck of an argument, neither side squarely addressed the main issue of whether the lower court had equitable power to halt a foreclosure sale after the auction was already complete.

* Don't be a jerk

As you may have gleened from the story above, courts don't like when one lawyer attacks another or makes anything unduly personal. If you think the other lawyer or the lower court deserves to be chastised, let the court do it sua sponte. There's an old saying: if the facts are in your favor, pound on the facts; if the law is in your favor, pound on the law; if all else fails, pound on the table. Those are your choices (the table being policy or sympathy) and attacking anyone personally is not one of them. It's unprofessional, discourteous, and generally a bad idea.

I had a client once -- a law school graduate who, until then, had appeared pro se -- who had been granted leave to move for reconsideration in the Appellate Division on a legal issue of national significance. I came in to handle the reconsideration motion, with an eye towards going to the Court of Appeals. Rather than focusing on substance, the client insisted on personally naming and attacking court personnel, whom he believed had made technical administrative errors. Eventually, we parted ways, he argued on his own and apparently didn't heed my advice. Despite having a very winable appeal, the outcome was scathingly against him.

I had another case where my adversary's arguments - despite winning in the court below - bordered on frivolous (and only became moreso with time). He seemed to be doing his best, but it was just bad. Rather than asking for sanctions, or criticising him, I focused entirely on the merits. I argued that not only was the lower court wrong for granting the defendant summary judgment, but the Court should search the record and give my client judgment as a matter of law. The record was sparse, but I suggested that my adversary would concede that certain facts were not in dispute (and he did). My client wound up with a judgment overwhelmingly in his favor, and I'm convinced it would not have gone so well if I hadn't taken the high road.

* Engage the court

Justice Scalia and Brian Garner wrote a book on appellate advocacy called "May It Please The Court," in which they suggest that oral argument is your opportunity to participate in the judges' deliberating process: listening to each judge's concerns and addressing them. It is one of the best books I've seen in this area, and the approach is well taken.

You need to make listening a priority, both with respect to your adversary and the judges. When a judge asks a question, answer it immediately. If necessary, make a quick note (such as a little star in your outline/flow-chart) to remind you to finish what you were trying to say. If you're good, you'll be able to weave your response seamlessly into your argument without losing your flow. The outcome of deferring or ignoring a question will be that the judges will either jump down your throat, or completely ignore everything else you have to say.

In the end, the outcome you want is an opinion in your favor. In your argument, you should be giving the judges fodder to use in crafting their decision. If you're lucky, one of your sound-bites will be adopted. I once received a decision that copied the preliminary statement from my brief almost verbatim. You will almost never see your advocacy explicitly complimented in a written decision, but being quoted (even if its not attributed to you -- which it won't be) is a huge compliment.

* Be Organized.

Don't read a prepared statement and think that's an argument. That is obvious advice, but it doesn't mean that you should "wing it." You need to plan out your argument, know which are your best points, and be prepared to jump around in response to the judges' questions.

When I argue, I use a flow chart. I put the main topics in bubbles, with sub-topics coming out on spokes (and key case names next to their respective sub-topic). I rarely look at the chart, since it's really a proxy for what's already in my head, but it has come in handy for planning out the argument. Then, before finishing, I can glance at the chart to make sure I've covered everything.

Whatever notes you use, keep them to one or two pages that you can place face-up on the podium. No-one wants to flip pages. One of the most common strategies is writing your notes on the inside of a manilla folder, which you can also put the briefs in.

On those same two pages, save room to make notes about your adversary's argument. I keep my flow chart on one page, then on a second page I make a line down the middle. Notes on my adversary's argument go on the left; my rebuttal points, if necessary, goes on the right.

Flag the record. Generally, you will not need to reference a specific page in the record during an argument. The judges have already been directed to the important documents or testimony by your brief, and usually won't ask you to point to a page number. It does happen, however, and it happens because there is something important on that page.

Sadly, all too often during oral argument, there will be a minute of awkward silence as a flustered attorney flips through pages on the verge of tears, then says "I know it's in here somewhere." Any documents or testimony that you think are important should be flagged and labeled with post-its. In the unfortunate event you do look for something in the record and can't find it, play it cool, give the best description you can of what it is and where it's found, and move on. In reality, it's probably not as big a deal as you think it is.

If you need to know a lot of cases, make one or two word notes in the table of authorities. That way, if a judge says what about such-and-such case, and you have no clue which case it was (which happens, despite best efforts), you have a readily available memory cue.

* Use Verbal Signposts.

If you want to get out three points, say something to the effect "there are three main issues I would like to address: first... ". This way, the judges know where you are going. Be careful, however, not to promise to talk about three things and only get to two.

If you are addressing your adversary's argument, reference it to let the court know what you are doing. If you are going back to a topic that a judge previously asked about, say something to engage that judge (especially if they are seemingly on your side).

* Use Caselaw Intelligently

This seems obvious, and you probably already did a lot of the work in your brief, but the back-and-forth of oral argument inherently gives legal discussion more depth.

You need to know the comparable cases extremely well, especially those that are binding on the court you are in front of. If possible, you should read underlying and subsequent decisions that give more detail on key cases. Frequently, the facts of a given case are described in very general terms, seemingly similar to your case, but key distinctions reveal themselves with further research.

Whenever you are discussing precedent, keep it closely tied to your own case. Your job when dealing with precedent is to compare and contrast relevent cases, not just explain them.

Update your research. There is always a lag between when briefs are filed and when the appeal is argued. If there is intervening case law that is on point, from the jurisdiction you are in front of or one that's binding on it, you should bring it to the court's attention. In the First Department, they provide you with index cards to write down any additional citations for the court. In any court, you can always bring it up during argument.

* Be sincere.

You are an advocate, and you should believe in your client's position. If you don't, perhaps someone else should do the arguing. Even if you don't agree with everything, and believe the court is going to side against you, there is always at least one point that deserves to be made clear. If necessary, focus on that, and build your argument around it. Policy arguments are the weakest type of argument you can make, but fundamental fairness and the rule of law are still at the heart of every good argument.

I watched an argument a few weeks ago where one side responded to progressively stronger requests that she sit down with statements such as "one last thing," followed by another minute or two of talking. Her adversary, on the other hand, agreed with nearly every yes or no question that was posed to him, even when the answers didn't help his client and were not things he had to agree with.

The two were actually rather skillful and experienced advocates. One was from a District Attorney's office, the other from a legal aid organization. They both likely knew that they were bending the "rules," but were engaged in passionate and sincere argument, which generally trumps any black-letter rules so long as it is done respectfully. There were a lot of examples of what not to do, but overall it was a great argument because both attorneys seemed to realy believe in their case and made good points.

RELATED POSTS:

* New York Motion Practice
* Notice of Entry and Notice of Appeal

LONG ISLAND CONSTRUCTION ACCIDENT ATTORNEY

2010-01-02T11:13:00.020-05:00

Injured construction workers, in addition to workers compensation, often have a right to bring a lawsuit against the property owner and the general contractor. New York's worksite safety laws make the owner and general contractor responsible for

* Injuries Where A Worker Falls From a Height

* Injuries Caused By Falling Objects; and

* Injuries Caused By Industrial Code Violations

I have extensive experience representing injured construction workers. I have brought these cases to trial, and have argued notable appeals, including Zheng v. Cohen, 52 A.D.3d 801, 861 N.Y.S.2d 717 (2d Dept. 2008), where the court found that the question of whether a property is a one- or two-family dwelling could be sent to the jury; and Stawski v. Pasternack, 54 A.D.3d 619, 864 N.Y.S.2d 412 (1st Dept. 2008), where the court found that falling object liability applies even where the object was not actually in the process of being hoisted or secured at the time it fell.

Personal Injury Attorney - Construction Accident Liability Clarified By Court of Appeals In Runner v. New York Stock Exchange

2009-12-22T08:58:00.006-05:00

The Court of Appeals recently issued key a Labor Law 240(1) decision clarifying the meaning of the statute. In Runner v. New York Stock Exchange, the plaintiff injured his hands when he was asked to lower a large reel down a staircase using a make-shift hoist. Rather than loading the reel onto an actual hoist or pulley, a rope was tied around it, which was strung over a wooden rail, and the plaintiff was asked to hold one end of the rope to act as a counterweight. The matter went to trial in a Federal District Court, went to Second Circuit, and the Second Circuit certified the legal issue to the New York State Court of Appeals.

Defendants argued that, for Labor Law 240(1) to be applicable, "gravity must operate directly upon either the plaintiff or upon an object falling." The Court of Appeals responded, however, that ""the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." Labor Law 240(1) was applicable because "a pulley or hoist should have been used."

The defense bar constantly tries to limit the scope of this stutute. It is a broad statute, covering gravity-related risks, and requires owners and contractors to provide safety devices to guard against that risk The Court of Appeals did not express any new law, or new interpretion, but, rather merely once again rejected an attempt to create a bright-line rule where none was necessary. Although the "de minimus height differential" argument is sometimes used as a manner of expressing that a particular circumstance did not present a gravity-related risk, at no point have New York's Courts expressed any sort of minimum height differential. In fact, "falling object" cases have been upheld where the fall was, essentially, horizontal.

Over at the New York Civil Law Blog, Matt Lerner points out that the Court focused on the nature of the object being hoisted or secured. The nature of the object is not a new consideration -- notably, in cases such as Outar v. City of New York, the Court has previously commented on objects being the type of object that requires securing -- but it is an under-appreciated factor that the Court makes plain is very relevant to the Labor Law 240(1) inquiry.

Eric Turkewitz at the New York Personal Injury Law Blog notes that this decision is part of a trend away from defense oriented decisions. A lot of it has to do with which cases the Court of Appeals chooses to hear, but there has been a trend. Looking at the leading Court of Appeals decisions over the last five years, six of eight -- Runner, Quattrocchi(2008), Sanatass (2008), Broggy (2005), Outar (2005), and Stejskal (2004) -- have been Plaintiff friendly; in the five years prior to that, however, only two of five were found in the plaintiff's favor.

Personal Injury - The December 2009 Blizzard

2009-12-20T20:15:00.007-05:00

One of the things that makes being a lawyer interesting is that you need to learn a wide variety of things. If applicable to your case, you need to learn medicine, engineering, and -- meteorology.

We just had our first blizzard of this Winter, so this is my snow-related post. Cases involving slip and falls on snow and ice require developing a theory as to why a third-party is responsible for the person who slipped's injuries. You could end up, a summer or two from now, trying to explain to a mid-July jury that snow starting late-afternoon on Saturday December 19th, fell lightly for a while, then took a break after about an inch, picked up again as it got dark, and by Sunday afternoon there was 26" on the ground in Suffolk out on Long Island, and 11" in the City.

The theory could be that a driver didn't take extra care on an icy road; or that someone failed to shovel or plow a public sidewalk; or shoveled but didn't salt, leaving ice behind; or - if temperatures rise above freezing, as they are supposed to - didn't salt after a partial thaw to prevent black ice from forming from the re-freeze.

So, there's the legal angle, but talking about injuries is depressing.

Snow is fantastic. It looks cool, it's fun to play with. For a little while, you can pretend you are out on a glacier (glassy-er) with Bear Gryllis; on Hoth or some othe Sci Fi Ice Moon; or foraging with primitive man during the ice age. You can do something romantic with your wife, make a fire and smores, go sleigh riding, have hot-cocoa, or take your dog out to play. The blizzard coincided with the US airing of the newest Doctor Who special, "Waters of Mars." And, there's going to be snow on the ground for Christmas!

RELATED POSTS:

* How to Protect Your Legal Rights If You Slip and Fall On Snow and Ice
* Slip and Falls on Snow and Ice
* Should I Hire An Attorney?

AROUND THE WEB

* Long Island Legal News, "Slip/Trip and Fall Appellate Division Decisions."
* Huffington Post, "2009 Blizzard As Seen From Space."
* Slaw, "The Law of Winter."
* NY Times, "Commuters Still Feeling Effects of Snow."

AND... SOME FUN PICTURES AND VIDEO

Personal Injury - The Workers Compensation Lien, In A Deficiency Scenario, Unfairly Usurps Personal Injury Recoveries

2009-12-19T15:30:00.004-05:00

Worker's compensation is a great idea. In it's modern form, it is a mandated insurance program whereby people who are injured at work, regardless of fault, can have their medical bills paid and recover for lost wages. In exchange for this protection, workers cannot sue their employers. In the U.S., these laws originated in the early twentieth century, and by 1948 every state had a worker's compensation scheme.

In cases where there is a third-party at fault for the worker's injury, and the injured worker brings a personal injury suit, New York law gives the worker's compensation insurance carrier a right to recover from the personal injury proceeds the amount it paid or is obligated to pay. When this happens, the worker's compensation lien is reduced by a proportionate share of the litigation cost (i.e., attorneys fees and expenses). This issue regularly arises in construction accident cases, and frequently occurs in other types of cases as well.

In some cases, where the worker receives full compensation, and is not permanently disabled from work, the lien is fair and prevents double-recovery for lost wages and medical expenses. The same fairness, however, would be accomplished by allowing a collateral source set-off for worker's compensation payments.

The more problematic case arises where issues of comparative fault, questionable liability, or limited insurance prevent full recovery, or where the injured person has a permanent disability and will be receiving permanent worker's compensation benefits. In those cases, the worker's compensation lien can create a terrible inequity. When the worker recovers less than the lien amount (after reduction for the full litigation cost), the compensation carrier has a right to take the worker's entire share of the recovery. Where the worker's compensation carrier is paying continuing benefits, the compensation carrier has a right to its full lien (minus a proportionate share of litigation costs), and can also take a credit against future benefits (i.e. go on a "holiday") in the amount of the worker's recovery from the at-fault party. (See Burns v. Varialle; Sheer v. State Ins. Fund). Essentially, it is possible for the worker to go through an entire lawsuit, perhaps appearing for depositions or even trial, and then receive nothing other than a lump-sum advance on worker's compensation benefits they would have received anyway.

Medical insurers used to be able to do something similar, asserting a subrogation lien against personal injury recoveries for benefits they had paid, but New York recently passed a law rendering such liens void. (Coverage Counsel; NYPILB; Cent. NY Injury Blog).

The reasoning behind this new law, that the insurer received premiums in exchange for its payout obligation and it is unfair for the insurance company to benefit at the expense of the injured party, is equally applicable to worker's compensation insurers. Indeed, in a medical insurance context, the collateral source rule (desribed above) applies to prevent double recovery. The new law, however, does not apply to worker's compensation insurers (whose lien is protected by a seperate statute).

Accordingly, I submit that the State Legislature should consider an amendment to the Worker's Comp Law similar to the recent law affecting medical insurers. The collateral source set-off approach still avoids double recovery, but is preferable for plaintiffs because it accomodates pain and suffering compensation in a disputed case notwithstanding a large reimbursed for economic losses.

Harlan Ellison Star Trek Lawsuit

2009-12-01T21:15:00.001-05:00

Many Sci Fi blogs have reported that acclaimed Sci Fi author Harlan Ellison recently stated that he would like to write the sequel to J.J. Abrams' Star Trek reboot. (See ScreenRant). The comment may have been half-sincere, half tongue-in-cheek, but who knows.

Ellison has an interesting history with Star Trek. In March, 2009, Ellison sued Paramount for failing to pay him royalties for an episode of the original series that he wrote. The case settled on November 17, 2009. Now, less than two weeks later, he is saying that he'd like to write the next movie (apparently indicating that Roddenberry had approached him a long time ago with the idea of writing a movie, and he already has some ideas).

(Read More at Sci Fi Scholar).

Another Big Victory In The Fight Against Illegal Overdraft Fees

2009-11-12T19:43:00.000-05:00

Hat-tip to the CL&P blog, the Federal Reserve has finally approved a rule curbing abusive overdraft fees. Starting July 1, 2010, banks will no longer be allowed to charge overdraft fees for ATM or one-time debit/credit transactions. You can read the whole rule, with commentary, here, or the cliff-notes version here.

RELATED POSTS:

* US Supreme Court Signals Shift In Federal Pre-Emption

* Bank of America Settles NSF Fee Class-Action

* June 27, 2008, "Week In Review," (the Federal Reserve is now considering a rule to curb abusive overdraft fees by banks).

* May 7, 2008, "Debit Cards and Overdraft Protection: The US Allows Banks To Steal 10 Billion Dollars Per Year From The Poor."

* August 31, 2007, "The UK Takes Steps to Curb Illegal Overdraft Fees, But US Efforts Have Not Been So Well Received ."

Construction Injury Trial On The One- Or Two- Family Dwelling Issue

2009-11-09T08:27:00.005-05:00

I just finished a trial in Queens. It was a construction accident case, and the issue was whether a property consisted of a one- or two-family dwelling.

Under New York's construction site safety laws, specifically Labor Law 240(1) and 241(6), owners and general contractors are jointly responsible for certain types of construction accidents. This rule does not apply, however, to owners of one- or two-family dwellings who do not direct or control the work.

In this case, my client had fallen through an unprotected floor opening and was severely injured. The general contractor did not have proper insurance, and had gone out of business (leaving no assets to go after). The only viable defendants were the property owners, a retired couple.

The owners had torn down a one-family ranch and were building two two-story houses on the lot. They had not yet received a certificate of occupancy, but the plans and permits listed the structures as two one-family houses. Each house was initially supposed to have five bedrooms, but the plans were later changed (after the complaint was served) so that each house had three bedrooms. One was supposed to have two full and two half baths; the other was supposed to have one full and three half baths.

In those houses, the owners claimed that they would reside in one; their oldest son (42 years old, who paid approximately half of the construction costs) would become the owner of other and live there with his wife and two kids; and the two other adult sons would rent rooms from either their parents or older brother. There was no set "rent," but the brothers (in their 30's, both recently laid off) would pay what they could afford. My client was injured in the house that the owners claimed they intended to occupy.

We suspected that the owners either planned to sell the property for a profit, or have additional tenants, but they flatly denied it during both their depositions and at trial.

As part of the project, the parents established a home owners association creating various easements over the lots after they are formally divided. The home-owners association by-laws contemplated tenants on the property, sale of the property, and possibly building a third house or buying another adjascent house in the future.

This case raised an unsettled issue of New York law: was this purported family compound a one- or two-family dwelling?

There are several cases from the New York Court Of Appeals addressing the one- or two-family dwelling exception. Under these cases, the issue depends on the "site and purpose of the work." Stejskal v Simons; Khela v. Neiger). Where the construction project involves multiple structures with "arguably unifying features," the intended occupancy of the structures can be combined. (Mandelos v. Karavasidis). The one- or two-family dwelling exception is an affirmative defense, and the defendant has the burden of proof. (Van Amerogen v Donnini).

In addition to intended occupancy, there was also the issue of commercial use. The homeowner's exemption applies where the project is "undertaken solely in connection with... residential use, even if the construction "may have fortuitously affected another area of the property that was used for commercial activities." (Cannon v. Putnam). The exception does not apply, however, if the one- or two-family dwelling is used "solely and exclusively" for a commercial purpose (such as preparation for rental or sale). A property can be consider "solely and exclusively" commercial even if it is also the owner's primary residence. (Lombardi v. Stout; Van Amerogen). The Court of Appeals has not announced a rule for situations where the distinction between commercial and residential use is a matter of degree.

Although it was a thorny issue, the trial seemed to be going in my favor. The property owners were hostile during cross-examination, and were caught making several misrepresentations. For example, the husband had claimed during his deposition that all three of his sons were single and lived at home; at trial we heard that the oldest son had been married for ten years and lived on hid own. The wife authenticated blueprints on direct, laying a well-rehearsed foundation; on cross, however, she admitted that she had only seen them once several years ago and had no idea what she was looking at. She also equivocated about whether the basement was divided into seperate rooms, and where the younger sons were going to live.

As the trial continued, the defendants moved off from their nuisance-value offer. After significant discussion (and my firm's managing partner coming in to close the deal), we agreed to a high-low settlement: agreeing not to go after the defendants' individual property if we won in excess of the insurance policy, and guaranteeing our client a not-insignificant amount if we lost. As part of the high-low, both sides waived their right to appeal.

Prior to closing arguments, both sides moved for a directed verdict. In addition to the Court of Appeals cases above and others, I relied on a recent case from the Third Department, Nudi v. Schmidt, which found that renting to an adult child can be considered a commercial purpose. Defendants relied largely on Baez v. Cow Bay Construction, a 2003 Second Department case finding that the homeowner's exception applied where a family had torn down their old house, built two one-family homes for the family to live in, and put the properties in a corporate name but insisted that they intended to live there.

Before closing arguments, both sides moved for directed verdicts, and the court dismissed the case as a matter of law. We knew it was a possibility, but it was extremely disappointing. I felt we had a solid argument that: first, the anticipated occupants -- two couples and two grown men -- counted as more than two families; and, second, the occupants, although related, had a business arrangement that made the construction predominantly commercial.

Was the judge right?

RELATED POSTS

- Construction Accident Attorney[Violations Of The Industrial Code]
- Construction Accident Attorney [Falling Workers And Objects]
- One- Or Two- Family Dwelling Exception
- Out Of Possession Landlords Are Still Responsible For Construction Accidents
- Court Of Appeals Clarifies That Construction Safety Laws Apply To "Cleaning" Activities Even When Not Related To Construction

Protect Insurance Companies -- Funny Or Die PSA

2009-10-12T19:43:00.002-04:00

Is that... Will Farrell and Don Draper???

Protect Insurance Companies PSA from Will Ferrell

Consumer Protection Attorney - Overcharged By A Moving Company .

2009-09-23T20:05:00.004-04:00

I was ripped off by a moving company this weekend. We had hired three movers, but when they arrived two of the three movers appeared to be teenagers. The kids did all the work (slowly and poorly), while the adult "supervised" from the truck. When they arrived at the new house, they tried to double the price, then locked the truck when I would not agree to the overcharge. I called the police, and after more than an hour of negotiation I got them to unlock the truck by paying 27% more than the estimate. We have friends who were moving the same day, and had hired the same company: they ended up paying more than 50% over the estimate. To top it off, my Wii is missing.

I plan to follow-up with the company in writing, requesting that the missing Wii be returned or that I be reimbursed, and file a complaint with the Attorney General and the Department of Transportation. The experience prompted me to look into what consumer protection laws New York State has to govern these sort of situations.

An hourly moving company may hold enough of your possessions to cover the bill if you refuse to pay, but must offer to bill you for any amount more than 25% above the original estimate and must unload the entire truck if you pay the estimate plus 25%. See Title 7, Section 814, of the New York State Administrative Code (7 NYCRR 814). As far as hidden charges and misleading advertising, in addition to the unfair and deceptive practices act, which applies to all consumer transactions, New York Transportation Law Section 196 makes it unlawful for a "common carrier of household goods," i.e. a moving company, to claim "unjust and unreasonable" charges. They are required by law to provide full disclosure of all charges up-front, including any travel time, packing fees, and similar charges. Currently, although it has allowed them in the past, New York State does not permit fuel surcharges.

In 1999, Attorney General Spitzer made an example of one moving company by shutting them down and obtaining a $250,000 judgment against them. He then had the company cited for contempt after continuing to operate despite a Court order, which led to the owner being jailed and had his assets siezed to repay consumers. In November, 2001, and then again in 2003, the Attorney General's office shut down several moving companies for providing low-ball estimates, increasing the price by double or more, inducing consumers to sign blank contracts, and then locking the truck with the consumer's possessions when they disputed the bill.

If you have been ripped off by a moving company in New York, you should write the company to dispute the charge, or make a claim for lost or damaged items. They are required to respond. You should also file a complaint with the New York Department of Transportation, which regulates movers, as well as with the Attorney General's Office, which administers the State's consumer protection laws. You will need to print out and mail in the AG's complaint form, which can be a hassle, but the AG's office is the best organization to contact to make sure that dishonest businesses receive what they deserve.

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Update: After the company failed to respond to my written claim for lost of stolen goods, I sued them in Small Claims Court in Queens. Starting a case is easy, you fill out a one page form. We just had the first appearance on December 8th. The way the court works, there is a calendar in one of the large first floor courtrooms. There is one judge presiding, and a stable of arbitrators. The parties are strongly urged to have their case heard by an arbitrator (who can hear the case that day), but have the right to insist on having the case heard by the judge (most likely requiring another appearance). The moving company insisted on seeing the judge, so we're going back in February.

They brought up a review I wrote on CitySearch, saying it was hurting them and that I should take it down. I told them to reimburse me for the stolen property, and I would take it down. They wanted it taken down first, then we could discuss settlement. No go.

I held off on adding their name to this post. After some deliberation, and after giving them ample opportunity to do the right thing, I was going to add it. Given that they now seem open to discussing settlement, however, I will continue to refrain for the time being.

OTHER CONSUMER PROTECTION POSTS:

* Staten Island Civil Court Judge Questions The Legality Of Outrageous Credit Card Rates
* Overzealous Debt Collection Contributes To Suicide
* Unfair Fees Charged By Landlords
* Unfair Overdraft Fees

Should I file a Lawsuit? Should I Contact A Personal Injury Lawyer?

2009-09-05T16:35:00.001-04:00

Deciding whether to file a lawsuit is a decision that must be based upon each person's individual facts and circumstances. Making an informed decision, however, is difficult without understanding what is involved in the legal process. In this post, I have tried to outline some of the factors to be considered in deciding whether to pursue a lawsuit.

If you are considering filing a lawsuit, and are looking for a personal injury lawyer, particularly a construction accident lawyer, please feel free to contact me. I personally handle matters throughout lower New York State, especially on Long Island (both Nassau and Suffolk County) and in New York City, and can also help you find a quality lawyer in other regions.

SHOULD I FILE A LAWSUIT?

Pro:

The main motivation for filing a civil suit is to receive financial compensation. Even though money cannot replace what you've lost, it can make your life more comfortable. Money received from a lawsuit can pay for education, medical expenses and devices, food, shelter, and transportation. It cannot make everything better, but it can alleviate financial problems that may make things worse. It is a not a lottery, or a get-rich quick scheme. When someone receives money in a lawsuit, it is because they are entitled by law to receive compensation for an injury they suffered that was someone else's fault. Usually, the compensation is provided by an insurance company, which is in the business of issuing policies to compensate injury victims and makes a profit doing so.

A lawsuit gives you an opportunity to tell your story. For some people, their case may become precedent, and can become an important part of a little niche of history. My grandfather, for example, died of asbestos poisoning. Kreppein v. Celotex later became a leading case in products liability litigation, and there is a sense of pride in seeing my family name in case law.

Lawsuits can also promote positive change. The threat of litigation is a substantial motivating factor in many institutional safety practices. Contractors, property owners, manufacturers, and pharmaceutical companies, among others, are kept from cutting corners due partly to the threat of liability.

Con:

A lawsuit is not a substitute for, or a means towards, closure. The legal process will not make you feel better. It is not a vindication of your struggles, there will be no clapping or cheering, it will not put things right in the world, and it will not make people care.

In fact, going through a lawsuit will likely involve an invasion of your privacy. It will make you re-hash painful memories in a way that will not be comforting. And, for years, it will keep you from closing a painful chapter in your life.

In the end, you will not say "it was all worth it." The legal process may have been worth the struggle, but whatever amount of money you receive will not make up for the injuries you suffer. By it's nature, it can't. If you don't really have a serious injury, you can't fake it. And if you wake up in pain, you are missing a limb, or someone you love is dead, your bank account balance will not make up for it.

CONCLUSION

In the end, no-one but you can decide whether you should pursue a lawsuit. It is rarely a situation where you contact a lawyer and then, without much further involvement, collect payment for your injuries. It is also rare, however, that -- when everything is over -- someone with a legitimate claim regrets having filed a suit. If you are searching for a construction accident attorney or a general personal injury attorney, please feel free to contact me to discuss your claim using either by e-mail or the form below. I would be happy to provide you with an objective, individualized evaluation.

Personal Injury - Construction Accident Attorney [Injuries From Violations Of The NYS Industrial Code]

2009-08-29T10:00:00.006-04:00

Labor Law 241(6) reads:

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

This law makes owners and general contractors responsible for ensuring that the New York State Industrial Code is not violated at their work sites, and allows injured construction workers to file a lawsuit to recover damages for pain and suffering if they suffer an injury caused by a violation of the Industrial Code.

Under Labor Law 241(6), the owner and general contractor can be held liable regardless of whether the owner or general contractor directed or controlled the work. Cunha v City of New York, N.Y.3d 504 (2009). Not every provision of the industrial code is specific enough to give rise to liability, however, and the worker's own negligence will be considered. Misicki v Caradonna, 12 N.Y.3d 511 (2009). The owner or general contractor may also argue that the injuries were caused by something other than a violation of the industrial code, and there may be other parties (such as the equipment manufacturer) who are responsible. Pavlou v. City of New York, 8 N.Y.3d 961 (2007).

The Industrial Code contains numerous detailed provisions regarding specific hazards common to construction sites. Below is a list of some of the more common ones.

Tools and Equipment.

Hand tools must be kept in good repair, free from burs or cracks.
power-driven machines, such as saws and belts, must have proper guards to protect workers from cutting and tearing injuries to their hands and feet. A common example of a violation of this rule is circular or bench saws where the safety guard has been broken or removed.
Jacks, forklifts, and other lifting devices must be well maintained and properly rated for the load they are required to carry
Safety goggles must be provided to workers exposed to risk of eye injury, and a hard hat or helmet must be provided to workers exposed to risks from falling or flying objects.

Property:

Stairways must be safely constructed and have guard rails that meet particular specifications.
Proper lighting must be provided
Walls, concrete, and steel work must have shoring or bracing during construction or demolotion
Flooring must be stable and secure

Fire, Electricity, and Chemicals:

Electricity must be turned off or, it if cannot be turned off, proper protection must be taken.
Compressed gas containers, lines, and hoses must be properly stored and kept safe
Explosives must be handled with care, and in compliance with particular regulations
Proper protective clothing must be provided if workers are exposed to toxic or corrosive chemicals, and respirators must be provided to workers exposed to toxic fumes.

Protection Against Gravity-Related Risks:

Workers exposed to a risk of falling must be provided with safety harnesses, lifelines, nets, scaffolding, roof brackets, and other safety devices where appropriate.
Materials stored at a height must be properly secured to prevent falling;
Shafts must have proper guards and warnings.

If you are looking for a construction accident lawyer, feel free to contact me.

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Nassau County Supreme Court

2009-08-08T11:03:00.000-04:00

Nassau County Supreme Court
100 Supreme Court Drive
Mineola, New York 11501

(516) 571-2903

Website

HISTORY

Nassau and Queens were a single county until the turn of the Twentieth Century, but split when New York City consolidated in 1898. Nassau officially became its own County on January 1, 1899, and the cornerstone of the first Nassau County Courthouse was laid by Theodore Roosevelt, a resident of Oyster Bay, in July 1900. After extensive renovations, this first courthouse was renamed the Theodore Roosevelt Executive and Legislative Building in 2008, and is now the home of the County legislature.

The Roosevelt Courthouse was the home of the Nassau County Supreme Court from 1900 through 1940. In 1940, a larger building was erected, and held both the Supreme Court and the County Court (which hears cases under $25,000). In 1965, the Supreme Court received a new building, its current home, located at 100 Supreme Court drive.

Resources:

Nassau County, Long Island, in early photographs, 1869-1940

By Bette S. Weidman, Linda B. Martin

Courts and Lawyers of New York 1609-1925,

By Alden Chester, E. Melvin Williams (1925)

LI Biz Blog, Nassau Justices Honored With Portraits

Richard Weir, NY Daily News, Thomas Suozzi praises renovated Nassau County Courthouse (2/28/2008).

Newsday, Time Capsul Unearthed, (1999)

Newsday: Long Island, First Farmers, Then Lawyers

Newsday, Falling Down on the Job / Years of neglect leave Nassau Co. facilities in decay (2001)

NY Times, Bids Are Opened for the Construction of A New Court House for Nassau County (Dec. 21, 1938).

NY Historical Society, Nassau County Supreme Court;

NY Times, THE GOVERNOR AT MINEOLA.; He Lays the Cornerstone of the New Court House and Talks of Honesty in Public Life. (July 14, 1900).

Two Years Blogging

2009-07-18T11:20:00.002-04:00

My birthday just passed, as did the two year anniversary of my blog. Hence, this post will be a reflection piece. I didn't want to do a post just about my blog, and I didn't want to do just another "top 10" blog list, so I'm going to do a little bit of both.

PERSONAL INJURY

As far as personal injury, I have done a few posts on areas that I find particularly interesting, such as construction accident or dram shop litigation. I try to make my posts informative, and responsive to both lawyers and lay readers. There are a few great personal injury blogs out there. Eric Turkewitz' New York Personal Injury Law Blog was one of the first blogs I started reading. He comments on a wide range of topics, from war stories to political commentary, and often about legal ethics. Recently, Eric's blog gained some notoriety for his coverage of Supreme Court Nominee Sonya Sotomayer. John Hochfelder's New York Injury Cases Blog provides coverage of settlements and verdicts, and is incredibly well polished (and often well illustrated). His posts are the type of thing you read and think "I may want to look that up again in the future."

Another blog of note, although not strictly discussing personal injury, is Andrew Lavoot Bluestone's NY Legal Malpractice Blog, which is both helpful for practitioners in this area, and as a tool for learning from others' mistakes. I have represented both plaintiffs and defendants in legal malpractice cases, and they can raise some interesting legal issues. Andrew focuses strictly on legal malpractice, and reviews decisions within this niche. His blog drawn a lot of attention on a few occasions due to litigation; one lawyer sued him because he didn't appreciate that his malpractice was publicized, and another sued for statutory damages claiming that faxes of Andrew's newsletter were unsolicited advertisements (the Court of Appeals found that it was not).

CONSUMER PROTECTION

One of my major interests is consumer protection. It is an incredibly broad field, which lends itself to focusing on sub-issues rather than global ones. It is important from a social standpoint, and I believe it will become an increasingly important part of the legal profession in the future. The Consumer Law and Policy Blog is a long-running consumer blog, which reports on consumer issues from an academic and political perspective. The Consumerist (which was founded by the writers of pop-culture blog Gawker, and later purchased by Consumer Reports), in contrast, takes a more practical approach, and is geared towards warning everyday consumers about scams and how to deal with them.

WRITING

One of my strongest talents is writing, and some of my most well received posts have been on appellate litigation and motion practice. There are a few quality blogs that focus on writing. Notably, Wayne Scheiss's Legal Writing Blog and Raymond Ward's The (New) Legal Writer are both excellent reads for people who love to write. I lump writing with procedure (who knows why), and another blog of honorable mention is the CPLR Blog, which provides useful New York procedural tid-bits.

LONG ISLAND

The internet is the best place for legal news. Main stream print publications put much of their best content online through blogs such as Law.com (which owns the National Law Journal and the New York Law Journal) and Wall Street Journal Law Blog, which offer up-to-the-minute breaking news and commentary. Much of the best legal news, however, is from bloggers who are independent from any mainstream print media. Above the Law bills itself as a legal tabloid, offering both news and gossip; The Volokh Conspiracy is filled with original (often opinionated) content; and Nicole Black's Sui Generis focuses specifically on the New York legal community.

There are not many blogs, however, that specifically focus on Long Island. Long Island Business News provides some coverage of legal news, and Newsday covers many of stories of interest, but neither specifically focus on the law. I have been following the Long Island Bankruptcy Blog lately, but the blog is focused on bankruptcy in general rather than specifically Long Island.

For the last few months, I have done a regular post on legal news around Long Island. After tinkering with the format for a while, my posts spawned a new blog: Long Island Legal News. There isn't much content yet, but I plan to update regularly.

MISC.

Lastly, some of my posts have been more for light-hearted entertainment. I did a post on Harvey Birdman: Attorney-at-Law, and one on Superman. There are a few blogs that take this lighter-side approach, such as Legal Antics (by Nicole Black, who also runs Sui Generis), SayWhat! a humor blog by US District Judge Jerry Buchmeyer, which provides amusing excerpts from trial and deposition testimony. Gerry Spence's Blog is not necessarily meant to be humorous or lighthearted, but it is filled with thought-provokingn musings and commentary.

So, that's my post. A description of my blog, and links to bloggers that comments on similar topics. It is by far not an exhaustive list of blogs, and if anyone has any suggestions of blogs that should be included feel free to leave a comment.

Cuomo v. Clearinghouse Assoc. May Signal A Shift In The Fight Against Unfair Bank Fees

2009-07-02T16:29:00.011-04:00

Recent developments show that there is hope in ongoing fight to protect consumers against unfair bank fees. As I have discussed in prior posts (here and here), the National Bank Act, which was enacted after the Civil War to foster a uniform national banking system, allows national banks to pick a "home state" whose laws it will follow regarding interest rates and fees. As you would expect, banks chose the states with the friendliest laws, which allow them to get away with whatever they want, and State usury laws gradually eroded.

There was a fair amount of litigation in the 1980's and 1990's, as nineteenth century banking laws were ill-equiped to cope with twentieth century technologies such as credit cards and other electronic transactions. In 2003, the Supreme Court excplicitly held that the National Bank Act pre-empts all state usury laws, crushing challenges to unfair credit card and banking fees. Beneficial Nat. Bank v. Anderson, 539 U.S. 1 (2003). (See also Furletti, Debate Over The National Bank Act)

At the turn of the century, with state regulators out of the way and debit card use rising dramatically (particularly with small transactions), banks began earning substantial sums using a fuzzy a accounting method, resequencing daily transactions from highest to lowest in order to charge multiple overdraft fees against small transactions rather than one fee against a larger transaction. but In 2005, banks earned $10 Billion from this practice; in 2007 that number had grown to 17.5 Billion; this year, with bank accounts dwindling due to one of the worst recessions in US History, recent estimates show that banks will earn approximately 38.5 Billion in such fees. (Responsible Lending.org; Consumerist; Washington Post).

Last year, a settlement was reached in a suit against the nation's largest bank, Bank of America, in an action in California State Court under California's consumer protection laws. I recommended the drop-in-the-bucket $35 Million settlement because, the way the law stood at the time, the bank had a very strong argument for having the suit dismissed outright.

Now, there is some hope that the legal landscape may be shifting. On June 29, 2009, the US Supreme Court issued its decision in Cuomo v. Clearinghouse Association, wherein it permitted an investigation of bank lending practices by state attorneys general to determine whether the banks had violated state fair lending laws.

Throughout the sub-prime lending crisis, the states were reluctant to act because, the way the National Bank Act had been interpreted, they were powerless to regulate national banks. (See Law Prof. Blog). After the sub-prime bubble burst, however, many states, including New York, launched investigations into the banks lending practices. As expected, the banks refused to cooperate and argued that the National Bank Act allows them to be regulated 0nly by the Federal Government's Office of the Comptroller of Currency (with whom they have a cushy relationship) and their home state.

Initially, the Courts sided with the banks. The US District Court for the Southern District of New York entered an injunction, halting the States' investigations, and the Second Circuit affirmed. The Supreme Court, however, in a surprise decision, overturned the lower court and found that the States had the power to enforce their fair lending laws against national banks.

The reason this is great for consumers is that, by overturning the injunction, the Supreme Court limited the pre-emptive effect of the National Banking Act. By allowing state attorney generals to pursue a fair lending law investigation against the banks, it opens the door (slightly) for state suits based upon unfair and deceptive practices and similar consumer protection statutes.

Unfair overdraft fees are also one of the issues that will be addressed by the Obama administration's new Consumer Protection Agency. Some economists have suggested that "micromanagement" and increased federal involvement is not the answer, and I tend to agree. (Becker-Posner Blog). Indeed, the problem was already made substantially worse by the Federal Government's prior attempts at nationalization through the National Banking Act. Changing the name of the Office of the Comptroller of Currency will not fix the fact that it has not done its job for decades; and even if there is improvement, a new administration could easily wipe out that improvement.

In my opinion, one of the lessons to be learned from the mortgage crisis is that all-encompasing Federal control can lead to all-encompasing failures. The Obama Administration's consumer protection agency is a great idea, but it can only achieve sustainable change if pre-emption is reduced in these areas. State law usury and deceptive practice claims should be permitted to co-exist with federal regulation.

Long Island Legal News -- May 2009

2009-06-14T13:07:00.005-04:00

In this issue:

* Cases

* News

* Around the Blogosphere

Long Island Legal News is a monthly newsletter chronicling legal and law-related happenings in Nassau and Suffolk County.

CASES

Appellate Division

Krulik v County of Suffolk, 2009 NY Slip Op 03700 (2d Dept. 2009)(summary judgment denied where third-parties were injured in motor vehicle accident with police officer because there was a question of fact as to whether the officer had lights and sirens on at the time and "The manner in which a police officer operates his or her vehicle in responding to an emergency may form the basis of civil liability to an injured third party if the officer acts in reckless disregard for the safety of others. The "reckless disregard" standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow").

Tutrani v County of Suffolk, 2009 NY Slip Op 03716 (2d Dept. 2009)(jury verdict against police officer assigning 50% liability upheld where officer abruptly stopped on the LIE, without lights and sirens, causing the car behind him to abruptly stop, avoiding the police vehicle but causing it to be struck from behind by another car)

Appellate Term

Jeudy v. High Point Furniture Corp., 23 Misc.3d 142(A) (App. Term., 2d Dept., 2009)(small claims judgment in favor of retailer upheld where woman sought refund for broken furnature and the court accepted the retailer's explanation that they had repaired the items but the plaintiff refused to return their phone calls to arrange delivery of the repaired funiture).

Teachers Federal Credit Union v. Jones, 23 Misc.3d 139(A) (App. Term. 2d Dept)(Reversing an Order Suffolk County's 4th District Court that denied a debtor's motion to vacate default; holding that the debtor had stated a reasonable excuse for failing to appear at a court conference because he claimed he never received notice of the adjourn date, and that he had a meritorious defense in that he claimed to qualify for the Credit Disability Insurance offered by the defaulted credit card)

Other Courts

Casale v. Metropolitan Transp. Authority (MTA), 23 Misc.3d 1121(A) (New York County Sup. Ct., 2009)(Upholding special master's finding that the termination of an MTA employee was proper on the grounds of dishonesty, where employee was a high-level internal investigator who received a tip from a co-worker that the head of the LIRR was receiving improper gifts from a contractor in exchange for sweetheart deals (the gifts later proved to be true, the sweatheart deals didn't), but refused to identify the co-worker, calling him a confidential informant).

People v. Giffin, 23 Misc.3d 1124(A), 2009 WL 1313341 (Nassau County Dist. Ct. 2009)(charges for public lewdness upheld where male patron of Effin Grovin Bar in Bellmore, New York, harrassed and then urinated on a female patron)

Donovan v. Rocklyn Fuel Oil Corp., 23 Misc.3d 1130(A)(Nassau County Sup. Ct., 2009)(where, in preparation for closing a home sale, the oil refilling company spilled oil and caused severe damage to the property, summary judgment was granted to plaintiff on strict liability for the cleanup costs and diminuation of value (including the stigma of having been declared an environmental hazard); the court further held that loss of rental income was not recoverable because the home was supposed to have been sold, not rented; and loss of "investment potential" for the profit of the sale could not be recovered under under either strict liability or negligence, but may be recover under breach of contract to the extent the oil company knew that the refill was being conducted in anticipated of a closing.)

Savino v. The Hartford, 2009 N.Y. Slip. Op. 30823 (Sup. Ct. Suffolk Co. Mar. 25, 2009)(The Suffolk County Supreme Court allowed an action for pain and suffering to proceed against an insurance company based upon violation of the duty of good faith and fair dealing in denying benefits to an insured. (Coverage by: No Fault Paradise; Edwards Angle Palmer & Dodge).

Trentacoste v Riverhead Central School District, 2009 NY Slip Op 31112(U) (Sup. Ct. Suffolk County, 2009)(summary judgment granted to defendant on primary assumption of risk grounds where plaitniff was injured when tackled during football practice).

NEWS

That's not funny. A happauge woman has been criminally charged with aggrevated harassment for posting an ad on craigslist sending callers seeking causal sex to a neighbor's house because the neighbor's 9 year old daughter and her daughter were in a fight. (1010 Wins); (Newsday).

Pollution is bad. The owner of a titanium factory in Port Jeff Station has been sentenced to a year in prison for improper storage of toxic waste. (Newsday).

The Wal-Mart Trampling is still making news. Wal-Mart reaches deal with DA over trampling, paying $1.5 Million to Nassau County Social Services and agreeing to crowd control measures; victim's dad is angry, says the measures did not go far enough, and is continuing with suit. (Daily News); (WSJ).

Where are the honest politicians? The Hamptons' town supervisor and budget officer have been accused of corruption. (Hamptons Independent); (East Hampton Star). On the other end of the island, Nassau County Legislator Roger Corbin's lawsuit againt Newsday and News 12 to restrain them from continuing to publish photos of him in handcuffs while being arrested for tax fraud has been thrown out. (Newsday).

Lawsuits can do some good. Pedestrian trip and fall lawsuit leads to renovation of hazardous sidewalk in Sunnyside, Queens. (Daily News).

Drunk driving. Fatal DWI case goes to trial in Riverhead. (7 Online). Nassau County's Wall of Shame for DWI convictions had its one year anniversary. (Newsday)

Hope in the construction industry: build it and they will come. New York construction industry still in steep decline, but may be turning around. Nationwide, the construction industry unemployment rate hit 21% last quarter; New York has faired slightly better, and has several large projects on the horizon. (GlobeSt.com). The courts have approved the use of eminent domain to sieze land near the Brooklyn Navy Yards, and a new stadium for the Nets will be built in Brooklyn. (Sportsnet); (NY Times). With construction projects, however, come construction accidents. (Telegraph UK).

Commuters Unite! East Enders are angry about the MTA tax, calling it taxation without representation. (Sag Harbor Express). I looked up some info about the MTA, and found a 2007 Independent Accountant's Review (here) and 2008 Audit Report (here), page 16 shows the operating expenses but, surprisingly, there is no mention of the giant pit where all the money goes. A tarrif applied by the Port Authority (which is not the MTA) to the Bridgeport / Port Jefferson Ferry has been ruled constitutional only so long as the proceeds to directly to benefit the passengers of the ferry. (Conn. Post).

Entertainment. Lindsay Lohan's father, Michael Lohan, of Suffolk County, has been arrested again. (Miami Herald). Billy Joel has been sued by his former drummer for allegedly withholding royalties. (Insider). Former boxer Floyd Mayweather has been sued by an entertainment management company, he is accused of stealing artists from them for his rap label. (Contact Music).

Medical malpractice. The chair of neurosurgury at North Shore University Hospital has stepped down amid a series of malpractice lawsuits, the hospital's other top neurosurgeon has been called back from suspension (for having a patient prepped for brain surgury and never showing up to perform the surgery) to pick up the slack. (Daily News).In probably-unrelated news, Long Island based Physician's Reciprocal Insurer, which specializes in medical malpractice policies, is insolvent. (Insurance Journal).

An apple for the judge? A Long Island teacher was awarded $5 million in a discrimination suit. (ABC). Two Huntington teachers have sued their school district, claiming disciplinary charges have been filed against them in retaliation for having told students about cutbacks in the gifted program. (Newsday).

Not in my backyard! Amid news that the sex offender shelters are full beyond capacity, and are now occupying space in Riverhead hotels, locals have begun protestingt Suffolk County's policy of housing all of its homeless sex offenders in the Riverhead area. (Riverhead News Review).

The "invisible hand" continues to give us the finger. An Oyster Bay strip mall has sued several banks, including Wells Fargo and LaSalle Bank, accusing them of predatory lending, claiming that representatives talked them into a terrible refinancing package that has made their previously stable debt unmanageable. (Business Insider). Entrepeneur magazine sued in connection with Agape Scandal; the suit claims that the magazine did not conduct due diligence in publishing information about Agape. (Folio Magazine). With the big banks in turmoil, however, The "Hard Money," i.e. small sub-prime, lending business is booming. (Long Island Business News).

AROUND THE BLOGOSPHERE

Blawg Review # 213 at Cyberlaw Central is a tribute to the Science Fiction classic "A Hitchhiker's Guide to the Galaxy."

At the NY Personal Injury Law Blog, Eric Turkewitz ponders, and waxes poetic, about dead animals in food (here).

From the Long Island Bankruptcy Blog, AG Andrew Cuomo will be investigating debt settlement companies.

Personal Injury - A Sonia Sotomayer N.Y. No-Fault Decision

2009-06-07T14:08:00.001-04:00

Maybe-soon-to-be Justice Sotomayer has drawn a great deal of commentary lately. The White House asked critics to take it easy after Newt Gingrich called her a reverse racist (Politico). The New York Personal Injury Law Blog pondered whether Sotomayer violated ethical rules by using "Sotomayer & Associates" when doing consultation work for family and friends. Above The Law discussed how her financial disclosures prove that she is not a rich white man. The Huffington Post seems to be a fan; Richard Epstein is not. According to Law.com, empirical studies of her opinions show that she is probably not a judicial activist. She's also had at least one death threat.

Personally, I don't know; luckily, Obama hasn't asked my opinion. She has the right resume, with both experience and pedegree. Her life is being gone over with a fine-toothed comb, and critics don't seem to have much ammunition against her.

Recently, my attention was drawn to a 1998 Sotomayer decision from Nasrallah v. Oliveiri Helio De & Artichoke Cab Co., 1998 U.S. Dist. LEXIS 4173 (1998), which dealt with the New York No-Fault law. Justice Sotomayer's approach in this case impressed me. She put substance above form, and utilized the Court's discretion to accomplish a fair outcome.

In Nasrallah, the Plaintiff had submitted medical reports that were, apparently, not properly affirmed. (Note, CPLR 2106 allows physicians to affirm their reports as true, rather than submitting an affidavit). Rather than dismissing the case because of a techinical insufficiency in the form of the evidence, Judge Sotomayer permitted Plaintiff additional time to correct the defect.

Of course, appellate practice, particularly practice before the Supreme Court of the United States, is much different than practice as a District Court trial judge. On appeal, a record has already been made and finalized, and allowing a party to amend or expand the record to add additional evidence is rarely given. The Nasrallah decision was at the trial level and, essentially, merely involved granting additional time.

Overall, if this is the indicative of Sotomayer's approach to the law, it suggests (at least to me) that she is the type of judge who follows the law, but does not lose sight of the overarching goal of accomplishing justice and fairness (which could be a good thing or a bad thing, depending on whether you agree or disagree with her sense of justice and fairness). Also, I believe it suggests that she treats the attorneys who appear before her well, which is a good thing.

The relevant portion of the decision reads as follows:

In a report dated June 1, 1995, Dr. Elamir [Plaintiff's treating physician] stated that a physical examination of Nasrallah revealed that 'flexion was limited by 40% (N-90) and extension was limited by 50%. Lateral bending was limited by right 40% and left 40%." The report also included a diagnosis of cervical and lumbar myofascitis, and also reported that Nasrallah complained of "episodic severe headaches" and "limitation of the musculoskeletal system." Dr. Elamir concludes with the following prognosis:

It is my opinion that based upon all of the physical examinations, various tests which have been performed and the patient's physical complaints, that the patient has incurred permanent consequential limitation of use of the lower back as well as limitation of use of bodily function of the lower back. This permanent disability of the lower back is causally related to the above noted accident and that based upon reasonable medical probability, he will continue to experience pain, tenderness, and limitation of motion of these areas in the future, especially in the presence of inclement weather or after attempts to excessive physical exertion either at work or recreationally.

Pl. Mem. Opp., Ex. A, at 2-3. Dr. Elamir also wrote a letter on June 30, 1997, in which he states that Nasrallah was considered "disabled and unable to work during the period of treatment from December 14, 1994 until June 26, 1995." Pl. Mem. Opp., Ex. B. Plaintiffs, however, have not submitted to the Court any of Dr. Elamir's reports in the form of an affirmation or affidavit.

***

Defendants cite several cases, purportedly for the proposition that plaintiff's own doctor reports are insufficient to establish a serious injury. One wonders, simply on the face of this argument, just how a plaintiff is supposed to establish serious injury other than through medical reports by treating doctors, when even experts must rely upon such reports in rendering an opinion. Not surprisingly, the cases cited by the defendants do not stand for this proposition.

What the cases do stand for, as correctly noted by the defendants, is that a plaintiff's physician's conclusory statements as to significance or permanence, unsupported by facts detailing the extent of the limitation, is insufficient.

Plaintiffs in this case, however, have produced a medical report which is purportedly based on objective testing, quantifies the amount of limitation, and characterizes it as significant. This is sufficient to meet the serious injury threshold.

***

Plaintiffs' evidence, if submitted in admissible form, presents evidence from which a reasonable factfinder could conclude that serious injury has resulted. Consequently, the Court denies the defendants' motion for summary judgment, but will require the plaintiffs to submit their evidence in admissible form. The Court warns the plaintiffs that failure to present this Court with admissible evidence in three (3) weeks equivalent in all material respects to that relied upon for this motion will result in the Court's sua sponte reversal of this decision and granting of the defendants' motion for summary judgment because of plaintiffs' failure to comply with Fed. R. Civ. P. 56(e).

For the foregoing reasons, the Court denies defendants' motion for summary judgment. The plaintiffs are ordered to resubmit their evidence in opposition to summary judgment to the Court in admissible form -- namely, an affidavit or affirmation from a physician attesting to the extent and significance of Mr. Nasrallah's injury and the basis for such conclusion -- by April 21, 1998. The parties are directed to appear for a conference on April 29 at 4:30, at which time both the sufficiency of plaintiffs' evidentiary submission and the scheduling of a trial date, if in order, will be discussed.

Book Review: The Appeal by John Grisham

2009-05-31T11:30:00.003-04:00

In John Grisham's The Appeal a small town Mississippi husband-and-wife trial lawyer team win a large verdict in a toxic tort case. The CEO of the defendant company, the Trudeau Group, then hires questionable consultants to determine what his next step should be. The consultant, a clandestine organization based in Florida, specializes in rigging judicial elections in favor of business-friendly judges. (You can Find a more detailed description on: Wikipedia).

The book is similar in style to Grisham's other novels. It is plot driven, rather than character driven, but in a way that works well. The bulk of the novel deals with the mechanizations and plotting of the judicial election. The New York Times called it "a primer on... how to rig an election." (NY Times). It is creative, impressive, and scarily realistic. The ever-exciting process of writing and arguing an appeal, however, is not discussed.

The characters are dragged along by external circumstance until near the end of the novel. They aren't flat but, similar to real life, they aren't exploding with surprise. Towards the last few chapters, however, as the election comes to a close and the appeal comes up for review, several of the main characters are finally faced with tough decisions, and show very real struggle.

The novel is, overall, pessimistic, but in the end there is some awakening in the main character. "There's light shining into this darkness, a slight promise of change based on pure and growing disgust with the status quo." (Chuck Leddy, Boston Globe).

USA Today points out that The Appeal is very similar to a real dispute currently before the U.S. Supreme Court, where a newly elected State Court judge declined to recuse himself from a case involving one of his biggest contributors. (USA Today). [Update: On June 8, 2009, the Supreme Court released its decision in Caperton v. Massey Coal Co., holding that, under such circumstances, due process required recusal. (Coverage: Brennan Center, The Economist)]. The UK Times argued that it borrowed from Erin Brockvich, but the two have nothing in common other than involving a toxic tort case.

In New York, like most places, we have some great judges, and some poor ones. Under our system, rather than holding a primary, the political party leaders appoint their candidates, who then submit a ballot with 500 signatures to a Court of Appeals Committee and are then given a rating (qualified or unqualified). The candidates are then included in a general election. Independants can also run in the general election, without being endorsed by a recognized party, but must collect a ballot with between 3500 and 4000 signatures, depending on the size of the district, or 5% of the number of votes in the most recent gubernatorial election, whichever is less.

New York's judicial election system has been highly criticized, albeit in a slightly different manner from Grisham's novel. Because the political parties appoint their candidate without a primary (thus, in most cases, avoiding the need for direct fundraising by the candidates) local political leaders have a large amount of clout in judicial elections. Often, the party leaders will meet amongs themselves and compromise on a candidate, who will then run unopposed. In effect, rather than election or appointment by an elected official, the candidates are sometimes being selected by local political heavyweights through back-room deals. Independants, trying to run without the support of a major party, have a much higher threshold for getting onto the ballot.

In 2006, New York's system was held unconstitutional by a U.S. District Court, but the Supreme Court later reversed that decision in 2008, finding that rule does permit a "reasonably diligent" independant candidate to get onto the ballot and that the First Amendment cannot be used to regulate the internal processes of political parties. (New York State v. Lopez-Torres).

Overall, there does not appear to be a "right" judicial appointment system. If there are open elections, such as in Mississippi, there will be fundraising and special interest issues; if there are political appointments, such as Federal Judges, the appointment is by its nature political (see, e.g. here); and if there is a system run by the political parties, such as New York, then the system will be effected by questions of local corruption.

What we need are independant judges who will be above politics and special interst groups (See, e.g., here and here); how to accomplish that, however, is a difficult question.

Bronx County Supreme Court

2009-05-23T21:37:00.002-04:00

Bronx County Supreme Court (Mario Merola Building)

851 Grand Concourse

Bronx, NY 10451

(718) 618-1200

Website

The Bronx County Courthouse is an imposing fortress of a building, with depression-era stonework evoking thoughts of turmoil and the struggle for justice. The building houses all of the civil cases in the Bronx -- from small claims and housing, to multi-million dollar personal injury suits, to business disputes -- and has been called a "one-stop justice shop." (NY Times).

The Bronx was first colonized in the seventeenth century by a swedish settler, Jonas Bronk. It remained a small farming community until 1898, when it was annexed by the newly-formed New York City and became part of Manhattan. (See Wikipedia). At the time, the Bronx had only 200 residents, but provided additional land for the growing city and provided the City's only connection to the mainland United States. Between 1900 and 1930, the population expanded exponentially, growing to more than one million residents. (Clerk's Office History).

In response to the rapid population growth, in 1933, amid the great depression, the City erected the Bronx County Supreme Court building to supplement the much-smaller Borough Courthouse. It was designed by Joseph Freedlander and Max Hausel, and was touted as an example of "Twentieth Century American style." (NYC.gov). The interior of the building boasts impressive marble floors and chandeliers; the outside, however, is "a conventional-looking, 12-story government building." (Octogenarian).

Above the entrance to the Courthouse is written:

The administration of justice presents the noblest field for the exercise of human capacity. It forms the ligament that binds society together. Upon its broad foundation is erected the ediface of public liberty.

This quote is taken from a speach by L.B. Proctor at the 1877 innaugral meeting of the Livingston County Historical Society, describing (and perhaps quoting from) the then-recently deceased Judge Isaac Endress, a noted jurist who was one of the delegates at New York's 1867 Constitutional Convention.

(Note: the first four photos depict the Mario Marola building; the bottom right photograph is of the Bronx Borough Courthouse, no longer in use, mentioned above).

Unlike many courthouses, the Bronx Counthouse has a flat roof and is, essentially, a giant cube. It is a massive, dominating, citadel of a building. In 1988, it was renamed the "Mario Merola" building, after the former Bronx District Attorney. At the dedication ceremony, Merola's successor, Paul Gentile, commented: "This fortress represents the indomitable spirt of the Bronx and of its namesake, Mario Merola." (NY Times).

In 2006, the Bronx County Courthouse became the first building in the Bronx to receive a "green roof," a roof garden that helps reduce pollution by both cleaning the air and reducing cooling and heating costs. (Greenroofs.com; Greenhome NYC).

The building is covered in frescos and surrounded by statutes. Although some of the depictions are classic courthouse scenes, such as Moses with the Ten Commandments, nearly all of the frescoes and statues contain large groups people who are, apparently, struggling to push forward. The stonework evokes servitude and oppression, perhaps suggesting that this is a courthouse for the people, meant to aid the little guy in obtaining justice.

Across the street from the Courthouse is Joyce Kilmer Park, with a fountain, several statutes, and green space.

Nearby, sharing a subway station, is Yankee Stadium. The photographs below depict, from left to right: (1) construction of the new stadium, as seen from the above-ground subway station; (2) the view from the courthouse steps; and (3) the front of the new stadium the morning before the first Yankee home game in 2009.

Lack of Financial Responsibility Prevents Admission To The Bar -- Is It "Character And Fitness," Or Is "The Man" Holding People Down

2009-05-16T12:03:00.007-04:00

The law should not protect education lenders as they pressure students to accrue exorbitant amounts of non-dischargeable debt, protect law schools as they over-state the return on investment in legal education, and then fail to protect consumers who fall prey to these practices. It is fundamentally unfair; and what is the Law, after all, other than institutionalized fairness.

That said, however, a person cannot fall prey to these practices without taking some level of personal responsibility.

The question raised by a recent Third Department Decision is whether an undesirable financial situation, caused by unwise student loans, is a basis for denying someone admission to the bar.

The Third Department answered yes, and denied admission to the bar for an applicant who had $430,000 in unpaid student loans, dating back to the 1980s, explaining that the applicant had not made any substantial payments and had not been "flexible in negotiating with" his lenders. (Hat-Tip to Sui Generis).

The ABA Journal and Legal Profession Blog coverage of the decision generated a flood of comments, including comments from the applicant himself and others familiar with the situation. These comments explain that the loans date back to the 1980s because the applicant had taken an extended medical deferrment after suffering a leg amputation; the loans appear to have gone into default shortly after graduation, while the applicant was studying for the bar exam; and the loans include more than $200,000 in interest and fees. The applicant also explains that he was raised in a homeless shelter, appears to have had some serious medical problems, and has no significant family support. He argues that it was not him, but his loan provider, Sallie Mae, who acted in bad faith; and complains that the delay in deciding whether to admit him to the bar has left him jobless and ineligable for the loan repayment assistance program he had been counting on.

The legal profession is frequently criticized as a mechanism for reproducing and solidifying the class heirarchy in our society, and a discretionary standard for "character" is an invitation for abuse. (See e.g., Duncan Kennedy's Essays on Legal Education). Whether this decision is an example of such abuse, however, is unclear.

In New York, admission to the practice of law is a two-part process. The first part is "education and ability," which is determined by the bar exam and the education requirements set by the Court of Appeals. The second part is "character and fitness." The character and fitness prong is more nebulous, and is a judgment at the discretion of the Appellate Divisions. See Matter of Anonymous, 78 N.Y.2d 277, 573 N.Y.S.2d 60 (1991).

Further review of the Appellate Division's decision on character and fitness is extremely limited. The "Appellate Division is the fact-finder on issues of character and fitness and its discretion is inclusive; [the Court of Appeal's] review is limited to ensuring that the proceedings have been conducted in accordance with statutory and regulatory requirements, that no right of the petitioner has been violated, and that there is evidence to sustain the decision of the Appellate Division." Anonymous, 79 N.Y.2d 782, 579 N.Y.S.2d 648 (1991).

In this case, the twenty year gap raises questions, but "there is no Court of Appeals rule regarding delay [and] that issue is not for “general fitness” review." Anonymous, 78 N.Y.2d 227, 573 N.Y.S.2d 60 (1991). Thus, the issue in this case would be whether the an extremely large, recently-defaulted, student loan, with a possible unresolved dispute as to fees, is an appropriate issue for character and fitness review.

"Character and fitness," or something similar, is examined in every state, and is, on its face, Constitutional so long as the determination is based upon "dishonorable conduct relevant to the legal profession." Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154; 91 S.Ct. 720(1971). "Although a court may neither act arbitrarily with respect to those licensed by it nor otherwise violate their constitutional rights,... state courts have traditionally been allowed wide discretion in the establishment and application of standards of professional conduct and moral character to be observed by their court officers." Erdman v. Stevens, 458 F.2d 1205 (2d Cir. 1972).

The Court of Appeals considers financial responsibility relevant to the legal profession and an appropriate matter for consideration by the Appellate Division in deciding upon character and fitness, reasoning that applicants “lacking in the

character necessary to discipline [themsleves] to control [their] standard of living and the amount of [their] indebtedness," demonstrate "a lack of financial

responsibility necessary for an attorney." In Re Anonymous, 74 N.Y.2d 938, 550 N.Y.S.2d 270 (1989)(admission denied where applicant sought to discharge debts in bankruptcy shortly before seeking admission).

Thus, overturning the decision is unlikely. The applicant's best chance for admission is to get his finances in order (whether through negotiation with his lender, or structuring a payment plan for non-dischargeable debt in a Chapter 13 Bankruptcy) and re-apply. With respect to the bankruptcy option, in April, a Houston solo-practitioner was disbarred for failing to pay $67,000 in debt after repeated warnings. (Law.com; hat-tip, Alan Childress, Legal Professions Blog). In its Decision, the Texas Court of Appeals suggests that bankruptcy would have been a viable option, and it was the lack of attention and failing to follow-up on his own representations to the court, rather than the debt itself, that demonstrated a "lack of trustworthiness." See also Long Island Bankruptcy Blog, Lawyers File For Bankruptcy Too (offering the opinion that filing bankruptcy is not, by itself, unethical for lawyers) and Discharging Student Debts.

That said, there has to be a line, and it should not be arbitrary. This is an extreme case, but it is an extreme example of a problem that faces many recent graduates. Nationwide, the average student loan debt for law graduates is more than $75,000, and the median salary for the first several years after law school is only around $60,000. (Law.com; Payscale.com). Also, salaries for recent law graduates do not operate on a bell curve: the top people, at top schools, get top jobs; most other people are near the bottom, and there is no middle ground. (ELS Blog , The Cravath System; Not Every Law Graduate Makes 160K). It is only within the last several years, however, that this problem has been widely spoken about. (Jobs At BigLaw Limited -- Why Is This News; False Advertising in Legal Education).

This guy's "character and fitness" mistake was that he couldn't afford to go to law school; or he should have gone part-time to a public school and worked a full time job to off-set the expenses. How many recent law graduates, however, are now looking at their student loans and, in retrospect, saying the same thing? How many are falling behind? Are lenders going to start making disciplinary complaints as part of their collection efforts? If student loans continue to be a factor in determining whether someone is fit to be a member of the bar, there needs to be a solid articulable standard that prevents abuse, as well as greater oversight of the student loan industry.

___________

Update: Mr. Anonymous has identified himself as Robert Bowman, and given an interview to the New York Times.

---------------

* Lack of Financial Responsibility Prevents Admission to the Bar: is it "Character And Fitness," or is "The Man," holding us down?

* How Law School Rankings Take Advantage Of Prospective Law Students

* Not Every Law Graduate Makes 160k

* False Advertising in Legal Education

* What Kind of Job Can You Get With A Law Degree