Long Island Legal News

Civil Rights: Discrimination Claim Against Co-op For Service Dog

2012-02-16T19:06:00.000-05:00

"A Long Island co-op violated the Fair Housing Act when it barred a woman from keeping a pet miniature schnauzer in her apartment, the U.S. attorney's office claims in a civil rights lawsuit..." (Read more: "Feds Sue NY Co-op That Banned Dog," NBC, 2/15/12)

Consumer Protection: Feds Consider Fire Pot Regulation

2012-02-16T18:57:00.000-05:00

In an op ed in her paper te Riverhead Local, attorney and publisher Denise Civiletti urges comments supporting federal regulation for decorative fire pots. "The Consumer Product Safety Commission has finally taken the first steps toward regulating or possibly even banning the liquid ethanol fuel products like the one that nearly killed Michael Hubbard last May..." (Read more: "Speak out for Michael: Urge feds to ban gel fuel firepots," Riverhead Local, 2/14/12, BY DENISE CIVILETTI).

Personal Injury: Second Dept Affirms Over $1M for Fracture Coccyx and Lumbar Herniation

2012-02-12T02:46:00.000-05:00

John Hochfelder's New York Injury Cases Blog profiles a trip and fall case with a fractured coccyx and herniated lumbar disc, with no surgery but testimony that future surgery would be necessary. The first jury awarded 80k, but a retrial was ordered, and a second jury came back with over $3M for pain and suffering plus lost wages, and the Second Department upheld over $1M pain and suffering plus almost another $1M in lost wages. For those of you familiar with personal injury verdicts, those injuries, on paper, do not usually command seven figures, and the insurance carrier probably initially balked at paying even six figures. Lumbar injuries in particular are very unique to the individual, however, and can be accompanied by significant nerve damage. This case highlights how pain and suffering is never black and white.

National News: Facebook, Whales & Red Lobster

2012-02-12T02:42:00.000-05:00

Criminal - On Above The Law, Christopher Danzig posts a story about a man who was wanted in Alabama, and fled the state, only to then engage in a colloqui with the local sherriff's office via facebook. "Good thing I moved out of State," he says. "The warrant calls for nationwide extradition... Please turn yourself in... Retain yourself a lawyer and follow his advice," the Sherriff's office responds. Forty-five minutes of additional exchanges and he says "I'm going to turn myself in, when I'm ready, are you going to post my 60k bond?" The Sherriff's office responds, "Dustin, be quiet," which received a number of "likes.". Needless to say, the guy was caught.

Matrimonial - In Florida, a judge hearing a domestic dispute case that had its genesis in the husband forgetting his wife's birthday has sentenced the man to a date with his wife at Red Lobster, complete with flowers and a card. (Read more: Parez Hilton)

Animal Rights - A Federal Judge in San Diego quickly dismissed a lawsuit by PETA, naming several killer whales as plaintiffs, claiming the whales were being held as slaves in violation of the Thirteenth Amendment. ("Judge dismisses suit accusing SeaWorld of enslaving whales," 2/8/12, Reuters via Chicago Tribune, by Alex Dobuzinskis)

Employment Law: Nassau Retiree Termination Pay Cap Not Discriminatory

2012-02-10T21:26:00.001-05:00

A federal judge has thrown out a lawsuit brought in 2009 by six Nassau police officers who claimed that a cap on the termination pay of retiring police officers amounted to age discrimination. (Read more: Judge tosses cops' termination pay suit, Newsday, 2/10/12, by Brian Kessler).

Personal Injury: Jury Awards $15M in Medical Malpractice Case For Failure To Diagnose Cancer

2012-02-10T21:16:00.000-05:00

A jury in Suffolk County Supreme Court returned a $15,000,000.00 verdict in a medical malpracticen case where a breast cancer victim was wrongly told that everything was ok and missed her opportunity to have the cancer diagnosed at the earliest possible time. Instead, 16 months later, the cancer, due to this failure to diagnose, spread to her lymph nodes and bones. (Read more: Press Release, 2/10/12).

Business Law: Partnership Lawsuit Over Auto Dealership Leads to RICO Claim By Rival

2012-02-10T09:23:00.000-05:00

A former Giants defensive lineman "is now defending himself against two legal challenges to his ownership stake in a fledgling Honda dealership in" New Jersey. In one suit, a Long Island auto dealer is "claiming to have bankrolled the development of Hamilton Honda," and claims his partners "reneged on an agreement to share the dealership's profits.". In the second suit, "a rival dealer... has used information" from the first suit to allege that the Hamilton Honda partners "violated racketeer-influenced corrupt organizations act laws to acquire that franchise from American Honda." (Read more, Dealership owner facing lawsuits," NewJersey.com, 2/9/12, by Richard Newman)

Business: Kosher Caterer Accused Of Violating Rules Amid Dispute With Partners

2012-02-10T01:40:00.003-05:00

"One of Long Island's largest catering companies has been accused of seriously violating Jewish law by having workers prepare kosher and non-kosher meals in the same kitchen." Of the majority owner, a minority partner said "he sold himself out for a couple of extra dollars... another way to bring in additional revenue... this was the shortcut." The majority partner, however, "denied that any preparation of non-kosher meals took place," and "claimed that the lawyer for the two accusers is trying to reach a settlement in an unrelated $19 million lawsuit and is using the kosher/non-kosher allegations as a wedge." (Read more: A.P. via Huffington Post, 2/9/12). (See also: "That Wasn’t Kosher, a Lawsuit Says," NY Times, 2/8/12 by Nate Schweber).

Although these claims appear civil at the moment, violating Kosher rules can be considered consumer fraud, and the New York Attorney General has an enforecement division that conducts inspections. Recently, however "New York state's kosher law-enforcement division [was] gutted, sparking concerns in parts of the Jewish community that the cuts raise the risk of fraud in the billion-dollar-plus kosher-food industry." (Read more: "Kosher Inspectors Eliminated," 1/3/11, WSJ by Samantha Reddy)

Update: Nassau DA opens probe. (The Jewish Week, "Nassau DA To Probe L.I. Kosher Caterer," 2/14/12, By Stewart Aim)

Personal Injury: Patron Murdered During Drug-Fueled Robbery Files Suit

2012-02-09T20:58:00.002-05:00

The family of one of four people killed in a New York pharmacy holdup filed a $20 million lawsuit Thursday, alleging that a drug company that manufactures painkillers, a physician accused of improperly distributing the drugs, police officials and others were responsible for the victim's death. (Read more: Victim’s family in NY pharmacy shootings announce lawsuit against drug maker, police, others, Associated Press via Washington Post 2/9/12)

Employment Law: Retaliation Claim By State Parole Officer Settled For 50k Plus Fees

2012-02-08T23:39:00.000-05:00

New York state has settled a lawsuit "by a parole officer who accused top state officials of targeting him in a witch hunt after he testified about problems at the Division of Parole during a legislative hearing six years ago," and will pay $50,000 plus attorney's fees. According to the attorney, "fees and costs exceeded $300,000." (Read more: State pays parole officer $50k to end civil rights claim, Times Union, 2/8/12 by Brendan J. Lyons)

Real Estate: Brentwood First Stop in State Foreclosure Assistance Program

2012-02-08T20:32:00.000-05:00

State foreclosure counselors [from the] Department of Financial Services... will be sent to areas of New York where foreclosures are the biggest problem... starting in Suffolk County... first stop... Brentwood. (Read more, 2/8/12, Associated Press via WSJ).

Business Litigation: Doctors sue Insurer For Out-Of-Network Payment Practices

2012-02-08T10:29:00.000-05:00

"Great Neck-based Plastic Surgery Group," represented by Matthew Didora of Ruskin Moskou, has filed a lawsuit "stem[img] from United HealthCare paying for out-of-network patients and then seeking the money back from the health providers... The provider will then refuse, at which point United HealthCare would allegedly refuse payment on other clients within network as payment for the one out-of-network patient... Didora said the health providers are then left with no other option but suing the patient for nonpayment. That leaves the patient confused because they had been told their insurance would be covering those costs." (Read more, Potofacial Review, 2/7/12, by John Callegari). Also at: Long Island Business News.

Related or Possibly Coincidental Story: Insurer Aetna files lawsuit "to combat what it sees as Abusive out-of-netwok charges...New York Sate [regulators] are also taking aim at price gauging by surgeons." (Read more, Crains Ny Business, 2/7/12 by Barbara Benson)

Criminal Law: Senate Approves DWI Repeat Offender Mandatory Minimum Sentences

2012-02-07T22:41:00.000-05:00

The New York State Senate has passed legislation he sponsors requiring a mandatory jail sentence for repeat DWI offenders:

• two DWI crimes within ten years... up to four years in jail and/or a fine between $1,000-$5,000... mandatory minimum jail sentence of 30 days....

• three or more... up to seven years... $2,000-$10,000... minimum 90 day jail sentence...

• two aggravated DWI crimes (.18 BAC or higher or DWI with a child in the car)... up to four years... $1,000-$5,000... minimum jail sentence of 180 days...

• three or more aggravated DWI crimes... up to seven years... $2,000-$10,000... minimum 1 year jail sentence.

(Read more, NewsLI, 2/6/12)

Chris McGrath Awarded State Bar Professionalism Award

2012-02-07T21:49:00.001-05:00

Congratulations to Christopher McGrath, of personal injury firm Sullivan Papain Block Mcgrath & Canavo, who has been awarded the State bar's 2012 Attorney Professionalism Award. (Read more, Patch.com, 2/7/12, by Stephen Bonner).

Criminal: Top Real Estate Broker Pleads Guilty to DWI With Kids In The Car

2012-02-06T22:14:00.000-05:00

"[T]he founder of... a successful retail brokerage firm... pled guilty Friday to a felony charge of aggravated driving while intoxicated and a misdemeanor charge for DWI." (Read more, NY Observer, 2/6/2012, by Daniel Rosen).

He was pulled over in August, while "driving on Sag Harbor Turnpike with four children under the age of 16 in his car." (Read more, The Real Deal Blog, 2/6/12, by Adam Pincus).

Consumer Protection: NY Attorney Gemeral Sues MERS Mortgage Filing Service

2012-02-06T12:05:00.000-05:00

The NYS Attorney General has "filed a lawsuit against several of the nation’s largest banks charging that the creation and use of a private national mortgage electronic registry system known as MERS has resulted in a wide range of deceptive and fraudulent foreclosure filings... The financial industry created MERS in 1995 to allow financial institutions to evade local county recording fees, avoid the hassle and paperwork of publicly recording mortgage transfers, and facilitate the rapid sale and securitization of mortgages. (Read More, NY AG Press Release, 2/3/12, via Long Island Exchange)

Labor & Employment: Nassau County Corrections Officers Dispute Appointments

2012-02-06T10:42:00.005-05:00

"[A]ccording to a lawsuit filed by the union that represents Nassau County’s corrections officers... [the] Nassau County Sheriff Officers Association," three new top-level appointees to the Nassau County Jail "are unqualified and their new titles are not recognized by the Civil Service Department." (Read more, "Nassau Jail Guard Union Sues Over Appointments," 2/4/12, Long Island Press, by Timothy Bolger). (See also: Suit alleges illegal jail appointments, 2/8/12, LI Herald, by Shannon Koehle).

Criminal Law: NYS to Expand DNA Registry

2012-02-06T10:39:00.000-05:00

New York State has yet to realize the full potential of the DNA Databank because state law only permits DNA to be collected from 48 percent of offenders convicted of a Penal Law crime... The Governor’s proposal would require DNA samples to be collected from anyone convicted of all remaining Penal Law misdemeanors and any felony under other state laws, such as felony driving while intoxicated under the Vehicle and Traffic Law, aggravated animal cruelty under the Agriculture and Markets Law, and prescription drug offenses under the Public Health Law. (Read more, Patch.com, 2/5/12).

Government: Nassau County Shifts Cost of Tax Cert Reimbursements to School Districts

2012-02-03T18:58:00.000-05:00

"A ruling to repeal the ‘county guarantee’ was upheld by the Hon. Thomas A. Adams, Acting Nassau County Supreme Court Justice... back in October of 2010, the Nassau County Legislature passed a local law repealing the county guarantee," thereby shifting the "obligation to repay any successful tax certiorari suits" from the County to the individual school districts. (Read more, Garden City Life, 2/3/12, by Melissa Argueta).

Legal Ethics: Lawyers' Social Media Use Addressed By NY Bar Ethics Opinion

2012-02-03T00:18:00.002-05:00

"[F]or New York lawyers seeking guidance on [internet and social media], the New York State Bar Association Committee on Professional Ethics addressed... 1) Whether lawyers may answer legal questions in chat rooms or on other online social media sites; and 2) If so, whether lawyers may also offer their legal services in the course of answering Questions? ... The committee compared answering legal questions on the Internet to writing for publications... and concluded that in most cases it does not [violate applicable rules] as long as the communication’s 'primary purpose is to educate and inform rather than to attract clients.'... if the interaction leads to a request for representation, the lawyer should follow up by requesting a means to engage in a private conversation..." (read more - Daily Record / Sui Generis Blog, 2/2/12, by Nicole Black)

Constitutional Law: Villages Say Lawsuit Is Premature Until Permit Application Decision

2012-02-01T21:27:00.001-05:00

"The Villages of Westhampton Beach and Quogue have filed motions to dismiss a discrimination lawsuit... Judge Leonard D. Wexler of the United States District Court in Central Islip said [in his decision denying the plaintiffs a preliminary injunction permitting an eruv (see Wikipedia) to be installed, that] the association's request was not 'ripe' because the organization failed to apply for permits to install the eruv, which allows Orthodox Jews to carry items they would not otherwise be able to carry on the Sabbath. Since the decision, the East End Eruv Association has filed for a permit to install lechis on 48 poles in the Village of Quogue and a hearing is tentativly scheduled for March 19." Now, the villages have moved to dismiss, arguing that there is no justiciable controversy, and the lawsuit prematurely assumes the application will be denied. (read more). Patch.com, 2/1/12, by Erica Jackson.

Employment: Patchogue Principle Claims Wrongful Termination For Not Fixing Grades

2012-01-31T23:31:00.000-05:00

The former principal of Bellport High School has filed a lawsuit claiming he was illegally fired for not taking steps to inflate a standout football player's grades... (Read more). Newsday, 1/32/12, bu Zachary Dowdy.

Real Estate: Riverhead Settles Beachfront Boundary Dispute

2012-01-31T23:24:00.000-05:00

[B]attle over public access to a strip of beach in Wading River is over... Riverhead... acknowledges that the homeowners there own the beach to the mean high water mark — an imaginary line in the sand the landowners say is established every 18.5 years by the National Oceanic and Atmospheric Administration... The town will... put up a chain or gate across the beach to mark that spot...(Read more). Riverhead News Review, 1/30/12, by Mark White. (Hat-tip, Patch.com, 1/31/12, by Joseph Pinciardo)

Personal Injury: Nassau County Approves $7.7M Police Negligence Settlement

2012-01-31T09:48:00.001-05:00

The Nassau County Legislature Monday approved a $7.7 million settlement for the family of Jo'Anna Bird, whose 2009 murder led to a lawsuit alleging that police had failed to protect her.... (read more)

Newsday, 1/30/12, by Sid Cassese.

Employment Discrimination - EEOC Files Hostile Work Environment Case Against Hamptons Laundry

2012-01-30T18:46:00.000-05:00

[The EEOC] is suing a Southampton commercial laundry service, claiming the company "created a sexually hostile work environment" for its female employees and then retaliated against them when they complained -- in some cases by firing them. (Read more). Newsday, 1/26/12, by Gary Dympski

Criminal Law: Manslaughter Charge For Driver on Xanax Who Struck Pedestrian

2012-01-30T14:24:00.003-05:00

A Medford woman will be charged with vehicular manslaughter... Police have said... [she was] driving under the influence of drugs when she struck a mother and daughter, who were standing behind a car parked on the shoulder... Toxicology results established the presence of the anti-anxiety drug Xanax and other medications... (read more). Patch, 1/29/12, by Ryan Bohner.

- (Related Story, "2 charged with drugged driving on Long Island," Associated Press via WSJ).

Employment Discrimination - Reverse Discrimination Claim Filed Against Village of Freeport

2012-01-29T15:16:00.001-05:00

A white New York police lieutenant claims in a federal lawsuit... the second discrimination lawsuit filed against the village of Freeport and its mayor by a police officer in the past 17 months... that Mayor... wanted to promote a black or Hispanic... (read more). NBC News, 1/26/12, by Frank Eltman.

Matrimonial Law - Suffolk County Issues State's First Trial Decision Interpreting New No-Fault Law

2012-01-29T02:29:00.001-05:00

Believes to be the state’s first contested divorce... Applying the state’s year-old no-fault divorce law, Suffolk County Supreme Court Justice James Quinn sided with the wife after determining at a trial that their marriage was done.... they “have not had marital relations in excess of five years, and although they live in the same house, they sleep in separate bedrooms, and never have meals together... spend no holidays together and share no common friends,” and only the mom socializes with their kids. And even though she’s in poor health, her hubby "has not... asked about her health for the past ten years,” the judge wrote.
(Read More). NY Post, 1/26/12, by Erin Calebrese.

Environmental Law - Long Island Sound Storm Runoff Protection Measures Found Inadequate

2012-01-29T02:19:00.002-05:00

The Westchester County Supreme Court, in response to a lawsuit filed by Save the Sound and other environmental organizations in Connecticut and New York, has ruled New York State must take new measures to reduce the impact its storm water runoff... (read more). Greenwich Patch, 1/25/12, By Bernard Patrick.

Related Story - "Judge: DEC Stormwater Permitting Flawed," North Shore of Long Island, 2/1/12, by Matt Calamia.

Employment Discrimination - Nassau County to Pay $7m to Female 911 Operators

2012-01-28T22:51:00.001-05:00

Nassau female 911 operators win $7M pay suit -- A federal court has ordered Nassau County to pay $7 million next month to compensate female Nassau County 911 operators who argued in a lawsuit that they were paid significantly less than men doing similar work. ... (read more) Newsday, 1/24/12, by Robert Brodsky

Long Island Law Firm of Hagney, Quatela, Hargraves, & Mari PLLC, Opens New Office

2012-01-26T20:05:00.002-05:00

My law firm, Hagney, Quatela, Hargraves & Mari PLLC, opened its new office in Hauppauge, New York. Please See the law firm's website for a list of practice areas.

Hurricane Irene

2011-08-30T13:02:00.000-04:00

Long Island, particularly the North Shore, still has a substantial number of people without power. Hopefully LIPA's doing a wonderful job getting it restored as quickly as possible, but here's an article discussing rights against the utility for a lawsuit or other damages claim based on gross negligence in failing to timely restore power. (post re: recoving losses from LIPA). We don't have much information at the moment, and -- again -- hopefully they are doing everything they can.

Suffolk County Courthouse Gets New Name: Dedicated As The "Hon. Alan D. Oshrin Supreme Court Building"

2011-08-05T22:31:00.002-04:00

The Suffolk County Courthouse in Riverhead has been officially named the Hon. Alan D. Oshrin Supreme Court Building. On Monday, August 1, 2011, a dedication ceremony was held to commemorate the event.

Suffolk County Courthouse, Riverhead, New York

The courthouse is now named for the late Justice Oshrin, who was elected to the State Supreme Court in 1991, and served as Suffolk County's District Administrative Judge from 2001 until his death in 2003 at the age of sixty-four. Prior to taking the bench, Justice Oshrin was a prominent Long Island divorce attorney.

Speakers at the dedication ceremony included: Gale Prudenti, Presiding Justice of the Appellate Division, Second Department; Justice Anne Pfau, Chief Administrative Judge of the New York State Court System; Justice C. Randall Hinrichs, Oshrin's successor as District Administrative Judge; Matthew Packman, President of the Suffolk County Bar Association; and Adam Oshrin, Judge Oshrin's nephew and a local attorney.
Justice Prudenti described Justice Oshrin as someone who "personified the best in the judiciary," loved the law, and had a penchant for helping people. All of the speakers had similar praise.
Justice Pfau, although beginning her speech by inadvertently referring to Nassau County rather than Suffolk, lauded the work of the courthouse staff during "a year when everyone has done more than their fair share." For more than a year, as well as stalling a movement for judicial pay raises, State budget woes have caused a hiring freeze in the courts. Staff who retire or leave for other reasons are not being replaced, and - while the workload has likely increased due to the rise in foreclosures - the number of courthouse staff has shrunk.

Nonetheless, work on the courthouse has continued, albeit slowly. Suffolk County's courthouse complex in Riverhead has been in the process of renovations for over fifteen years.

There has been a courthouse at this site, now known as the intersection of Griffing Avenue and Court Street, since 1729. A new, modern building was added in 1996, and the old courthouse (built in 1881, then re-built in 1929 after a fire), has been mostly closed for renovations since then. The new and old courthouses are linked by two enclosed bridges: one on the north side of the third floor; the other on the South side of the second floor. Slowly, sections of the old courthouse, parts of which are now referred to as the "annex," are being re-opened.

RELATED STORY:

* "Supreme Court Building Expected To Finish in 2012," by Tim Gannon, Riverhead News-Review (August 8, 2011).

Jury Awards $350k in First Amendment Civil Rights Lawsuit Against Rocky Point Fire District

2011-06-11T12:13:00.001-04:00

On June 2, 2011, a jury in Long Island's Federal Courthouse found that the Rocky Point Fire District had violated Kenneth Monz's First Amendment rights, and awarded damages of $350,000.

In December 2009, the U.S. District Court for the Eastern District of New York had issued a decision rejecting the Fire District's motion to have Mr. Monz's First Amendment claim dismissed as matter of law, permitting the case to go to the jury. As the Court explained in its decision, Mr. Monz asserted "claims against the Defendants for allegedly retaliating against him (by not readmitting him to the Department) for speaking out against the Department’s alleged hard-drinking 'frat boy' image, in violation of the First Amendment and Article I, Section § 8 of the New York Constitution."

After a two-day trial, the jury returned with its verdict quickly. The matter, Monz v. Rocky Point Fire District, EDNY Docket No. 06-cv-5710, was tried by Scott J. Kreppein (the Editor of this blog), for the Law Office of Reynolds, Caronia, Gianelli, Hagney, LaPinta & Quatela LLP.

Appellate Division Names New Clerk of Court

2011-05-12T14:16:00.000-04:00

Congratulations to Matthew Kiernan, who has been named the new Clerk of Court for the Appellate Division, Second Judicial Department.

Mr. Kiernan will be replacing James Edward Peltzer, who is retiring. In its official press release, the Second Department lauds Mr. Peltzer for his years of service, explaining "As a result of his wisdom and foresight, the Appellate Division progressed from index cards and handwritten docket books to a modern, automated case management system and a useful presence on the Internet."

For the past ten years, Mr. Kiernan has served under Mr. Peltzer as Deputy Associate Clerk for the Second Department. Prior to that, he was the Public Administrator of Suffolk County, Principal Law Clerk for the Suffolk County Surrogates Court, a Special Assistant District Attorney for Suffolk County, and an Assistant Town attorney for the Town of Southhold.

For more information, please see the Second Department Press Release.

Ice, Ice, Baby

2011-01-27T12:59:00.000-05:00

The pictures are from my drive into work yesterday. Taking pictures while driving is probably not the safest idea, but I assure you I was at a complete stop. Yes, that's a horse!

Frozen Lake in Caleb Smith State Park, Smithtown

Horse in Snow on Old Willets Path

For the last couple years, I put up snow and ice posts on my other blogs as soon as it started snowing. (See here). As you can see from my December 2009 post (complete with pictures and video), I am a big fan of playing in the snow. (here). It is also, of course (and somewhat sadly), a business opportunity. With snow storms come an increase in possible personal injury cases based on car accidents and slip and falls. These cases tend to be relatively simple, and can be lucrative.

Three pieces of advice. First, for people who are injured (whether in a car accident or by having slipped on ice), have someone take a picture of the location while it is still in relatively the same condition. As a caveat, however, do not lay on the ground in the position in which you fell. I had a client do that once. If you are able to do a full demonstration of how you got "hurt" only a few days later, you're probably not that hurt. Second, for businesses, use salt and have your workers keep a journal or some type of record showing that they shoveled and salted. You only have to exercise "reasonable care," and people may fall regardless of how careful you are. If you get sued, evidence like that will be crucial. Third, for drivers, stay home or be careful.

Although I used to handle a lot of personal injury work, now that I have changed firms I am focusing more on business litigation, and haven't rushed to put up a snow and ice post. My firm, however, has other attorneys who are handling their personal injury work. If people are looking for a lawyer, I would really like to bring in some clients. I would either work on the cases myself, or another attorney would handle the day-to-day responsibilities and I would keep an eye on the case, keep in touch with the client, and make sure everything goes smoothly.

For cases that aren't in Nassau, Suffolk, or Queens, or Brooklyn or Manhattan on a case-by-case basis, the same type of relationship can work. Lawyers are not supposed to simply "broker" cases. When a lawyer refers a case, there is often a fee splitting arrangement (the fee to the client stays the same; the split is between the lawyers), and the referring attorney is supposed to either maintain some responsibility over the case, or have already done work proportionate to their percentage of the fee. For locations that are not particularly convenient for me, such as the Bronx, Westchester, or Rockland County, I know quality lawyers who regularly practice in those courts, and clients would get the benefit of having more than one attorney looking after their case. The same thing goes for lawyers elsewhere in the State looking for someone to handle a case on Long Island: keep me in mind.

Now, back to the horse and the frozen lake. That is my new commute. How cool is that. I used to rush to the train station only to hear that the LIRR had a two-hour delay; then wait at the icy, muddy, station; then take a wet, cramped, disgusting subway; then walk in the slush for a few blocks; only to work for a few hours and then do it all over again in reverse. Now, it's a short drive, with horses and a park.

New Year; New Law Firm

2011-01-11T20:26:00.001-05:00

About six months ago, I joined a new firm based in Hauppauge. I have not blogged as much, as I have been settling into a new routine, but the change has been fantastic. Not only is it a group of very talented lawyers and staff, they are also great people to work with.

One of the best things about the firm is a strong local presence on Long Island, especially in Suffolk County. Not only is the short commute a welcome change, it also has professional significance. Most people do not realize how "local" law practice can be. Even the biggest cases, dealing with nationwide issues, are litigated in local courts. The individual courthouse, and often the assigned judge's courtroom itself, has its own culture and practices. This "homefield advantage" will not make or break a case, but there is a real practical benefit to it.

So, this is my job announcement post. It is also something of a New Year's post. I have a feeling 2011 is going to be a really good year. One of my resolutions is to blog more regularly, or at least with some type of plan. I would really like to see this blog take off. I think it's a great domain name, and a solid concept (if I kept up with it, and could find a really reader friendly format). I'm trying to keep shameless self-promotion to a minimum. I have a few blogs out there. "Dissent of Man Law Blog" was my first one, and has a lot of good posts but is a bit unpolished. My other two are hobby blogs, rather than legal ones: Long Island Garden Blog and Sci Fi Scholar. You'll notice the broken Amazon link on the Science Fiction one, which was one of my numerous lackluster attempts to monetize.

Drivers Who Hit Pedestrians and Bicyclists Forced To Take More Responsibility Through Change in The Law

2010-09-12T10:25:00.011-04:00

New York State's Vehicle and Traffic Law has been amended to make it easier for pedestrians and bicyclists who are struck by cars to win personal injury suits. VTL 1146 states that drivers must exercise care to avoid pedestrians, bicyclists, and domesticated animals. The way the law was structured, however, the pedestrian or bicyclist still had the burden of proving that the driver was negligent, and defense attorneys would often argue that the accident was the pedestrian’s fault for not looking where they were going. The law has now been amended so that drivers who injure pedestrians or bicyclists are guilty of a misdemeanor, and there is a “rebuttable presumption” that the driver caused the accident. It remains to be seen, however, what practical effect, if any, this will have on personal injury suits. The presumption is rebuttable, and so drivers can still put forth a defense. The criminal penalties, however, assuming they are enforced, will be a major change from the status quo.

New Divorce Laws

2010-09-04T21:28:00.004-04:00

New York’s matrimonial laws received a sweeping reform, effective October 2010, following years of lobbying by Divorce lawyers for an update to the laws. (Press Release). Most notably, New York has now become the last State in the country to allow no-fault divorce. Now, in addition to “cruel and inhumane treatment,” “abandonment,” “adultery,” and the other fault-based reasons for divorce, Domestic Relations Law 170 has been amended so that unhappy spouses may now obtain a divorce on the basis that “the relationship between husband and wife has broken down irretrievably for a period of at least six months.” The new law also creates a formula for temporary maintenance awards, as well as a presumption, largely codifying existing case law, that the less-monied spouse is entitled to have the wealthier spouse pay their attorneys’ fees.

(note: hyperlinks are to the text of the bills).

Consumer Fraud -- June to July, 2010

2010-07-03T18:48:00.000-04:00

Mortgage Rescue Scams. The AG’s office has expanded its investigation of Mortgage rescue companies, sending cease and decist notices to 213 companies around the state. (loansafe.org).

Nefarious Neighbor. Several Mt. Sinai residents were reportedly defrauded out of millions of dollars by a neighbor who convinced them to invest in his company, Duraclean. (North Shore Sun).

Royal Rip-Off. Guy Albert De Chimay, a Hamptons resident, has been indicted for consumer and securities fraud. Chimay claimed to be part of the royal family of Belgium, operating the family’s US investments, and used this guise to steal millions. (AP)(WSJ). Chimay, of course, in addition to being the name of the Belgian royal family, is the name of a region in Belgium famous for beer and cheese.

Personal Injury and Employment -- June to July, 2010

2010-07-03T18:47:00.000-04:00

Tip-Based Employees. Several lawsuits have been filed against notable long island restaurants for unfair labor practices, including Pace’s Steakhouse, alleging that the restaurants forced its service employees to pool their tips and split them with non-service workers, such as dishwashers, (East Hampton Star).

Hit by Police Car. A few months ago, a jury awarded over $19 Million in damages against Nassau County to a man whose legs had been amputated by a police cruiser. Rather than pursue an appeal, the County settled the case for $15 Million. The amount was originally confidential, but has now become public because the County failed to pay to money in a timely manner, necessitating a motion to enforce the settlement. (Newsday).

Business -- June to July, 2010

2010-07-03T18:46:00.002-04:00

Geico’s Furious About Fraud. Woodbury-based GEICO has filed a suit against several Long Island medical facilities and lawyers alleging $1.8 million in insurance fraud; the company called the suit a “preview” of a more aggressive fraud deterrence policy. (Carinsurancelist.com)(Claims Magazine).

Fannie Mae Buying Black-Market Mortgages. Suffolk Federal Credit Union has sued Fannie Mae, alleging that it knowingly purchased mortgages belonging to the bank from third parties who were engaged in a kick-back scheme and did not have authority to sell the notes; Fannie Mae claims it was a good faith purchaser. (Courthouse News).

Suffolk County is #1 In NYS Foreclosures. Suffolk County leads the state in foreclosures for the second quarter of 2010, with over 8,000, or more than 14% of the total for the State. (Buffalo Business First).

Real Housewife Claims Trademark Protection in the Phrase “Save The Date.” Jennifer Gilbert, who will appear on next season’s Real Housewives of NYC, forced a dating service called “save the date(ing)” to change their name, filing a lawsuit claiming that they infringed upon the trademark of her “save the date” event planning business. The small business owners say that “save the date” is a generic phrase, the suit is frivolous, but they could not afford to defend it. This is the second such suit that Gilbert has brought based on her purported ownership of the phrase “save the date” via a 1999 trademark filing. (NY Daily News).

Nooks and Crannies. Thomas’ English Muffins has sued to stop one of its top executives from joining Hostess, claiming that he plans to turn over trade secrets, including part of the secret for making nooks and crannies. It is a Pennsylvania case, with no significant Long Island connection, but the operator of Lake Grove’s Good Steer – which offers a hamburger with an English Muffin instead of a bun -- is quoted. (Huffington Post).

Misc. Grammerphobia Blog asks Brian Garner if it is proper to refer to one’s self as “Esq.,” he says no.

Criminal -- June to July, 2010

2010-07-03T18:44:00.007-04:00

Human Trafficking From Queens to Suffolk. The Suffolk County District Attorney’s office has shut down a prostitution ring that operated out of massage parlors in Hicksville and Huntington Station, and charged an unknown number of individuals with human trafficking. The operator of the establishments, who has pleaded guilty, posted ads on Craigslist pretending to be a Korean nail salon, then picked up woman in Queens, took them to Long Island, and forced them to work as prostitutes. (1010 Wins)(Long Island Press)

Worker's Compensation Fraud. A Kings Park couple has been indicted for insurance fraud after allegedly making misrepresentations to their Worker’s Compensation carrier that resulted in paying $290,000 less in premiums. (North Country Gazette).

Drunk Driving Death. A mattituck woman who pleaded guilty to manslaughter after driving drunk and killing a bicyclist has been sentenced to six months in prison. The victim’s family is outraged, but he DA said that, although the woman admitted being drunk, she was not speeding or otherwise driving recklessly. (1010 Wins).

Student Killing Spree Conspiracy. A recent graduate from Connetquot High School in Bohemia have been arrested for plotting to kill faculty and students at the school. (CNN).

Contempt in Custody Battle A Nassau County judge has sentenced a mother to six weeks in jail for attempting to halt her ex-husband’s visitation rights through, among other things, filing false claims of sexual abuse against him. (Examiner).

Consumer Fraud -- May to June, 2010

2010-05-30T09:39:00.000-04:00

Hamptons Real Estate Market Corruption. The Justice Department is investigating price-fixing in the Hamptons real estate market. (27 East)(Hamptons.com)

Environmental -- May to June, 2010

2010-05-30T09:37:00.000-04:00

Jamaica Bay Conservation. After years of prodding by local leaders, there are renewed efforts to preserve Jamaica Bay. (Gotham Gazette).

Students Fight The Closing of Stony Brook's Southampton Campus. Stony Brook Southampton students filed suit to keep environmentally-focused campus open. (27 East)

Business -- May to June, 2010

2010-05-30T09:36:00.002-04:00

SCOTUS Sides Against Cablevision. The US Supreme Court rejected Cablevision's appeal of the "must carry" rule, a law requiring cable providers to carry local programming. (Bloomberg).

Government -- May to June, 2010

2010-05-30T09:30:00.019-04:00

Towns Assert Colonial-Era Rights To Fight New Fishing License Law. The towns of Southampton, East Hampton, Shelter Island, Brookhaven, Oyster Bay, Huntington and Southold are suing to halt enforcement of the 2009 law requiring salt water fishing licenses, arguing that the the waters adjacent to those towns should be exempt due to colonial era fishing rights in those towns. When the towns were set up in the 1600s, their charters included "Dongan patents" that gave them Attorney General and gubernatorial candidate Andrew Cuomo has declined to take sides in the dispute, and the Court has declined a request by the State Department of Conservation to dismiss it. (Times Union)(27 East)(Hamptons.com). You can read some of the actual historic documents here.

MTA Able-Ride At Risk. Handicapped residents of Nassau County came out to protest the MTA cutting services for the disabled. (Farmingdale Observer).

Insurance Agent Disclosures. Insurance Brokers have sued the State Insurance Department to stop new rules requiring insurance agents to disclose their commissions. (Insurance Journal).

Oyster Bay Day-Laborer Law Stayed As A Result of Constitutional Challenge. The US District Court has temporarily restrained the enforcement of Oyster Bay's anti-solicitation law, which makes it illegal to stand around soliciting work (i.e., to be a day laborer). (NY Times); (Bloomberg).

Herbal Cigarettes Now Illegal For Minors. Suffolk County has banned the sale of "synthetic cannabinoids," herbal coctails meant to mimic marijuana, to minors. (Hamptons.com).

Plum-Island At Risk of Closure. The government is contemplating selling the Plum Island research facility, possible birth-place of the Montauk Monster. (AP).

Homeless Sex Offenders. Suffolk is still fighting about what to do with its homeless sex offenders. The County initially tried to set up trailers in Riverhead, but the residents and officials in Riverhead weren't too happy about that. Then, they tried to put them in Westhampton, which caused equal dismay. Levy proposed giving them $90 per day for food and housing, but the legislature balked at the idea of giving homeless sex offenders the equivalent of working a 40-hour per week job with $15 per hour take-home pay. Now, the legislature has told the department of social services to come up with a new plan, which prohibits placing more than six homeless sex offenders in any one township and includes 24-hour surveillance. (27 East).

Criminal -- May to June, 2010

2010-05-30T09:27:00.007-04:00

Manslaughter Conviction In Racially Charged Homicide. On May 18, 2010, the Appellate Division, Second Department, upheld a conviction for second degree manslaughter and unlawful possession of a weapon where John White, an African-American, left his Miller Place home to confront a group of white youths who were arguing with his son, then shot and killed a 17 year-old boy at close range. (You can read the decision here: People v. White). The youths started fighting over a comment the assailant's son posted to a girl from school's Myspace page, and the group went to the boy's house to fight him, bringing a baseball bat with them. The father met the teens in the driveway with a handgun. In a 911 recording, the youths are heard yelling racial slurs in the background. The man testified that, as a child in Brooklyn, he heard stories of his grandfather's store having been burnt down in the 1920s, and feared something similar was about to happen.

The Second Department, in an opinion by Justice Eng, explained:

The law does not require that we turn a blind eye to human emotion, and we can appreciate that a parent in the defendant's situation would be concerned for the welfare of his son, and feel anger as the situation began to unfold. However, the defendant, instead of choosing the prudent alternative course of remaining inside and contacting the police, got dressed, loaded and unloaded a shotgun, and selected a loaded pistol to carry outside for his confrontation with the youths. The defendant then took the life of a 17-year-old, shooting him at close range under circumstances which do not amount to legal justification.

White was sentenced to two to four years. (Brooklyn Daily Eagle)(NY Times)(Law.com)(Boston Herald).

25 Year Sentence For Hate Crime Killing. Nineteen year old Jeffrey Conroy was sentenced to twenty-five years in prison as a result of the 2008 hate crime murder of Marcelo Lucero. (NY Times).

Heroin Ring. The Suffolk County District Attorney's office has broken up a $3 Million heroin ring. (Long Island Press)(Northern Sun).

Business and Intellectual Property -- April to May, 2010

2010-05-01T19:01:00.000-04:00

* The International Trade Commission has intervened in the Verizon-Cablevision patent fight, and is conducting an investigation to see whether further imports of Cablevision's cable boxes should be banned. (Business Week). If Cablevision is infringing on Verizon's patents, they aren't doing it very well.. FIOS is so much better.

* Hamptons.com has sued its former publisher for theft of trade secrets and unfair competition, accusing it of stealing the website source code and using it to create a competing site. (27 East).

* A confidential informant has come forward in the shareholder litigation against Smithtown Bancorp, claiming to have knowledge of how the bank covered up its ailing loan portfolios. (Reuters).

* In the Lindsay Lohan milkaholic lawsuit, E-Trade has moved to dismiss based on venue, citing the fact that "Lindsay" really lives in California, and has also argued (apparently -- I did not read the papers) that her reputation was already so bad that that she could not have suffered any damage. (NY Post).

Environmental -- April to May, 2010

2010-05-01T19:00:00.001-04:00

* Stonybrook University announced that it is closing its environmental-studies focused Southampton campus, leading to an uproar among students who quickly began raising funds for a legal battle. (Stonybrook Press). They say that they relied Sonybrook's representations regarding it's special "sustainability" campus, chose to forgo other opportunities, and -- in some cases -- relocated across the country. Local politicians have asked the Attorney General to get involved. (27 East).

* Major gasoline companies have settled a products liability suit with twenty-six East-End towns The suit alleged that MTBE, a gasoline additive used in the 1990s, has polluted local waters. (East Hampton Star).

Discrimination -- April to May, 2010

2010-05-01T19:00:00.000-04:00

* The Smithtown Messenger, a small local paper, offended a lot of people by publishing what it claims was a "satire" showing before and after photos of several presidents, then a photo of President Barack Obama and Michelle Obama next to Fred Sanford and Aunt Esther. (Chattah Box)(Afro American)(1010 Wins)(. Sorry, I don't get the joke. As you may or may not know, Smithtown (although a nice place, I live there) does not have the best reputation when it comes to race relations. (Read more).

* The Bayville Fire Department has settled an age discrimination class action brought against them by the EEOC . (Firefighter.com)(Occupational Health & Safety).

Personal Injury and Criminal -- April to May, 2010

2010-05-01T18:57:00.001-04:00

* A construction accident in Inwood took the life of a worker who fell off a roof. (Long Island Press). There is no information about the likely lawsuit, but in these types of cases the owner of the building and general contractor of the worksite have an absolute responsibility to provide proper safety equipment to avoid these types of falls. I wrote an article about it on my other blog. (See Construction Accident Lawyer: Falling Workers and Objects)

* Connecticut Courts have determined that a West Islip woman who was killed by a drunk driver who had been served at Mohegan Sun can only sue the casino in tribal court because the tribe is immune from State Law. The tribal court does provide a system for awarding personal injury damages (with a cap on non-economic damages), but does not have a dram shop statute. (TheDay.com). Under a Dram Shop statute, a drinking establishment is responsible for injuries caused by patients whom it served when they were visibly intoxicated. (Read more).

* A freeport teen was arrested after driving off the road and killing a woman tending her garden; the teen says it was an accident, her lawyer says she has a drug problem. (CBS News).

* The day after a jury found a Patchogue teen guilty of killing an equidorian immigrant, the Suffolk County DA announces that two more south-shore teens have been arrested for anti-hispanic hate crimes. (Long Island Press)(CNN).

Consumer Fraud -- April to May, 2010

2010-05-01T18:56:00.000-04:00

* The AG's office has shut down a fake charity, claiming to raise money for breast cancer, that operated out of Great Neck. (Great Neck Record).

* Authorities have shut down a Long Island based mortgage modification scam, "American Modification Agency," has been found liable for deceiving consumers by making false promises, charging large upfront fees, then doing nothing to help its clients. (Crain's NY Business)

* In an "Office Space" type scam, fraudsters have stolen the identity of a Long Island business and are using it to charge small amounts to consumers nationwide. (NBC)

Government -- April to May, 2010

2010-05-01T18:55:00.001-04:00

* Southhampton is debating whether to join the lawsuit against the MTA finding that the payroll tax funding the MTA is unconstitutional as applied against the East End of Long Island (which has little to no train service). (Subway News).

* Critics of Steve Levy's gubernatorial bid have pointed out that he recommended a friend's title company to be included on the list of companies to be considered for County work. Levy's response was straight-forward "Did I say from time to time, 'Hey, I know these guys do good work. Put them on the list. See if they're worthy'? I've done that... So has every county executive in the state of New York, and so has every town supervisor in the state of New York. It's totally acceptable. It's totally legal. It's totally ethical.... He did a good job. He got paid no more than anyone else, and that's what it was." (Watertown Daily Times).

* In another fit of absurdity, Gov. Patterson has ordered 100,000 run-of-the-mill state employees to take off one day per week without pay (i.e., cut their salaries by 20%). The reason? Because the legislators aren't doing their job and can't pass a budget. You know what might save even more money, rather than hurting the little guy, how about we stop paying the elected officials until they do their job? I bet that'd get the budget passed rather quickly. (Bloomberg). Update: On May 13, 2010, the Northern District of New York enjoined the governor's plan. (Bloomberg).

* Not a Long Island Story, but something every New Yorker should be furious about. Pedro Espada, the Bronx State Senator who was central to the absurd power grab last year that shut down the state legislature, who doesn't even live in the Bronx and has been indicted multiple times, has been sued by the attorney general's office for stealing $14 Million from the health clinics he runs (which have been under scrutiny for years) and paying less than minimum wage to the janitors at those clinics. (NY TImes)(Daily News). And yet, despite layers of obvious corruption and a plethora of reasons to be thrown out of office, this guy is still getting a six-figure State salary. More than that, through a series of blatant back-room deals, he is the State Senate majority leader! November's elections cannot come too soon.

March 2010 -- Busy Month For Business Litigation

2010-04-04T15:15:00.009-04:00

CONSTITUTIONAL LAW

* East-Enders continue their fight against the MTA payroll tax. (The Sag Harbor Express)(Riverhead News-Review)(Hamptons.com). (Prior coverage).

* "Save-A-Pet" Animal Rights organization allowed to continue protests at Port Jefferson's The Perfect Puppy. (Press Release).

INTELLECTUAL PROPERTY

* Long Island genetics lab files malpractice action against its former attorneys for messing up a patent application. (Full coverage).

* Verizon sues Cablevision over DVR patents. (Tech Dirt).

* Port Jeff restaurant forced to close after it was discovered that it was a copy of a Florida restaurant where the owner previously worked.. The owner's comment “I never thought anyone could have a copyright on 'Rib City'... I’m sorry.” (Naples News).

* East Islip technology company sues Google and Facebook saying that its mobile apps violate the company's patents. (Newsday).

ZONING

* East Hampton restaurant "The Living Room" sues Hamptons Town Board for delaying its application for outside seating while the board drafted and passed a new law prohibiting such seating, notwithstanding the fact that it had previously given permits to similar restaurants. (East Hampton Star).

* Lawsuit over permits to renovate historic Riverhead Theatre is settled. (Riverhead Review)

CONSUMER PROTECTION

* LI debt collection lawyer sanctioned. (Law.com)

* Attorney General to investigate Long Island based foreclosure "rescue" scams. (ABC News)

* FDIC finds Glen Cove based First Central Savings Bank sold fraudulent home equity loans. Borrows are entitled to restitution. (FTC Order)

PERSONAL INJURY

* Jury Awards $16.6 Million to man who lost his leg when police ran him over with a squad car. (Newsday)

DISCRIMINATION

* Long Island bar fires pregnant bartender. (ABC News)

Legal Malpractice Over Patent Application: Cold Spring Harbor Laboratory Sues Ropes & Gray

2010-03-25T08:44:00.010-04:00

The Cold Spring Harbor Laboratory (a Long Island based genetic research lab) has sued its patent attorneys for legal malpractice. (Law.com; Science Mag; LawShucks; 271 Patent Blog; NY Attorney Malpractice Blog). To apply for a patent, someone must show that they have an invention that is unique, non-obvious, and useful. According to the complaint, Dr. Gregory Hannon, a CSHL researcher, developed a new way to turn off gene expression that would have a broad application in the fight against cancer. The Ropes & Gray partner handling the patent application allegedly submitted papers that merely copied -- verbatim -- another researchers previous submission for a similar patent, without explaining what was unique about Hannnon's discovery. The same attorney subsequently voluntarily resigned from the practice of law due to financial improprieties.

Ropes & Gray has moved to dismiss the complaint, arguing that there is nothing wrong with copying portions of other patent applications, and the patent was denied because there is nothing unique or new about Hannon's discovery.

The patent at issue relates to a 2001 discovery that was part of Dr. Hannon's ongoing research into the way RNA can be used to shut off the expression of particular genes. According to a February 2008 CSHL press release, although prior researchers had known of the ability to use hairpin RNA to turn off gene expression, Dr. Hannon's technique, called multiplex RNAi screening, is "a faster and more affordable method for discovering genes essential to the survival of cancer cells." According to the lab, “our approach makes it possible for individual laboratories to do these studies for less than 1 percent of the cost and without a dependency on expensive robotics."

To survive the motion to dismiss, the lab will need to show the court that, if the assertions in their complaint are true, they will succeed on the merits. In a legal malpractice case, a plaintiff must prove a "case-within-a-case." It is not enough that a lawyer made a mistake; rather, the plaintiff must show that but-for the lawyer's mistake they would have been successful in the underlying pursuit. At this stage, the court will not weigh the evidence but, rather, will assume everything the Plaintiff says is true and will merely examine the allegations to see whether the complaint, on its face, states a claim.

The motion to dismiss argues that the attorney did not do anything wrong, and that Dr. Hannon signed off on the application. It is true that, in general, legal drafting often relies on boiler-plate or form language. A legal malpractice case is not another avenue to appeal an adverse decision; and lawyers are not insurers of their client's cases. Particularly when drafting an argument, courts are extraordinarily reluctant to second-guess a lawyer's judgment. Bad lawyering, by itself, is not legal malpractice. The lab's complaint, however, seems to be not so much that the attorney copied from a prior patent application, per se, but that the attorney did nothing but copy from a prior application -- i.e., he failed to provide a unique description. Obviously, that unique description would have to come from Dr. Hannon and the lab, it was their discovery, but if the attorney failed to convey key information that was available to him, this aspect of the case may very well have merit. The complaint suggests that the attorney simply neglected to obtain information about what made Dr. Hannon's invention novel, and hoped the patent office didn't notice: if that's the case, then this case might survive the pleading stage.

Thus, the case rests on what information was available to the attorney about the novelty of the invention, and the law firm's strongest argument is that the application would have been denied regardless of the copying because there was nothing sufficiently unique about the invention. The motion to dismiss makes a valid point that, based on the documents produced in court thus far, it is not 100% clear what was unique about Dr. Hannon's 2001 invention. Part of that may be due to the fact that it is probably extraordinarily complicated, but it is the lawyer's job to make complicated things sound simple. It was the patent attorney's job to do that in the application, and now it is the legal malpractice attorney's job to do it in the lawsuit.

One twist is that it seems the lab is still trying to save the patent application, and has hired another firm to present new facts to the PTO, but is claiming that the delay has cost them millions of dollars in revenue. If there is still a possibility of fixing the mistake, and the patent office hasn't issued a final ruling, the judge may defer decision and stay the case in order to allow the patent office to exercise its jurisdiction.

Steve Levy (and Mustache) Run For Governor

2010-03-18T22:52:00.002-04:00

Dear New York:

I'll probably follow-up with another post at a later time, but I wanted to let you know that mustacheod Steve Levy has announced his candidacy for governor. Over the last month, he's gone from a media after-thought - referred to as someone who is "also" considering running - to an apparent Republican front-runner.

By the way, he's running as a Republican, despite having been a democrat and then bi-partisan candidate. This seems to bother some people, but the guy is a Republican. Whatever differentiates republicans and democrats these days, Levy is a republican: he's like a skinny Lou Dobbs.

I don't know much about him, but here's what I've got so far. He's fiscally conservative, anti-union, and anti-illegal immigration. Recently, he's saved Suffolk County money by switching LIE highway patrol from the Suffolk PD to the less-highly-paid Sherriff's department (See July 19, 2009, "Suffolk County Feud With Police Union Leads To Lawsuit And Calls For Corruption Probe"), and also privatized the previously government-run health clinics. As far as individuals, however, Suffolk has one of the worst foreclosure rates in the country, and doesn't seem to be showing signs of significant economic recovery.

Levy took a hard line on contractors hiring illegal immigrants, then took a lot of criticism when there was a rash of anti-hispanic hate crimes on Long Island. Around the same time, he reportedly made a racist comment about restaurant dishwashers, but the reports seemed exaggerated.

Suffolk definitely has a good 'Ol Boys network, and one of Levy's former assistants went from a government job to a highly-lucrative position running LIPA a couple years ago. There isn't necessarily anything wrong with that, I don't know the details, and for all I know he was highly qualified. It does, however, stick out in my mind as an issue warranting further examination. One of the governor's biggest responsibilities is appointing people to positions of responsibility.

Levy runs a tight ship, makes decisive calls, and doesn't mind cleaning house. Suffolk politics is fairly cut-throat, and Levy's made enemies along the way who would love to implicate him in a scandal, but thus far he's been above the fray.

I'm a democrat (for those of you who haven't gleaned it from prior posts), but so far I'm not against Levy. Of course, I'm not against Cuomo either.

We've been embarrassed by NY politics for way too long. The shockingly palpable corruption is annoying. We don't even need good politicians, just please no more bad ones.

Here's what I want in a governor:

1. No Scandals - use some common sense;

2. Get the budget in order (maybe end the hiring freezes, give judges pay raises, hire more public defenders...);

3. Keep the corrupt politicians in line, and don't let the government collapse;

4. Encourage business growth (preferably high-tech businesses, such as computers and aerospace);

5. Implement positive environmental and social policies.

Those are my top five at this point, but I reserve my right to modify them.

Thanks for listening.

Sincerely,

Scott J. Kreppein

FEBRUARY 2009 -- Smithtown Bancorp Class Action; $16.6 LI Police Brutality Verdict; Southampton Trustees Fight With Peconic Baykeeper Over Water Rights; and more...

2010-02-27T12:23:00.003-05:00

BUSINESS

Class Action Against Smithtown Bancorp -- a class action has been filed against Smithtown BankCorp, a local Suffolk County Bank, alleging that it "engaged in unsafe and unsound banking practices" and hid its risky real estate loans from investors. The suit was prompted by last quarter's earning statements, which showed that the bank lost over $19 Million ($1.34 per share) in the last months of 2009. The lawsuit has not yet designated a lead plaintiff, and damaged investors have until April 26, 2010 to apply for the role. A lead plaintiff must be indicative of the class (i.e. not an insider or someone with unique defenses), and generally receives a larger payment than other class members for their participation. (Newsday, "Investor Sues Smithtown Bankcorp"); (The Real Deal, "NY-area bank sued for allegedly hiding risky real estate loan information"); (WSJ Marketwatch, "
Izard Nobel LLP Announces Class Action Lawsuit Against Smithtown Bancorp, Inc.").

PERSONAL INJURY

More Toyota Problems. Toyota recently recalled several models due to a faulty accelerator system, which would cause the car to randomly accelerate out of control. A long island mother has now sued Toyota after the same thing happened to her daughter while driving one of the models that was not voluntarily recalled. The vehicle spontaneously accelerated across several lanes of traffic, leading to the girl's death. Only days before the crash, the girl went to the dealership to complain about brake problems. Toyota announced that it is working with authorities and will address the problems with the affected Lexus and Toyota vehicles, and may offer free repair and loaner vehicles. (NY Post, LI Mom Sues Toyota Over Death Crash); (Toyota Press Release)

Long Island Man Awarded 16.6 Million For Police Brutality. In making a misdemeaner arrest, Nassau police rammed the plaintiff with their vehicle, severing his leg. (Newsday, Jury Awards 16.6 Million Excessive Force Verdict)(NY Post, Jury Awards Millions To LI Man Hit By Squad Car).

Medical Negligence. Joanne Doroshow has an Op-Ed at the Huffington Post entitled "This Week in Horrific Medical Negligence News," wherein she discusses why Tort Reform won't work and we should not limit doctor's responsibility for harm inflicted by their negligence. (Huffington Post).

CONSUMER PROTECTION

Sewer Service. Responding to a Long Island process service company that was shut down for filing false affidavits of service in debt collection suits, New York City has proposed legislation requiring process servers to keep some sort of GPS log confirming that they actually went to the location where the claimed to have served legal papers. (NY Times, Counsel Seeks To Crack Down On Process Servers Who Lie).

Brookhaven Memorial Hospital To Pay $2.92 Million To Settle Medicaid Fraud Claim. A whistle blower filed a qui tam action alleging Medicaid Fraud against Brookhaven Memorial Hospital and one of its New Jersey affiliates. The DOJ found the allegations to be substantiated, and intervened in the case. The hospitals have now settled, and the whistle blower will receive $613,000 from the settlement. (Criminal Justice Online, HC Pro).

CONSTITUTIONAL LAW

Dix Hills High School Sued For Cancelling Christian Club. A Dix Hills high school student, with the help of an out-of-state Christian defense league, has sued their high school for not reinstating a christian club called Icthus. The school claimed that there was poor attendance and no faculty advisor; the student claims that the attendance was stronger than the school claims, they could have found a faculty advisor, and they are being treated differently than many other student clubs.

If You Can Not Afford An Attoney, One Will Be Provided For You -- If Someone's Available. Former Manhattan DA Robert Morganthau penned an Op-Ed to the Daily News support the New York Civil Liberties Union's lawsuit complaining of a inadequate public defense on Long Island and in other counties. (Daily News).

Southampton Claims Its Colonial-Era Water Rights Trump State Environmental Regulations. The Peconic Baykeeper won a ruling from a Suffolk County Judge preventing
Dockers Waterside Restaurant in East Quogue from installing 16 boat slips without a review by the Southampton Town Trustees complying with State Guidelines. The Trustees argue that they are not required to follow state guidelines, since their authority derives from a seventeenth century rule that pre-dates both New York State and the United States itself. The restaurant owner said that the fight is between the Trustees and the Baykeeper, and he plans to stay out if it and just file for another permit; the town says they'll appeal. (27 East).

No Taxation Without Representation -- Or Railroad Service. East-Enders continue to protest the State-wide tax to support the allegedly failing MTA. Long Island Railroad service to locations such as Riverhead or the Hamptons, if available at all, is only a few trains per day. Riders ponder how the MTA can be losing money when the trains are packed beyond capacity every day. (Riverhead News).

Editorial: Why Did Smithtown's Recycling Calendar Focus On Budgets And Fines Rather Than The Environment?

2010-01-07T09:12:00.002-05:00

I was not pleased with the tone of Smithtown's recent recycling notice. One of the best things about Suffolk County is its natural beauty: clean air, clean water, plenty of wilderness and wildlife. There's an active fishing industry, the pine barrens, a great aquarium, and plenty of farms and viniards. It may be my liberal sensibilities, and I would probably be concerned with environmentalism regardless of where I live, but it is difficult to live somewhere like that without being acutely aware of the environment.

This weekend, My wife and I (we recently moved to Kings Park, a suburb of Smithtown) received a recycling calendar. I thought: great. The recycling days had been confusing, with alternating wednesdays for paper and plastic/glass, and I didn't mind some clarification.

The calendar came with a booklet and letter from Town Supervisor Patrick Vecchio, and I thought there might be some discussion of other eco-friendly initiatives.

The booklet and letter didn't mention the environment at all. The closest thing was a mention that the municipal services facility gives out free mulch and wood chips. Instead of talking about the environment, the booklet and letter talked about budget, and was unnecessarily threatening.

The letter says, "in fairness to the vast majority of town residents who diligently recycle, the town is mandated to enforce the law and penalize those who do not recycle." That isn't just an isolated comment; rather it reflects the tone of the entire letter.

First, if the Town wants more people to recycle, why not give out free recycling containers? Currently, you can pick up at-cost recycling containers from the Smithtown recycling facility in Kings Park. (More info, here) The fact that you can buy at-cost recycling containers wasn't mentioned in the notice. I think, if they are serious about the environment, that program can be expanded. It would make it easier if the town delivered free ones to your house, if requested (maybe once per year, to cut down on transportation cost); perhaps there could even be a corporate sponsor.

Second, unless Mr. Vecchio is purposely trying to tell the residents that the environment is a complete non-issue for him, why wouldn't this notice focus on environmental issues, or even mention them? Maybe encourage people to buy local, or highlight local conservation efforts and achievements, or even just generic commentary about why recycling is important.

Slip and Fall Appellate Division Decisions, December 15, 2009

2009-12-21T21:35:00.002-05:00

The Appellate Division, Second Department, handed down three Long Island related slip/trip and fall decisions on December 15, 2009, each dealing with a slightly different set of facts.

Schultz v. Port Jefferson Steam Boat Co., 2009 NY Slip Op 09454 - Where plaintiff slipped and fell on a patch of ice, case against snow removal contractor (but not owner) dismissed on summary judgment because contractor did not entirely displace the owner's duty and was not affirmatively negligent.

Kaplan v Great Neck Donuts, Inc. 2009 NY Slip Op 09432 - trip and fall case dismissed where, although the curb in front of dunkin donuts was defective, the plaintiff could not identify the defect as the cause of her fall.

Musachio v Smithtown Cent. School Dist., 2009 NY Slip Op 09442 - motion for summary judgment denied and case permitted to proceed, where a seven year old slipped and fell on water in the school cafeteria, because the school could not meet its prima-facie burden in moving for summary judgment as to a lack of notice of the dangerous condition without evidence of the last time the floor was inspected.

Each of these cases are subject to the same area of law: Tort law; specifically, premises liability. In each case, the plaintiff has the overall burden of showing that the defendant owed them a duty of reasonable care with respect to a particular piece of property, breached that duty, and caused injury. In each case, showing a breach of the duty of reasonable care requires identifying a hazard or defect, showing that the defendant has notice and an opportunity to remedy the hazard, and failed to do so. In each case, the defendant has moved for summary judgment, and thus has the burden of showing that there are no triable issues of fact and that it should win as a matter of law.

The cases, however, are also drastically different. The hazards are different: ice, spilled water, and a misaligned curb or sidewalk. Two of the cases originate in Suffolk, one in Nassau. Two of the cases involve the owner, one involves a third-party. Two of the cases involve transitory defects, one involves a more longstanding hazard. In one case the plaintiff failed to identify the defect, in two cases they did. In two cases the defendants won, in one case the plaintiff was allowed to go forward.

Discrimination On Long Island

2009-08-23T19:38:00.000-04:00

In response to a six-month long special task force investigation, Suffolk County is putting into place a coordinated education program in an effort to reduce racism, and has retracted its former policy of requiring that persons complaining to the police disclose their citizenship status. (Epoch Times).

Long Island has been referred to as among the most racist regions in the country. (NY Times; Erase Racism Report). Segregated communities developed on Long Island after slavery ended there in the early ninetheenth century. (Hofstra, Black History of Long Island). This segregation continued as Long Island became home to America's first suburbs following the Second World War, and the seclusion, control and sprawl of these new communities perpetuated segregation in a manner that was not possible within the Buroughs of New York City. (Strangers & Neighbors).

Suffolk County leaders, particularly County Executive Steve Levy, have been heavily criticized for contributing to a culture of racism. In 2006, Levy called for a large-scale crackdown on undocumented construction workers. Despite impromptu raids at dozens of construction sites, however, no undocumented workers were actually found. (NY Times; LIBN). Levy has also defended the County's long-standing policy of asking crime victims to disclose their residency status when filing a complaint. (Newsday).

During 2008, the Patchogue area was plagued by teenage white-supremicist gangs roaming the streets on bicycles and assaulting hispanic men. These attacks became heavily publicized with the death of Marcelo Lucero in February 2009. (NY Times, NY Times, Huffington Post). Around this same time, two nooses were found hanging in the woods near Sag Harbor, (Sag Harbor Express; 27 East), Smithtown settled a suit claiming that it had engaged in discriminatory housing practices, (Newsday), and there was a wave of racist graffiti in Shirley-Mastic, (LIBN; Gothamist).

Following Mr. Lucero's death, Levy attempted to minimize the criticism of his administration as media sensationalism, calling it a "one day story." (Gothamist). He later apologized for the remark. (Newsday). But, in July, Levy was overheard joking in a restaurant about deporting the kitchen staff, prompting renewed criticism and public protests. (NY Daily News); (LIBN); (Newsday).

Ultimately, establishing non-volitile race relations on Long Island will be a long process, and there is no immediate solution.

Appellate Division Blocks Paterson's Lt. Gov. Appointment, Sends Case To The Court Of Appeals

2009-08-21T08:01:00.000-04:00

The Appellate Division, Second Department, has overturned its prior order allowing Richard Ravitch to act as Leutenant Governor of New York while the appointment is contested, and has referred the case to the Court of Appeals. (Further reading: Decision, NY Times, Bloomberg).

Ordinarily, where a Lt. Govenor steps up as governor such as Paterson did in place of Spitzer, the Temporary President of the Senate becomes Acting Lt. Governor. When Paterson became Governor, however, the Temporary President of the NY Senate was about to be removed from office for fraud and, since then, there has been a power struggle between the Republicans and Democrats that has prevented a clear leader from emerging.

In the wake of the State's current terrible fiscal crisis, there was a complete breakdown in the State Senate, due largely to political posturing, and the legislative branch of the New York State government came to a halt. In resposne, on July 8th, Paterson appointed Ravitch to the vacant Lt. Governor position, which also makes him president of the Senate and allowed him to help negotiate a fragile truce among the Senators and get them back to work.

In its decision, the Court praised Ravitch, saying "having a man of Mr. Ravitch's stature, knowledge, and experience in the office of lieutenant-governor would promote the public interest by providing help and counsel to the Governor in difficult times and by bringing much-needed stability to the government of this State." The Court went on to say, "however, that the Governor simply does not have the authority to appoint a lieutenant-governor, that his purported appointment of Mr. Ravitch cannot be reconciled with an unambiguous and contrary provision in the State Constitution."

The decision is not exactly a surprise, and the majority of persons knowledgeable about the issue knew that the appointment was not constitutionally valid. The interesting thing, however, is that numerous Unions, including the United Teachers Federation, submitted Amicus Curiae (Friend of the Court) briefs in support of the governor, arguing "salus populi est suprema lex (the welfare of the people is the highest law)."

In appointing Ravitch, Paterson -- albeit with good motives, and in one of his most productive moves as Governor -- crossed the Rubicon (if you don't get the reference, Caesar conquered Rome by bringing his army across the Rubicon river). The Lt. Governor is the next in line to succeed the Governor, the State's highest elected office, and the State Constitution makes clear that it can only be filled by elected officials. Governors do not name their successors mid-term, without an election. It's simply not democratic.

On the other hand, the Senate embroglio was simply shameful. Pedro Espada, the Senator who tipped the balance and created the stalemate by making a deal with the Republican Party that he would join their ranks if they named him majority leader, and then ended the stalemate by returning to the Democrats under the same deal, sent the Court a letter saying, now that he got what he wanted at the expense of the welfare of the entire State, he "did not wish to participate in the appeal at this juncture." Espada has twice been indicted for improperly funding his campaigns using Federal Grant money he had applied for through non-profit organizations that he controls; is under investigation by the NYS Attorney General's office; has been fined over $60,000 by the NY Board of Elections for campaign improprieties; was caught lying about his residence in order to run on the Democratic ticket in the Bronx despite living in an affluent community in Republican-controlled Westchester County; and has had non-profit organizations shut down by the Federal Government for misuse of funds.

These are the people that are running New York State's Government. At least Boss Tweed did a decent job helping the under-privileged.

* Prior Post: Appellate Division Temporarily Allows Paterson's Appointment of Richard Ravitch

Appellate Division Temporarily Allows Paterson's Appointment of Richard Ravitch As Lt. Governor To Go Forward, Overruling Nassau County Supreme Court

2009-08-01T16:53:00.000-04:00

A year of chaos has come to a head in the New York State government. Eliot Spitzer resigned in March, 2008, amid a prostitution scandal. (See NY Times, CNN). His Lieutenant Govenor, David Paterson, immediately became Governor. (WSJ; Gawker). Ordinarily under such circumstances, the temporary president of the Senate, who is usually the Senate majority leader, would become Acting Lieutenant Governor, and would be the next in line to succeed the Governor. At the time, however, the temporary President of the Senate was Republican Joseph Bruno, who was soon indicted for fraud and corruption.

Following Bruno's resignation, the Senate, which was controlled by Republicans at the time, elected Nassau County Senator Dean Skelos as the new Temporary President. The only lasted for a few months, however, because power shifted in the State Senate as a result of the 2008 Election, giving the Democrats control by a slim margin.

In January, 2009, the Democrats elected Queens Senator Malcolm Smith as Temporary President, thereby also making him Acting Lieutenant Governor. On June 8, 2009, however, the Senate Republicans staged a coup. Two Senate Democrats, Hiram Monsarat and Pedro Espada, switched parties, and the Republicans called for a vote to elect a new temporary president, nominating Pedro Espada. Espada clearly had something to gain by the coup, but it is unclear why Monsarat switched sides. Monsarat became a Senator in November 2008, after the incumbent Senator was appointed head of the New York State Racing Commission. A month later, he was indicted for felony assault, which would result in his being outsted from the legislature. The charges have been pressed by Queens DA Richard Brown, a well respected Democrat, despite Monsarat's girlfriend's non-cooperation, based upon a video of the incident. A trial date is set for September, 2009. (NY Times).

Before the vote could be completed electing a new Temporary President, the Senate Democrats called a time out, declared the session adjourned, and walked out of the room. With the Democrats gone, the Republicans continued to vote, and claimed that they still had enough members to hold a valid vote.

For the next month, the Senators stopped working, leaving pending legislation undecided, and squabbled about politics. On July 8, 2009, Governor Patterson announced that he was withholding their paychecks and appointing former MTA Chief and well-respected mediator Richard Ravitch as Lieutenant Governor, effectively making him President of the Senate. (Daily News).

The announcement caused an uproar, both positive and negative, and the appointment was hotly contested as violating the State Constitution. The New York State Constitution reads:

The executive power shall be vested in the governor, who shall hold office for four years; the lieutenant-governor shall be chosen at the same time, and for the same term... In case of the removal of the governor from office or of his or her death or resignation, the lieutenant-governor shall become governor for the remainder of the term.... No election of a lieutenant-governor shall be had in any event except at the time of electing a governor.

Art. IV, Sections 1, 5, 9.

After the Leutenant Governor, the leaders of the two houses of the legislature are next in line to succeed the Governor. This system was set up in 1943, after a special election had to be held when Governor Dewey's Lieutenant Governor died shortly after taking office. The Lieutenant-Governor also serves as “president of the senate,” but, “the senate shall choose a temporary president.” Art. III, Sections 6 and 9. This temporary president, or president pro tempore, is the next in line after the Leutenant Governor to fill the slot of governor. ""In case of vacancy in the office of lieutenant-governor alone, or if the lieutenant-governor shall be impeached, absent from the state or otherwise unable to discharge the duties of office, the temporary president of the senate shall perform all the duties of lieutenant- governor." If, for some reason, all three -- governor, leutenant governor, and temporary president of the Senate -- are incapacitated, the Speaker of the Assembly becomes acting governor. Art. IV, Section 6.

The State Constitution goes on to provide for the replacement of the Leutenant Governor when that office becomes vacant. "In case of vacancy in the office of lieutenant-governor alone, or if the lieutenant-governor shall be impeached, absent from the state or otherwise unable to discharge the duties of office, the temporary president of the senate shall perform all the duties of lieutenant-governor." Art IV, Section 6.

Patterson's position is that the failure to elect a new temporary president of the Senate left the Lieutenant Governor's seat open, allowing him to appoint someone under his default power of appointment when the seat of an elected official goes vacant. This default power is contained in Public Officers Law, Article 3, Section 43, which provides "If a vacancy shall occur, otherwise than by expiration of term, with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election.”

"There are potentially legitimate arguments on both sides," according to NYU's Brennan Center. (Brennan Center). In Patterson's favor, the appointment was endorsed by former Governor Hugh Carey, not necessarily on legal grounds but on the basis that Ravitch is a good man for the job. (Newsday; Politicker). Former NYC Mayor Ed Koch said " Appointing Richard Ravitch was the best decision Governor Paterson has made since taking office." And NYC Public Advocate Betsy Gotbaum (who, like the Lt. Governor, would become Mayor if Bloomberg became incapacitated) praised Paterson for his "wise and reassuring decision," saying that "Mr. Ravitch, an effective and proven leader, is the best choice for New Yorkers, and he will bring legitimacy and insurance to the current state of affairs in Albany." (Public Advocate's Corner).

Most attorneys and scholars, however, appear to be of the opinion that the appointment was unconstitutional. According to the Constitutional Law Professor Blog "the state constitution seems to clearly contemplate that the Lt-Governor is not simply selected by the Governor." As explained by the Public Personnel Law Blog, the Public Officer's Law provision relied on by Paterson only applies to positions where there is "no provision of law for filling," but the State Constitution does provide for filling the Lt. Governor post. PPLB further comments that the appointment of a Lieutenant Governor would frustrate the succession scheme laid out by the State Constitution.

Most notably, prior to the appointment, New York State Attorney General Andrew Cuomo had offered an advisory opinion saying that the appointment was unconstitutional:

We understand the apparent political convenience of the proponents’ theory due to the current Senate circumstances. In our view, however, it is not constitutional. In addition, contrary to the proponents’ goal, we believe it would not provide long term political stability but rather the opposite, by involving the Governor in a political ploy that would wind through the courts for many months."

(AG's Press Release). Some commentors have argued that Cuomo's bold use of the phrase "political ploy" may be attributable to the fact that Cuomo is the most likely candidate to oppose Governor Patterson in the next election. (Newsday). Paterson's odds of success in the next election are indeed poor, but Cuomo has not announced that he will run for Governor next year (NY Times; Lower Hudson News).

As reflected in Cuomo's remarks, for many, despite the questionable legality of the appointment, Paterson's move warrants praised insofar as he put someone in the Senate to pound a gavel and bring the Senators to the table. (See Huffington Post). One blogger called the move "politically astute, even if constitutionally iffy," (Fav.Or.It), and the Long Island Press called it "a good strategy on the surface." Following the announcement, Paterson's campaign offices attempted to make the most of the boost, and immediately began making automated phone calls in an effort to raise Paterson's political standing. (Daily News).

Along these lines, Speaker of the Assembly, Sheldon Silver -- who, given the dispute in the Senate, is the next person in line to succeed the governor under the State Constitution -- released a statement praising Ravitch and saying "I am well aware that the question of Governor David Paterson’s ability to appoint Mr. Ravitch to the position of lieutenant governor is currently being litigated. However, while the matter is under consideration in the courts, it is clearly in the best interests of New Yorkers to allow Mr. Ravitch to serve in the role." (Lower Hudson News).

In the courts, the republican leadership immediately challenged the appointment of Ravitch as Lieutenant Governor through a lawsuit filed by Republican leader Dean Skelos. (NY Times;Newsday; Business Review). The suit was filed in Nassau County, and Justice Ute Lally of the Nassau County Supreme Court initially issued a temporary restraining order preventing Ravitch from taking the oath of office. (July 9 TRO). The TRO, however, was overturned by the Appellate Division later that same afternoon, allowing Ravitch to take the oath of office, but setting the matter down for a hearing. (July 9 Order; Long Island Business News). Upon receiving news that the restraining order had been overturned, Paterson -- who was having dinner with Ravitch at Peter Luger's Steakhouse in Brooklyn -- immediately swore-in Ravitch as Leutenant Governor. (NY Times).

The suit was filed in Nassau County because it was Skelos' residence, but undoubtedly it was also chosen because Nassau is heavily Republican. Paterson called it "an interesting place to bring a court action." (Village Voice). And Justice Lally, after the restraining order was overturned, commented that "it's very interesting that anyone would drive through the night to file in Nassau County when there are perfectly good courts in Albany." (NY Law Journal).

In an interesting and disheartening twist, Pedro Espada, who started the whole mess with his defection and a deal with the Republicans that they would make him temporary president of the Senate, returned to the Democratic party, claiming he has "a handshake agreement with [Democratic leader Sen.] John Sampson to become the majority leader." (Gothamist).

Following a hearing, Justice William LaMarca of the Nassau County Supreme Court issued a preliminary injunction against Ravitch acting as Lieutenant Governor. In his decision, LaMarca writes that "the clear implication of section 6 [of the State Constitution] is that the office of lieutenant-governor is to remain vacant, in the event the temporary president is acting as governor, or in the rare event the senate is unable to elect a temporary president." LaMarca goes on to explain that the Leutenant Governor, as President of the Senate, has a "casting vote," meaning he votes on internal procedure but not substantive bills, and thus "It

appears that a primary purpose of the Governor in appointing Ravitch was to break the procedural deadlock.... the Governor appointed Mr. Ravitch in order to 'jump start' the legislative process."

LaMarca's decision was promptly appealed, and the Appellate Division stayed the injunction, allowing Ravitch to act as Leutenant Governor for the time-being. (Order Vacating Injunction; Brooklyn Daily Eagle; Columbia Law School Spectator; Albany Times-Union; 1010 Wins). Oral argument will be held before the Appellate Division on August 18, 2009 at 1 p.m. (Scheduling Order).

The next general election will be held in November, 2010.

Suffolk County Feud With Police Union Leads To Lawsuit And Calls For Corruption Probe

2009-07-19T19:21:00.000-04:00

The ongoing feud between Suffolk County Executive Steve Levy and the County's largest police union, the County Patrolman's Benevolance Association, has led to a heated political fight between County Attorney Christine Malafi and County Comptroller Joseph Sawicki.

For several months, the County had been fighting with the State related to the costs of policing the LIE and the Southern State, both of which are technically state highways. The County sought either manpower or reimbursement of funds, which the State routinely provides to counties upstate. (PD Press Release). The Suffolk County PBA, however, lobbied the State to keep these jobs with the County Police, rather than re-assigning the work to State Troopers. With its own budget woes, the State denied the request for funding.

With the request denied, Levy began looking for other ways to save money on policing the highways, and decided, effective July 1st, to replace the County Police with Deputy Sherriffs. According to Levy, the Deputy Sherriffs are just as qualified, but offer a significant taxpayer savings due to their lower salaries and benefits. (Press Release); (Steve Levy's Website). The average salary and benefits for a Suffolk County police officer is approximately $160,000, whereas the average for deputy Sherriffs is less than 120,000. (Sag Harbor Express)(Legislature Budget Comparison). The move reportedly saved the County $8 Million, eliminating the need to hire a new police class by re-deploying already staffed Sherriffs. (SchwartzReport).

The Police Commissioner sided with the County Executive on the move, but the Police Union was strongly against it, and the Union voted to revoke the Police Commissioner's status as a retired member. As a result of losing his retired-member status, Commissioner Richard Dormer, a 45 year police veteran, will lose the health and life insurance benefits offered through the PBA. (27 East.com).

In response to the Union's removal of the police commissioner as a retired member, County Attorney Christine Malafi (presumably at the County Executive's behest), hired Mineola based Lamb Barnosky, which handles approximately a half-million dollars worth of labor dispute work for the County each year, to bring a retaliation suit on behalf of the Police Commissioner, alleging that the ouster was done with malice. (Newsday). Although the suit is seeking monetary damages, the County is also paying the firm hourly. Thus far, only an initial $3000 bill has been paid because the firm is in the process of renegotiating its contract with the County, and it is unclear what the total bill will be.

After news of the lawsuit broke, the County Comptroller, Joseph Sawicki, asked District Attorney Thomas Spota to audit Malafi's spending, arguing that the use of public funds for a private lawsuit on behalf of an individual raises concerns. In response, Christine Malafi has asked the DA to also conduct a probe of the comptroller because of "highly suspect motives" based "solely by political considerations." (Newsday). The District attorney has not commented on whether any probe will take place.

Botched Brain Surgery

2009-07-11T15:30:00.000-04:00

More details have been disclosed in a lawsuit brought in Nassau County against North Shore Long Island Jewish and two troubled brain surgeons, formerly the highest paid surgeons in New York State. (Courthouse News). The hospital, and its Chiari Institute, have come under fire for performing an experimental surgury to correct Chiari Malformation: a defect wherein the connection between the brain stem and spinal cord is improperly tethered and brain tissue grows into the cervical spine, causing dizziness, fainting spells, and sometimes severe chronic pain. The procedure apparently carries a risk of serious side effects, and may worsen the symptoms of the original condition.

The lawsuit alleges that a patient was not informed that the procedure was experimental and controvertial, and also alleges that the now somewhat infamous Dr. Bolognese was not licensed to practice medicine in New York when he performed the surgery. I checked the NY State Physician lookup service, which shows that Dr. Bolognese was first licensed in New York in May, 2009. The Daily News previously identified four similar suits, and reported that Dr. Bolognese had been suspended after failing to show up for surgery with a patient prepped on the table. (here).

Although the recent news has been negative, it appears that this surgury may be beneficial to many people who suffer from this rare condition. In looking for related stories, I came across a blog from a former LIJ patient who chronicled his experience. (here). [Update: when I first wrote this, I had read the review is being overall positive. In response, however, the blogger updated the post to say: "I did not have surgery at TCI due to these obvious issues with them... I'm not positive about the outcome of this surgery in my case even though I had another excellent surgeon do it... the surgery did not live up to the hugely positive claims made by TCI. I was left in much the same condition as before"].

In June, North Shore LIJ announced that it had hired a new Chief Neurosurgeon, who is scheduled to start in September. (Daily News).

Drunk Driving Dunce Hat

2009-07-11T14:21:00.000-04:00

Nassau County's Wall of Shame, a monthly press release with the names and pictures of persons convicted of drunk driving, continues to be a hot button issue. (Newsday). Although the County has been updating the Wall for over a year, the original policy was changed -- in response to an October 2008 Court Decision -- so that it now reflects only convictions, not arrests. (See ABC; Gothamist; LIBN; Prior Post).

In Bursac v. Suozzi, the Nassau County Supreme Court acknowledged that "driving while intoxicated is a serious offense with deadly consequences to many innocent people and that the County Executive's County Executive's campaign to deter drunk driving is a valid exercise of the Executive's function." Judge William LaMarca, who wrote the decision, examined United States Supreme Court precedent involving publication of suspected shoplifters, observing that "reputation alone does not implicate any " liberty" or property" interest sufficient to invoke the procedural protection of the due process clause and that something more than simple defamation by the state official must be involved to establish a constitutional claim." Rather, the Court observed, "the effect of stigmatizing an individual must be coupled with additional governmental action which affects or alters an individuals legal status- also known as stigma plus."

Applying this standard, the Court found "press release on the County' s Internet website, which results in limitless and eternal notoriety, without any controls, is sufficient to be the "plus" in the "stigma plus due process analysis in the case at bar," and ruled that the Wall, as originally conceived, was unconstitutional. (See additional coverage on: ABA Journal; Gothamist; Simple Justice; OnPoint News).

Following the decision, Suozzi released a statement, saying:

Nassau County will now publish only the names and photos of those convicted of drunken driving charges on the County’s website. The Wall of Shame has been a very effective deterrent in our continuing war against drunk driving. Alcohol-related fatalities have decreased by 47% this year and because of increased enforcement, DUI arrests during the Wall of Shame period (5/25/-10/20) have increased by 6% in 2008 from the same period in 2007. People are talking about driving drunk and taxi cab ridership has increased in Nassau County. Drunk driving can no longer be considered a socially acceptable crime; it is a destructive, reckless, and potential deadly mistake.

In a later development, the woman who brought the suit, although initially proclaiming her innocence, later pled guilty to DWI based upon her test result of a .09 blood alcohol level. (Prior coverage).

Public shunning has been used to discourage crimes of moral turpetude for millenia, and there is anectdotal evidence that shaming and other creative punishments are experiencing a resurgence. (WSJ Law Blog). Other examples include a 9th Circuit case in 2004 where a man was directed to wear a sign in front of a post office that read "I stole mail, this is my punishment"; and a case earlier this year where a pharmaceutical executive convicted for perjury in connection with a high-profile patent dispute was ordered to write a book about his experience. Id. Some commentors have suggested that such punishments are particularly appropriate for certain offenses, such as soliciting prostitution. (Legal Blog Watch).

Although I agree that the Wall Of Shame should only include convictions or guilty please, not merely arrests, I laude Suozzi for his efforts. Drunk Driving is a serious social problem, and requires creative solutions. Drunk drivers are responsible for one-third of all vehicle fatalities in New York State, and (NYS DMV). The State already imposes severe penalties, including up to seven years in prison for the most serious offenses (not including potential manslaughter charges), and the State's Dram Shop Law requires drinking establishments to cut-off drunken patrons and makes them liable for damages if drunken patrons from their establishment injure anyone. Despite the obvious stupidity, and risk of harm to yourself and others, posed by drunk driving, it is still a major problem. Particularly on Long Island, where you have to drive everywhere and taxi services are often questionable, this is a serious issue and Suozzi's efforts to raise awareness should be commended. That said, however, I believe Judge LeMarca made the right decision in finding that including arrests, rather than convictions, was unconstitutional.

Contact Me

2009-06-06T01:06:00.000-04:00