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At The Capital
Free With Registration: Long Island Lawyer Is Choice To Head Senate GOP Majority
Wednesday, June 25, 2008
State Senate Republicans were poised yesterday to elect Nassau County lawyer Dean G. Skelos as their new majority leader. Mr. Skelos emerged as the consensus candidate after Joseph Bruno of Rensselaer County surprised his colleagues Monday by announcing he would end his 32-year Senate career by not seeking re-election this fall. Senate Republicans quickly reached an accommodation between Mr. Skelos and his top rival for control of the Senate, Thomas Libous of Binghamton, under which Mr. Libous agreed to take the deputy majority leader's post while Mr. Skelos gets the top job.
Panel Concludes Notice Of Hazard Is Trial Issue
Monday, June 23, 2008
The issue of whether a building owner had constructive notice that a heaving and sagging concrete floor posed a danger to occupants should be decided at trial, a divided appeals court has determined. The Appellate Division, Third Department panel ruled 3-2 that there is sufficient evidence that Mark Murphy was aware that the concrete slab floor in his building in Hales Mills, Fulton County, was prone to shift with the season and changes in outside temperatures. The panel denied Mr. Murphy's request for summary judgment dismissing injured worker Thomas J. Mazerbo's negligence claim.
Dead Man Law Ruled No Bar In Lawyer Discipline Defense
Friday, June 13, 2008
The Dead Man's Statute does not bar an attorney from defending himself against disciplinary charges for allegedly raiding escrow account funds of a deceased client, the Court of Appeals held yesterday. The judges found that attorney Richard A. Zalk was attempting to clear himself of charges by describing an oral agreement he had with his client to keep the escrow funds, not testifying "against the executor, administrator or survivor" of the dead person, as the Dead Man's Statute prohibits.
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Executives Given 'Employee' Status; Commissions Clarified
Wednesday, June 11, 2008
The state Court of Appeals, on a certified question from the Second Circuit, decided yesterday that it is "evident from the text and structure" of Article 6 of the Labor Law that "executives are employees" for purposes of allowable deductions from their wages, but that the executive in question had an implied contract with her employer under which the final computation of her commissions depended on the deductions of work-related expenses.
Panel Faults Failure to Inform Insureds of Counsel Rights
Tuesday, June 10, 2008
The failure of an insurance company to provide independent counsel to two doctors in a medical malpractice case constituted a deceptive business practice under the state's General Business Law, the Appellate Division, Third Department, ruled in a unanimouus decision written by Justice Karen K. Peters.
Split Panel Affirms Use Of GPS Device by Police
Monday, June 9, 2008
The warrantless use of a global positioning device on a vehicle by police does not violate a driver's right to privacy under either the U.S. Constitution or the New York state Constitution, an upstate appeals panel decided last week. In becoming what it said was the first state appeals court in New York to address the issue, the Appellate Division, Third Department, panel determined that the privacy expectations of individuals under both the federal and state constitutions are lower when they are in their automobiles than when they are in their homes.
Decision Approves City Judge's Ouster
Friday, June 6, 2008
The state's highest court yesterday upheld the recommended removal of an upstate judge for sending 46 defendants to jail when no one would admit to possessing the cell phone that rang in his courtroom. City Court Judge Robert M. Restaino of Niagara Falls has "irretrievably lost" the confidence of the public in his community, a 6-0 Court of Appeals concluded.
Free With Registration: Judges Question AG Involvement in Suit Over Grasso's Pay
Wednesday, June 4, 2008
New York's solicitor general yesterday defended the attorney general's involvement in litigation to force former New York Stock Exchange Chairman Richard A. Grasso to give back some of his $185 million compensation package. Barbara D. Underwood argued before the seven members of the Court of Appeals that Attorney General Andrew M. Cuomo's common law power of parens patriae allows him to act as the protector of the rights of those who are unable to protect themselves.
Paterson Defends Recognition Of Gay Marriages Elsewhere
Friday, May 30, 2008
Governor David A. Paterson has directed all state agencies to immediately recognize as valid same-sex marriages solemnized outside of New York. "If I didn't take this action, I would leave this state open to lawsuits," Mr. Paterson said yesterday. "I would leave the state treasury open to monetary damages and I would be discriminating against individuals who are coming here from other jurisdictions who are allowed that right [to marry] . . . and now are suddenly being denied that right."
Free With Registration: Governments Raise the Volume Against Suit 'Double-Dipping'
Wednesday, May 21, 2008
A year after trying it the "Albany way" by lobbying behind the scenes, a coalition led by New York City Corporation Counsel Michael A. Cardozo yesterday resumed its public campaign to undo a quirk in state law that allows government workers to collect twice for the same injury. There are 1,400 governmental entities supporting legislation to prevent the "double-dipping" by injured public employees, which is "bleeding money for no reason whatsoever" due to the anomaly in pension laws, Mr. Cardozo told reporters from the steps of the state Capitol.
Free With Registration: Lawyers Fight Back Over Pension Probe
Friday, May 16, 2008
A suit filed yesterday seeks to halt the "illegal and outrageous" attempt by Attorney General Andrew M. Cuomo and Comptroller Thomas P. DiNapoli to strip state public pension credits from lawyers who did work for school districts and other government entities. Mr. Cuomo's effort to purge public pension funds of what he calls independent contractors is a "politically motivated gambit" that exceeds his authority as attorney general, the action contended.
Divorce Bill Tries to Ease Delay Over Insurance
Thursday, May 8, 2008
The Legislature is trying for a second time to fashion a requirement that parties in divorce proceedings in New York understand that they could lose health insurance coverage when their marriages dissolve. A 2007 law establishing the requirement as §177 of the Domestic Relations Law has caused delay in thousands of divorce cases as courts seek information on the health insurance status of the spouses and get signatures on statements in which parties verify that they could lose coverage upon the granting of a divorce, according to state Supreme Court Justice Jacqueline W. Silbermann, the state's deputy chief administrative judge for matrimonial affairs.
Panel Finds Agency Lacks Power to Forgive Rent Arrears
Wednesday, May 7, 2008
It is outside the authority of the state Division of Housing and Community Renewal to forgive arrears on rent for rent-stabilized tenants who would face "undue hardship" if made to pay, the Court of Appeals ruled yesterday. The agency had defended its 2004 decision to waive nearly $19,000 in rent payments for tenant Dru Arstark as allowed through its equitable authority under the Rent Stabilization Code. The Court decided 5-2 that the division misinterpreted the law.
Free With Registration: Bill Would Modernize Court Protocols for Disaster Response
Tuesday, May 6, 2008
The Senate Judiciary Committee is set to vote this morning on a bill to modernize and streamline the law regulating the response of the state and the Judiciary during times of war, "pestilence" and "public calamity" that prompts the uprooting of courts to locations where they can reconvene safely.
License Infractions, But No 'Homicide'
Friday, May 2, 2008
Violations of a driver's junior license do not establish the "morally blameworthy" conduct needed to elevate simple speeding to "dangerous" speeding for purposes of bringing a criminally negligent homicide charge, a divided Court of Appeals ruled yesterday.
Bill Would Add 39 Judges To Family Court Bench
Tuesday, April 29, 2008
The state Assembly's Judiciary Committee has scheduled a vote tomorrow on a bill, long the subject of discussion and negotiation at the Capitol, to add 39 new Family Court judgeships statewide. The bill would create 14 judgeships on the Family Court bench in New York City and 25 elsewhere.
Scaffold Law Applied to Work Done Without Owner's Assent
Friday, April 25, 2008
A building owner is liable for a worker's injuries under the state's so-called Scaffold Law even when work was being performed for a tenant without the owner's knowledge and in violation of the tenant's lease, a divided Court of Appeals ruled yesterday. The Court also decided in two separate cases that real estate agents from the same brokerage firm can bid on behalf of different buyers for the same properties.
Free With Registration: Budget Cuts, Lower Interest Rates Harm Civil Legal Services Funding
Thursday, April 24, 2008
A record $15.3 million spent by New York state last year for civil legal services shrank to about $7.3 million in the 2008-09 budget adopted by the Legislature and Governor David A. Paterson earlier this month. At the same time, the other primary source of funding for civil legal services, the New York State Interest on Lawyer Account Fund, saw income shrink due to falling federal funds, interest rates and turmoil in the real estate industry.
Free With Registration: 'Libel Tourism' Bill Protecting Authors Passed by Legislators
Thursday, April 3, 2008
In response to a Court of Appeals ruling that declined to extend the reach of the state's long-arm statute, legislators voted unanimously this week for a bill that would protect authors and publishers in New York from libel judgments won by plaintiffs in foreign countries with standards that are less stringent than in the United States.
Law Guardian Cases Are Capped at 150
Wednesday, April 2, 2008
Law guardians should not represent more than 150 children at one time, state court leaders decreed yesterday. An order signed by Chief Administrative Judge Ann Pfau established the first-ever caseload limits for law guardians, who represent children in neglect and child-abuse cases, foster care, juvenile delinquency and other cases in Family Court.
Limits on Warrantless Searches Of Body Cavities Are Defined
Wednesday, March 26, 2008
Absent exigent circumstances, police must obtain a warrant before removing suspicious objects from the body cavities of suspects, a divided Court of Appeals ruled yesterday. Although the dissenters on the 4-3 panel warned of creating burdensome new requirements for drug investigators, the majority decided that precedents demanded additional Fourth Amendment protections for suspects subject to manual cavity searches.
Free: Paterson Would Set New Tone In Capital if Spitzer Resigns
Wednesday, March 12, 2008
David A. Paterson, a man seemingly with no enemies in Albany, would be a more even-tempered, less imperious alternative to Eliot Spitzer should Mr. Spitzer's connection to a high-priced prostitution ring cost him the governorship of New York. With even Republican opponents using words like "congenial" to describe the lieutenant governor, Mr. Paterson would represent a sea change in tone following more than 14 months of tough talk and hard feelings between Mr. Spitzer and the Legislature.
Free: Prostitution Report Weakens Spitzer
Tuesday, March 11, 2008
Even before yesterday's apology by Governor Eliot Spitzer for engaging in conduct that he said violated his sense of "right and wrong," the second-year governor faced a burgeoning fiscal emergency and an openly hostile state Senate majority that is itself fighting for its political life.
Panel Slashes Longer Term Given After Murder Retrial
Monday, March 10, 2008
A judge's decision to sentence a defendant after a retrial to 15 more years in prison than he imposed following his original conviction on identical charges gave the appearance of "judicial vindictiveness" due to the defendant's successful appeal, an upstate appeals court ruled last week. In a separate case, the Appellate Division, Third Department, did not object to a tough sentence imposed by another judge where the defendant failed to follow the terms of a presentencing furlough.
Court Rules Filing Error Cannot Be Corrected
Monday, March 3, 2008
A 2007 law designed to reduce the number of actions dismissed in New York because of hyper-technical filing errors does not apply to the defect of cases being filed erroneously with County Court and Supreme Court clerks instead of county clerks, an appeals court has ruled.
Panel Faults Court's Removal Of Obese Child From Parents
Friday, February 29, 2008
Although the court acknowledged that the child's dietary habits while in her parents' care had not been "ideal," their efforts to control the weight of their daughter were made in good faith and did not justify a county agency's repeated removal of the girl from their custody, a Third Department panel ruled yesterday.
Panel Drops Preservation In Appeals Waiver Cases
Friday, February 22, 2008
The Appellate Division, Third Department, declared yesterday it was departing from its requirement that defendants challenging a waiver of appeal must preserve the issue for review by moving to withdraw their plea or by vacating the judgment of conviction against them. Also yesterday, the Third Department ordered a Family Court to hear from a law guardian who was "cut off" by a judge as he explained his objections to a custody arrangement.
Free With Registration: Derivative Lawsuits Approved for LLCs
Friday, February 15, 2008
A four-judge majority of the Court of Appeals held yesterday that English and American precedents dating back to the 18th century demand that members of limited liability corporations receive the same legal recourse as is available to corporate shareholders, allowing them to bring derivative suits on behalf of their LLCs, even though state law provides no explicit authorization for such actions.
Free With Registration: Terminated At-Will Workers Lose Bid to Press Tort Action
Thursday, February 14, 2008
Five investment managers do not have a fraudulent-inducement claim based on the Dreyfus Corporation's failure to tell them of a merger that ultimately cost them their jobs, the Court of Appeals decided Tuesday. In another ruling, the Court determined that res judicata barred an attempt by a bond guarantor to recoup more than $2 million it contended was improperly commingled with the other collateral liquidated in a decade-old bankruptcy case.
Free With Registration: Pilot Plan Puts Social Workers Into Brooklyn Family Court
Wednesday, February 13, 2008
Family Court judges in Brooklyn, where caseloads average the highest-in-the-state at 1,300 per judge, will soon get help in managing their calendars. Five social workers will be hired to interview adults and children at the initiation of cases to determine the level of services needed by families, and coordinate the necessary paperwork and court appearances as cases progress.
Ruling Ends 6-Month AIDS-Phobia Cutoff
Friday, February 8, 2008
People enduring an anxiety-filled waiting period to find out if they have contracted the AIDS virus will no longer be limited to receiving damages for only six months' of emotional distress, the Court of Appeals held yesterday. Judge Victoria A. Graffeo wrote for the unanimous Court that the time limit "appears to be unprecedented in our common law tort jurisprudence" and is unfair to the victims of possible negligent exposure to AIDS who sometimes suffer for far longer than six month from "AIDS-phobia."
Free: Spitzer Names Three Justices To Third Department Bench
Thursday, February 7, 2008
Governor Eliot Spitzer yesterday appointed Justices E. Michael Kavanagh and Bernard J. Malone Jr. of the Appellate Division, First Department, to the Third Department, along with Supreme Court Justice Leslie E. Stein, who will sit on an appellate bench for the first time.
