Protect Insurance Companies -- Funny Or Die PSA

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

Protect Insurance Companies PSA from Will Ferrell

Overcharged By A Moving Company

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

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


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

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


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

OTHER CONSUMER PROTECTION POSTS:

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

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

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


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


SHOULD I FILE A LAWSUIT?


Pro:

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

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

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


Con:

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

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

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


CONCLUSION

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

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

Labor Law 241(6) reads:

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

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

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

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

Tools and Equipment.

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

Property:

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

Fire, Electricity, and Chemicals:

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

Protection Against Gravity-Related Risks:

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

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

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Related Posts:

• Owners and general contractors are responsible for gravity-related worksite injuries under Labor Law 240(1)
• A Falling Cinder Block Is A Gravity Related Risk Under The Labor Law, And Does Not Need To Be In The Process Of Being Hoisted Or Secured
• Out Of Possession Landlords May Still Be Responsible For Construction Accidents On Their Property
• Whether A Property Is A One- Or Two-Family Dwelling Under The Labor Law Depends Upon The Site And Purpose Of The Work

Nassau County Supreme Court

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

(516) 571-2903

Website

HISTORY

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

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

Resources:

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

By Bette S. Weidman, Linda B. Martin

Courts and Lawyers of New York 1609-1925,

By Alden Chester, E. Melvin Williams (1925)

LI Biz Blog, Nassau Justices Honored With Portraits

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

Newsday, Time Capsul Unearthed, (1999)

Newsday: Long Island, First Farmers, Then Lawyers

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

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

NY Historical Society, Nassau County Supreme Court;

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

Two Years Blogging

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

PERSONAL INJURY

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

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

CONSUMER PROTECTION

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

WRITING

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

LONG ISLAND

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

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

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

MISC.

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

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

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

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

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

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

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

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

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

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

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

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

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