Sunday, December 21, 2008


* From the Long Island Press, Suffolk County has joined New York City in suing Indian tribes seeking an order prohibiting them from selling tax free cigarettes. The tribe, the Unkechaug, is fighting back. According to the New York Times, their Chief, Mr. Wallace, is a Dartmouth Law graduate and practiced in Manhattan before moving to the reservation and opening a smoke shop. According to Mr. Wallace, “they’re picking on us because they think we’re this little tribe with no means to defend ourselves... Bloomberg needs a scapegoat, so he blames us for the city’s deficit, instead of criticizing the financial markets.”

* The Suffolk County District Attorney has made 27 arrests in a $9 Million Mortgage Fraud scheme. The various, unrelated schemes typically involved brokers who procured "straw buyers," with fake documentation, who purchased expensive homes and then allowed them to go into foreclosure.

* Victims of Barnard Madoff's 50 Billion Ponzi Scheme have filed a class action, headed by Long Island attorneys.

* The Nassau County Legislature will be holding hearings related to the Black Friday Wal-Mart trampling.

* The Second Circuit Court of Appeals has held that a suit accusing the Southhampton Zoning Board of racism, based on denying a hispanic man a license to operate an auto repair shop in East Quogue, can proceed.

* A Suffolk County woman has sued Mt. Sinai hospital and the County Medical Examiner for surruptitously removing her husband's brain and then, after the funeral, asking for permission to use it for research.

Saturday, December 20, 2008


* Apple is being sued for false advertising for its claim that the iPhone 3G gives twice the speed at half the cost.

* From the CL&P blog, new credit card rules are set to be adopted. Also from the CL&P Blog, complaints against debt collectors are on the rise. 

* The New Legal Writer has a quote from Judge Posner admonishing misleading statements of fact in appellate briefs.

* The Legal Malpractice Blog, has a post regarding attorney client privilege in legal malpractice.
* AboveTheLaw, as always, has a ton of great posts. Big firms are having difficulty getting clients to pay their bills. Lindsay Lohan's girlfriend Samantha Ronson sued blogger Perez Hilton for calling her a "lezbot," lost, sued her attorney for malpractice, and is now being sued by both Perez and her former attorney, Martin Garbus, for legal fees. An Australian Court approved service of process through Facebook where a couple had evaded all other avenues of service; the couple, catching wind of the decision, promptly closed their facebook accounts.

* From the NY Personal Injury Law Blog, Bronx County Trial Judge Paul Victor has issued an opinion expressing his frustration at New York's No-Fault scheme. The blog also contains a fairly persuasive argument by Chief Judge Kaye should be named to the US Senate.

* According to the WSJ Law Blog, Bambu Rolling Paper Company has sued a t-shirt company that makes Obama themed t-shirts, some of which use altered versions of their logo, for patent infringement. Apparently, Bambu is is one of the world's 1000 oldest companies dates to 1764.  The Law Blog also followed up on an op-ed in the print edition from a man named Learned Foote.  Apparently, Mr. Foote -- whose father is a Harvard Law School Alumn -- was indeed named after famed jurist Learned Hand.  

* A lot of blogging about blogging.  Advice for the Young Lawyer is celebrating its 1st year online, and has a post giving advice on starting a blog. Frank Ramos advises posting regularly, have a niche, and know where your blog fits into a business plan. I did an introspective 1 year post about six months ago (trackback), and I've kept to about half of what I planned. also has a post giving advice on blogging.  The How to Build A Solo Practice Blog had a post on using social media

* The Volokh Conspiracy has a post on property rights on the moon, here. I posted on the same topic a while ago, here.

* The economy is still terrible.  AboveTheLaw has a post on finding a job during the recession. also reported on the continuing and disturbing trend of large firms rescinding the offers they made to students earlier in the year.  For those who are being laid off, the Connecticut Employment Blog has a post on seperation agreements, including an interesting survey of average severance pay.  

* Motions to dismiss have been denied in the class action suits against Countrywide and New Century, related to their roles in the subprime meltdown.  

* A federal judge ordered that a portion of a video deposition be removed from YouTube.  

* Scholastic has settled its lawsuit against Infinity Resources Inc. and for shipping the last potter book, Harry Potter and the Deathly Hollows, ahead of schedule.  Damn muggles can't follow directions!

Friday, December 19, 2008

Personal Injury - Slip and Fall on Snow Or Ice: The December 19, 2008 Snow Storm

New York just had it's first major snow storm, and it was a doozie. See coverage here, here, here and here. Every year, people are seriously injured from slipping and falling on snow and ice that is not properly removed. If you are one of those people, and you are contemplating a lawsuit, there are a few things you should do.

First, if possible, have pictures taken of the site where you fell. Your health comes first, of course. Don't go wandering around an icy area on crutches. Send someone to take pictures, and have them take pictures from various distances: some close, showing the dangerous condition; and some far, showing the surrounding

businesses or area. Try to include the date from a newspaper in at least one of the photos. Similarly, you should take photographs of your injuries. If you do decide to file a suit, pictures will be invaluable.

Second, write down your recollections of the event. What were the conditions when you fell? How was the lighting; where exactly did you slip; was the snow or ice old or freshly fallen? If you were wearing boots or shoes with good traction, make a note of that (maybe even take a picture of them). You should also write down the contact information for every doctor you see, and consider keeping a journal describing how your injuries are affecting you.

Third, you should contact an attorney as soon as possible. In slip and fall cases, there is often a municipal defendant, and municipalities have special protection under the law. If your defendant is a municipality, you must promptly provide them with notice of your claim or you will not be able to file a lawsuit. In New York, the time limit for notifying municipal defendants of a claim is usually 90 days, but sometimes you may have as short as 60 days. An attorney will know who the appropriate defendant is, and how to properly notify them.

If you would like more information, feel free to contact me at You may also want to take a look at a more comprehensive snow and ice post I wrote a while back, here.



Wednesday, December 10, 2008

Personal Injury - Wal-Mart Trampling

When a worker was trampled at a Valley Stream Wal-Mart on "black Friday" this year, it was national news, and big news on Long Island.  (See Newsday, here, New York Personal Injury Law Blog, here, the LA Times, here).  When the story broke, (like many other attorneys I'm sure), I promptly received questions from friends and family asking my opinion.  My initial thought was that the worker would be limited to worker's compensation but, apparently, the worker was a temp rather than a Wal-Mart employee, so worker's compensation is probably not an issue.

Proving a case for negligent crowd control or negligent security is difficult, but not insurmountable.  Historically, persons injured on a premises have fallen into one of three categories: invitee, licensee, or trespasser.  An invitee is someone who is lured onto a premises for the purpose of profiting the owner, and is owed the highest duty of care.  Some states still recognize this distinction, but New York doesn't.  The distinction was abolished in 1976 -- See Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55 (1976) -- in favor of a rule of "reasonable care under the circumstances."  A person in control of property in New York must exercise reasonable care to prevent foreseeable injuries caused by dangers of which he has or should have knowledge.  

Over the past thirty years, the issue of what is foreseeable and what dangers the person responsible for a property knows of or should know of has been litigated over and over again, and bodies of case law have developed addressing similiar factual scenarios.  Transient dangers (also called defects), such as ice or grocery store/restaurant spillage, for example, must have existed for a sufficient length of time to have been discovered upon reasonable inquiry.  

In many cases, the "defect" or "danger" in a property consists in the actions of third parties.  These cases are still considered under the broad umbrella of premises liability, but each have unique rules.  Apartment buildings and parking garages, for example, can be held liable for the criminal activity of tresspassers where they have reason to know of a recurrent problem and fail to provide adequate security.  

Crowd control, similarly, has its own body of case law.  Where an entity knows that a crowd will be present on the property it controls, they have a duty to provide appropriate crowd control.  Notice of a crowd is easy, but proving that crowd control was inadequate can be difficult.  “Where a plaintiff's negligence claim is premised on the theory that his or her injuries were caused by overcrowding and inadequate crowd control, the plaintiff must establish that he was unable to find a place of safety or that his free movement was restricted due to the alleged overcrowding conditions" Palmieri v. Ringling Bros. & Barnum & Bailey Combined Shows, 237 A.D.2d 589, 589, 655 N.Y.S.2d 646, 467 (2d Dept. 1997).  Phrased another way, adequate crowd control permits freedom of movement and provides a place of safety for those who wish to escape the crowd. “The defense that plaintiff's injuries were sustained as the result of an intervening agent is unpersuasive because the danger presented by a large crowd is a matter of common experience, and foreseeable intervening misconduct will not serve to supersede liability.” Ciancio v. Woodlawn Cemetery Ass'n, 249 A.D.2d 86, 87, 671 N.Y.S.2d 466, 468 (1st Dept. 1998).

The limited duty to provide crowd control is premised on a general knowledge that crowds can be dangerous, but more specific knowledge (or a special relationship to either the victim or the assailant) creates a more specific duty. Courts will examine the relationship between the parties, the “nature and duration of the unruly behavior… knowledge thereof and… failure to supervise.” Williams v. Skate Key, Inc., 240 A.D.2d 277 (1st Dept. 1997)(skating rink liable for injury caused by unruly ice skaters who were part of a special group that the rink failed to segregate from the other skaters).  See also Wilson v. Leisure Time Rec., Inc., 192 Misc. 2d 553, 558 (N.Y. Civ. Ct., 2002)(a bowling alley that catered to children and knew they frequently ran around had a duty to supervise children who were running so as to prevent injury to other patrons).  

In the Wal-Mart situation, there seems to be two viable theories of liability.  First, the store failed to provide adequate crowd control, which will depend on whether the worker was restricted in his movement and whether he had a place of safety.  Second, based on reports that the crowd broke into the store before it was officially open, the worker's family can argue that the crowd consisted of criminal tresspassers and adequate security was not provided to protect those in the store.  This second theory would be plausable if the store had reason to know that its door locks would not hold and there would have been additional security when the doors finally officially opened.   

Monday, November 24, 2008

Around the Blogosphere: 11.24.08

Apparently, the blogosphere has gone on without me for the last few weeks.  Here's some of what I've missed.  

* From's Inside Opinions Blog.  Partner at uber-firm Cravath Swain & Moore offers clients advice on cost-cutting, recommending that they give some of their work to smaller firms.

* Above the Law  is having drinks on 12/2 at Professor  Thoms', 219 2nd Avenue, south of 14th Street (NY).  Also from ATL, US News now has worldwide college rangings.  

* From Geeklawyer, the BBC has a new documentary on Barristers

* Andrew Lavoot Bluestone, from the New York Legal Malpractice Blog, has a post on attorney's charging and retaining liens.  

*  Hat-Tip to legal antics, George Bush admitted on CNN that he regrets saying certain things, such as "Bring 'em on." 

* The Empirical Legal Studies Blog has posted a Blawg ranking.  

* By the way, the economy is bad.  Susan Cartier Libel compiles a collection of post about the dismal outlook for 2009 law grads.  She also comments about Tauro Law School's radio advertisment, letting employers know that its graduates are ready for the real world.  

*  According to the CL&P Blog, NY's Appellate Division, Third Department, has held that NY State Courts do not permit incentive payments to the named plaintiffs in class actions.  

* Prof. Schiess has a post on dealing with time constraints in legal writing.   I left a comment.  

* The New York Personal Injury Law Blog has a piece on NY's system of electing judges.  Also, hat-tip to NYPILB, there is a class action against Victoria Secret. 

Monday, October 27, 2008

I'm Getting Married !!!

(top to bottom: Superman and Lois; Anakin and Padme; The Doctor and Rose). 

I'm getting Married November 1st to my wondeful fiance, Stephanie Lifrieri.


Wednesday, October 22, 2008

Susan Herman named new head of ACLU

Susan Herman, my first year Constitutional Law professor, has been named the new head of the ACLU. (See AboveTheLaw).  For those of you who did not have the good fortune of taking a course with her, Prof. Herman is an incredibly nice woman who treated her students with a great deal of respect, and obviously loved her subject area.  Congrats Prof. Herman!

Tuesday, October 14, 2008

Drunk Driving Accidents And Similar Alcohol-Related Injuries Can Result In Liability For Drinking Establishments

New York's "Dram Shop Act" makes bars, restaurants, and other providers of alcohol liable for injuries caused by its intoxicated patrons. This can include car accidents that occur after the drunken patron leaves (motor vehicle accidents are by far the most common of these claims), and assaults that occur in the bar or that can be reasonably connected with the assailant's drinking at the bar. 

Each state's Dram Shop Act is phrased a little differently, but they are all very similar.  New York's Dram Shop Act creates a cause of action against establishments that provide alcohol to persons who are “visibly intoxicated” or “habitual drunkards.” Under N.Y. General Obligations Law § 11-101,

Any person who shall be injured… by any intoxicated person… shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.
“Unlawful selling” is defined in Alcoholic Beverage Law § 65, which states:
No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to… any visibly intoxicated person [or] … any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages.
What constitutes being "visibly intoxicated," is dictated by common sense, and will depend on factors such as “unsteady gait, slurred speech, glazed and bloodshot eyes, and smell.” Marconi v. Reilly, 254 A.D.2d 463, 678 N.Y.S.2d 785, 786 (N.Y. App. Div. 2d Dep't 1998).  Courts will allow a case to go to a jury where ther is evidence that the person had a "good buzz" or was "a little drunk." See Ryan v. Big Z Corp., 210 A.D.2d 649, 651, 619 N.Y.S.2d 838, 839 (3d Dep't 1994)(finding a question of fact as to whether assailant was visibly intoxicated where witness described assailant as having “a very good buzz” based on “general rowdiness, glassy eyes… and sudden display of anger”).

Blood Alcohol Content tests may be enough to show that a person was visibly intoxicated in the establishment where they were imm immediately prior to the accident, but -- without more -- is not sufficient to prove liability against establishments they may have visited earlier in the night.  See Romano v. Stanley90 N.Y.2d 444, 661 N.Y.S.2d 589 (1997). 

 “There must be ‘some reasonable or practical connection’ between the sale of alcohol and the resulting injuries," but “proximate cause, as must be established in a conventional negligence case, is not required." Catania v. 124 In-To-Go, Corp., 287 A.D.2d 476, 477, 731 N.Y.S.2d 207, 208 (2d Dept. 2001).  But see Sherman v. Robinson80 N.Y.2d 483, 591 N.Y.S.2d 974 (1992)(finding that a liquor store was not liable where it sold alcohol to a minor, who gave that alcohol to other minors, who were then in a car accident).

In some states, such as New Jersey, an intoxicated person who injures themselves has a cause of action against the establishment that allowed them to become intoxicated (subject to an assessment of their own comparative fault). See NJSA  2A:22A-5 (New Jersey's Dram Shop Act);  Lee v. Kiku Rest., 127 N.J. 170, 603 A.2d 503 (1992).  

New York does not allow a dram shop cause of action in favor a person who become intoxicated and injures themselves, but will allow the children of such a person to sue for the loss of a parent.  Matalavage v. Sadler, 77 A.D.2d 39 (2d Dept. 1980).


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

Drunk Driving Dunce Hat (Long Island Legal News)

Monday, October 13, 2008

Around The Blogosphere: Depression Edition

I haven't done an "Around the Blogosphere" post since late July, and a lot has happened. The economy collapsed; there was a hurricane or two; and we are on the verge of a new election. There is a silver lining, however: we have not swallowed by a black hole (yet). 

* Nicole Black posted a letter from a Texas attorney, Dale Markland, on her Legal Antics Blog. Mr. Markland had to reschedule a deposition because of the recent hurricane that hit Texas, and one of his opponents apparently gave him a very hard time about it. To give you a gist of the letter, one line is: "I am sorry that the Houston Public Works Department had to use a fire hose to blow human feces out of my yard on the day our deposition was scheduled." There is rarely ever a reason to be a jerk about an adjournment. I had a more junior associate ask me the other day (yes -- there are finally associates more junior than me), about adjourning a deposition, and I told him that, in my experience, on the rare occasion I have decided to give someone a hard time about an adjournment, it has quickly come back to haunt me three-fold. 

* From The New York Personal Injury Blog, a New York absentee Ballot was mailed out naming "Barack Osama" as a candidate. Conspiracy theorists should eat that one up. 

* From the CL&P Blog, New York has enacted a new law (really adding State teeth to a pre-existing Federal Law), saying that the first $2,500 from a bank account where social security funds are deposited cannot be frozen. They reviewed a New York Times discussing how New York's Civil Court (for cases worth $25,000 or less) has become the new debtors court. I previously posted about this issue here. The House has passed a credit card holders bill of rights.  A new study shows that new credit card accounts, on average, generate $15 per month in add-on fees; this number, however, goes down as people learn over time how to manage their credit cards.  

* At, humor columnist the Snark has a piece about associate networking on sites such as Facebook, Myspace, et al. I like the Snark, but -- as happens way too often on many blogs -- the piece is addressed specifically to "BigLaw" associates as-if the rest of us don't exist, or don't work at BigLaw firms and so obviously aren't intelligent enough to use the internet. Don't drink the punch young BigLaw Associates; don't drink the punch! 

* The New Legal Writer has a piece on diffusing negative facts or law. Wayne Scheiss' legal writing blog has a good piece on prepositions

* According to Carolyn Elefant, posting on's Inside Opinion's blog, Plaintiffs only win employment cases 15% of the time, she comments on it twice. Serious commentators are realizing that Law School grades are a fraud. Small firms (2-150 lawyers) have experience abanner year

* Above-The-Law comments that Some BigLaw Firms may be switching to performance based bonuses, relying not just on billable hours but also work quality. Heller Ehrman, a very large, very old law firm, has broken up. The economists at the Conglomerate have determined that, even though we are in the midst of "economic armageddon" a law degree is still a great investment based on median salary. (Note of Caution: legal salaries have a bimodal distribution, so people make either above or below, but rarely at, the median -- See here). 

* Also from ATL, the Knights Templar have sued the Pope to undue the 1307 disbandment of the order and siezure of the groups assets.  

* From GeekLawyer, a lawsuit from several students to shut down the Large Hadron Collider has been thrown out. The relief being sought: Save the world! For those of you who are not familiar with it, the Large Hadron Collider was turned on in September and experienced technical difficulties, requiring it to be shut down. The LHC is an enormous underground particle accelerator/collider in Europe. Two sub-atomic particles are spun around at near the speed of light, then slammed into each other, resulting in sub-atomic black holes that scientists can study. Not to worry, however; there is little chance that the machine would create a stable black hole that would swallow the Earth from the inside. Black holes evaporate and, in theory (a very solid theory), the black holes created by the LHC would evaporate in milliseconds. 

Gerry Spence has a post on "The Secret of Winning."  It's worth reading because, well, I like winning.  

* New York State Assemblyman Rory Lancman has started a blog, entitled the "Fiscal Fairness" blog.  

Friday, September 26, 2008



According to's historic building information, the Queens County Supreme Court Courthouse was built in 1935 (the one in Jamaica, there is also a smaller courthouse in Long Island City).  The entrance is neoclassical, with a limestone facade and Corinthian columns. 

The sculpture below was added in 1998. The outside ring contains a quote from Benjamin Cardozo: "Danger invites rescue. The cry of distress is the summons to relief.  The quote is from Wagner v. International Railway, 232 N.Y. 176 (1921). In Wagner, a man was injured helping someone who fell from a train.  Apparently, the artist could not find a good enough quote from Palsgraf v. Long Island R. Co., 248 N.Y. 339 (1928), also a famous Benjamin Cardozo decision, but where the accident occurred in Queens.

Surrounding the doors to the entrance are sculptures of Hamurrabi, Meno, Confusius, and Mohammed.

The inside of the courthouse is impressive. When you enter the main lobby, you immediately see the marble walls and "Grand Staircase," reminiscent of the stairs in the Titanic.  On the far wall are two murals, which were added in 1942, a few years after the courthouse opened. The one on the left depicts Moses with the Ten Commandments; the one on the right depicts the Constitutional Convention.  The walls are marble, and the elevator doors appear to be aged copper.

Tuesday, September 23, 2008

Personal Injury -- 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

In Stawski v. Pasternack Popish & Reif, 2008 NY Slip Op 07036 (Sept. 23, 2008), the plaintiff was struck by a falling cinder block that had been temporarily removed from a column and then returned to an open cavity in the column without being appropriately secured. The original attorneys failed to file a notice of claim against the municipal owner of the construction site (when you are suing a municipality, you must give them notice of your intention to file a claim -- usually within 90 days of the occurance), and the plaintiff's suit was dismissed.

The plaintiff then sued his original attorneys for malpractice. The attorneys argued that the underlying case lacked merit because Labor Law 240(1), the theory upon which it was alleged the case should have been brought, only applied to objects that were in the process of being hoisted or secured.

The parties agreed to the underlying facts of the case, and moved and cross-moved for summary judgment. The Civil Court found that there was a question of fact as to whether Labor Law 240(1) applied, and that the case should go to the jury. The attorneys then appealed to the Appellate Term, which reversed and granted summary judgment, finding that there was no Labor Law 240(1) case.

Now, after granting leave to appeal, the First Department has revesed the Appellate Term's decision and, on remand, has ordered that summary judgment be granted in favor of the plaintiff.

You can learn more about Labor Law 240(1) here.   If you are looking for representation, feel free to contact me at

Wednesday, September 17, 2008

Legal Malpractice Case Dismissed Where Plaintiff Claimed The Firm Failed To Argue Bankruptcy Toll To Save Med Mal Case From Statute Of Limitations

The First Department has issued its decision in Kremen v. Morelli54 A.D.3d 596 (1st Dept. 2008), dismissing a legal malpractice case where the plaintiff had argued that the law firm failed to raise a novel legal theory to save her case.  In this case, the plaintiff had a bilateral mastectomy thirteen years ago.  She claimed that she only had the surgery because she had been wrongfully diagnosed with cancer, while the doctors claimed she knew it was prophylactic.  Six years after the operation, she brought a lawsuit.  The case was dismissed because New York's statute of limitations for medical malpractice is only two-and-a-half years. Her lawyers had tried to bring the case by arguing that there was fraudulent concealment, which would have prevented the doctors from asserting a statute of limitations defense. 

The plaintiff then sued her attorneys for legal malpractice.  She had declared bankruptcy prior to filing the first lawsuit, and claimed that her lawyers would have won the case if they had argued that her claims were timely because a bankruptcy trustee is permitted two extra years to bring claims that are timely when a bankruptcy is filed. 

The law firm moved to dismiss the case for failure to state a claim, arguing that only the trustee can assert the bankruptcy toll (the medical malpractice case had been abandoned by the bankruptcy estate prior to being dismissed), and that the bankruptcy toll cannot revive a limitations period that had already expired (because fraudulent concealment is an estoppel, it does not stop the limtiations period from expiring). 

The trial court denied the motion to dismiss, and the decision received a fair amount of media coverage.  It made the front page of the New York Law Journal, 
here; Andrew Lavoot Bluestone's Attorney Malpractice Blog covered the case twice, here and here;  and Overlawyered's coverage of the case, here, generated some interesting comments.

Now, the Appellate Division has reversed the lower court's decision and dismissed the legal malpractice action. The Appellate Division agreed with both arguments offered by the law firm, finding, one: 

The bankruptcy toll was not triggered because the statute of limitations had already run... To hold otherwise would alter the elements of fraudulent concealment so as to excuse the due diligence inquiry, thus changing, rather than applying, the applicable non-bankruptcy law
and, two: 
Plaintiffs lack standing to bring this action.  Once the bankruptcy estate was fully administered and the trustee abandoned the claim, the cause of action revested solely in plaintiffs' names. When a trustee abandons a claim as to the debtor, the latter may no longer invoke the benefit of 11 USC § 108(a)(2). 

Tuesday, July 22, 2008

Personal Injury - Out-of-Possession Landlords May Still Be Responsible For Construction Accidents On Their Property

A hat-tip to Matt Lerner's Civil Law Blog, the Court of Appeals clarified a mildly unsettled Labor Law 240(1) issue recently, finding in Sanatass v Consolidated Inv. Co., Inc., 10 N.Y.3d 333 (2008) that when the statute -- which requires that owners and contractors give workers "proper protection" against elevation related risks (both falling from scaffolds and ladders, or being struck by falling objects) -- says "owners," that includes out-of-possession landlords. The landlord can of course contract with the tenant for complete indemnification, i.e. that the tenant has to pay any judgment against the landlord, but the owner themselves is at least nominally on the hook.
You can learn more about Labor Law 240(1) here.  If you are looking for representation, feel free to contact me at  

Around the Blogosphere: July 2008

* The Empirical Legal Studies Blog has an interesting piece on the legal job market for new attorneys. It is old news that most law graduates do not make $160,000. What leaves many graduates still perplexed, however, is how much less their starting salaries actually are and where the "middle of the road" jobs are hiding. Based on NALP statistics, the ELS blog explains that first year law salaries have something of an inverse bell curve -- or two peaks with a trough in the middle -- called bimodal distribution. As the ELS Blog explains, until approximately the year 2000, law salaries followed an ordinary bell-curve, but then top firms started following "the Cravath system," i.e. hiring only top law graduates or laterals from comparable firms and paying them exorbitant salaries. The result was a two-tiered system for recent law graduates: one with a dominant salary around $40,000 (in 2006); and the other with a dominant salary of $135,000 (in 2006); with relatively few jobs available in the intervening ranges.

* The Snark has an amusing post on office decoration. Unfortunately, I think my office may fall into the "as soon as I finish my novel I'm out of here" category. I still haven't hung my law degree or bar admissions (I'm just too lazy to get them framed). I do, however, have several plaques, a plant, a nice desk set, a stuffed dragon, and a little talking Yoda figure. And, of course, a lot of redwells. Hopefully, rather than "I'm out of here...," my office says "I'm too busy to frame stuff." Of course, who knows what'll happen when that novel is finished.

* According to the WSJ Law Blog, Texas wants to execute five mexican nationals who were not offered their Geneva Convention Rights (Foreign Nationals must be instructed that they can contact their consulate). At least one of the nationals had lived in the US illegally since preschool. The World Court found that the executions would violate the Geneva Convention, and ordered the US to stop them. President Bush issued a memo telling the Texas State Court to impliment the decision, but the Texas courts found that the nationals had waived their rights by not raising them in the ordinary course of the appeals process. The Supreme Court upheld the ruling, President Bush went to the World Court and said, essentially, "I tried." Mexico is arguing that the US Federal Government should do more to stop the execution.

Tuesday, July 1, 2008

Under Labor Law 240(1) and 241(6), The One- Or Two-Family Dwelling Exception Depends On the Site and Purpose Of The Work

Where a construction accident occurs during work on an owner-occupied one- or two-family dwelling, the property owner is exempt from liability under New York's Labor Law 240(1)(related to gravity related hazards) and Labor Law 241(6)(related to tools, equipment, and violations of he State Industrial Code).

In Zheng v. Cohen, 2008 NY Slip Op 5910 (2d Dept., June 24, 2008), a homeowner attempted to argue that they were entitled to the one- or two-family dwelling exception to New York Labor Law 240(1) -- which places an affirmative obligation on contractors and building owners to ensure that workers who are exposed to gravity-related hazards have proper protective equipment (such as ladders, hoists, scaffolding, etc.) but exempts owners of one- or two-family dwellings -- because they used the home as a one-family residence. The building, however, was legally a three-family dwelling, and the construction project during which the plaintiff was injured did not change the legal occupancy of the dwelling.

Defendants argument that the one- or two-family dwelling exception applied to three-family dwellings that are only occupied by a single family was based on Stejskal v Simons, 3 NY3d 628 (2004) and Khela v Neiger, 85 NY2d 333, 648 N.E.2d 1329 (1995) which had held that the purpose of a construction project is the determinitive factor in deciding whether a building is a one- or two-family dwelling (i.e., a three-family home being converted to a one-family home is entitled to the exemption). Stejskal had never before been interpreted, and it was an open question whether an owner's averments as to the actual use of the premises were sufficient to implicate the one- or two-family dwelling exception.

The lower court denied the defendants' motion for summary judgment, and the Second Department affirmed, finding that the homeowners had failed to show that the sole purpose of the construction was the conversion of the building to a one- or two-family dwelling, and that the homeowners statements were insufficient to set forth a prima-facie showing that the building was not used as a three-family dwelling at any point after the construction.
You can learn more about Labor Law 240(1) here.  If you are looking for representation, feel free to contact me at

Friday, June 27, 2008

Around the Blogosphere: June 2008

* Spain has declared by statute that Apes are legal persons. (U.K. Guardian). Also, last month, the EU Court of Human Rights accepted an appeal on the issue of whether Apes are legal persons under the EU Charter. (LiveScience, Associated Press). Fans of Arthur C. Clark, a Science Fiction author famed for accurately predicting many scientific and cultural developments of the past century, may recall that his second-to-last book, Sunstorm, published in 2005, describes a not-to-distant future where apes and highly advanced artificial intelligence systems are considered "legal persons (non-human)."

* According to a post on the Consumer Law and Policy Blog, "Bounce loans, the Fed rule and the unbanked," the Federal Reserve is now considering a rule to curb abusive overdraft fees by banks.

* Although the deadline for submissions has already passed, Above the Law was recently looking for a full time writer. Apparently you can actually make a living doing this.

* From the WSJ Law Blog, the Ninth Circuit recently ruled that federal employees have a right to privacy under the Fourth Amendment that extends to work phones and e-mail accounts.

* At the New York Personal Injury Law Blog, Alan Turkewitz is posting a play-by-play from his recent motor vehicle trial. Among the interesting points, he explains that he used a peremptory challenge on a juror who's son is going to Iraq because he does not want the juror comparing his client's trauma to what his son is going through, and struck another juror because she never smiled. He also structured his opening starting from the middle so as to emphasize how the accident changed his client's life.

* The US Supreme Court overturned Washington DC's gun ban, rendering its first Second Amendment decision in many, many years. (WSJ Law Blog).

* Carolyn Elefant at's Inside Opinions has two great posts on law firm marketing: one on the need for video entries on your website, here ; and the other linking to ten law firm marketing tips from Larry Bodine at The Law Marketing Blog, here.

* LinkedIn - a professional social networking site -- has been valued at 1 Billion dollars. ( Inside Opinions). More importantly, I recently opened a LinkedIn profile.

* In an employment discrimination fee award decision, Rozell v. Ross-Holst , courtesy of Daniel Schwartz' Connecticut Employment Law Blog, the SDNY approved a $600 per hour fee for a partner specializing in employment law

* Over at How Appealing, Howard Bashman and Judge Richard Posner are engaged in an entertaining reparte. According to Mr. Bashman, the phrase "ostriches when frightened bury their head in the sand" would imply that multiple ostriches share a single head; but Judge Posner retorts that to say "ostriches hide their heads in the sand" would imply that each ostrich has multiple heads.

Wednesday, June 25, 2008


While researching a matter I have in the Central District of California, I came across the March 26, 2008 decision in Siegel v. Warner Bros. Entertainment, wherein the heirs of Jarome Siegel -- co-creator, with Joseph Schuster, of Superman -- are trying to reclaim their copyright over the Supreman character. District Judge Stephen Larson's lovingly crafted 72 page decision denied summary judgment to Warner Brothers, and found that Siegel's heirs are intitled to some compensation from the copyright.

In addition to its discussion of copyright law, the decision contains a detailed history of the Superman franchise, with pictures, and appends a reproduction of the first Superman comic book.

As Judge Larson explains, Superman started as a newspaper comic strip, and was first published as a comic book in 1938 by Detective Comics under the name "Action Comics." On March 1, 1938, prior to publishing Action Comics Number 1, Detective Comics paid Siegel and Scheuster $130 for their work (representing the $10 per page rate they had agreed on) and asked them to sign a form stating that they were granting Detective Comics "all the goodwill attached... and exclusive right[s] [to the Superman Character] to have and hold forever."

Needless to say, the Superman franchise became quite valuable. In 1947, Siegel and Schuster brought an action in the New York State Supreme Court, Westchester County, seeking to rescind the copyright grant. The parties settled for $94,000, and Siegal and Schuster acknowledged that Detective Comics was the exclusive owner of the Superman copyright.

By the mid-1960's, however, the Supreman copyright was up for renewal, and Siegel and Schuster sued again. They argued that, as the creators of the work, they owned the renewal rights. Siegel and Schuster lost the suit but, in light of the bad publicity, Warner Communications (which then owned the copyright), agreed to give them creator credit, pay them an annual stipend and provide them with health insurance for the rest of their lives (with the stipend and insurance to go to their spouses if they died before a certain date.  In the 1980's, the insurance agreement was renegotiated to apply if the Superman creators predeceased their spouses, without respect to any particular timeframe).

In 1976 the Copyright act was amended to include a provision that any grant of copyright awarded before a certain could be terminated. Siegel's heirs (and Schuster's, seperately) terminiated the copyright grant and, after a series of unsuccessful negotiations, sued.

In the March 26, 2008 decision, the Court denied summary judgment. Warner Brothers argued, among other things, that by accepting the stipend and health insurance after sending a termination letter Mrs. Siegel had waived her termination rights, but the court did not buy that argument. Instead, the Court found that the the termination was valid. The court did find in Warner Brother's favor on the issue of foreign profits, holding that termination of a U.S. copyright does not automatically effect intellectual property rights in other countries.

The court set the case down for further proceedings related to two issues: first, what extent the Superman franchise is based on the original comic book, as opposed to later developments; and, second, whether Siegel is entitled only to a share of the licensing payments that WB Entertainment (a WB subsidiary) paid Warner Brothers, or whether -- due to a sweetheart deal on the licensing payments -- Siegel is entitled to a share of WB Entertainment's actual profits.

Tuesday, June 24, 2008

Business Law: The De Facto Merger Doctrine

As a general rule, a corporation does not assume a predecessor’s liability by purchasing assets, unless “(1) it expressly or impliedly assumed the predecessor's tort liability, (2) there was a consolidation or merger of seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling corporation, or (4) the transaction is entered into fraudulently to escape such obligations.” Schumacher v. Richards Shear Co., 59 N.Y.2d 239, 245 (1983). Although generally cited for setting forth New York’s “de facto merger” doctrine, in Schumacher the Court of Appeals actually found that a de facto merger had not occurred but that the successor corporation was nonetheless liable for failure to warn because it continued to service machine in question and touted its expertise.

An example a case where the court found a de facto merger is Matter of AT&S Transp., LLC v. Odyssey Logistics & Tech. Corp., 22 A.D.3d 750, 753 (2d Dep't 2005), where the Second Department explained that:
substantially all of the assets of Rely and Acquisition Corp. were purchased or licensed by Odyssey. The real property of the predecessor corporation was transferred or assumed by Odyssey. Odyssey offered employment to its predecessor's employees, hired two of its predecessor's management personnel, assumed the contracts of independent contractors, agreed to honor the predecessor's customer service contracts, and received the predecessor's business insurance policy. Moreover, pursuant to the transfer agreement, Rely could no longer use its trade name and the transaction was deemed a liquidation of Rely. Furthermore, upon liquidation, the shares of Odyssey stock were to be distributed to Rely's preferred stockholders. The fact that Rely did not immediately liquidate is not dispositive. So long as the acquired corporation is shorn of its assets and has become, in essence, a shell, legal dissolution is not necessary before a finding of a de facto merger will be made.
In 2006, the Court of Appeals declined to add a fifth exception to the De Facto Merger doctrine, the “products line” exception, whereby continuation of the same product line, by itself, exposed a successor corporation to liability. Semenetz v. Sherling & Walden, Inc., 7 N.Y.3d 194, 818 N.Y.S.2d 819 (2006). The one New York State decision to interpret Semenetz thus far makes clear that Semenetz did not change the fact that “the policies that guide an assessment of successor liability include the concept that a successor that effectively takes over a company in its entirety should carry the predecessor's liabilities as a concomitant to the benefits it derives from the goodwill purchased, and the desire to ensure that a source remains to pay for the victim's injuries." Morales v. City of New York, 18 Misc. 3d 686, 688 (Kings County, 2007)

Morales went on to explain that “the hallmarks of a de facto merger are the continuity of ownership; cessation of ordinary business and dissolution of the predecessor as soon as possible; assumption by the successor of the liabilities ordinarily necessary for the uninterrupted continuation of the business of the acquired corporation; and a continuity of the management, personnel, physical location, assets, and general business operation. These factors are analyzed in a flexible manner that disregards mere questions of form and asks whether, in substance, it was the intent of the successor to absorb and continue the operation of the predecessor. Policy considerations dictate that, at least in the context of tort liability, courts have flexibility in determining whether a transaction constitutes a de facto merger." Morales, 18 Misc. 3d 686, 690-691; But see Employee Rels. Assocs. v. Xperius, Inc., 196 Misc. 2d 485 (Monroe County, 2003)(courts have been more flexible in finding de facto merger for the purpose of Tort liability than Contract, and in contracts at least, continuity of interest is a strict requirement). Although multiple factors are considered, the key factors (generally described as necessary requirements) are: (1) continuity of ownership, which can be shown by any “indicia of control over or continuing benefit from the sold assets;” and (2) cessation of the predecessor corporation’s business. Morales, 8 Misc. 3d, 691.

Friday, June 20, 2008

Happy Birthday Blog!

My blog turned a year old last Friday. It is far from where I want it to be, but I have kept up with it for a year (albeit sometimes sporatically), and I'm proud of that. In light of the occasion, I decided to review and evaluate what I have done with this blog for the past year, and set some goals to make it better.

My blog is still looking for a voice, a name and a direction. In retrospect, my posts can be roughly grouped into four categories: substantive or procedural law; consumer protection; the legal job market for new attorneys; and random legal news.

First, the largest portion of my posts have been substantive or procedural, and these have also been the posts that have received the best response. Within my firm I concentrate on appellate and complex motion practice, mostly Torts, and commercial litigation, but because I am a young attorney I have yet to carve out a specific niche. One of my posts, which was actually an article that I co-wrote with a partner and another associate at my firm on slip and fall litigation, was included in a blog round up from Eric Turkewitz's New York Personal Injury Blog (one of my favorite blogs), which I considered to be a tremendous compliment. Another post on appellate procedure prompted an e-mail from a pro se litigant saying that they had found the information helpful. In the future, I want to expand on these posts. Specifically, I do a tremendous amount of research and writing, and much of that work could be fodder for great blog posts. My plan is to have a regular segment called Little Bit O' Law, which will consist of short research pieces.

Second, many of my posts -- particularly the more opinionated ones -- relate to consumer protection. I suppose technically this could be considered a substantive area, but it is not an area where I currently practice (my firm does not do consumer class actions... yet). The most recent post, here, is a New York Civil Court case I read in the New York Law Journal which touched on an issue -- default credit card rates -- that I believe will become increasingly important in the future. I think I was the only person to comment on that case other than the Law Journal. I have also had two posts, here and here, covering a British case where the U.K. government is challenging bank overdraft fees, and contrasting that case to how U.S. courts have handled the issue. Professor Arnold S. Rosenberg found interest in the same topic, and wrote a law review article that was featured the Consumer Law and Policy Blog, here. I feel like this has been one of my blogs strongest areas, and I plan to continue these posts in a segment called Consumer Advocate.

A third group of posts have related to the legal job market for people who -- like myself -- recently graduated with a decent rank, from a decent law school, and were shocked to discover that a law degree is not a golden ticket. There have been hundreds of similar posts on other blogs, but at first I felt like this was ground-breaking information. Shortly after my first post, Loyola2L gained a great deal of publicity. I'll admit I was a little jealous, for a minute, but I am probably better off having not garnered a great deal of publicity for complaining about law school tuition. I in no way regret having gone to law school. The only thing I would have done differently, if I had a more accurate picture of the job prospects for a top-50-ish school, would be to have more seriously considered a public or lower ranked school. That said: I love being an attorney; I believe that I am extremely good at what I do; and I am sure it is just a matter of time before my education pays off financially. Over the past year, the issue of return on intvestment for legal education has been greatly publicized, and I am glad to have put in my two cents. I cannot, however, keep re-posting on the same topic. I have had a few staggered posts about practical lessons I've learned, and my plan is to combine these categories and expand them to include a broader range of topics relevant to young (or prospective) attorneys. I'll include regular (maybe quarterly?) articles about the legal job market, but also pieces with practical lessons that I have picked up. I need a catchy name for this one, but my working title is: I'm a lawyer, now what?

My fourth category of posts over the past year have related to random law related news, but these posts have not had a unifying theme. What I plan to do is have an Around the Bloggosphere segment, where I'll include links and comments to other blog posts that I find interesting.

What Kind Of Job Can You Get With A Law Degree?

I just posted an answer on, and I thought I'd share.

The question: What kind of job can you get with a law degree?

My Answer:

The most obvious answer is: an attorney. After obtaining a law degree from an ABA accredited law school, a person becomes eligable to take a state bar exam and, if they pass the bar exam, may then practice law within that state. An attorney who has passed the bar exam is allowed practice any field of law, with the exception of maritime law and patent law (which have their own national bar exams -- note, the patent bar exam requires a minimum amount of science credits). Although a person may specialize in tax law without also being a certified public accountant, prior tax experience is generally required for any position specializing in tax law.

In most states, attorneys are also eligable for other licenses, including a real estate license, allowing them to become a realtor or broker, as well as a notary public license. Common alternative careers for persons with a law degrees include business administration, human resources, government administration and non-attorney positions within the insurance industry. Entertainment and media are also not uncommon field for former attorneys: notable figures ranging from John Grisham to Geraldo Rivera were once attorneys.

Generally, a legal training indicates that a person is skilled in analytical reasoning and argumentation, and has the ability to distill large amounts of information or complex fact patterns. Although law school is considered a "professional" education, aspiring law students should realize that the law, by itself, is either an academic or political discipline, and law practice generally draws on skills from other fields. Although not required, if a person has a desire to practice a particular field of law, then a background in a particular industry is helpful before entering law school.

The notion of entering law school because it is supposedly a "versatile" degree has been heavily challenged, and aspiring law students should take caution that a law degree is not an alternative to an MBA. A non-legal job is generally considered a backup for a person with a law degree, and as a general rule a person seeking such a job either tried and hated actual law practice, failed to achieve success as an attorney, or some combination of the two. A law degree is expensive and, generally, meant for persons who intend to practice law (or teach law, if you can get into a TOP school).

When an aspiring law student indicates a desire to enter law school because they do not know what they want to do and they perceive law school as a spring-board to a successful career, a good admissions consultant will encourage them to gain real world experience (either in other industries or within the legal profession) before entering law school. In fact, many top law schools will consider prior experience as a non-quantatative factor in making an admissions determination.

As a side note, there has been a series of terrific articles on alternative careers for lawyers at the Above The Law Blog, here.

Related Posts:

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

How Law School Rankings Take Advantage Of Prospective Law Students

Not Every Law Graduate Makes 160k

False Advertising in Legal Education

What Kind of Job Can You Get With A Law Degree

Wednesday, June 11, 2008

New York Decision Favors Consumers: Citibank v. Mahmoud, 2008 NY Slip Op 51091U (Richmond County Civ. Ct, 2008)

I read the surprisingly consumer friendly decision in Citibank v. Mahmoud in today's NY law journal.  The case is in the Richmond County (Staten Island) Civil Court, and involves a $16,000 Citibank credit card debt, plust a claim of $3000 in attorneys' fees. Apparently, however, much of the debt is derived from a default rate that Citibank began assessing in 2006 of 31.240% for purchases and 56.148% 3 for advances.

As Judge Phillip Straniere explains, under the National Banking Act, 12 USC 85, "national banks, such as plaintiff, are permitted by federal law to charge the highest rate of interest allowed by the state where the bank is located." The judge ruled, however, that a hearing was required to determine "if the practices of Citibank are in conformity with the federal law so as to entitle it to summary judgment in this and similar actions." The judge also asked, "Parenthetically, is it possible that there is a link between the inability of homeowners to keep their mortgages current, the subsequent high default rate in home mortgage loans and the inability of many of these individuals to timely pay their credit cards accruing interest charges of 30% or more?"

Judge Straniere goes on to comment that "recognizing that federal statutes have preempted the rights of the states to protect their citizens from usurious loans, at some point an excessive interest rate, although not usurious by federal standards may shock the conscience of the court and violate the public policy of New York law. The New York State Banking Board sets the generally effective civil interest rate, which is currently 16.00% per annum (3 NYCRR. 4.1; L. 1980, ch. 883). The courts of New York may not be able to void the rates charged in this case by plaintiff or other federally regulated creditors because of this policy created by Congress. However, the existence of a federal law, the effect of which is so egregious, does not require New York to enforce agreements which common sense and reasonable persons would conclude have so gone beyond the intentions of Congress in passing legislation to insure that federally chartered banks were on the same competitive footing as their state chartered rivals that it has become unconscionable, especially when the legislation affects the economic well being of its citizens individually and the general public."

But there's more. Citibank claims to be located in South Dakota, hence the "Citibank (South Dakota) NA" on their stationary, and South Dakota allows banks to charge any interest rate they want: even rates that would be criminal in New York. Apparently, however, Citibank is incorporated in Delaware and it's corporate address is in Missouri, so reason #1 the court ordered a hearing was that the bank failed to show that South Dakota Law applied. This won't make much of a difference in the long run, since Delaware Law is almost as biased as South Dakota, but, again, there's more.

The defendant also disputed that the credit agreement under which Citibank asserted its interest rate and claimed legal fees applied to him. The bank argued that the defendant was given a copy of the agreement with his credit card, agreed to the terms by activating the card, and was periodically informed of changes in the agreement. The bank, however, did not have any evidence that it ever provided any such agreement or updates.

The problem of banks not having evidence of ever providing an agreement is a practical issue that may be helpful for many litigants in this situation, but there's still more. Here's what I think is the biggest point. Part of the hearing the judge ordered will relate to the fact that the National Banking act says "when no rate is fixed by the laws of the State,… the bank may…charge a rate not exceeding 7 per centum or 1 per centum of the discount rate on ninety-day commercial paper in effect at the Federal Reserve Bank in the Federal Reserve district where the bank is located, whichever is greater,…" and the court wants to know "why is not this the rate to be charged on the account and not the rate selected by the plaintiff?"

If Judge Straniere interprets the National Banking Act to mean that where state law does not set a usury rate, then the rate can only be 7% (or 1 per cent of the 90 day commercial paper discount rate), this would, in theory, mean that most credit cards, nationwide, are grossly overcharging their customers. South Dakota, Delaware and Virginia, where most banks claim to be "located," use phrases like "any reasonable rate" rather than actually setting a usury rate, and allow banks to charge whatever they want. If the judge ruled that the National Banking Act's 7% provision applied in these circumstances, that decision would undoubtedly be appealed to the Appellate Term, then to the Appellate Division, then to the N.Y. Court of Appeals, and -- if it went that far -- fought all the way to the U.S. Supreme Court. Thus far, banks have won every battle in their unending campaign to pillage as much money as possible from their poorest customers, but (particularly with the current financial crisis) this may be a turning point. Either this case will finally lead to a just interpretation of the National Banking Act, or perhaps public outcry will force legislators to finally act on this issue.