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.