Snow and Ice Injuries

We've had a few short snow flurries so far this year, including on Christmas, but it looks like this weekend will be the first serious snow storm. Right now, there is a nice blanket of snow on the ground, and plenty of holiday decorations still up to highlight the wintery scene.

With snow and ice, however, come weather related car accidents, slip and falls, and other injuries. Every year I do a snow and ice blog post around this time. Injuries happen all year long, but claims based on winter-time car accidents or slip and falls are particular types of personal injury lawsuits that I have a great deal of experience with.

If you need a personal injury attorney, contact me. A lawyer can help you or your loved one get compensation for your snow and ice accident related injuries.  For a brief video describing my services as a Suffolk County Car Accident and Slip and Fall Attorney, click this link.

Reuters - Utility Liability Following Hurricane Sandy

Reuters, 11/9/2012 -- "Can Customers Sue Power Companies for Outages? Yes, but it's Hard to Win.," by Allison Frankel

Consumer Attorney -- Hurricane Sandy

Hurricane Sandy battered the Northeast on Monday, causing widespread damage throughout New England, and leaving New York with the a number of fatalities and prolonged power outages.

From what I've heard on the radio, LIPA's still saying 7-10 days, and I'm hoping they are trying to underpromise and overdeliver. Friends and family have told me lights in parts of Commack, Nesconset, Seldon, Manorville and Shirley are back on. Smithtown, St. James, and Lake Grove are still out. Hauppauge was still out as of last night. Verizon's cell service is mostly out, except for in the areas with power and an occasional spotty signal.

Suffolk County's courts are open today 10/31, if they happen to be on your trick or treat route.

Hurricane Sandy is likely to lead to a number of situations where lawyers are needed: car accidents, insurance claims, and business disputes, to name a few.

Depending on demand, I may investigate and send a foil request regarding LIPA's response to the storm, or become otherwise involved in assisting those who are impacted. Utilities aren't liable for outages absent "gross negligence," and have a tariff that covers many claims. I was involved in litigation with Con Ed over a large balckout in Queens several years ago, and I received a number of calls from Nassau and Suffolk (and was interviewed for a news story) when Irene hit. At the time, with Irene, recommended people file a tariff claim, and did not commence an action.

I'm curios how LIPA prepared for this storm in light of what they learned from Irene. At the moment, there are still a ton of trees down, so we'll have to wait and see.

Below are some pictures of how Smithtown, Long Island, looked after the storm.

11/5 UPDATE - Still no power in much of Smithtown (including my house). My law office, in Hauppauge, is up and running. I'm confident that LIPA's employees, themselves Long Islanders, are working as hard as they can. Other States, however, seem to have responded much more quickly, and people are seriously questioning LIPA's preparedness for this storm. The gas shortage has also become a major problem.  From the information I've heard, it's rumored that many locations will not have power until November 14th or 28th.

11/7 UPDATE - Still no power in at least my area of Smithtown; the gas lines are absurd.


Related Posts & Websites:

* FEMA Disaster Assistance (learn if you are eligable for, and apply for, Federal disaster relief assistance)

* New York State Public Service Commission (regulatory body overseeing utilities);

* LIPA Storm Center (updates and information from LIPA about the storm response)

* Hurricane Irene Power Outage Claims (A prior blog post explaining how courts assess liability against utilities if they are sued (whether in an individual lawsuit or class action, and providing information about the PSC's internal claim process);

* "Israel Warns LIPA on Storm Response," Patch.com by Jason Molinet, 10/30/12 ( Congressman says "LIPA during Irene did not perform satisfactorily. They said they got their act together. We’ll be watching.")

* “Gas Lines Persist as Fuel StartsFlowing Again,” By Timothy Bolger, Long Island Press, 11/2/12

* "What Cuomo can do to Con Ed and LIPA," By Dana Rubenstein, Capital New York, 11/7/12

* “Can customers sue power companies for outages? Yes, butit's hard to win,” Reuters News & Insight, By Alison Frakel, 11/8/2012 (I was interviewed for this article)

* "Why LIPA failed: Utility ignored warnings it wasn't readyfor major storm,” Newsday by Gus Garcia-Roberts and Will Van Sant, 11/8/2012 (argues that LIPA "failed to upgrade antiquated technology, neglected vital maintenance and regularly underbudgeted for storm response")

Business Attorney

Business law is divided into two broad categories: transactional and litigation.  I handle transactions (planning for problems before they arise), but the majority of my experience has been in litigation (dealing with problems after they happen).  These two areas work together well, and I've found that the litigation experience is extremely helpful in transactional work.

What I offer clients is quality work, professional service, and personal attention.  There are two extremes among business attorneys, and I fall somewhere in the middle.  On the one end, there are firms that churn out boilerplate work quickly and efficiently, but may have a limited capacity to go beyond that.  For example, actually lawyering a case does not fit into some firms' business models, and they have trouble reacting when there are legitimate (or even arguable) defenses to their clients claims in a litigation context, or where a transaction develops in a way that does not quite fit their pre-drafted documents.  On the other end of the spectrum are firms that over-lawyer every case, and spend unfathomable amounts of their clients' time and money on nonsense.  For example, I've seen numerous instances where firms will take very simple things and make them unnecessarily complicated, or have multiple attorneys and staff spend considerable time with multiple conferences and meetings to schedule tasks that can be completed by a single attorney in only a few minutes.

I'm in the middle of these extremes.  I try to handle things as efficiently as possible, with an eye towards always moving forward towards the clients' goals, and at the same time I address each matter as a lawyer (not merely a paper-pusher).  I focus on execution -- getting things done, rather than just talking about getting things done -- but at the same time give each issue the time and attention that is required to ensure that things are done properly.  

Constitutional Case Covered by Smithtown News

One of my cases was reported on in the Smithtown News last week:

"A Smithtown lawyer has taken on a pro bono case to help defend a Port Jefferson Station resident in his effort to fight an alleged red light camera violation, with evidence that the yellow interval at that intersection was malfunctioning at the time of the alleged violation.... Mr. Kreppein will argue that Mr. Buttaro was deprived of due process of law and should have been permitted to present a defense at the hearing rather than being told he had to wait for a later appeal hearing. 'In this case, Appellant was not permitted to present a defense. Appellant was, essentially, taken into a room and told that he was guilty, no matter what, with no opportunity to present evidence, cross-examine a witness, or even have the merits of his defense considered by the Court.'"

(Read More: "Smithtown lawyer challenges red-light-camera ticket," by Corey Adwar, The Smithtown News, 9/14/2012).

Smithtown News - Due Process and Red Light Cameras

 Smithtown News, 9/14/2012 -- Smithtown lawyer challenges red-light-camera ticket," by Corey Adwar

Judge Humor

Sometimes, judges will incorporate a tongue-in-cheek remarks into a decision, or make other attempts at humor.  Sometimes, these attempts are even successful.

I just came across a random unpublished Order from Judge Kaplan in the Southern District.  The Order, in its entirety, reads:

ORDER, The action is dismissed on the grounds that the complt. is delusional and that pltff failed to comply with an order of this Court...SO ORDERED...

Employment Discrimination Lawsuit Featured on News 12 Long Island

One of my employment discrimination cases was featured on Long Island News 12 last night.  The story is available on their website. ("LI man sues Nature's Bounty for alleged racial discrimination," 5/22/2012).   The case was previously covered in the New York Law Journal (here [subscription required]), and the Court's May 1, 2012 decision denying summary judgment and permitting the case to be decided by a jury can be read here.  In its decision, the Court comments that although "Defendant argues a single, race-neutral remark is insufficient to raise an inference of discrimination. This argument ignores the fact that disallowing Plaintiff s 'kind' from using a specific door reasonably could be interpreted by a jury as discriminatory." 

News 12 - Discrimination Claim By Warehouse Worker

News 12 Long Island, 5/22/2012 -- LI Man Sues Nature's Bounty for Alleged Racial Discrimination

Published Decisions

While most day-to-day court orders are not published beyond the county clerk's file in the particular case (public record for most cases, and sealed for matrimonial and some others), decisions from the appellate courts, as well as select trial level decisions, are published and used as guidance for deciding future cases.  Below is a list of published decisions where I have been the lawyer writing the briefs and/or arguing the appeal or motion:


PERSONAL INJURY

Murphy v. NYC Transit, 74 A.D.3d 1158 (2d Dept. 2010) - Reversing dismissal of claim against municipality for failure to properly respond to assault.

Morris v. Bianna, 69 A.D.3d 910 (2d Dept. 2010) - Affirming denial of summary judgment in dram shop claim related to stabbing in a bar.

Funk v. UPS, 73 A.D.3d 851 (2d Dept. 2010) - Dismissing claim for trip and fall based upon inadequate lighting during a charity event.

Luo v. Mikel, 625 F.3d 772 (2d Circuit, 2010) - Reversing summary judgment on issue of serious injury in a motor vehicle accident case.

Wang v. 161 Hudson, 60 A.D.3d 668 (2d Dept. 2009) - Affirming jury verdict on liability, and remanding for new trial on damages.

Strickland v. PAL, 2009 NY Slip Op 50067(U) (Kings County, 2009) - Denying summary judgment in case regarding negligent crowd control.

Zheng v. Cohen, 52 A.D.3d 801(2d Dept. 2008) - Affirming denial of motion to dismiss construction accident claim.

Stawski v. Pasternack, 54 A.D.3d 619 (1st Dept. 2008) - dismissal reversed, and summary judgment granted in Plaintiff's favor, in legal malpractice claim based upon failure to timely file a construction accident claim.

Vignapiano v. Herbert Construction, 46 AD3d 544 (2d Dept. 2007) - Dismissed negligence case against property manager.

MATRIMONIAL, DIVORCE, AND FAMILY LAW

Ferri v. Riutta, 2012 NY Slip Op 30299(U)(Suffolk County, 2012) - among other things, dismissing an intentional infliction of emotional distress claim by in-laws against spouse involved in a divorce because the alleged conduct was not “so outrageous or extreme as to go beyond all possible bounds of decency" and, as "New York State does not recognize a cause of action to recover damages for this tort between spouses... it would appear that an action by the parent of a divorcing party to recover damages for intentional infliction of emotional distress in connection with the actions by and between the divorcing child and child-in-law should not be recognized by this court.”

Stolte v. McLean, 2012 N.Y. Slip Op 50115(U) (Suffolk County, 2012) - granting declaratory judgment to claimants in a post-divorce action over life insurance and pension proceeds.

Gaffney v. Romanello, 82 A.D.3d 930 (2d Dept. 2011) - Affirming order regarding interim counsel fees.

Wallach v. Wallach, 2007 NY Slip Op 30864(U) (Suffolk County, 2007) - granting motion for discovery in post-divorce action for breach of settlement agreement.

BUSINESS

Mavropoulos v. Anderson, 2012 NY Slip Op 30546(U) (Suffolk County, 2012) - resolving various pre-answer motions in shareholders dispute, including denying a motion to dismiss based upon an alleged agreement because agreement said "lawyers agreement to follow" and "the purported agreement did nto constitute a final agreement and a meeting of the minds regarding the dissolution."

Bharucha v. Greenberg, 2011 NY Slip Op 30171(U) (Nassau County, 2011) - denial of motion for summary judgment in breach of contract action regarding escrow agreement in a real estate transaction.

Salomon v. Burr, 769 F.Supp.2d 83 (E.D.N.Y. 2011) - Denial of summary judgment on personal guarantee in a real estate transaction.

Abuelhija v. Chappelle, 08-cv-3679 (S.D.N.Y., 2009) - dismissal of claim for breach of settlement agreement in an entertainment/management dispute.

Kremen v. Morelli, 54 A.D.3d 596 (1st Dept., 2008) - Legal malpractice claim dismissed.

Rothman v. Morelli, 43 A.D.3d 769 (1st Dept., 2007) - Dismissing claim in attorney fee-sharing dispute.


EMPLOYMENT

Crump v. N.T.B.Y., Inc., ___ F.Supp.3d ____ (EDNY, 2012) - denying motion for summary judgment in employment discrimination case because "disallowing Plaintiff's 'kind' from using a specific door reasonably could be interpreted by a jury as discriminatory."

Green v. Canarsie, 2012 NY Slip Op 50702(U) (Kings County, 2012) - motion to dismiss denied as premature in employment discrimination case. 


Graham v. Fareed, 55 AD3d 405 (1st Dept. 2008) - dismissal claim in contract/employment action reverse.

Constitutional Rights Attorney -- Criminal Harassment

UPDATE:

In May and July 2014, the Court of Appeals issued two pivotal decisions bearing on the First Amendment and public order offenses.  In Golb, the Court found aggravated harassment in the 2nd Degree unconstitutional (based on the same reasoning as described in my post below), and then in Marquan the Court of Appeals commented on the practice of using "no legitimate purpose" to save otherwise unconstitutional statutes.  Read More here.

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Original Post
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The laws criminalizing "offenses to public order," (i.e. the "disturbing the peace" family of crimes such as harassment and loitering), need to be carefully drafted to avoid constitutional issues.  Frequently, the phrase "for no legitimate purpose" is added to these statutes, letting the courts define what constitutes a "legitimate purpose," so that constitutional issues can be avoided. See People v. Shack, 86 N.Y.2d 529 (1995).

Subsection One of New York Penal Law 240.30, defining Aggravated Harassment in the Second Degree, however, has some drafting issues that need to be addressed by the State Legislature.  The law criminalizes any communication where someone "with intent to harass, annoy, threaten or alarm another person... communicates... by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm."  This crime is classified as a Class A Misdemeanor, meaning that it carries a sentence of up to one year in prison and/or up to a $1,000 fine.

Essentially, as phrased, the law criminalizes being intentionally annoying or causing alarm, for any purpose. This could describe any other emergency communication or warning, such as reporting a fire or telling someone they need to go to the hospital right away; it could almost any argument over the telephone; or it could describe someone engaging in parody that is protected by the First Amendment.

The problem with the law's phrasing has been known for decades.  Rather than throwing out the statute, however, the courts would interpret the statute as containing additional elements or limitations, and would evaluate each case to see if the statute was unconstitutional "as applied."  People v. Dupont, 107 A.D.2d 247, 253 (1st Dept. 1985).  People v. Smith, 89 Misc. 2d 789 (App Term. 2d Dept. 1977).

In 2003, the Court of Appeals found this statute unconstitutional. People v. Mangano, 100 N.Y.2d 569, 571 (2003).

By that point, however, the legislature had already amended the statute, and thus Mangano was based on the pre-2001 version and is not necessarily binding on charges brought under the latter version.  Rather than address the Constitutional concerns, however, the 2001 amendments were mostly stylistic.  Whereas the statute previously said "communicates, or causes a communication," now it is divided into two paragraphs, one starting with "communicates," and the other starting with "causes a communication."  

In 2008, the U.S. District Court for the Southern District of New York found the current version of the statute unconstitutional, and found that the City of New York could be civilly liable for enforcing it.  Although the constitutional issue was not appealed, the Second Circuit sent the matter back for further submissions on whether the City had an option to enforce the law, or if it was required by the State.  The matter was settled prior to another written decision being issued. Vives v. City of New York, 524 F.3d 346, 357-358 (2d Cir. 2008).

Following Mangano and Vives, some courts have held that this subdivision one of Penal Law 240.30 is unconstitutional and dismissed charges brought under that section, while others continue to enforce it depending upon how it is being applied. See People v Louis, 2011 Slip Op 21254, 927 N.Y.S.2d 592, 597 (Nassau County Dist. Ct., 2011).

The overbroad wording is a problem that could probably be fixed by simply adding the phrase "with no lawful purpose" to the law, but given the emerging phenomena of cyber-bullying and related issues, the legislature may want to do additional re-writing.  There are other disorderly conduct laws on the books that deal with general "threatening behavior," so it is not as if people are permitted to run amock, but this law, if properly worded, is supposed to deal directly with threatening or harassing phone calls and similar written/electronic communications.