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.

Consumer Attorney - Hurricane Irene Power Outage

Image from Nasa.gov, captured by the
GOES-13 satellite at 8:32 a.m. EDT
(Credit: NASA/NOAA GOES Project)

--- Click here for information regarding Hurricane Sandy

--- Click here for the Public Service Commission general claim form.

Multiple people have asked me about the idea of a lawsuit or class action against LIPA based upon their response to the Hurricane Irene power outage.  A significant swath of the North Shore of Long Island has been without power for days, with minimal information as to when we can expect power restored.  While some areas are being restored, reports suggest that in many locations the power outages caused by Hurricane Irene may remain out for the rest of the week, if not until next week.

Hopefully, LIPA is doing everything it can to get the power restored as quickly as possible and, when all the details are finally known, the utility will be lauded for its exceptional work.  Ideally, New York will be able to provide the rest of the country with an example of how to prepare for and respond to a natural disaster.  

Nonetheless, it is always good for people to know and preserve their rights. I have some experience with this area of law, having handled the initial filing of a number of cases related to the Queens blackout in 2006.  (See Wikipedia; NY Times).

As a utility, LIPA operates under a Tariff with the State, which is basically the equivalent of its contract with its customers.  Under LIPA's Tariff, "the Authority shall try, at all times, to provide regular and uninterrupted service," but it is not liable for "interruption of service to make permanent or temporary repairs." It is, however, liable for up to $150 in food spoilage if it "by mistake, does not restore service within twelve (12) hours to a Customer whose service it has disconnected intentionally" and the customer makes a claim within ninety days.  LIPA Tarriff, Section I(C)(1)(a, f). 

At common law, a utility is not responsible for losses caused by service outages except where there has been "gross negligence."  Strauss v. Belle Realty Co., 65 N.Y.2d 399 (1985).  The reason why utilities are only responsible for "gross" negligence, rather than ordinary negligence, is because, as public service providers, the courts decided “to limit the legal consequences of wrongs to a controllable degree and to protect against crushing exposure to liability” as a matter of public policy. Id.

Right now, we have no idea whether LIPA was negligent at all, let alone grossly negligent.  What we do know is that there were numerous trees down, and undoubtedly a tremendous amount of work to be done to restore power in certain areas.  

Anyone desiring to claim losses should preserve their rights by filing a PSC Complaint within ninety days.  With such a large event, it would be appropriate for the Public Service Commission to conduct a review, and odds are they will.  Although the Tariff does not explicitly cover this situation, the most comparable scenario, where LIPA mistakenly fails to restore power that it intentionally cut off, requires a complaint to be filed within ninety (90) days.   In the event LIPA is culpable for failing to timely restore power, causing food spoilage (save your receipts), or there are power spikes causing equipment damage (which would be much harder to prove), the PSC process may provide some recovery for your uninsured losses, albeit likely not 100%.   The PSC's general complaint form is here, or you can send a letter to: 3 Empire State Plaza, Albany, New York 12223.