Long Island Legal News -- May 2009

In this issue:

* Cases

* News

* Around the Blogosphere

Long Island Legal News is a monthly newsletter chronicling legal and law-related happenings in Nassau and Suffolk County.

CASES

Appellate Division

Krulik v County of Suffolk, 2009 NY Slip Op 03700 (2d Dept. 2009)(summary judgment denied where third-parties were injured in motor vehicle accident with police officer because there was a question of fact as to whether the officer had lights and sirens on at the time and "The manner in which a police officer operates his or her vehicle in responding to an emergency may form the basis of civil liability to an injured third party if the officer acts in reckless disregard for the safety of others. The "reckless disregard" standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow").

Tutrani v County of Suffolk, 2009 NY Slip Op 03716 (2d Dept. 2009)(jury verdict against police officer assigning 50% liability upheld where officer abruptly stopped on the LIE, without lights and sirens, causing the car behind him to abruptly stop, avoiding the police vehicle but causing it to be struck from behind by another car)

Appellate Term

Jeudy v. High Point Furniture Corp., 23 Misc.3d 142(A) (App. Term., 2d Dept., 2009)(small claims judgment in favor of retailer upheld where woman sought refund for broken furnature and the court accepted the retailer's explanation that they had repaired the items but the plaintiff refused to return their phone calls to arrange delivery of the repaired funiture).

Teachers Federal Credit Union v. Jones, 23 Misc.3d 139(A) (App. Term. 2d Dept)(Reversing an Order Suffolk County's 4th District Court that denied a debtor's motion to vacate default; holding that the debtor had stated a reasonable excuse for failing to appear at a court conference because he claimed he never received notice of the adjourn date, and that he had a meritorious defense in that he claimed to qualify for the Credit Disability Insurance offered by the defaulted credit card)

Other Courts

Casale v. Metropolitan Transp. Authority (MTA), 23 Misc.3d 1121(A) (New York County Sup. Ct., 2009)(Upholding special master's finding that the termination of an MTA employee was proper on the grounds of dishonesty, where employee was a high-level internal investigator who received a tip from a co-worker that the head of the LIRR was receiving improper gifts from a contractor in exchange for sweetheart deals (the gifts later proved to be true, the sweatheart deals didn't), but refused to identify the co-worker, calling him a confidential informant).

People v. Giffin, 23 Misc.3d 1124(A), 2009 WL 1313341 (Nassau County Dist. Ct. 2009)(charges for public lewdness upheld where male patron of Effin Grovin Bar in Bellmore, New York, harrassed and then urinated on a female patron)

Donovan v. Rocklyn Fuel Oil Corp., 23 Misc.3d 1130(A)(Nassau County Sup. Ct., 2009)(where, in preparation for closing a home sale, the oil refilling company spilled oil and caused severe damage to the property, summary judgment was granted to plaintiff on strict liability for the cleanup costs and diminuation of value (including the stigma of having been declared an environmental hazard); the court further held that loss of rental income was not recoverable because the home was supposed to have been sold, not rented; and loss of "investment potential" for the profit of the sale could not be recovered under under either strict liability or negligence, but may be recover under breach of contract to the extent the oil company knew that the refill was being conducted in anticipated of a closing.)

Savino v. The Hartford, 2009 N.Y. Slip. Op. 30823 (Sup. Ct. Suffolk Co. Mar. 25, 2009)(The Suffolk County Supreme Court allowed an action for pain and suffering to proceed against an insurance company based upon violation of the duty of good faith and fair dealing in denying benefits to an insured. (Coverage by: No Fault Paradise; Edwards Angle Palmer & Dodge).

Trentacoste v Riverhead Central School District, 2009 NY Slip Op 31112(U) (Sup. Ct. Suffolk County, 2009)(summary judgment granted to defendant on primary assumption of risk grounds where plaitniff was injured when tackled during football practice).

NEWS

That's not funny. A happauge woman has been criminally charged with aggrevated harassment for posting an ad on craigslist sending callers seeking causal sex to a neighbor's house because the neighbor's 9 year old daughter and her daughter were in a fight. (1010 Wins); (Newsday).

Pollution is bad. The owner of a titanium factory in Port Jeff Station has been sentenced to a year in prison for improper storage of toxic waste. (Newsday).

The Wal-Mart Trampling is still making news. Wal-Mart reaches deal with DA over trampling, paying $1.5 Million to Nassau County Social Services and agreeing to crowd control measures; victim's dad is angry, says the measures did not go far enough, and is continuing with suit. (Daily News); (WSJ).

Where are the honest politicians? The Hamptons' town supervisor and budget officer have been accused of corruption. (Hamptons Independent); (East Hampton Star). On the other end of the island, Nassau County Legislator Roger Corbin's lawsuit againt Newsday and News 12 to restrain them from continuing to publish photos of him in handcuffs while being arrested for tax fraud has been thrown out. (Newsday).

Lawsuits can do some good. Pedestrian trip and fall lawsuit leads to renovation of hazardous sidewalk in Sunnyside, Queens. (Daily News).

Drunk driving. Fatal DWI case goes to trial in Riverhead. (7 Online). Nassau County's Wall of Shame for DWI convictions had its one year anniversary. (Newsday)

Hope in the construction industry: build it and they will come. New York construction industry still in steep decline, but may be turning around. Nationwide, the construction industry unemployment rate hit 21% last quarter; New York has faired slightly better, and has several large projects on the horizon. (GlobeSt.com). The courts have approved the use of eminent domain to sieze land near the Brooklyn Navy Yards, and a new stadium for the Nets will be built in Brooklyn. (Sportsnet); (NY Times). With construction projects, however, come construction accidents. (Telegraph UK).

Commuters Unite! East Enders are angry about the MTA tax, calling it taxation without representation. (Sag Harbor Express). I looked up some info about the MTA, and found a 2007 Independent Accountant's Review (here) and 2008 Audit Report (here), page 16 shows the operating expenses but, surprisingly, there is no mention of the giant pit where all the money goes. A tarrif applied by the Port Authority (which is not the MTA) to the Bridgeport / Port Jefferson Ferry has been ruled constitutional only so long as the proceeds to directly to benefit the passengers of the ferry. (Conn. Post).

Entertainment. Lindsay Lohan's father, Michael Lohan, of Suffolk County, has been arrested again. (Miami Herald). Billy Joel has been sued by his former drummer for allegedly withholding royalties. (Insider). Former boxer Floyd Mayweather has been sued by an entertainment management company, he is accused of stealing artists from them for his rap label. (Contact Music).

Medical malpractice. The chair of neurosurgury at North Shore University Hospital has stepped down amid a series of malpractice lawsuits, the hospital's other top neurosurgeon has been called back from suspension (for having a patient prepped for brain surgury and never showing up to perform the surgery) to pick up the slack. (Daily News).In probably-unrelated news, Long Island based Physician's Reciprocal Insurer, which specializes in medical malpractice policies, is insolvent. (Insurance Journal).

An apple for the judge? A Long Island teacher was awarded $5 million in a discrimination suit. (ABC). Two Huntington teachers have sued their school district, claiming disciplinary charges have been filed against them in retaliation for having told students about cutbacks in the gifted program. (Newsday).

Not in my backyard! Amid news that the sex offender shelters are full beyond capacity, and are now occupying space in Riverhead hotels, locals have begun protestingt Suffolk County's policy of housing all of its homeless sex offenders in the Riverhead area. (Riverhead News Review).

The "invisible hand" continues to give us the finger. An Oyster Bay strip mall has sued several banks, including Wells Fargo and LaSalle Bank, accusing them of predatory lending, claiming that representatives talked them into a terrible refinancing package that has made their previously stable debt unmanageable. (Business Insider). Entrepeneur magazine sued in connection with Agape Scandal; the suit claims that the magazine did not conduct due diligence in publishing information about Agape. (Folio Magazine). With the big banks in turmoil, however, The "Hard Money," i.e. small sub-prime, lending business is booming. (Long Island Business News).

AROUND THE BLOGOSPHERE

Blawg Review # 213 at Cyberlaw Central is a tribute to the Science Fiction classic "A Hitchhiker's Guide to the Galaxy."

At the NY Personal Injury Law Blog, Eric Turkewitz ponders, and waxes poetic, about dead animals in food (here).

From the Long Island Bankruptcy Blog, AG Andrew Cuomo will be investigating debt settlement companies.

Personal Injury - A Sonia Sotomayer N.Y. No-Fault Decision

Maybe-soon-to-be Justice Sotomayer has drawn a great deal of commentary lately. The White House asked critics to take it easy after Newt Gingrich called her a reverse racist (Politico). The New York Personal Injury Law Blog pondered whether Sotomayer violated ethical rules by using "Sotomayer & Associates" when doing consultation work for family and friends. Above The Law discussed how her financial disclosures prove that she is not a rich white man. The Huffington Post seems to be a fan; Richard Epstein is not. According to Law.com, empirical studies of her opinions show that she is probably not a judicial activist. She's also had at least one death threat.

Personally, I don't know; luckily, Obama hasn't asked my opinion. She has the right resume, with both experience and pedegree. Her life is being gone over with a fine-toothed comb, and critics don't seem to have much ammunition against her.

Recently, my attention was drawn to a 1998 Sotomayer decision from Nasrallah v. Oliveiri Helio De & Artichoke Cab Co., 1998 U.S. Dist. LEXIS 4173 (1998), which dealt with the New York No-Fault law. Justice Sotomayer's approach in this case impressed me. She put substance above form, and utilized the Court's discretion to accomplish a fair outcome.

In Nasrallah, the Plaintiff had submitted medical reports that were, apparently, not properly affirmed. (Note, CPLR 2106 allows physicians to affirm their reports as true, rather than submitting an affidavit). Rather than dismissing the case because of a techinical insufficiency in the form of the evidence, Judge Sotomayer permitted Plaintiff additional time to correct the defect.

Of course, appellate practice, particularly practice before the Supreme Court of the United States, is much different than practice as a District Court trial judge. On appeal, a record has already been made and finalized, and allowing a party to amend or expand the record to add additional evidence is rarely given. The Nasrallah decision was at the trial level and, essentially, merely involved granting additional time.

Overall, if this is the indicative of Sotomayer's approach to the law, it suggests (at least to me) that she is the type of judge who follows the law, but does not lose sight of the overarching goal of accomplishing justice and fairness (which could be a good thing or a bad thing, depending on whether you agree or disagree with her sense of justice and fairness). Also, I believe it suggests that she treats the attorneys who appear before her well, which is a good thing.

The relevant portion of the decision reads as follows:

In a report dated June 1, 1995, Dr. Elamir [Plaintiff's treating physician] stated that a physical examination of Nasrallah revealed that 'flexion was limited by 40% (N-90) and extension was limited by 50%. Lateral bending was limited by right 40% and left 40%." The report also included a diagnosis of cervical and lumbar myofascitis, and also reported that Nasrallah complained of "episodic severe headaches" and "limitation of the musculoskeletal system." Dr. Elamir concludes with the following prognosis:

It is my opinion that based upon all of the physical examinations, various tests which have been performed and the patient's physical complaints, that the patient has incurred permanent consequential limitation of use of the lower back as well as limitation of use of bodily function of the lower back. This permanent disability of the lower back is causally related to the above noted accident and that based upon reasonable medical probability, he will continue to experience pain, tenderness, and limitation of motion of these areas in the future, especially in the presence of inclement weather or after attempts to excessive physical exertion either at work or recreationally.

Pl. Mem. Opp., Ex. A, at 2-3. Dr. Elamir also wrote a letter on June 30, 1997, in which he states that Nasrallah was considered "disabled and unable to work during the period of treatment from December 14, 1994 until June 26, 1995." Pl. Mem. Opp., Ex. B. Plaintiffs, however, have not submitted to the Court any of Dr. Elamir's reports in the form of an affirmation or affidavit.

***

Defendants cite several cases, purportedly for the proposition that plaintiff's own doctor reports are insufficient to establish a serious injury. One wonders, simply on the face of this argument, just how a plaintiff is supposed to establish serious injury other than through medical reports by treating doctors, when even experts must rely upon such reports in rendering an opinion. Not surprisingly, the cases cited by the defendants do not stand for this proposition.

What the cases do stand for, as correctly noted by the defendants, is that a plaintiff's physician's conclusory statements as to significance or permanence, unsupported by facts detailing the extent of the limitation, is insufficient.

Plaintiffs in this case, however, have produced a medical report which is purportedly based on objective testing, quantifies the amount of limitation, and characterizes it as significant. This is sufficient to meet the serious injury threshold.

***

Plaintiffs' evidence, if submitted in admissible form, presents evidence from which a reasonable factfinder could conclude that serious injury has resulted. Consequently, the Court denies the defendants' motion for summary judgment, but will require the plaintiffs to submit their evidence in admissible form. The Court warns the plaintiffs that failure to present this Court with admissible evidence in three (3) weeks equivalent in all material respects to that relied upon for this motion will result in the Court's sua sponte reversal of this decision and granting of the defendants' motion for summary judgment because of plaintiffs' failure to comply with Fed. R. Civ. P. 56(e).

For the foregoing reasons, the Court denies defendants' motion for summary judgment. The plaintiffs are ordered to resubmit their evidence in opposition to summary judgment to the Court in admissible form -- namely, an affidavit or affirmation from a physician attesting to the extent and significance of Mr. Nasrallah's injury and the basis for such conclusion -- by April 21, 1998. The parties are directed to appear for a conference on April 29 at 4:30, at which time both the sufficiency of plaintiffs' evidentiary submission and the scheduling of a trial date, if in order, will be discussed.

Book Review: The Appeal by John Grisham

In John Grisham's The Appeal a small town Mississippi husband-and-wife trial lawyer team win a large verdict in a toxic tort case. The CEO of the defendant company, the Trudeau Group, then hires questionable consultants to determine what his next step should be. The consultant, a clandestine organization based in Florida, specializes in rigging judicial elections in favor of business-friendly judges. (You can Find a more detailed description on: Wikipedia).

The book is similar in style to Grisham's other novels. It is plot driven, rather than character driven, but in a way that works well. The bulk of the novel deals with the mechanizations and plotting of the judicial election. The New York Times called it "a primer on... how to rig an election." (NY Times). It is creative, impressive, and scarily realistic. The ever-exciting process of writing and arguing an appeal, however, is not discussed.

The characters are dragged along by external circumstance until near the end of the novel. They aren't flat but, similar to real life, they aren't exploding with surprise. Towards the last few chapters, however, as the election comes to a close and the appeal comes up for review, several of the main characters are finally faced with tough decisions, and show very real struggle.

The novel is, overall, pessimistic, but in the end there is some awakening in the main character. "There's light shining into this darkness, a slight promise of change based on pure and growing disgust with the status quo." (Chuck Leddy, Boston Globe).

USA Today points out that The Appeal is very similar to a real dispute currently before the U.S. Supreme Court, where a newly elected State Court judge declined to recuse himself from a case involving one of his biggest contributors. (USA Today). [Update: On June 8, 2009, the Supreme Court released its decision in Caperton v. Massey Coal Co., holding that, under such circumstances, due process required recusal. (Coverage: Brennan Center, The Economist)]. The UK Times argued that it borrowed from Erin Brockvich, but the two have nothing in common other than involving a toxic tort case.

In New York, like most places, we have some great judges, and some poor ones. Under our system, rather than holding a primary, the political party leaders appoint their candidates, who then submit a ballot with 500 signatures to a Court of Appeals Committee and are then given a rating (qualified or unqualified). The candidates are then included in a general election. Independants can also run in the general election, without being endorsed by a recognized party, but must collect a ballot with between 3500 and 4000 signatures, depending on the size of the district, or 5% of the number of votes in the most recent gubernatorial election, whichever is less.

New York's judicial election system has been highly criticized, albeit in a slightly different manner from Grisham's novel. Because the political parties appoint their candidate without a primary (thus, in most cases, avoiding the need for direct fundraising by the candidates) local political leaders have a large amount of clout in judicial elections. Often, the party leaders will meet amongs themselves and compromise on a candidate, who will then run unopposed. In effect, rather than election or appointment by an elected official, the candidates are sometimes being selected by local political heavyweights through back-room deals. Independants, trying to run without the support of a major party, have a much higher threshold for getting onto the ballot.

In 2006, New York's system was held unconstitutional by a U.S. District Court, but the Supreme Court later reversed that decision in 2008, finding that rule does permit a "reasonably diligent" independant candidate to get onto the ballot and that the First Amendment cannot be used to regulate the internal processes of political parties. (New York State v. Lopez-Torres).

Overall, there does not appear to be a "right" judicial appointment system. If there are open elections, such as in Mississippi, there will be fundraising and special interest issues; if there are political appointments, such as Federal Judges, the appointment is by its nature political (see, e.g. here); and if there is a system run by the political parties, such as New York, then the system will be effected by questions of local corruption.

What we need are independant judges who will be above politics and special interst groups (See, e.g., here and here); how to accomplish that, however, is a difficult question.

Bronx County Supreme Court

Bronx County Supreme Court (Mario Merola Building)

851 Grand Concourse

Bronx, NY 10451

(718) 618-1200

Bronx County Supreme Court Website

The Bronx County Courthouse is an imposing fortress of a building, with depression-era stonework evoking thoughts of turmoil and the struggle for justice. The building houses all of the civil cases in the Bronx -- from small claims and housing, to multi-million dollar personal injury suits, to business disputes -- and has been called a "one-stop justice shop." (NY Times).

The Bronx was first colonized in the seventeenth century by a swedish settler, Jonas Bronk. It remained a small farming community until 1898, when it was annexed by the newly-formed New York City and became part of Manhattan. (See Wikipedia). At the time, the Bronx had only 200 residents, but provided additional land for the growing city and provided the City's only connection to the mainland United States. Between 1900 and 1930, the population expanded exponentially, growing to more than one million residents. (Clerk's Office History).

In response to the rapid population growth, in 1933, amid the great depression, the City erected the Bronx County Supreme Court building to supplement the much-smaller Borough Courthouse. It was designed by Joseph Freedlander and Max Hausel, and was touted as an example of "Twentieth Century American style." (NYC.gov). The interior of the building boasts impressive marble floors and chandeliers; the outside, however, is "a conventional-looking, 12-story government building." (Octogenarian).

Above the entrance to the Courthouse is written:

The administration of justice presents the noblest field for the exercise of human capacity. It forms the ligament that binds society together. Upon its broad foundation is erected the ediface of public liberty.

This quote is taken from a speach by L.B. Proctor at the 1877 innaugral meeting of the Livingston County Historical Society, describing (and perhaps quoting from) the then-recently deceased Judge Isaac Endress, a noted jurist who was one of the delegates at New York's 1867 Constitutional Convention.

(Note: the first four photos depict the Mario Marola building; the bottom right photograph is of the Bronx Borough Courthouse, no longer in use, mentioned above).

Unlike many courthouses, the Bronx Counthouse has a flat roof and is, essentially, a giant cube. It is a massive, dominating, citadel of a building. In 1988, it was renamed the "Mario Merola" building, after the former Bronx District Attorney. At the dedication ceremony, Merola's successor, Paul Gentile, commented: "This fortress represents the indomitable spirt of the Bronx and of its namesake, Mario Merola." (NY Times).

In 2006, the Bronx County Courthouse became the first building in the Bronx to receive a "green roof," a roof garden that helps reduce pollution by both cleaning the air and reducing cooling and heating costs. (Greenroofs.com; Greenhome NYC).

The building is covered in frescos and surrounded by statutes. Although some of the depictions are classic courthouse scenes, such as Moses with the Ten Commandments, nearly all of the frescoes and statues contain large groups people who are, apparently, struggling to push forward. The stonework evokes servitude and oppression, perhaps suggesting that this is a courthouse for the people, meant to aid the little guy in obtaining justice.

Across the street from the Courthouse is Joyce Kilmer Park, with a fountain, several statutes, and green space.

Nearby, sharing a subway station, is Yankee Stadium. The photographs below depict, from left to right: (1) construction of the new stadium, as seen from the above-ground subway station; (2) the view from the courthouse steps; and (3) the front of the new stadium the morning before the first Yankee home game in 2009.