Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, March 10, 2015

Grey: The Future of Emotional Harm

Recovery for emotional harm in tort is a dicey proposition for any plaintiff.  Court traditionally have cast a sharp eye to these claims and have erected procedural and substantive barriers against recovery.  The rationale supporting these barriers is that emotional injury is "less susceptible to objective medical proof" than is physical injury.  The Restatement (Third) of Torts adopts these distinctions between physical and emotional harm by requiring emotional harm be "serious" before any recovery for emotional injury may be had.

These barriers to recovery act as a check against claim's perceived subjective nature and resistance to objective proof.  In a recent article, however, Professor Betsy Grey (Arizona) argues that advances in neuroscience have blurred the lines between emotional and physical harm and render emotional harm objectively measurable, at least in some circumstances.  The article is "The Future of Emotional Harm," forthcoming in Fordham Law Review.  This is the abstract:

Why should tort law treat claims for emotional harm as a second-class citizen? Judicial skepticism about these claims is long entrenched, justified by an amalgam of perceived problems ranging from proof difficulties for causation and the need to constrain fraudulent claims, to the ubiquity of the injury, and a concern about open-ended liability. To address this jumble of justifications, the law has developed a series of duty limitations to curb the claims and preclude them from reaching the jury for individualized analysis. The limited duty approach to emotional harm is maintained by the latest iteration of the Restatement (Third) of Torts. This Article argues that many of the justifications for curtailing this tort have been discredited by scientific developments. In particular, the rapid advances in neuroscience give greater insight into the changes that occur in the brain from emotional harm. Limited duty tests should no longer be used as proxies for validity or justified by the presumed untrustworthiness of the claim. Instead, validity evidence for emotional harm claims—like evidence of physical harm—should be entrusted to juries. This approach will reassert the jury’s role as the traditional factfinder, promote corrective justice and deterrence values, and lead to greater equity for negligent infliction of emotional distress (NIED) claimants. The traditional limitations on tort recovery, including the rules of evidence and causation, are more than adequate to avoid opening the floodgates to emotional distress claims.

This article article makes clear that expert testimony regarding neuroscience may soon be (or already is)  coming to the civil courtrooms in the various states.  Whether you agree, disagree or reserve judgement on her conclusions, Professor Grey's article  represents a treasure trove of resources on these scientific advances and a good reference for lawyers, judges or students searching for a point of entry on the subject.

Craig Estlinbaum

March 10, 2015 in Civil Law, Law Professors, Law Review Articles | Permalink | Comments (0)

Sunday, March 16, 2014

Stern: Property, Exclusivity, and Jurisdiction

James Y. Stern (William & Mary) has posted, "Property, Exclusivity, and Jurisdiction, to SSRN.  The paper has been published at 100 Va. L. Rev. 111 (2014). This is the abstract:

Property has always been treated somewhat exceptionally in the realm of conflict of laws, but today conflicts rules for property are more unusual than ever — not because they have changed, but because they haven’t. Decades ago, most states discarded the general body of traditional conflict-of-laws doctrines, a transformation referred to as the Conflicts Revolution. Property, however, remains mysteriously untouched. The basic common-law principle is that property is governed by the law of its location — the situs rule. Despite persistent academic criticism, the situs rule is still followed in every state.

This article argues certain structural features of property support the situs rule, notwithstanding the Conflicts Revolution. Theorists have increasingly stressed property’s “in rem” quality — the idea that property is “good against the world.” This article shows how that feature creates a special need for uniform treatment across jurisdictions, such that a single, exclusive source of law is applicable to questions concerning the division of rights in a given asset. Property’s in rem character is a consequence of the allocational model used as the central organizing concept in property law. That model treats each property entitlement as part of a zero-sum game, in that one person’s entitlement to an asset means no one else can validly hold an incompatible claim to the same asset. Using different rules to resolve the same legal issue both aggravates the information cost problems generated by such a system and undermines its overall coherence. The situs rule in turn responds to the elevated need for uniformity in the property context by creating a focal point that enables states to coordinate their conflicts rules. The article shows how uniformity devices pervade property, including intellectual property and even other fields with certain formal resemblances, such as marriage and corporations law. Beyond its implications for issues of property jurisdiction, this article helps show where property’s much discussed “in rem” character comes from, what it really means, and how it distinguishes property from other private law fields like contract and tort.

In this paper, Stern effectively defends the "situs rule" against "academic hostility."  At the risk of oversimplifying, the situs rule states that the place where the property is located holds exclusive jurisdiction over cases relating to that property.  Stern explains, "the rule calls for the resolution of property questions using the substantive law of the situs of the property in dispute."

Craig Estlinbaum

March 16, 2014 in Civil Law, Law Review Articles | Permalink | Comments (0)

Thursday, April 25, 2013

Superman Copyright Litigation Comes to Close, Maybe

Jan Wolfe, The AmLaw Litigation Daily, reports that U.S. District Judge Otis Wright II, issued a summary judgment order last week bringing to a close litigation initiated a decade ago by the heirs to Superman's co-creator, Jerry Siegel, to reclaim copyright to the iconic (and lucrative) character.

Apprarently, in 1938, Seigel and his co-creator, Joe Schuster, sold the Superman character to Detective Comics for $130.  Over the years, the buyer's successors have paid pension and compensation under different agreements, however, in this particular litigation, Siegel's heirs sought to reclaim the copyright under the so-called "termination rights" provision of the Copyright Act.  Judge Wright's order brings this effort to a close it appears.

The case is Laura Seigel Larson v. Warner Bros. Entertainment, Inc., Case No. 2:04-cv-08776-ODW(RZx), in the United States District Court for the Central District of California.

Craig Estlinbaum

April 25, 2013 in Civil Law, Contract Issues, Interesting Cases | Permalink | Comments (0)

Wednesday, April 24, 2013

Connecticut: Recovering Attorney's Fees in Multiple Contract Deal Gone Wrong

Often complex business deals are built upon multiple contract which taken together lead to a single business transaction.  When and to what extent may a prevailing party in an American Rule jurisdiction collect attorney's fees from the breaching party when that single business transaction goes wrong and some but not all contracts contributing to the transaction include a provision for recovering attorney's fees?  The Supreme Court of Connectucut, in a case of first impression, tackled that very question Tuesday in Total Recycling Services of Conn., Inc. v. Connecticut Oil Recycling Services, LLC., No. 18823, 2013 WL 1500840 (Conn. April 23, 2013).

Total Recycling originates from the sale of an oil recycling business expressed by the parties in three contracts - an equipment contract, a goodwill contract and a noncompete contract.  The goodwill and noncompete contracts included a provision entitling the defendant to attorney's fees if the plaintiff breached the agreement -- the equipment contract did not.

Disputes arose between the parties with the plaintiff and defendant filing claims and counterclaims against one another.  The plaintiff prevailed on its unjust enrichment claim only while the defendant prevailed on claims that plaintiff breached the contracts, though damages were assessed only as to the equipment contract. The trial court denied defendant's claim for attorney's fees because the contract upon which defendant recovered damages did not include an attorneys fees recovery provision, a reasoning later rejected by the intermediate appellate court. 

On remand, the trial court denied the attorney's fees claim because the defendant failed to apportion attorneys fees among the three contracts.  The intermediate appellate court affirmed the denial on those grounds.  The Supreme Court certified this question:  "Did the Appellate Court improperly affirm the judgment of the trial court denying the defendant's motion for contractual attorney's fees?"  The Supreme Court answered this question affirmatively and remanded for further proceedings.

The Supreme Court held, "when certain claims provide for a party's recovery of contractual attorney's fees but others do not, a party is nevertheless entitled to a full recovery of reasonable attorney's fees if an apportionment is impractical because the claims arise from a common factual nucleus and are intertwined."  The court concluded that defendant should not be required to apportion attorney's fees between the goodwill and noncompete contract claim, for which attorney's fees were recoverable, and the equipment contract, for which attorney's fees were not recoverable, because the claims involved the same transaction, the same parties, the same conduct and the same time frame.  Under these circumstances, the court concluded apportioning attorneys fees among and between the contracts was not practicable.

Craig Estlinbaum

April 24, 2013 in Civil Law, Contract Issues, Remedies, State Law | Permalink | Comments (0)

Wednesday, August 1, 2012

Missouri Supreme Court: Med Mal Recovery Cap is Unconstitutional

On Tuesday, the Missouri Supreme Court that legislative caps on the amount an injured plaintiff may recover for non-economic damages in a medical malpractice case violate the state's constitutional right to trial by jury.  Watts v. Lester E. Cox Medical Centers, No. SC91867 (Mo. July 31, 2012).  The court decided the case 4-3.

The Missouri legislature previously passed a law limiting the recovery for non-economic damages in a medical malpractice case to $350,000.  Deborah Watts brought suit against her physician on behalf of her child, Naython Kayne Watts, for brain injuries sustained by the child during pre-natal care and delivery.  A Missouri jury awarded Watts $1.45 million in non-economic damages, however, following the recovery cap law, the trial court reduced the recovery to $350,000. 

The Missouri Supreme Court employed a textual and historical analysis to overturn the recovery limitation law.  Missouri's state consitution, adopted in 1820, guarantees that "the right of trial by jury as heretofore enjoyed shall remain involate..."  The court read the guarantee to mean that if Missouri common law entitled a plaintiff to a jury trial on non-economic damage in a medical negligence action prior to the state consitution being enacted, then Watts had that same right guaranteed in the present.

The court found that Blackstone identified medical negligence as one of "five types of private wrongs" that could be redressed in court, and that English common law allowed plaintiffs so injured to recover non-economic damages.  Further, the court found that Missouri law pre-statehood provided for a jury trial in "all cases of the value of one hundred dollars ... if either of the parties require it."  Because the right to jury trial on non-economic damages in a medical malpractice existed at common law prior to 1820, the court concluded, Watts enjoys a constitutionally guaranteed right to trial by jury on her claim for non-economic damages.

The court's decision overturned Adams by and Through Adams v. Children's Mercy Hospital, 832 S.W.2d 898, 907 (Mo. 1992) which had previously upheld the recovery cap against a similar state constitutional challenge.  The disagreement between Adams and Watts is on whether or not the Missouri right to trial by jury is satisfied by the mere trial before the jury.  Inasmuch as the law allows the jury to hear the evidence and assess damages, Adams concluded, the constitutional guarantee is satisfied even though the recovery cap essentially renders the jury's decision without meaning beyond the cap amount.  The Watts court rejected this interpretation: 

Adams fundamentally misconstrues the nature of the right to trial by jury. While [the Missouri Constitution] sets the constitutional role of the jury, it does so by guaranteeing an individual right to a trial by jury. The application of [the recover cap law] may permit the jury to perform its constitutional role, but it deprives the individual of his or her right to the damages awarded by the jury. The constitutional significance of the jury’s role in determining damages is reflected in the analytical basis for determining whether the right to trial by jury attaches -- if the action is a civil action for damages, then the right to a jury trial attaches and must “remain inviolate.”  Because the constitutional right to a civil jury trial is contingent upon there being an action for damages, statutory limits on those damages directly curtail the individual right to one of the most significant constitutional roles performed by the jury -- the determination of damages. The argument that section 538.210 does not interfere with the right to trial by jury because the jury had a practically meaningless opportunity to assess damages simply “pays lip service to the form of the jury but robs it of its function.”

Citations omitted. 

States continue to return mixed verdicts on state constitutional challenges to recovery cap legislation, typically on textual, historical or structural grounds.

Craig Estlinbaum

August 1, 2012 in Civil Law, Constitutional Law, Interesting Cases, Litigation, Remedies, State Law | Permalink | Comments (0)

Monday, July 28, 2008

The Important Role of Notary Publics

'Can You Notarize This?' Taking the Notary Job Seriously is an important July 18, 2008 New York Law Journal article about the role and importance of notary publics. Though the authors recognize that the notarial function is often overlooked and even compromised, notarys play and important function in verifying the signature on documents. The article explains that notarys are suppose to perform the following functions:

Require that the signer be physically present before the Notary for signature (which aids in a Notary's ability to detect forgery if it appears that the affiant is taking an inordinate amount of time or care in signing);5

(ii) Verify, through photo identification or personal knowledge, that the signer is who he or she claims to be;6

(iii) Obtain the oath or acknowledgment of the signer that he or she has signed the document willingly and is aware of its contents (e.g., Do you solemnly swear that the contents of this affidavit subscribed by you is correct and true?7); and

(iv) Sign the document and print, typewrite or stamp, in black ink, the words "Notary Public State of New York," the name of the county in which the Notary is qualified, and the date upon which his commission expires. Notaries commissioned in Bronx, Kings, New York, Queens, or Richmond County must also indicate the Notary's commission number.

Best practices would also suggest that the notary maintain a journal record of each notarial act, including the date, affiant's name and signature, title or type of document notarized, method of identification used, and a physical description of the affiant.

While such efforts may seem incredibly onerous in light of the already document-saturated, fast-paced environment in which most of us practice, consider for a moment how useful such information will be if the notary is then ever called to testify as to the notarial act years later

Mitchell H. Rubinstein

July 28, 2008 in Civil Law | Permalink | Comments (3) | TrackBack (0)

Thursday, February 21, 2008

N.J. High Court Hears Pitch for Palimony Sans Cohabitation

There is an excellent article in the January 23, 2008 New Jersey Law Journal by Michael Booth entitled  N.J. High Court Hears Pitch for Palimony Sans Cohabitation which previews a pending N.J. Supreme Court case concerning whether a mistress is entitled to palimony even though the parties to did not live together. The case is  L'Esperance v. Devaney, A-20-07. As the article explains:

Palimony is shorthand for equitable recovery based on a long-term, spousal-type relationship between two parties not married to each other. It was first recognized three decades ago in California in Marvin v. Marvin, 18 Cal. 3d 660 (1976). New Jersey followed suit in Kozlowski v. Kozlowski, 80 N.J. 378 (1979), a case also involving a married man in a relationship with another woman.

But in Kozlowski, there was cohabitation, unlike the case now before the court, which presents other factors that arguably made the relationship just as strong as if the couple lived together.

For those interested in family law, this is an important decision to watch.

Mitchell H. Rubinstein

February 21, 2008 in Civil Law | Permalink | Comments (0) | TrackBack (0)

Friday, February 8, 2008

Interesting Decision Issued About When Civil Litigant Is Entitled To Counsel

Celestin v. Fountain House, Inc., ___F.Supp.2d___ (S.D.N.Y. Jan. 4, 2008)(registration required), discusses when a civil litigant is entitled to counsel in a civil case. The court describes the applicable standard as follows:

Civil litigants, unlike criminal defendants, do not have a constitutional right to the appointment of counsel. However, under 28 U.S.C. §1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." In determining whether to appoint counsel for an indigent civil litigant, the Court considers numerous factors, and "exercises substantial discretion, subject to the requirement that it be guided by sound legal principles." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) (citations omitted). The Court's first inquiry is whether plaintiff can afford to obtain counsel. See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). If the Court finds that a plaintiff cannot afford counsel, it must then examine the merits of the case and "determine whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). Once an initial determination has been made as to indigence and merit, the Court has discretion to consider the following factors: 1) the indigent's ability to investigate the crucial facts; 2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the factfinder; 3) the indigent's ability to present the case; 4) the complexity of the legal issues; and 5) any special reason why appointment of counsel would be more likely to lead to a just determination. Id. at 61-62.

The case at issue involved allegations of employment discrimination. Magistrate Judge Ellis held that plaintiff was unable to make a sufficent showing of merit to be entitled to counsel.

Mitchell H. Rubinstein 

February 8, 2008 in Civil Law | Permalink | Comments (2) | TrackBack (0)

Wednesday, January 23, 2008

ECF Horror Story

Rojas v. Theobald, __F.Supp.2d___(E.D.N.Y. Jan. 15, 2008)(registration required) is an important-very important decision for lawyers who practice in federal court. Electronic Case Filing or ECF is, of course, mandatory in most federal courts. What happens if a party does not recieve notice? This case demonstrates that under Rule 4(a)(6) he might be entitled to relief- at least where the issue involves a notice of appeal. Moral of the story, be careful.

Mitchell H. Rubinstein   

January 23, 2008 in Civil Law | Permalink | Comments (0) | TrackBack (0)

Saturday, December 29, 2007

Per Curiam Opinions: What's the Point

Per Curiam Opinions: What's the Point is another interesting article by Howard Bashman that was published on December 10, 2007. As the title implies, Mr. Bashman questions the utility of per curiam or unassigned opinions.  As the article states:

As someone who looks at far too many appellate court rulings, I've often wondered what causes appellate judges to designate an opinion as "per curiam" -- a Latin phrase meaning "by the court" -- instead of identifying by name the particular judge who wrote the decision.

Perhaps with the notable exception of Bush v. Gore, the U.S. Supreme Court's practice of using per curiam opinions is both straightforward and sensible. After a case has been orally argued, the Supreme Court ordinarily will decide the case by means of an opinion or opinions that identify their authors, except when a judgment is affirmed by an evenly divided court or the Court decides that certiorari had been improvidently granted.

On the other hand, if the U.S. Supreme Court summarily reverses or affirms without oral argument based solely on the certiorari stage briefing, the Court's disposition will ordinarily be by means of an unsigned per curiam opinion. Sometimes these per curiam decisions garner dissents, and thus it is possible to rule out some potential authors of the majority opinion. Nevertheless, the reader is left to guess who the author of the per curiam decision is based on what the opinion says and how it is written.

Mitchell H. Rubinstein

December 29, 2007 in Civil Law | Permalink | Comments (1) | TrackBack (0)

Saturday, December 1, 2007

Licensed Attorney Treated Like Pro Se Litigant

2dcirseal Smith v. Department of Corrections, ___F.3d___(2d Cir. Nov. 15, 2007), is a very unusual case.  It involves an action brought by a licensed attorney who has not practiced for many years under the Americans With Disablities Act and the Rehabilitation Act. Though little facts are stated, it appears to  be an employment discrimination case and the discrimination is based upon plaintiffs disablity.

The District Court dismissed, but if the plaintiff were treated as pro se litigant he would have been given an opportunity to amend his complaint. The Second Circuit held that the plaintiff should have been treated as a pro se litigant and reversed, reasoning:

While licensed attorneys proceeding pro se need not be afforded the same pleading consideration as in Gomez, see Harbulak v. County of Suffolk, 654 F.2d 194, 198 (2d Cir. 1981), where, as in this case, the plaintiff has not practiced law for years, largely due to psychiatric impairments that are the basis for her disability claim, there is no reason to distinguish her from pro se plaintiffs generally.

Mitchell H. Rubinstein

December 1, 2007 in Civil Law | Permalink | Comments (0) | TrackBack (0)

Friday, November 30, 2007

Excellent Primer on Article 78

Albany Law School Adjunct Professor Thomas Gleason wrote an excellent November 19, 2007 New York Law Journal article on New York Practice entitled "Declaratory Article 78 Proceedings." In it, he highlights the differences between a pleanary action, an article 78 action and hybrid action. As Professor Gleason writes:

The usual pleading rules apply in a straight declaratory judgment action, and this can cause some delay. There will be a summons and complaint just like in any other lawsuit, followed by the answer and sometimes the virtually automatic service of document demands and notices of deposition. Such usual pretrial procedures for civil actions are cumbersome in cases challenging government policy, which for the most part present only questions of law, and this is why the use of the declaratory judgment procedure creates the risk of delay.

The delay can be reduced if the parties cooperate in seeking prompt resolution, which often is done when one of them or both promptly move for summary judgment after issue is joined. This cooperation does not always occur, and, in any event, the DJ procedure still will build in some delay in reaching the merits, because the answer usually is not served (and then by mail) until 30 days after the service of the complaint. Only after the answer is served is a summary judgment motion even permissible, and parties are usually reluctant to handle such important applications on a compressed time-scale.

Mitchell H. Rubinstein

November 30, 2007 in Civil Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 28, 2007

Typographical Error Excused As Excusable Law Office Failure

In medical malpractice cases in New York plaintiffs must file what is known as a certificate of merit which indicates that the attorney consulted with at least one medical source before he filed the complaint. In Rosell v. International Cosmetic Surgery, ___Misc. 3d ___, NYLJ Nov. 27, 2007(N.Y. Co. Nov. 1, 2007), the court held that the plaintiffs use of the word "dentist" as opposed to "doctor" in this certificate of merit was excusable law office failure. As the court stated:

  Noting that plaintiff's Certificate of Merit indicates that counsel consulted with a dentist instead of a physician, defendants urge this Court to treat the matter as a default. Citing to George v. St. John's Riverside Hospital, 162 A.D.2d 140 (1st Dep't 1990) and Defelice v. New York Eye and Ear Infirmary, 5 Misc.3d 1027(A) (Sup. Ct., NY Co. 2004), defendants further urge the Court to dismiss the action because plaintiff has failed to present a reasonable excuse for the default and an affidavit of merit from a medical expert. Emphasizing that she did serve a corrected Certificate of Merit shortly before defendants's motion was made, plaintiff asserts that the typographical error should not be viewed as a default. She adds that, in any event, she has established grounds to vacate any default by demonstrating that the error is excusable and the action meritorious

This Court agrees that the typographical error does not rise to the level of a default. Rather, it is a correctable irregularity which has, in fact, been corrected. See CPLR §1201. But even if the error were viewed as a default, this Court finds that the default should be vacated pursuant to the above-cited cases based on plaintiff's showing of excusable neglect and a meritorious cause of action.

The typographical error may properly be considered excusable law office failure. "[A] plaintiff should not be deprived of the important right to have his or her case decided on the merits because of law office failure, where . . . the complaint has merit and the other party cannot show prejudice." Kaufman v. Bauer, 36 A.D.3d 481, 483 (1st Dep't 2007), quoting Tenax v. New York Tel. Co., 280 A.D.2d 294, 296 (1st Dep't 2001); citing Andrenas v. Eschew Constr. Corp., 277 A.D.2d 28, 29 (1st Dep't 2000); Salzano v. Mastrantonio, 267 AD2d 5 (1st Dep't 1999). Defendants here do not claim any prejudice, as they knew from the allegations in the complaint that plaintiff was alleging that defendants had departed from accepted standards of medical care in their treatment of plaintiff, which included "liposuction of the hips, abdomen, inner and outer thighs and abdominoplasty". (Complaint at ¶13).

A word to the wise, proof read and be careful. Many times a litigant is not going to be as lucky as this plaintiff.

Mitchell H. Rubinstein

November 28, 2007 in Civil Law | Permalink | Comments (0) | TrackBack (0)

Thursday, November 15, 2007

Civil Contempt Standard With Respect to So Ordered Settlement

Latino Officers Association v. City of New York, __F.Supp. 2d ___(S.D.N.Y. Oct. 26, 2007)(registration required), is an important decision because it outlines the standards of civil contempt. This case involved an employment discrimination class action that was settled. The judge incorporated that settlement into a judgment. Plaintiffs alleged that the defendants were not complying with that settlement and moved for contempt. The court described the standards for contempt as follows:

   The Court in this case incorporated all the terms of the Agreement into its judgment and order. In consequence, noncompliance with any of the terms of the Agreement could constitute a violation of a court order.23 Accordingly, this Court has the authority to issue a contempt order in appropriate circumstances. But contempt adjudications are not made lightly.

In order to prevail on a civil contempt motion, the moving party must establish that (1) the court order the contemnor failed to comply with was clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable manner. A court order is clear and unambiguous when it "leaves no uncertainty in the minds of those to whom it is addressed;" those parties "must be able to ascertain from the four corners of the order precisely what acts are forbidden." The Court's power to hold a defendant in contempt is a "potent weapon" that should not be exercised "where there is fair ground of doubt as to the wrongfulness of the defendant's conduct."

Mitchell H. Rubinstein

November 15, 2007 in Civil Law, Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 13, 2007

Father Awarded Custody Due To Behavior Problems of 8 Year Old Half-Brother

I do not usually report on family law issues, but Dickinson v. Woodley, ___Ad. 3d ___(3d Dep't. 2007), happened to catch my eye. Primary physical custody in favor of the father was found to be in the best interests of the child 2 year old child due to the escalating behavior problems of his 8 year old half-brother who lived with the mother. The court reached this result even though the 2 year old lived with the mother since birth. Both parents were fit, but the half-brother had significant problems and was even hospitalized.

This may have been an extreme case, but I have never seen one like it.

Mitchell H. Rubinstein


November 13, 2007 in Civil Law | Permalink | Comments (0) | TrackBack (0)

Thursday, November 1, 2007

NYC Faces Possible Sanctions Due To Its Failure To Provide Discovery

Lewis v. City of New York, ___Misc. 3d ___(Bronx. Co. Sep't. 14, 2007), is an important case that  attorneys who sue the City of New York should be aware of. The case is a wrongful death action arising out of the death of a person killed by a tractor trailer during the West Indian American Parade.

A police officer is alleged to have acted negligently and recklessly. During that Police Officer's desposition, he mentioned that he also gave testimony during his own disciplinary hearing. However, that transcript was never produced despite repeated court orders. Eventually, an affadavit was written by a Detective who stated that he could not find the records.

The court found that affadavit manifestly inadequate, reasoning: 

The inadequacies of the affidavit submitted by the defendant to support the unavailability of said records, are manifest. No attempt has been made to provide a copy of the official protocol for the creation, preservation and storage for said official records and the affidavit does not even identify the official custodian thereof. In addition, the affidavit does not set forth the qualifications of the affiant (an IAB detective) to conduct said search, nor does it attempt to identify the "appointing authority" and the qualifications of that appointing authority. The affidavit simply states that "I physically searched the file room, located in the IAB office using the case number assigned to this incident and that officers name and neither G.O.15 tapes nor transcripts can be located." The affidavit does not state that the file room is the official location where said records are required to be stored, nor does it state that this file room is the only place where such official records should have been stored. The affidavit does not provide the identity of the officer or officers that created these records so that related reports and correspondence can be retrieved and an official chain of custody investigation can be meaningfully conducted. Obviously, there must be an official file somewhere concerning this investigation; and said file most likely would contain some information which might lead to the present whereabouts of the missing records. In any event, based upon the totality of the circumstances one might conclude that this affidavit has been purposefully constructed to be vague and misleading; and a court could then be left to infer that said records are being wilfully withheld and/or have been contumaciously destroyed.

As stated above, this failure to locate discoverable records appears to be a recurring problem with some City agencies (not just the Police Department). The court has observed that it has been extremely difficult to obtain the cooperation of some City agencies. On several occasions this court has been constrained to dismiss an answer or to impose other severe sanctions for the failure to provide records and/or to appear for depositions. (See, cases cited, supra ). In any event, since it is too often claimed that records are not available, this court, as stated in Figdor, supra , must "employ a more pro-active approach" to ensure compliance with discovery requests and court orders. Therefore, when it is claimed that official records (which should be available) cannot be located , this court will require a detailed affidavit, and will, if necessary, authorize the deposition of all persons (including the Commissioners of the Departments, if necessary) in order to obtain an explanation for the absence of records which should be on file. No longer will this court tolerate superficial searches, explanations and claims that official records (which clearly once existed) are not available.

While the court did not dismiss the case, it did order that a detailed affidavit be submitted which provides much more than a denial to support any claim that the City could not find certain discovery. The decision also provides a helpful review of the duty to comply with discovery. 

Mitchell H. Rubinstein

November 1, 2007 in Civil Law | Permalink | Comments (0) | TrackBack (0)

Sunday, October 28, 2007

The Failure To Comply With Subpoena

2nddepartment What happens if a party fails to comply with a Subpoena Dues Tecum under New York law? The answer  State Division of Human Rights v. Berler, ___A.D. 3d ___(2d Dep't.  Oct. 2, 2007), provides is that it depends upon the type of subpoena is involved. A non-judicial subpoena issued by an attorney pursuant to CPLR Sec. 2309(b)(1) carries with it a penalty of $50.00 as well as damages by reason of the failure to comply. Upon motion to compel compliance, if the court orders compliance with a non-judicial subpoena further disobedience is a violation that may be subject to contempt and the commitment of the witness to jail. By contrast, CPLR Sec. 2308(a) lists the penalties for disobedience of a judicial subpoena which includes the penalty of striking a party's pleading.

Thus, the 2d Dep't. held that the lower court erred by precluding the introduction of evidence for the disobedience of a non-judicial subpoena dues tecum since that was not one of the remedies listed in the statute.

Mitchell H. Rubinstein

October 28, 2007 in Civil Law | Permalink | Comments (0) | TrackBack (0)

Thursday, October 18, 2007

New York Revises Its Style Manual (aka New York's Blue Book)

Lawreportingburea Effective Oct. 1, 2007, the New York Style Manual has been revised. As most New York litigators know, this is New York's Blue Book and is the citation format followed in New York State courts. This Manual is also known as the Tan Book. It is published by New York State Law Reporting Bureau and is available here.

Mitchell H. Rubinstein

October 18, 2007 in Civil Law | Permalink | Comments (2) | TrackBack (0)

Wednesday, October 3, 2007

Union Member States Defamation Cause of Action Against Union Official

In Oluwo v. Hallum, ___Misc. 3d ___, NYLJ, Sept. 27, 2007  (Kings Co. August 31, 2006)(registration required), a New York lower court found that a union member stated a cause of action for defamation against an officer of a large public sector union.

I bring this case to your attention for two reasons. First, the court does a nice job of outlining to applicable standards for defamation. Second, the facts of the case are unususal to say the least.

The opinion is rather lengthly. One worthwhile excerpt is as follows:

   However, the court finds that the alleged statements of Miller and Kahn that plaintiff made anti-Semitic comments and threats to Shayne are actionable as slander per se for which he need not plead special damages. Although, taken in the context of the allegedly contentious labor election between plaintiff and Shayne, the alleged death threats, which in any event constituted a mere violation, could potentially be construed as "rhetorical hyperbole," particularly given that "[i]n an acrimonious contest, the audience may anticipate [the use] of epithets, fiery rhetoric and hyperbole" (Horowitz v. Mannoia, 10 Misc 3d 467, 471 [2005] [internal quotation marks and citation omitted]), the alleged statements by Miller and Kahn concerning alleged anti-Semitic comments and threats made by plaintiff to Shayne, much like those statements allegedly made by Hallum, tend to impact upon plaintiff's interrelated union activities and workplace interactions, particularly given the statement, construed as true, by Hallum, that "you can't have a [union] leader making anti-Semitic remarks," the presence of an active Jewish committee in the subject union and plaintiff's status as a public employee serving the diverse population of New York City and State. Accordingly, the court finds that plaintiff's defamation claims, based upon alleged statements by Miller and Kahn that he made anti-Semitic threats and comments to Shayne, are not subject to dismissal at this juncture.

Mitchell H. Rubinstein

October 3, 2007 in Civil Law | Permalink | Comments (0) | TrackBack (0)

Monday, September 24, 2007

3rd Circuit Decides Critically Important Case Concerning Tort Liability of Bloggers And Web Site Owners

Dimeo II v. Tucker Max, No. 06-3171(3rd Cir. Sep't. 19, 2007)(n.o.r.), is an important case concerning tort liablity of web site owners and bloggers for items they do not post on their web site or blog. In this case, plaintiff sued Tucker Max who maintained a web site, www.tuckermax for comments that others made on his web site.

The 3rd Circuit affirmed the dismissal of the case under 47 U.S.C. Sec. 230, reasoning:

We agree with the District Court that DiMeo’s defamation claim is barred by 47 U.S.C. § 230. Section 230 provides, in relevant part, that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1) (emphases added). “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3); see also Green v. America Online, 318 F.3d 465, 471 (3d Cir. 2003) (stating that § 230 “‘precludes courts from entertaining claims that would place a computer service provider in a publisher’s role,’ and therefore bars ‘lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions–such as deciding whether to publish, withdraw, postpone, or alter content.’” (quoting Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)).See 47 U.S.C. § 230(f)(2) (defining “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions”). DiMeo’s complaint alleges that Max is a publisher of the comments on the website.

Max’s website is an interactive computer service because it enables computer access by multiple users to a computer server.

Under this statute, bloggers are immune from defamation based upon postings that others have made. By extension, this should apply to statements that a co-blogger may make on the same blog-but that issue is far from clear.  I would say that in this day and age, this is an important decision. Remarkably, the Third Circuit indicated that this decision is non-precedential. Therefore, it is likely that this case will not be officially reported.

Mitchell H.Rubinstein

September 24, 2007 in Blogs, Legal, Civil Law, Current Events, Interesting Cases, Misc., Legal | Permalink | Comments (0) | TrackBack (0)