Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, January 20, 2017

Legal Malpractice Case Involving Labor Arbitration

I do not usually comment on tort cases. However, I recently came across Westchester Hills Gold Club v. Panken, 2017 N.Y. Slip Op. 30045(U) (New York Co. Jan. 10, 2017), which many readers may find of interest. Download Westchester Hills v. Panken NY County 2017 This is one of a rare set of legal malpractice cases that arose in the context of a labor arbitration.  

In this decision, the court refused to dismiss a legal malpractice case involving advice given by management lawyers in both a disciplinary and contract arbitration. As the court stated in part:

Additionally, this court finds that the complaint sufficiently alleges that defendants' conduct in the
X matter was the proximate cause of plaintiffs damages. The complaint alleges that "but for
[defendants'] malpractice, X's discharge would have been upheld" and that plaintiff would not have
suffered damages in having to pay X back pay for the time during which X was discharged.
Specifically, the complaint alleges that defendants' conduct in failing to enforce the terms of the 2010 final
warning, failing to draft and procure an enforceable LCA, failing to investigate the complaints made about
X's conduct during the August 2013 luncheon in order to meet plaintiffs burden of proving that
X was discharged for "just cause" and failing to call any witnesses to testify at the arbitration hearing
who observed X's conduct proximately caused plaintiffs damages in that plaintiff was required to
reinstate X and pay him back pay based on the arbitrator's determination that X should not have
been discharged. . . .

Of course, on a motion to dismiss, courts view the facts plead in a light most favorable to the Plaintiff. None of the allegations may be true and Plaintiff may not ultimately prevail at trial. 

Mitchell H. Rubinstein

January 20, 2017 in Arbitration Law, Interesting Cases, Lawyers, Litigation | Permalink | Comments (0)

Tuesday, October 25, 2016

Breaking News! Court Enjoins Obama Executive Order Requiring Disclosure of Labor Law Violations

On July 31, 2014, President Obama issued Executive Order 13673 which requires federal contractors to disclose labor law and employment discrimination violations. This Executive Order also precludes certain contractors from entering into predispute arbitration agreements concerning employment discrimination claims. The Office of Federal Procurement and the Department of Labor in turn issued regulations which were enjoined in Associated Builders and Contractors v. Rung, ___F.Supp. 2d___, 1:16-CV-425 (E.D. Tx. Oct. 24, 2016),  Download ABC PI 10-14-16 This disclosure could result in the contractors being debarred from federal contracts. 

In a lengthly decision, the court preliminary enjoined these regulations as compelled speech in violation of the First Amendment and because they conflicted with Congressional statutory mandates which specified how labor law violations needed to be addressed. The court reasoned in part:

                                Finally, even if federal agencies could properly disqualify government contractors based
                                upon final administrative decisions, arbitration awards, and court orders enforcing one of the
                                fourteen labor laws at issue, the Executive Order and FAR Rule should not be allowed to go into
                                effect because they extend their reach far beyond those limited circumstances. The Order and Rule
                                appear to conflict directly with every one of the labor laws they purport to invoke by permitting
                                disqualification based solely upon “administrative merits determinations” that are nothing more
                                than allegations of fault asserted by agency employees and do not constitute final agency findings
                                of any violation at all. As noted above in the Findings of Fact, agency employees who are
                                assigned to administer these labor laws issue thousands of complaints, cause findings, wage
                                notices, and citations each year, many of which are dismissed or significantly reduced after they
                                are contested, often after lengthy proceedings. There is no statutory basis to treat these
                                “administrative merits determinations” as final and binding while they are still being contested or
                                when they are settled without admission of fault. Thus, it appears to be a denial of fundamental
                                statutory and constitutional rights for the Executive Order and FAR Rule to so act.

Labor laws in this country have been widely criticized for being ineffective. This is an important case because it concerns whether it could regulate who it contracts with. This decision will surely be appealed. Law review commentary on this important topic would be most welcome.

Mitchell H. Rubinstein

October 25, 2016 in Discrimination Law, Labor Law, Law Review Ideas, Legislation, Litigation, NLRB | Permalink | Comments (0)

Thursday, April 14, 2016

Breaking News California Appellate Court Reverses Vergara Which Held Calif Tenure Statutes Unconstitutional

On April 14, 2016, a California appellate court reversed a lower court decision which declared several California tenure statutes unconstitutional under state law. Download Vergara Court of Appeals Opinion

In a lengthy well-reasoned opinion the court rejected a facial challenge to the statute and reasoned that if poor students were receiving an inferior education it was because of staffing decisions, reasoning:    

                It is possible that the challenged statutes—in the way they pertain to teacher tenure and seniority—lead to a higher                        number of grossly ineffective teachers being in the educational system than a hypothetical alternative statutory scheme             would. This possibility may present a problem with policy, but it does not, in itself, give rise to an equal protection         violation, which requires a classification affecting similarly situated groups in an unequal manner. (Cooley, supra, 29             Cal.4th 228, 253.)

       Assuming that poor and minority students encounter more grossly ineffective teachers and that this impacts their             constitutional right to “basic educational equality” (Butt, supra, 4 Cal.4th 668, 681), the constitutional infringement is the            product of staffing decisions, not the challenged statutes. Even if the statutes were struck down, the harm at issue—the             disproportionate assignment of inferior teachers to poor and minority students—could still occur as before. (Any system             will have some teachers who are not as effective as others.) And, since the challenged statutes, on their face and in effect,           do not dictate where teachers are assigned, declaring the statutes facially unconstitutional would not prevent administrators             from assigning the worst teachers to schools serving poor and minority students.

This case attracted significant media attention, several amicus briefs and copycat cases in other states. This high profile case was backed by former CNN reporter Cambell Brown.

Mitchell H. Rubinstein

April 14, 2016 in Equal Protection, Law Review Ideas, Legislation, Litigation, Public Sector Labor Law, Recent Developments | Permalink | Comments (0)

Wednesday, October 21, 2015

When Both Sides Can Recover Attorney's Fees

The general rule in American jurisdictions does not permit a victorious party to recover attorney's fees or litigation costs from the losing party.  There are exceptions to this rule -- courts typically enforce fee-shifting provision in contract and most if not all states have statutes that allow prevailing parties to recover fees in some situations.  Some such statues provide for "one-way" fee shifting whereby only a prevailing claimant may recover fees.  Others are "two-way" fee shifting statutes allowing either plaintiff or defendant to recover. 

Courts have created rules on fee-shifting deisgned to achieve fairness and fidelity to the American rule, however, these rules can and have led to "a second major litigation," or to "years of protracted appellate review."  Perdue v. Kenny A., 559 U.S. 542, 572 (2010) (Breyer, J., dissenting).  One such rule requires attorneys to segregate attorney's fees and expenses between recoverable and unrecoverable claims.  For example, if a party sues in contract and tort in a jurisdiction that enforces a fee-shifting provision in the contract but does not provide for fee-shifting in tort, a prevailing plaintiff must segregate the nonrecoverable attorney's fees incurred solely to prosecute the tort claim from the recoverable fees incurred for the contract claim and fees incurred as to both claims.  See e.g., Tony Gullo Motors, Inc. v. Garcia, 212 S.W.3d 299 (Tex. 2006).  Likewise, when the prevailing party wins only in part, the party must segregate fees between the successful and unsuccessful claims to the extent fee-shifting applies as to the successful claims.  See Fox v. Vice, 563 U.S. 826 (2011).

What happens when each side in a lawsuit prevails in part with each party prevailing on a claim entitling it to attorney's fees pursuant to a fee-shifting provision?  A California court answered this question in Sharif v. Mehusa, Inc., No. B255578, 2015 W.L. 5969679 (October 14, 2015, Cal. Ct. App.).  In this case, the plaintiff prevailed on her state Equal Pay Act claim and the defendant prevailed on its plaintiff's overtime and wage claim.  Each party filed a motion for attorney's fees under the applicable statute.  The trial court awarded both sides its attorney's fees as to the claim upon which each prevailed,  with the plaintiff obtaining a small fees award after offset.

The California appellate court affirmed.  The court held that "when there are two fee shifting statutes in separate causes of action, there can be a prevailing party for one cause of action and a different prevailing party for the other cause of action."  Ms. Sharif argued that because she prevailed on the Equal Pay Act claim and received a money judgment on that claim, she was the "prevailing party," and was subject only to reduction in the fee claim for the unsuccessful overtime and wage claim.  The court agreed Sharif was a prevailing party in part, but added that Mehusa, Inc. was a prevailing party also as to a claim including a two-way fee shifting provision.  The court stated it made no sense for the defendant to be able to recover on the overtime and wage claim if the two claims here were brought in separate actions but not if the two claims were consolidated into one action.

We cover attorney fees recovery in our Damages class.  It is important for new attorneys to develop good habits about tracking time in cases, even when representation is for a flat or contingent fee.  I cannot imagine anything more mind-numbing (or more filled with ethical risks) than having to recreate an attorney's fees statement on short notice at a lengthy and complicated case's end.  Here is a recent essay with useful tips about substantiating attorney's fees in litigation.

Craig Estlinbaum

October 21, 2015 in Interesting Cases, Litigation, Remedies | Permalink | Comments (0)

Wednesday, November 5, 2014

Lahav: The Jury and Participatory Democracy

Alexandra D. Lahav (Connecticut) has posted The Jury and Participatory Democracy at SSRN.  The essay, a contribution to a symposium on the civil jury, has been published by William & Mary Law Review.  The abstract:

Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch.

Craig Estlinbaum

November 5, 2014 in Civil Procedure, Conferences, CLE, Law Review Articles, Litigation | Permalink | Comments (0)

Tuesday, October 15, 2013

CPLR Article 78 expresses a preference that state courts, rather than federal courts, decide a federal litigant’s “state-law statutory-construction” claim

Carver v. Nassau County Interim Finance, CA2, Docket Nos. 13-0801, 13-0840
James Carver, Gary Learned, and Thomas R. Willdigg, as presidents of the their respective employee organizations representing certain employees in Nassau County police collective bargaining units [Police Union], challenged a wage freeze imposed by the Nassau County Interim Finance Authority [NIFA].* Police Union alleged that the freeze violated the Contracts Clause, Article I, Section 10 of the Constitution of the United States and NIFA’s power to impose a wage freeze pursuant to §3669 of the New York Public Authorities Law had expired.
The district court granted summary judgment to Police Union based solely on the statutory Interpretation of its State law claim. NIFA appealed and the Circuit Court of Appeals held that the district court, in granting summary judgment to Police Union on its state law claim without reaching the constitutional question, abused its discretion in exercising pendent jurisdiction over the statutory construction claim. It vacated the lower court’s ruling and remanded the matter with instructions to the district court to dismiss Police Union’s statutory construction claim..
On January 26, 2011, NIFA imposed a control period. After Nassau County unsuccessfully challenged the imposition of the control period in an Article 78 proceeding, County of Nassau v. Nassau County Interim Finance Authority, 33 Misc. 3d 227, NIFA passed two resolutions freezing wages for all County employees on March 24, 2011.
The wage freeze forced the County to breach the terms of the collective bargaining agreements it had entered into with the various County police unions. On April 1, 2011, Police Union commenced this action in federal court, alleging that the wage freeze violated the Contracts Clause, Article I, Section 10 of the Constitution. Police Union later amended its complaint to add a second claim that NIFA lacked the authority under state law to order a wage freeze after the conclusion of the interim finance period.
The district court did not reach Police Union’s “Constitutional claim,” holding that the statutory question was “most appropriate for summary disposition.”
The Circuit Court, noting that district courts have supplemental jurisdiction over pendent state law claims “that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution,” 28 U.S.C. §1367(a) said that it was reviewing the district court’s decision to assert supplemental jurisdiction over a state law claim under an abuse-of-discretion standard.
As this case “… concededly presents an unresolved question of state law and is also one in which there are exceptional circumstances which provide compelling reasons for declining jurisdiction,” the Circuit Court held that “the construction of the provision of the NIFA Act at issue raises an unresolved issue of state law – the interpretation of a poorly drawn statute – that should be resolved by the New York state courts because the manner in which the statute is construed implicates significant state interests.”
The court explained that as it had previously ruled, “[w]here a pendent state claim turns on novel or unresolved questions of state law, especially where those questions concern the state’s interest in the administration of its government, principles of federalism and comity may dictate that these questions be left for decision by the state courts,” citing Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998).
Although the defendants argued that jurisdiction over this pendent state law claim should be denied because of the special statutory procedure that New York law – CPLR Article 78 – provides for adjudicating claims that a body or officer has acted in a manner not authorized by state law the Circuit Court said that it “need not decide, however, whether Article 78 can, on its own, deprive a federal court of jurisdiction over claims brought under that provision, as some district court cases have held….” For present purposes, said the court, it is sufficient to recognize that Article 78 reflects a state preference for a state mode of procedure that “is designed to facilitate a summary disposition of the issues presented . . . and has been described as a fast and cheap way to implement a right that is as plenary as an action, culminating in a judgment, but is brought on with the ease, speed and inexpensiveness of a mere motion.”
The Circuit Court said that on remand “the district court should dismiss the state-law claim, but retain jurisdiction over [Police Union’s] federal constitutional claim. Should Police Union decide to pursue its state-law statutory-construction or other related claims in state court, the district court may decide, within its discretion, to stay the federal action until the state-court litigation has completed because the state courts’ resolution of the state claim may obviate the need to resolve the federal constitutional question.
* The Nassau Interim Finance Authority is a public benefit corporation created by the New York State Legislature in June 2000 in response to the growing financial crisis facing Nassau County.
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

October 15, 2013 in Litigation | Permalink | Comments (0)

Thursday, May 16, 2013

Neither a judicial or quasi-judicial administrative proceeding may be conducted on a Saturday or a Sunday where such day is kept as a holy day by any party to the case

May judicial or quasi-judicial proceeding be conducted on a Sunday?
This was one of the issues raised by the petitioner in her CPLR Article 78 petition seeking to vacate the appointing authority’s disciplinary determination that resulted in her being dismissed from her position. The petitioner contended that she was impermissibly discharged from her position because one of the dates on which her disciplinary hearing was conducted was a Sunday, citing Judiciary Law §5.
Judiciary Law §5, in pertinent part, provides that: “A court shall not be opened, or transact any business on Sunday, nor shall a court transact any business on a Saturday in any case where such day is kept as a holy day by any party to the case, except to receive a verdict or discharge a jury and for the receipt by the criminal court of the city of New York or a court of special sessions of a plea of guilty and the pronouncement of sentence thereon in any case in which such court has jurisdiction.”
In rebuttal, the appointing authority argued that out of “a multiple day hearing, only one of the days was a Sunday, and therefore the proceedings cannot be held invalid.”
Supreme Court Justice Catherine M. Bartlett disagreed with the argument advanced by the appointing authority, annulling the appointing authority’s' decision and remanding the matter for “a new hearing and determination de novo in compliance with New York law Judiciary Law §5.
The court, citing Jones v E. Meadow Fire Dist., 21 AD2d 129, explained at common law no judicial act could be done on Sunday; and, in the absence of a permissive statute, a judge had no authority to hold court or to conduct a trial on Sunday.  Judiciary Law §5, said the court, was enacted as a substitute for the common-law rule. The Jones court held that “quasi-judicial proceedings such as disciplinary proceedings before a review board fall under Judiciary Law §5's auspices.”*
On a related point, Justice Bartlett also noted that the mandates of Judiciary Law §5 may not be waived by a party as §5 expresses the public policy of the State.
In Matter of Brody [Owen], 259 App.Div. 720, the Appellate Division held that an arbitration hearing and award were both “illegal and void,” because both occurred on a Sunday and “An arbitration is a judicial proceeding and arbitrators perform a judicial function.”
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

May 16, 2013 in Litigation | Permalink | Comments (0)

Saturday, October 13, 2012

Statute of limitations for challenging a personnel decision begins running when the individual is notified of the “determination” becomes final and binding

McCarry v Purchase Coll., State Univ. of N.Y., 2012 NY Slip Op 06026, Appellate Division, Second Department 
In a proceeding pursuant to CPLR Article 78 challenging the decision of the President of the State University of New York College at Purchase not to reappoint an assistant professor to the Purchase faculty, Supreme Court annulled the President’s determination and remitted the matter to for a de novo review and a new determination. Supreme Court also directed the retroactive reinstatement of the faculty member with full compensation and benefits pending the de novo review.
The Appellate Division reversed the lower court’s rulings “on the law."
Pointing out that the assistant professor’s challenge to the President’s decision was time-barred by the four-month statute of limitations, the court explained that the statute of limitations set forth in CPLR §217(1) began to run on the date that the challenged determination became final and binding.*
Citing Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62, the Appellate Division said that "A determination generally becomes binding when … the agency has reached a definitive position that inflicts concrete injury to the aggrieved party that cannot be prevented or significantly ameliorated by further administrative action” and the individual has been advised of that determination.
In this instance it was undisputed that the assistant professor commenced his Article 78 action more than four months after receiving notice that he had not been reappointed to his teaching position.
Significantly, the court said that the limitations period did not run from the date upon which the assistant professor's fixed-duration employment contract automatically ended but rather commenced to run when he received notice of the “final determination” that he would not be reappointed to the college faculty.
Further, said the court, even had the faculty member Article 78 action “been timely commenced, the record demonstrates that the [College President] substantially complied with the internal rules of Purchase College, State University of New York and the determination was not arbitrary and capricious."
N.B. A request to “reconsider” a final and binding administrative determination does not toll the running of the Statute of Limitations [Lavin v Lawrence, 54 AD3d 412].
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

October 13, 2012 in Litigation, Public Sector Employment Law | Permalink | Comments (0)

Thursday, October 11, 2012

Under NY Law, It is Ok To File and Serve Copies

I bring Rechler Equity v. AKR Corp., ____A.D.3d____(2d Dep't. Aug. 1, 2012), Download Rechler Equity AD3d (2d Dep't. 2012) Ok To Serve and File Copiesbecause it addresses a common issue. The court holds that under the CPLR, it is perfectly permissible for copies of pleadings to be served and filed. Thus, an original signature is not required.

Mitchell H. Rubinstein

October 11, 2012 in Litigation, New York 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)

Sunday, June 3, 2012

NY Appellate Court Holds That Accusing Someone of Being Gay Is No Longer Defamation Per Se

Yonaty v. Mincolla, ____A.D.3d___(3d Dep't. May 31, 2012), is an exceedingly important case that has not gotten much press. The case was a defamation action and the legal issue was whether or not falsing accusing someone as being gay is defamation per se. This is important because if it is slander per se, then plaintiff has to allege special damages. 

Here the court refused to follow 30 year old precedent from another Department which held that making such a false accusation was indeed slander per se. As the court explained:

In regard to New York in particular, we locate "the public policy of [this] state in the law as expressed in statute and judicial decision and also [by] consider[ing] the prevailing attitudes of the community" (Debra H. v Janice R., 14 NY3d 576, 600 [2010], cert denied ___ US ___, 131 S Ct 908 [2011] [internal quotation marks and citations omitted]; see Dickerson v Thompson, 73 AD3d 52, 54 [2010]). Rather than countenancing the view that homosexuality is disgraceful, the Human Rights Law, since 2002, has expressly prohibited discrimination based on sexual orientation in employment, public accommodations, credit, education and housing (Executive Law § 296). Most revealing of the respect that the people of this state currently extend to lesbians, gays and bisexuals, the Legislature passed the Marriage Equality Act (Domestic Relations Law § 10-a, as amended by L 2011, ch 95, § 3) in June 2011, which was strongly supported by the Governor and gave same-sex couples the right to marry in New York, thereby granting them all the benefits of marriage, including "the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State" (Hernandez v Robles, 7 NY3d 338, 358 [2006]). Even prior to the Marriage Equality Act, this Court had previously explained that "the public policy of our state protects same-sex couples in a myriad of ways" — including numerous statutory benefits and judicial decisions expressing a policy of acceptance (Dickerson v Thompson, 78 AD3d at 54). Similarly "evidenc[ing] a clear commitment to respect, uphold and protect parties to same-sex relationships[,] executive and local orders extend[] recognition to same-sex couples and grant[] benefits accordingly" (id.see Godfrey v Spano, 13 NY3d 358, 380-381 [2009] [Ciparick, J., concurring] [detailing the many statutes and court decisions reflecting a public policy of acceptance of lesbians, gays and bisexuals]).

We note that the most recent Appellate Division decision considering the issue in depth was decided nearly 30 years ago (Matherson v Marchello, 100 AD2d 233, 241-242 [2d Dept 1984], supra). In that case, the Second Department concluded that it was "constrained . . . at this point in time" to hold that a statement imputing homosexuality was defamatory per se in light of the then-existing "social opprobrium of homosexuality" and "[l]egal sanctions imposed upon homosexuals in areas ranging from immigration to military service" (id. at 241 [emphasis added]). Ultimately, the Court held that "the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored" (id. at 242). In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease (see Stern v Cosby, 645 F Supp 2d 258, 273-275 [SD NY 2009];Albright v Morton, 321 F Supp 2d 130, 136-139 [D Mass 2004], affd on other grounds 410 F3d 69 [2005]; [*5]Donovan v Fiumara, 114 NC App 524, 528-531, 442 SE2d 572, 575-577 [1994]; Hayes v Smith, 832 P2d 1022, 1023-1025 [Colo 1991]; Boehm v Bankers Ins. Group, Inc., 557 So 2d 91, 94 and n 1 [Fla 1990], review denied 564 So 2d 1085 [Fla 1990]; but see Gallo v Alitalia-Linee Aeree Italiane-Societa per Azioni, 585 F Supp 2d 520, 549-550 [2008] [relying, in part, on our decision in Tourge v City of Albany (285 AD2d 785 [2001], supra) in concluding that statements imputing homosexuality remain slanderous per se under New York law]). While lesbians, gays and bisexuals have historically faced discrimination and such prejudice has not been completely eradicated, "the fact of such prejudice on the part of some does not warrant a judicial holding that gays and lesbians [and bisexuals], merely because of their sexual orientation, belong in the same class as criminals" (Stern v Cosby, 645 F Supp 2d, at 275).

Mitchell H. Rubinstein

June 3, 2012 in Discrimination Law, Law Review Ideas, Litigation, New York Law | Permalink | Comments (0)

Saturday, June 2, 2012

Failure to exhaust administrative remedy held a bar to seeking judicial relief


Holzman v Commission on Judicial. Conduct, 2012 NY Slip Op 01577, Appellate Division, First Department

Surrogate Court Judge Lee L. Holzman sought a stay of disciplinary proceedings brought against him by the Commission on Judicial Conduct pending the resolution of the criminal prosecution of a witness to the disciplinary proceedings.
Supreme Court denied issuing the stay and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division said that the denial of the petition and dismissal of the proceeding was warranted because Judge Holzman had failed to exhaust the administrative remedy available to him pursuant to Judiciary Law §44(7).*
Further, said the court, Judge Holzman “has not demonstrated that doing so would be futile or that irreparable harm would occur absent judicial intervention,” commenting that the "possibility of reputational harm" claimed by Judge Holzman “does not constitute irreparable injury warranting the relief sought by him.”
* The history to date of these proceedings is posted on the Internet at:
Reprinted with permission 
Mitchell H. Rubinstein


June 2, 2012 in Litigation | Permalink | Comments (0)

Saturday, May 26, 2012

The denial of a FOIL request by an entity subject to the Freedom of Information Law may not be based on the purpose for which the document or record was produced or the function to which it relates


Hayes v Chestertown Volunteer Fire Co., Inc., 2012 NY Slip Op 02367, Appellate Division, Third Department
The Chestertown Volunteer Fire Company, Inc. [CVFC] partially denying Christine A. Hayes’s Freedom of Information Law requests, contending that it was a private corporation not subject to the requirements of FOIL.
Ultimately Hayes initiated a CPLR Article 78 proceeding seeking to compel CVFC to comply with numerous FOIL requests and the Open Meetings Law, as well as an award of counsel fees and litigation costs.
Supreme Court held that the Open Meetings Law was not applicable to the meetings held by CVFC and ordered CVFC to submit the documents requested by Hayes to the court for an in camera review so that it could redact any records containing "non-firematic" information. Hayes appealed.
The Appellate Division, agreeing with Hayes, said that “to the extent Supreme Court's FOIL determination differentiated between records concerning public, or ‘firematic,’ and private functions of CVFC, this was error.”  Although Supreme Court found, and CVFC conceded, that CVFC is an "agency" subject to the requirements of FOIL, it was incorrect in determining that “because CVFC engages in both governmental and private activities, the records of its nongovernmental functions are not subject to FOIL's disclosure requirements.”
Commenting that nothing in the statute itself and nothing in the legislative history suggesting that the Legislature intended such content-based limitation in defining the term "record," the Appellate Division said that the Court of Appeals has consistently held that "FOIL's scope is not to be limited based on 'the purpose for which the document was produced or the function to which it relates,'" citing Westchester Rockland Newspapers v Kimball, 50 NY2d at 581.
Having determined that CVFC is an "agency" subject to FOIL, the Appellate Division said that Supreme Court was required to order disclosure of the requested records — without regard to whether they related to governmental or nongovernmental functions — unless one of the exceptions set forth in Public Officers Law §87 (2) was applicable.” Noting that CVFC had not claimed the benefit of any FOIL exemption,* "it must make the requested records available” to Hayes.
The Appellate Division, however, said that it was not persuaded that Supreme Court erred in denying Hayes' request for counsel fees and litigation costs. Explaining that "Reasonable counsel fees 'may' be awarded by the court in a FOIL proceeding where the litigant has 'substantially prevailed,' where the court finds that the record involved was 'of clearly significant interest to the general public' and where 'the agency lacked a reasonable basis in law for withholding the record,'" the court said that even where all of the statutory requirements have been met, "the decision whether to award counsel fees rests in the discretion of the court and will not be overturned in the absence of an abuse of such discretion." 
Although Hayes had “substantially prevailed,” characterizing the documents sought as “not of significant interest to the general public, the Appellate Division decided that Supreme Court had not abused its discretion in denying Hayes' request for attorney fees and costs.
As to Hayes’ complaint concerning CVFC's alleged violation of the Open Meetings Law, the Appellate Division held that although “CVFC is an ‘agency’ under FOIL, it is not a ‘public body’ subject to the Open Meetings Law” and thus its monthly meetings need not be open to the public.
The Open Meetings Law, said the court, requires that "[e]very meeting of a public body … be open to the general public," citing Public Officers Law §103[a], and defines "public body" as "any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof."
While there was no dispute that the Fire District, as a political subdivision of the State and thus a "public body," is subject to the Open Meetings Law, the Appellate Division noted that, in contrast, CVFC is a private, not-for-profit corporation organized as a charitable organization under the Not-For-Profit Corporation Law and governed by its constitution and bylaws.** 
As the record established that, unlike the meetings of the Board of Fire Commissioners of the Fire District where the official government business of the Fire District is conducted, the meetings of CVFC relate to its internal affairs and the social, recreational and benevolent activities that it undertakes in furtherance of its charitable purpose. Further, said the court, CVFC receives no public funds for such events and activities, which are instead supported through fundraising and donations from private sources. Accordingly, the Appellate Division concluded that CVFC is not a "public body" under the Open Meetings Law.
* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.
** See N-PCL §§201 and 1402[e][1].
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

May 26, 2012 in Litigation, Misc., Legal | Permalink | Comments (0)

Thursday, May 24, 2012

A party seeking to set aside a stipulation in a judicial or quasi-judicial proceeding must demonstrate “good cause” such as fraud, overreaching, duress, or mistake


Sheng v State of N.Y. Div. of Human Rights, 2012 NY Slip Op 02310, Appellate Division, Second Department
The New York State Division of Human Rights dismissed Juan Y. Sheng’s  administrative complaint alleging unlawful discrimination after deterimining that there was “no probable cause.” Subsequenlty Sheng asked  Supreme Court to vacate a stipulation discontinuing the proceeding before the Division with prejudice. Supreme Court denied Sheng’s petition.
The Appellate Division dismissed Sheng’s appeal, explaining that stipulations disposing of proceedings and actions "are favored by the courts and are not to be lightly set aside, especially where, as here, the party seeking to vacate the stipulation was represented by counsel." Further, said the court, A party seeking to set aside such a stipulation will be granted relief only upon a showing of good cause sufficient to invalidate a contract, such as fraud, overreaching, duress, or mistake,” citing McCoy v Feinman, 99 NY2d 295.
Concluding that Supreme Court properly determined that Sheng failed to demonstrate good cause to set aside the stipulation discontinuing the proceeding with prejudice, the Appellate Division commented that “The failure of [Sheng’s]  attorney to ascertain or understand the legal effect of a discontinuance with prejudice was not a basis upon which to vacate the sitpulation.”
Further, the court said that Sheng submitted no evidence in support of her claim of fraudulent inducement based on opposing counsel's failure to inform her counsel of the legal ramifications of a discontinuance with prejudice. In the words of the Appellate Division, “opposing counsel owed no duty to disclose her understanding of those legal ramifications” to Sheng or Sheng’s attorney.
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

May 24, 2012 in Employment Law, Litigation | Permalink | Comments (0)

Saturday, October 15, 2011

U.S. Department of Labor Becoming More Aggressive

The U.S. Department of Labor is now sharing information with several states and more aggressively enforcing the FLSA. An interesting September 19, 2011 article from the Boston Herald summarizes the new enforcement activity, here.

Mitchell H. Rubinstein 

October 15, 2011 in Federal Law, Litigation | Permalink | Comments (0)

Saturday, July 23, 2011

The failure to properly and timely serve the agency issuing an adverse decision results in the court lacking “personal jurisdiction” to hear the case

Matter of Greenburgh Cent. School Dist. No. 7 v Westchester County Human Rights Commn., 2011 NY Slip Op 02009, Appellate Division, Second Department

Public agencies are not immune to the almost always fatal procedural omission of failing properly serve the necessary parties in an appeal of an adverse administrative ruling as is demonstrated in this Article 78 action.

Greenburgh Central Schools District #7 had filed CPLR Article 78 action to review the Westchester County Human Rights Commission finding that District had engaged in unlawful age discrimination in violation of the Westchester County Human Rights Law. The Commission had also imposed a monetary penalty on the District.

Supreme Court, Westchester County, after declining to extend the statute of limitations to file such an action, dismissed the proceeding for lack of personal jurisdiction.

The Appellate Division affirmed the lower court’s ruling, pointing out that it was undisputed that the school district had failed to properly serve Westchester Human Rights with the notice of petition and petition in accordance with CPLR 312.

Further, said the court, Greenburgh “failed to demonstrate good cause for an extension of time to serve, and failed to show that such an extension is warranted in the interest of justice.”

In particular, the court noted that Greenburgh had failed to demonstrate diligence in its attempt at service, and failed to demonstrate a potentially meritorious argument in support of the petition.

The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein


July 23, 2011 in Litigation | Permalink | Comments (0)

Thursday, June 23, 2011

Inadvertent Disclosure

In these days of email and computers, it is not unusal for an attachment to be missed and therefore, certain documents are inadvertentedly disclosed. In New York, the new Rules of Professional Conduct, Rule 4.4(b), requires that attorneys who recieve such documents to notify the sender. As this article points out, this rule raises more questions than it answers and I am sure that we are going to see more cases addressing this important issue.  Download Inadvertent Disclosure

Law review commentary would be most welcome.

MItchell H. Rubinstein

June 23, 2011 in Articles, Law Review Ideas, Litigation | Permalink | Comments (0)

Saturday, June 4, 2011

Software to Replace Lawyers? It's true.

Armies of Expensive Lawyers , Replaced By Cheaper Sofware is an interesting March 4, 2011 New York Times article. It is about how "e-discovery" can be used to find documents with key words or phrases. This cuts down dramatically on lawyer time. This can save the client a significant amount of money. E discovery is also much quicker. The  article states:

But that was in 1978. Now, thanks to advances in artificial intelligence, “e-discovery” software can analyze documents in a fraction of the time for a fraction of the cost. In January, for example, Blackstone Discovery of Palo Alto, Calif., helped analyze 1.5 million documents for less than $100,000.

Some programs go beyond just finding documents with relevant terms at computer speeds. They can extract relevant concepts — like documents relevant to social protest in the Middle East — even in the absence of specific terms, and deduce patterns of behavior that would have eluded lawyers examining millions of documents.

“From a legal staffing viewpoint, it means that a lot of people who used to be allocated to conduct document review are no longer able to be billed out,” said Bill Herr, who as a lawyer at a major chemical company used to muster auditoriums of lawyers to read documents for weeks on end. “People get bored, people get headaches. Computers don’t.”

This raises a host of legal issues. Is e discovery sufficient? With respect to a lawyer who engages in e-discovery as opposed to regular discovery, is he or she breaching the standard a care? What if something is missed or a mistake occurs?

Law review commentary on the litigation issues raised by e discovery would be most welcome. 

Mitchell H. Rubinstein


June 4, 2011 in Law Review Ideas, Lawyers, Litigation | Permalink | Comments (2)

Sunday, March 20, 2011

Documents concerning an employee’s separation and post-termination employment benefits available under New York's Freedom of Information Law

William E. Hamilton submitted a Freedom of Information Law (FOIL) request seeking documentation concerning "the modification, amendment and/or termination of the employment agreement" between the Jordan-Elbridge Central School District and its superintendent, Marilyn Dominick, as well as any document relating to the termination of Dominick's employment with the district and any post-termination employment benefits. When the District declined to provide Hamilton with the documents he sought, he filed a petition in Supreme Court seeking a court order compelling the District to provide the documents he had sought.

Judge Greenwood stated that only one document was at issue: the agreement between Jordan-Elbridge and Dominick concerning her resignation and retirement.

Explaining that FOIL is based upon a presumption of access and all records of an agency are available except to the extent that the records or portions thereof fall within one or more grounds for denial, as set forth in Public Officer's Law §87,* the court noted that the statute is to be “liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.”

Significantly, Judge Greenwood commented that “both case law and the Committee on Open Government Advisory Opinions have held that a contract between an administrator and a school district must be disclosed under the FOIL, and neither the characterization of the documents as personal records nor their placement in personnel files render the documents confidential or deniable under the law.”

In response to the School District’s “justification for withholding the document,” Judge Greenwood conducted an in camera inspection of the document in question** and concluded that “none of the personal information alleged is contained in the agreement as [the District] claimed. Nor does the agreement contain a confidentiality provision as alleged by [the School District].***

In addition, Judge Greenwood said that the Court “would not be not bound by a confidentiality agreement and must make its own determination regarding disclosure.”

Finally, Judge Greenwood indicated that a party is entitled to its legal fees in prosecuting a FOIL proceeding if the party establishes that:

1) it has substantially prevailed;

2) the record sought was of clearly significant interest to the general public; and

3) the agency lacked a reasonable basis in law for withholding the record.

Here, said the court, there was no confidentiality agreement upon which the School District could have reasonably relied, nor is there any confidential information contained in the document that was required to be redacted.

Also, said the court, Hamilton had shown that the document is of significant interest to the general public and the Superintendent’s desire to keep the reason for her retirement and value of her severance package secret is not a sufficient basis under the Freedom of Information Law to deny the subject FOIL request.

Accordingly, Judge Greenwood awarded Hamilton “attorney's fees in the amount of $2,500.”

 The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].

** The term “in camera” is used to characterize a hearing or inspection of documents that takes places in private, often in a judge's chambers.

*** Robert J. Freeman, Executive Director, Committee on Open Government, has addressed “non-disclosure agreements.” His views are set out in the “Staff Advisory Opinion” posted on the Internet at Further, in LaRocca v Jericho UFSD, 220 AD2d 424, the Appellate Division said that “as a matter of public policy, the Board of Education cannot bargain away the public’s right to access to public records.” The court ruled that the settlement agreement in question, or any part of it, providing for confidentiality or purporting to deny the public access to the document “is unenforceable as against the pubic interest.”

The decision, Hamilton v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2010 NY Slip Op 51663(U), Decided on September 23, 2010, Supreme Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports], is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein


March 20, 2011 in Litigation, New York Law | Permalink | Comments (0)

Tuesday, November 2, 2010

How Not To Draft A Complaint

Jim Levy over at Legal Skills Prof Blog ran an interesting story about a lawyer who drafted 465 page complaint and the judge who responded by stating:

Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a),
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today.

Judge Leighton's full order can be found here

Like Jim, I believe that the attorney got off easy. On the other hand, if he was only given a day to re-file, that might not be reasonable.

Mitchell H. Rubinstein

November 2, 2010 in Litigation | Permalink | Comments (0)