Sui Generis--a New York law blog

New York Zoning Challenges

Via David Giacalone of the f/k/a blog, I learned of a helpful resource for those of you involved in zoning/development law in New York. 

During an Erie County Bar Association CLE program last week, attorney Arthur Giacalonethe presented an annotated outline entitled Zoning Challenges: Overcoming Obstacles (also available as a Word document with working footnote links).

As described at the f/k/a blog:

In the Zoning Challenges outline, you’ll find citations to the most relevant laws and court opinions. The major points Arthur makes in the seminar materials include:    

1. Contrary to the complaints one often hears from developers and their counsel, residents concerned about projects proposed for their communities have always faced an uneven playing field. The obstacles are political, legal, bureaucratic, financial, etc.    

2. An increasingly hostile legal system, political climate and media have contributed to an environment where protection of the interests of residents becomes a more challenging task each year.

Giacalone says an Atmosphere of Intimidation has been created to discourage residents from asserting their rights and interests: “Some advocates of so-called ‘progress’, including some developers, public officials and members of the media, are engaged in a concerted effort to belittle and silence neighborhood residents who dare to speak out against a proposed project. The residents are castigated as obstructionists, labeled NIMBYs (Not In My Back Yard), and even called ‘Un-American’. Developers are portrayed as saints, residents as villains.”

Meanwhile, “It seems that developers and property owners are frequently threatening to sue municipalities and/or government officials for money damages if their proposed projects are denied. They claim ‘regulatory takings’, violations of ‘vested rights’, due process violations, etc. Such threats are intended to have a ‘chilling effect’ on local officials.

Given the level of hostility exhibited towards residents, Giacalone says “it is fortunate that both the State Legislature and the courts have taken steps to protect their rights to petition their government and to express their opinions.”

For those of you who practice in this area, the outline looks to be a very useful resource.

Judge Reserves Decision in Lawsuit Challenging New York Lawyer Advertising Rules

Greg Beck of Public Citizen, attorneys for the plaintiffs in the lawsuit challenging the recently promulgated lawyer advertising rules, advised me that on Monday, after hearing oral arguments, Judge Scullin reserved his decision. 

You may recall that the trial which had been previously scheduled was canceled, as explained in this post.

This AP article further described the proceedings:

Gregory A. Beck of the Public Citizen Litigation Group contended that the new rules place onerous restrictions on both commercial and noncommercial speech and violate the First and Fourteenth Amendments.

“If you look at the commercials, consumers suffer no conceivable harm,” Beck told Northern District Senior Judge Frederick J. Scullin Jr. “This idea that television somehow brainwashes people doesn't make any logical sense. They are adults, able to make their own decisions.”...

Assistant Attorney General Bridget Holohan told Scullin that advertisements “have to contain relevant, factual, verifiable information because outrageous claims might mislead the public.”

“Giants in Syracuse and aliens marching down the street are not relevant to consumers making decisions,” Holohan said. “We argue where an advertisement is not susceptible to be verified, it's not protected by the First Amendment, The Supreme Court has opened this argument. It's a valid argument. The state's interest is in maintaining professionalism and a free flow of truthful, relevant information. The state has a substantial interest.”

Scullin noted that the Supreme Court has ruled there is First Amendment protection for attorney advertising. “It's not incumbent to show relevancy,” he said. “It's still attorney advertising, which is protected.”

The new state rules were among several revisions embodied in New York's Code of Professional Responsibility. Also banned were Internet pop-up ads and solicitation of clients in chat rooms. Beck asked Scullin to address popups without prohibiting them altogether.

Before reserving his decision, Scullin also asked if it was possible for the state to use the existing rules.

Once I learn of the judge's decision, you'll be the first to know.

The New York Legal News Round Up

It's time for the round up of interesting New York legal news headlines from the past week:

• Colombian convicted in NY of smuggling cocaine (Reuters)
• U.S. Supreme Court justices favor New York City in tax dispute with Indian, Mongolian diplomatic offices (AP)
• NYC Restaurants Sue To Block Calorie Info Rules (ConsumerAffairs.com)
• New York's state Assembly approves gay marriage bill (AP)
• 2nd Circuit Upholds Congress' Power to Pass Anti-Bootlegging Law (Law.com)
• NYC woman arrested on topless stroll accepts $29,000 to settle lawsuit (AP)
• NY sued over plan to raze houses that may have sheltered slaves (AP)

Vote for the Funniest Law Blog

Head on over to our sister blog, Legal Antics, and vote for the funniest law blog.  Legal Antics is in the running, so show your loyalty, dear readers! 

The Billable Hour, which provides clever gifts and greeting cards for legal professionals, was kind enough to sponsor the contest and the lucky winner will take home a fabulous prize of their choice from the The Billable Hour (luxury watch line and sets excluded). 

Personally, I've got my eye on the Lawsuit Board Game.  So, c'mon--rock the vote!

Survival of the Fittest

This week's Legal Currents column, which is published in The Daily Record, is entitled "Survival of the Fittest. "  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.

******
Survival of the fittest

The legal field is at a crossroads and decisions made in the coming years will have a dramatic and lasting effect on its future.

Rapid technological changes coupled with the entry of young lawyers holding extremely different values from those in power may well prove to be its downfall. The legal field as we know it will likely have to adapt or face extinction.

Technology has changed the ways in which business is being done. According to a survey conducted by the online marketing firm Alyn-Weiss & Associates, in 2006 law firm Web sites were the most effective marketing tool used by corporate, transactional and defense firms — 82 percent of the 119 firms responding to the poll indicated they received work directly or indirectly from their Web site within the past 24 months. About 55 percent of firms reported that they received work from seminars and presentations, down from 77 percent in 2004. Coming in last place was trade and community group participation, activities that only 47 percent of firms reported led to new clients.

Without a doubt, the Internet has permanently altered the marketing landscape, but the legal field has been slow to change the ways it advertises, especially Big Law. In fact, the top 10 results for Google searches for Rochester lawyers handling various types of commercial and civil matters routinely fails to include the Web sites of the largest firms in our region. Solos with a Web presence and small firms with well-crafted Web pages dominate the search results, presumably because their sites were drafted with search engines in mind.

This is particularly problematic for firms that are unwilling to adapt given that more and more people rely on the Internet for information regarding local business services, including lawyers. Indisputably, the younger generation, seemingly “wired” from birth, is most likely to utilize the Internet in this manner.

The entry of Gen X and Y lawyers in the workforce is an issue that should be of even greater concern to the legal profession. The experiences, attitudes and values of the different generations could not be more pronounced, as evidenced by the following statistics obtained from a February article in California Lawyer Magazine article entitled “We’re Outta Here”:

BABY BOOMERS
Born: 1946 to 1964
Number: 78 million
What they grew up with: The civil rights movement; assassinations of John F. Kennedy, Robert Kennedy, and Martin Luther King Jr.; Vietnam War; television in every home; sex, drugs and rock and roll; Woodstock; Roe v. Wade and Watergate
Values and characteristics: Love/hate relationship with authority; optimism; personal gratification; team players; strong work ethic
Work ethic: Driven
Presence in typical law firm: 45 to 60 percent
Roles in firm: Partners and leadership

GEN X
Born: 1965 to 1980
How many: 59 million
What they grew up with: HIV/AIDS epidemic; hippieparents; latch-key kids; corporate downsizing and restructuring; fall of Berlin Wall; first personal computers
Values and characteristics: Not impressed by authority; distrust of institutions; want personal space; informality; self-reliance
Work ethic: Balanced Presence in typical law firm: 40 to 50 percent
Roles in firm: Associates, junior partners

GEN Y
Born: 1981 to 1995
How many: 60 million
What they grew up with: Oklahoma City bombing; 9/11 terrorist attacks; the Internet boom; ubiquitous technology; economic prosperity
Values and characteristics: Receptive to authority; civic duty; patriotism; diversity; self-confidence; achievement; challenges
Work ethic: Selective
Presence in typical law firm: Less than 5 percent
Roles in firm: Summer associates, first- and second-year associates

[Sources: U.S. Census Bureau; NALP Foundation]

Of course, law firms are just the tip of the iceberg. According to “The Business of Law Report” published in February by Crain’s New York Business, a surprising 83.5 percent of New York lawyers are sole practitioners. That’s a lot of solos.

Judging by the values, characteristics and work ethic of the Gen X and Gen Y lawyers, I wouldn’t be at all surprised if the number of solos and small firms increased exponentially through the next five years as Gen X and Gen Y lawyers abandon the big firm business model in search of greener pastures. Some may hang a shingle while others may start their own firms or leave the law altogether — not a bright picture for firms unwilling or unable to adapt.

Perhaps I’m completely off base. Maybe the legal profession will adapt, maybe it won't need to. Only time will tell if I’m right. For the sake of the law as we know it, let’s hope that I’m not.

The New York Legal Blog Round Up

Alas, the weekend is over and that means that it's time for the weekly round up of interesting posts from my fellow New York blawgers:

New York Attorney Malpractice Blog:

• Privity in Accounting Malpractice Case
• Collectibility in Legal Malpractice in New York

New York Legal Update:

• First Department Dismisses Wrongful Death Action Based On Claim That Subway Platform Was Too Crowded

New York Personal Injury Law Blog:

• Avandia Attorneys Violating New York's Ethics Rules?

New York Public Personnel Law:

• Attaining tenure by estoppel

Simple Justice:

• NY Criminal Defense Lawyers: Texan Says "We Got It Better"

Define That Term #222

Thursday's term was "fair use", which is defined as:

n. the non-competitive right to use of copyrighted material without giving the author the right to compensation or to sue for infringement of copyright. With the growing use of copy machines, teachers and businesses copy articles, pages of texts, charts and excerpts for classroom use, advice to employees or to assist in research without violating the copyright. For example, Professor Elmer Smedley makes 100 copies of a photograph from Time magazine of starving Somalians to illustrate to his students the deprivations in Africa (which is fair use), but then Smedley publishes a book Africa on the Brink, and uses the photograph in a chapter on starvation (not fair use), and is responsible to the photographer for a royalty.

Harvey Randall got it right!

Today's term is:

save harmless.

As always, no dictionaries, please.

Is a Dentist's Testimony Regarding Routine Administration of an Anesthetic Admissible as Habit Evidence in a Malpractice Trial?

I've always enjoyed evidentiary issues and for that reason was excited to read a recent opinion by the New York Court of Appeals regarding the admission of habit evidence in a dental malpractice action.

In Rivera v Anilesh, 2007 NY Slip Op 05134, the plaintiff sued a number of people, including her dentist, alleging that a severe infection in her jaw originated with malpractice committed by her dentist while injecting a second round of anesthesia during the course of removing the plaintiff's tooth.

The defendant dentist moved for summary judgment, alleging that she had no recollection of the specific procedure at issue.  As such, she relied upon her customary practice to establish that the treatment rendered to the plaintiff on the date of the alleged malpractice did not differ from her ordinary methods.

(She) state(d) that the administration of this type of injection was a "routine procedure[]" that she did "every day" to "at least three to four to five" patients and that she had been practicing as a dentist since 1982. Dr. Anilesh further explained that a second injection of anesthesia was required in 15% to 20% of her cases. She provided a step-by-step description of the procedure she used to give injections to her patients and claimed that, when a second injection was necessary, she administered it at the same site as the first injection. Dr. Anilesh noted that if a patient complained of unusual pain or any other unexpected events occurred during treatment, she would make a notation in the patient's medical chart but that no such note existed for Rivera. Dr. Anilesh's expert opined that Dr. Anilesh's treatment of Rivera was within the applicable standard of care in dentistry.

The Court explained the basis for the admission of habit evidence in New York:

"(E)vidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions" because "one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again." The applicability of this doctrine is limited to cases where the proof demonstrates "a deliberate and repetitive practice" by a person "in complete control of the circumstances" (id. at 392) as opposed to "conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances" (id. at 389). If these conditions are satisfied, "a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence . . . on a particular occasion"...

The Court then noted that the issue of habit evidence had been considered by it on only a few occasions, and never in a medical or dental malpractice context.  The Court then concluded that the evidence was properly admitted in this case:

(T)he record here supports the admissibility of Dr. Anilesh's routine procedure for administering injections of anesthesia under the standard articulated in Halloran in light of the frequency that this technique was used in Dr. Anilesh's dental practice and the nature of the routine conduct...there is no evidence suggesting that Dr. Anilesh's pre-extraction injection procedure would vary from patient to patient depending on the particular medical circumstances or physical condition of the patient. This record therefore contains "proof of a deliberate and repetitive practice" — the mundane administration of a local anesthetic prior to a relatively routine tooth extraction — by a trained, experienced professional "in complete control of the circumstances"...

While I agree with the Court's decision to an extent, I am uncomfortable with the application of habit evidence under the facts of this case.  It seems to me that this holding essentially encourages health care providers who frequently perform routine procedures to avoid documenting anything that occurs during a procedure that is somewhat out of the ordinary.  That way, when called upon to testify regarding a frequently performed procedure, s/he can allege an inability to recall the specific procedure and then assert that the procedure in question must have been typical since the medical record indicates that nothing unusual occurred. 

In a way, this decision seems to sanction convenient cases of amnesia when the underlying "forgotten" facts are the very heart of the malpractice claim.  But, then again, I suppose it's ultimately within the province of the fact-finder to determine whether the alleged case of amnesia is actually believable. 

Spitzer Signs Bill Allowing Domestic Violence Victims to Break Leases Without Penalty

On Monday, Gov. Eliot Spitzer signed a new bill into law that is aimed at protecting domestic abuse victims.  It allows victims to break their leases without penalty.

From an AP article on this new law:

The new law allows domestic violence victims with an order of protection against a batterer to seek a separate court order that would allow them to terminate a residential lease without penalty.

Sponsors of the law say that many victims want to move where their abuser cannot find them, but lack the money to do it. Under the new law, victims would have to demonstrate to a judge that they are at risk in their current residence, that moving would reduce that risk and that they asked the landlord for a voluntary termination.

While I think that the principle behind the new law is admirable, I wonder why Gov. Spitzer signed the bill when he was well aware that there were problems with it as written.

And, yes, I'm aware that by even asking that question, it becomes painfully obvious that my naivety is showing.

Second Circuit Certifies Question to the NY Court of Appeals

On June 12, in Ehrenfeld v. Mahfouz, Docket No. 06-2228-cv, the Second Circuit Court of Appeals certified the following question regarding long-arm jurisdiction under New York law to the New York Court of Appeals:

Does CPLR 302(a)(1) confer jurisdiction over the defendant, a Saudi businessman who was named as a supporter of terrorism in a New York author's book?

(Hat tip:  Second Opinions)