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Kleptomaniac or Overzealous Court Officers? You Decide.

Wyllie v. State of New York is an interesting case that was recently decided by the Court of Claims. The legal issues aren't all that unusual, but the fact pattern is, as is the Court's conclusion.

In Wyllie, a former King's County Assistant District Attorney brought a claim against the State for wrongful arrest stemming from her arrest by Office of Court Administration court officers in open court while she was performing her duties as an ADA in Brooklyn.  Ms. Wyllie was arrested, transported to the 84th precinct, and charged with petit larceny, criminal possession of stolen property, and grand larceny.  The charges were later presented to a grand jury, which did not indict.

What did Ms. Wyllie do that lead to this unfortunate series of events, you wonder?  She was alleged to have attempted to steal a wallet from a paralegal, Desiree Martinez, during a busy criminal arraignment part in plain view of the entire courtroom.  The wallet was located in a purse on top of a filing cabinet and the owner of the wallet, a co-worker with whom Ms. Wyllie had a good relationship, was sitting just a few feet away when the alleged larceny occurred. 

Ms. Wyllie claimed that Ms. Martinez handed her a file which was missing paperwork, so she approached Ms. Martinez at her desk, which was located in open court, but she was otherwise occupied, so Ms. Wyllie decided to obtain the forms herself.  She then set her own files on top of the filing cabinet next to a purse owned by Ms. Martinez.  Ms. Wyllie then bent down and opened the top drawer, at which point the filing cabinet tipped over toward her.  As she tried to right the cabinet, she was arrested by one of the court officers.

One of the arresting officers testified that he saw her unzip the pocketbook that was on top of the filing cabinet, take out the wallet, squat down in front of the filing cabinet, and rifle through the wallet while holding it in the bottom drawer of the filing cabinet--in open court while Ms. Martinez sat a few feet away.  He then approached her and apparently startled her, at which point the filing cabinet began to tip over, and she threw the wallet away from her, towards the pocketbook.  She was then taken into custody.

The Court summarized the situation as follows:

On one hand, defendant proffers an account in which an Assistant District Attorney chose to enter a courtroom crowded with a judge, several court officers, police officers, lawyers, defendants and spectators and attempt to steal money from a co-worker with whom she had a friendly personal relationship. On the other hand, claimant seeks to convince the Court that two experienced court officers with whom she had a cordial professional relationship arrested her without cause and fabricated a series of lies to cover their tracks.

The Court held that the claim should be dismissed and concluded that:

Claimant's theory flows from two explanations: either the officers were acting in concert with one another to frame claimant or they mistakenly believed they were witnessing a crime and that belief was not objectively reasonable. The former seems unlikely in that it would have required the court officers to predict that claimant would enter the District Attorney's well of AR-1 and act in a way that dovetailed with their story...(T)he Court is simply not persuaded that the innocuous acts described by claimant could be subject to such gross misinterpretation. Consequently, the Court resolves the factual dispute in favor of the defendant and concludes that the claim must be dismissed.

This case struck me as strange on so many levels.  From a factual standpoint, one wonders: 1) why the court officer handled the situation in such a confrontational manner, rather than perhaps making a phone call to a superior who could then call her superiors, 2) why she was charged with a felony for what could easily have been charged as a simple petit larceny, 3) why she was charged at all given that it was probably bad press from the get go and could have presumably been treated as a misunderstanding and not prosecuted, 4) if she was in fact trying to steal the wallet, why she did it in open court--seems like something that only a kleptomaniac would do, and 5) why the grand jury didn't indict her.

Additionally, the Court's decision struck me as odd.  The Court conceivably could have held that the officers' belief that she was committing a crime was objectively reasonable and was the result of some sort of strange misunderstanding and left it at that.  In other words, the Court could have concluded that it was entirely possible that she hadn't attempted to steal the wallet, but that the officers' conclusions based upon what they could see from their vantage point were objectively reasonable nonetheless. But it seems to me that Court went a step further and inferred that Ms. Wyllie was untruthful. 

All in all, it's a strange case.  The only possible explanation that I can come up with that might explain the sequence of events that lead up to the filing of the civil claim is that Ms. Wyllie must have been on someone's bad side.  So, the moral of the story is:  be nice to your colleagues, especially court officers, and, if you happen to be an ADA, be extra-special-nice to your boss.

Keavey Fell Down, And Broke His Crown, But Couldn't Recover Under Labor Law s. 240(1)

Admittedly, the title of this post doesn't rhyme, but I thought that it was fitting since, in my opinion, the Fourth Department's decision in Keavey v. New York State Dormitory Authority (2005 N.Y. Slip Op. 09824)  had no rhyme or reason to it either.  The Court's holding in Keavey is particularly perplexing given that it was decided on the same day as Worden v. Solvay Paperboard, LLC, (2005 N.Y. Slip Op. 09820) which was the topic of yesterday's post.  The Court reached incongruous conclusions in these cases despite what I consider to be very similar fact patterns.  Edited to add:  This is another unusually long, drawn out post, so bear with me once again.

In Keavey, the plaintiff was walking backwards on top of an eight-foot-high stack of insulation boards and attempting to cover the stack with a tarp when he fell into a gap and was injured.  The majority opinion states that he fell into the gap up to his knee, while the dissent states that he fell up to his elbow.  (I'm not sure if the discrepancy is a typographical error, but for the sake of my argument here, I'm assuming that he fell up to his elbow.)  The majority of the Court concluded that:

The hazard at issue herein to which plaintiff was exposed, i.e., slipping into a gap between insulation boards, was one of "the usual and ordinary dangers of a construction site, and [was not one of] the extraordinary elevation risks envisioned by Labor Law § 240 (1)" (Rodriguez v Margaret Tietz...Ctr. for Nursing Care, 84 NY2d 841, 843; see Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 915-916; Robinson v East Med. Ctr., 17 AD3d 1027, 1027-1028).

In a moment, I'll examine each of the cases cited by the Court in support of its holding, but first, I'd like to compare and contrast the underlying facts in this case with those in Worden.

In Worden, the plaintiff was standing on construction materials that had been loaded onto a bed of a tractor trailer and was working 4 to 5 feet (presumably he was approximately 8 feet off of the ground) above the trailer bed when he was struck by the crane and fell to the ground.  And, in Keavey, the plaintiff was walking on top of an eight-foot-high stack of insulation boards.  Thus, both were standing at approximately the same height when they fell.  Worden fell approximately 8 feet to the ground, while Keavey fell approximately 4-5 feet into the insulation boards, if one assumes that he fell up to his elbow.  That one fell off of the materials while the other fell into them should be of no consequence; both plaintiffs were exposed to and injured as a result of an elevation-related risk and the absence of an appropriate safety device.

The underlying fact patterns and legal principles set forth in the very cases cited by the Fourth Department in support of its holding in Keavey support this conclusion. 

In Rodriguez v. Teitz Ctr. for Nursing Care, 84 N.Y.2d 841, the Court of Appeals concluded that "(i)n placing a 120 pound beam onto the ground from seven inches above his head with the assistance of three other co-workers, Rodriguez was not faced with the special elevation risks contemplated by the statute."   Thus, as the plaintiff in Rodriguez was standing on the ground when injured, the facts are distinguishable from Keavey and Worden.

In Nieves v. Five Boro A.C. & Refrig. Corp., 93 N.Y.2d 914, the plaintiff was injured as he stepped from the bottom rung of a ladder and twisted his ankle as his foot touched the ground.  Thus, the plaintiff was injured when he stepped to the ground, unlike Keavey and Worden, both of whom fell from an elevated surface.

Finally, in Robinson v. East Med. Ctr., 17 A.D.3d 1027 (4th Dept.), the plaintiff was standing on a ladder which began to fall, but the plaintiff avoided falling by grabbing onto a hanger rod affixed to the ceiling, thus regaining his balance.  In support of its conclusion that no Labor Law s. 240(1) liability existed since the plaintiff had not fallen from an elevated surface, the Fourth Department stated:

What is determinative of Labor Law § 240 (1) liability, in our view, is the fact that plaintiff here did not fall at all, whether from or at a height, meaning from any elevated work surface to a different and lower level.  Rather, the record demonstrates as a matter of law that, immediately upon regaining his balance, plaintiff was standing at the same level at which he had been working before the incident. (Internal citations omitted and emphasis added.)

Thus, the underlying fact pattern in Robinson differed from Keavey and Wordon in that the plaintiff never fell from his perch on the ladder.  Of even more significance, however, is that the Court's own language regarding Labor Law s. 240(1) liability in Robinson directly contravenes its holding in Keavey.  The plaintiff in Keavey fell from an elevated surface to a lower level and thus liability pursuant to Labor Law s. 240(1) should have attached.

If one accepts that Keavey fell only up to his knees, then perhaps my argument is weakened somewhat.  But, even with that fact pattern, Keavey still fell from an elevated surface to a lower level, thus making Labor Law s. 240(1) applicable. 

I'm flummoxed by the Court's holding in Keavey.  Perhaps I've missed an important element, or perhaps the record on appeal would shed some light on this decision.   As it stands right now, I can't make heads or tails of this decision.  Any and all insight from my faithful and knowledgeable readers would be greatly appreciated.

Conflicting Labor Law Decisions?

The Fourth Department handed down a number of Labor Law decisions on December 22, 2005, and I'll be discussing and contrasting the holdings from two of those cases over the next two days. 

First up is Worden v. Solvay Paperboard, LLC .  Throughout this post, I've bolded relevant facts and language used by the Court for purposes of comparison with the second case, Keavey v. New York State Dormitory Authority, which I'll be discussing tomorrow.

In this case, the plaintiff was injured when he was struck from behind by the hook of an overhead crane on two separate occasions.  Each time he was in the process of retrieving building materials while standing on construction materials that had been loaded onto the bed of a tractor-trailor.  At issue was whether the lower court properly denied that part of the defendant's motion which had sought to dismiss the Labor Law s. 240(1) cause of action.

The Court first stated that the work being performed by the plaintiff fell within the ambit of Labor Law s. 240(1) since it was "ongoing and contemporaneous with" protected construction activity. 

The Court then concluded that the work performed by the plaintiff exposed him to an elevation-related risk, since he was working four to five feet above the ground and the "absence of an appropriate safety device such as a ladder was the proximate cause" of his injuries. According to the Court:

We cannot agree with the dissent, however, that there was no showing that the use of an appropriate safety device...would have prevented plaintiff from being struck by the crane on each occasion. Rather, we conclude that had an appropriate safety device contemplated by the statute, e.g., a ladder, an elevated bucket, or a harness, been provided, plaintiff could have avoided having to climb onto the load on the bed of the tractor-trailer to retrieve building materials. That activity "exposed [plaintiff] to the risk of falling from one elevation level atop the flatbed truck to a lower level, namely, the ground below ...[, and] we conclude as a matter of law that the absence of an appropriate safety device ... was a proximate cause of plaintiff's injuries."

The Court's conclusion makes sense, given that the plaintiff arguably could have avoided a fall from a height when he was struck by the crane if he'd been in an elevated bucket or harness.  I'm not sure that I agree that a ladder would have prevented his fall, but that's a very minor point of contention.

That being said, this holding does not, in my opinion, square with the Fourth Department's holding in Keavey, a case handed down on the very same day.  I'll compare and contrast the underlying facts and the Court's holding in both cases tomorrow.   In the meantime, let me know if you see any holes in the Court's logic that I may have missed.

People v. Suarez-Oh the Thoughts I'd be Thinkin', I Could Be Another Lincoln...

I felt a bit dizzy after my first review of of People v. Suarez, 2005 N.Y. Slip Op. 09811, the case decided  on December 22, 2005 in which the Court of Appeals offered "clarification" regarding the state of mind required for depraved indifference murder.  In my opinion, the logical flow of this opinion was somewhat circular and the Court's multiple definitions and examples of "depraved indifference murder" were anything but clear.  Nevertheless, the following is my attempt to clarify the Court's "clarification".   And, this is a long post, folks, so bear with me.

Two separate convictions for depraved indifference murder were appealed, and the Court concluded that neither constituted depraved indifference murder.  The first death resulted from a domestic dispute wherein the accused was alleged to have stabbed his girlfriend three times.  He then fled the scene without calling for assistance and she bled to death.  The second death also resulted from a domestic squabble during which the accused allegedly stabbed her boyfriend in the chest, which ultimately resulted in his death.  She immediately called 911 and then fled the scene.

The Court sought to provide guidance to the lower courts and prosecutors regarding the appropriate standard for depraved indifference.  The Court stated that:

We therefore make clear that depraved indifference is best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not. Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is "so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy" as to render the actor as culpable as one whose conscious objective is to kill (Russell, 91 NY2d at 287 [internal quotation marks and citation omitted])[FN8]. Quintessential examples are firing into a crowd (see e.g. People v Jernatowski, 238 NY 188 [1924]); driving an automobile along a crowded sidewalk at high speed [*10](see People v Gomez, 65 NY2d 9 [1985]); opening the lion's cage at the zoo; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; opening a drawbridge as a train is about to pass over it; dropping stones from an overpass onto a busy highway.

The Court repeatedly advised that the mens rea of depraved indifference is rarely found in one-on-one murders and set forth the two primary situations wherein only one person is killed as a result of depraved indifference murder:

1) where the defendant does not intend to either kill or seriously injure another, but abandons a helpless, vulnerable victim in circumstances where the person is likely to die (such as robbing an intoxicated person and leaving him partially dressed on the side of a remote road in subfreezing weather thus resulting in his death when he was then hit by a truck), and

2)  where the defendant, acting with the intent to harm but not kill, "engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" (such as beating a child repeatedly over a period of time thus resulting in the child's death). 

Another example offered by the Court that resulted in only one person's death was firing a gun at point blank range without knowing whether the bullet was a "live" or "dummy" round.

The Court advised that: 

Depraved indifference murder was never meant as a fallback crime enabling courts and juries to avoid making these difficult decisions. We therefore make clear that the statutory provision that a defendant act "[u]nder circumstances evincing a depraved indifference to human life" constitutes an additional requirement of the crime — beyond mere recklessness and risk — which in turn comprises both depravity and indifference, and that a jury considering a charge of depraved indifference murder should be so instructed...

Finally, the Court also stated that contrary to its previous holding in People v. Register, 60 N.Y.2d 270 (1983), "the additional requirement of depraved indifference has meaning independent of the gravity of the risk", and as a result, twin-count indictments should be rare, and twin-count submissions to a jury even rarer.

There is a very in depth and thorough discussion of this case over at Indignant Indigent that was posted by Eric on December 22 and I highly recommend that you read it.  However, I do disagree with one aspect of Eric's analysis.  In the second half of his post, Eric stated that he disagreed quite strongly with the Court's conclusion that: 

[S]omeone who intends to cause serious physical injury does not commit depraved indifference murder because the intended victim dies. By definition, "serious physical injury" includes injury "which creates a substantial risk of death, or which causes death". Thus, one who acts with the conscious intent to cause serious physical injury, and who succeeds in doing so, is guilty only of manslaughter in the first degree. Otherwise, every intentional manslaughter would also establish depraved indifference murder--a result plainly at odds with the discrete classification set forth in the statute.

Eric disagreed with the bolded portion and offered a number of examples that would support his contention that "it does not take much imagination to think of a fact scenario where a person can intend to cause serious physical injury and ultimately cause death, but not create and disregard a grave risk of death in doing so."

However, in my opinion, each of the examples offered by Eric would fall under the second enumerated situation set forth above (in the 6th paragraph), wherein only one person is killed as a result of torture at the hands of the defendant.  In the examples offered by Eric, the victim loses a leg or thumb.  In my mind, chopping off a leg or thumb rises to the level of torture, and thus the defendant would be guilty of depraved indifference murder, contrary to Eric's assertion. 

I would be very interested in hearing other's thoughts on that issue.  Comments are welcome, as always, on that issue, as well as any others.

Good Reads

I'm back in town, and as promised (albeit a day late), I have recommendations for you from my blogroll.

For those of you who practice in New York, here are some staples:

New York Civil Law, a informative blog that focuses on New York civil issues, including appellate issues, civil procedure, insurance coverage and defense.  I will occasionally cross-reference posts from that blog that might be of interest to my readers.

Indignant Indigent is the blog for the criminal defense practitioner in the Fourth Department.  Eric summarizes relevant decisions handed down by the Court of Appeals and the Fourth Department, and then provides very insightful analysis regarding the likely impact of the decisions.

Second Circuit Blog consists of case summaries and commentary from members of the Federal Public Defender's Office in NYC.

The following are blogs in which lawyers muse about their lives, politics and other issues of interest:

Knownunknowns is a blog maintained by three lawyers that consists of commentary on political issues and unusual news items.

The Happy Feminist is a blog authored by a litigator that consists of commentary on feminist issues, social issues, and musings regarding her life and our society.

Crib Ceiling, a blog in which an attorney, now SAHM, muses about her daily life.

Legal Mystenigmary is a blog written by an associate in a firm.  She posts about her life and struggles as a single woman entrenched in the sometimes monotonous practice of civil law.

Finally, for a change of pace and a good laugh, Dave Barry's Blog should be a daily fix.

Update-Muslim Border Decision And Blogrolling

The judge issued a ruling in the case that I posted about previously in which the NYCLU sought an injunction to prevent the Department of Homeland Security from detaining American citizens at the border upon their return from an Islamic religious convention in Toronto.  The judge refused to prohibit the searches. In his opinion, he stated that:

Plaintiffs were delayed for an extended period of time and subjected to unexplained inspection techniques that were inconvenient and made them feel uncomfortable...The government readily admits that plaintiffs' experience at the border was not ideal ... As unfortunate as this incident may have been, I find that it was not unconstitutional.

The NYCLU plans to appeal the judge's ruling.

Also, thanks to the following blogs for adding a permanent link to Sui Generis to their blogrolls within the past week:

New York Civil Law, Indignant Indigent, The Happy Feminist, and Objective Justice

Sui Generis was also recently added to the directory at Blawg and is currently a featured feed.

I'll be out of town for the holidays, and won't be adding any substantive posts until late Sunday or early Monday.  I do plan to devote a post over the weekend to blogs that I enjoy and would recommend to lawyers and non-lawyers alike.

Finally, next week I'll be addressing the Court of Appeal's recent decision, People v. Suarez, along with many of the Fourth Departments cases that were decided today.

Enjoy the holidays!

People v. Goldstein, Part 2

As explained in my previous post, in the first section of People v. Goldstein, the Court concluded that the admission of the opinion of Dr. Hegerty, a forensic psychiatrist offered by the state, which was based upon her interviews with third parties, was admissible pursuant to People v. Stone and People v. Sugden.

However, the Court then considered the issue of whether the admission of the interviewees' statements violated Mr. Goldstein's constitutional right to confront the witnesses against him.  In making this determination, the Court applied the standards set forth in Crawford v. Washington, 541 U.S. 36 (2004), which overruled Ohio v. Roberts, 448 U.S. 56 (1980).   Crawford established that the Confrontation Clause generally prohibits the use of testimonial hearsay against a defendant, even if the hearsay has been found to be reliable, unless the defendant is given the opportunity to cross-examine the out-of-court declarants.

The Court concluded that the interviewees' statements constituted hearsay despite the prosecution's assertion that the statements were not offered to establish their truth.  The People argued  that the statements were not evidence themselves, but rather were admitted to assist the jury in its evaluation of Hegerty's opinion.  The Court rejected this argument and stated that "(t)he distinction between a statement offered for its truth and a statement offered to shed light on an expert's opinion is not meaningful in this context."

The Court then turned to the issue of whether the hearsay statements were "testimonial" as that term was explained in Crawford and stated that:

Crawford explained that the Confrontation Clause "applies to 'witnesses' against [*7]the accused — in other words, those who 'bear testimony.'" (541 US at 51). The Court added: "'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' . . . An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."

The Court concluded that the statements made to Hegerty were testimonial, since she was an agent of the State who was engaged in trial preparation and thus the statements were the equivalent of "formal" statements made to "government officers."  The Court noted that the "Confrontation Clause would offer too little protection if it could be avoided by assigning the job of interviewing witnesses to an independent contractor rather than an employee."  Accordingly, it held that Mr. Goldstein's rights under the Confrontation Clause were violated when the lower court permitted Hegerty to testify as to the interviewees' statements in spite of Mr. Goldstein's inability to cross-examine said witnesses.  The Court concluded that the error was not harmless and ordered a new trial.

Thus, the Court interpreted the term "testimonial" quite broadly.  And, as suggested by Eric at Indignent Indigent, the term as defined "should cover most statements by witnesses to police officers during a criminal investigation, autopsy reports... and any number of other statements made under express questioning by law enforcement agents."

People v. Goldstein, Part 1

Yesterday, the Court of Appeals decided People v. Goldstein, 2005 N.Y. Slip Op. 09654.  There's a good discussion of this case at Indignant Indigent that may be of particular interest to Monroe County criminal defense attorneys, since Eric discusses the possible effects of this decision upon Judge Fisher's recent decision in Green v. DeMarco.

People v. Goldstein is a fairly in depth decision.  Accordingly, I plan to discuss the hearsay issue today and will discuss tomorrow that aspect of the Court's decision that dealt with an accused's constitutional right to confront witnesses testifying against him or her.

One issue considered by the Court in People v. Goldstein was whether a portion of the testimony of a forensic psychiatrist  offered by the People constituted inadmissible hearsay. 

Mr. Goldstein was accused of murdering Kendra Webdale, a woman who was a stranger to him, by pushing her into the path of an oncoming subway train in January of 1999 in New York City.   His main defense was insanity and the People offered the testimony of Dr. Angela Hegerty to rebut his defense.

She testified, predictably, that in her opinion Mr. Goldstein had a mild mental disorder that was "in the schizophrenic spectrum."  In support of her opinion, she recounted, over objection, the results of her interviews with third parties. 

On appeal, the defense asserted that Hegerty's testimony regarding the statements of her interviewees was inadmissible hearsay under New York Law since the prosecution had failed to prove that the statements were of the sort commonly relied upon by forensic psychiatrists.  The Court  concluded the statements did constitute hearsay but that that Hegerty's opinion was nevertheless admissible. 

The Court opined that Heberty's testimony that "several" members of her profession used her approach of relying upon third party interviews coupled with the admission of the defense's forensic psychiatrist that Hegerty's approach was accepted by some reputable professionals was sufficient to establish that the third party interviews were of the sort accepted by the profession as reliable, and her opinion was therefore admissible under People v. Stone, 35 N.Y.2d 69 (1974) and People v. Sugden, 35 N.Y.2d 452 (1974).

The Court also offered some important dicta and pointed out that an issue that was not decided in this case and has not yet been decided in New York is whether the inadmissible facts underlying the admissible expert opinion fall under a hearsay exception.

I was surprised to learn that that issue has not yet been addressed by New York courts.  It would appear that the Court of Appeals has given defense counsel the green light to make that argument-it could very well be a winner. 

Tune in tomorrow for part 2...

Edited to add:  Thanks to my former Evidence professor, Michael Hutter, for pointing out in the comments to this post that New York courts have addressed the issue of whether facts/statements relied upon by an expert in rendering an opinion may be disclosed to a jury.  See, Neumire, 291 A.D.2d 784 and Schwartz v. Gerson, 246 A.D.2d 589.

Edited to further add:  The last sentence of the sixth paragraph should have read "The Court concluded that the statements did constitute hearsay, but that Hagerty's opinion was nevertheless admissible on hearsay grounds.  I apologize for any confusion.  I was writing only about the first part of the decision in this post, in which the court concluded that the statement was admissible.  However, as will be seen in the next post, the Court concluded that the admission of the interviewees' statements violated the constitutional right to confront witnesses and thus were not admissible on that basis.

Federal Judge Rules Pennsylvania School Cannot Mention "Intelligent Design" in Biology Class

Today, Judge John E. Jones, III, a judge for the United States District Court of Middle Pennsylvania, ruled that the Dover Area Public School District had violated the Establishment Clause of the United States Constitution and Article 1, Section 3 of the Pennsylvania Constitution by requiring that teachers, prior to teaching evolution in biology class, read a letter disavowing the theory of evolution.  The judge accordingly issued an injunction that prohibited the school district from teaching the Intelligent Design to its students. 

It was reported that the school district was unlikely to appeal the order since the school board's membership was replaced by a slate of new members as a result of the November elections.

The decision can be found here.

The letter that the previous school board required teachers to read prior to teaching evolution can be found here.

Although this case is unlikely to be appealed, it's only a matter of time before this issue makes its way to the Supreme Court.  A federal appeals court in Georgia recently heard arguments regarding the constitutionality of evolution disclaimer stickers place on biology books, and in November, state education officials in Kansas adopted classroom science standards that call into question the theory of evolution.

I believe that the judge correctly applied the relevant Constitutional standards in this case.  It will be interesting to follow the various cases regarding this divisive issue as they work their way through the court system, and even more interesting to ultimately learn of the Supreme Court's position on this issue.

Has the Legislative Intent Behind Labor Law s. 240(1) Been Contravened by Recent Case Law?

The New York Civil Law blog has an excellent discussion regarding the First Department's recent decision in Anderson v. Schwartz.  In Anderson, the Court held that the removal of a temporary sign that had been attached to the exterior of a one-story building by four half-inch bolts did not constitute covered activity pursuant to LL s. 240(1).     Matthew Lerner explains that the Court's decision was based upon the rationale that the removal of the sign did not change the structure in any way and thus constituted a mere cosmetic change.  He then asks:

Is this the type of analysis the Legislature contemplated when it enacted New York's Scaffold Law?  What if the plaintiff was drilling the brick exterior to have the bolts attach this temporary sign to the building?  Would the result be different and wouldn't that constitute an alteration (see the Court of Appeal's definition of alteration in Joblon v. Solow)?  If so, doesn't it seem silly that a worker falls within the ambit of the Labor Law for attaching the sign to the building because it constitutes an "alteration," but would not be covered for removing the sign?  Would the Court of Appeals conclude that even drilling holes into the building is not a significant enough alteration?

I agree with his assertion that recent decisions by the Court of Appeals (Munoz v. DJZ Realty and Joblon v. Solow)  and the First Department's decision in Anderson do not seem to be in keeping with the original legislative intent in that they encompass a very narrow definition of "alteration" of a structure.  As stated by the Court of Appeals in Joblon, this statute is intended to protect:

work[ers] from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed.

That being said, at the very least, this line of cases is logically consistent.  In Joblon, the Court of Appeals concluded that the plaintiff was engaged in work which constituted alteration of the structure in that it brought about a significant change in  the configuration or composition of the structure.  The Court stated, by way of comparison, that "Joblon did more than the routine act of standing on a ladder to hang a clock on a wall." It would seem to me that the activity engaged in by the plaintiff in Anderson was equivalent to hanging a clock on the wall, and thus, pursuant to this line of cases, did not fall within the ambit of LL s. 240(1).

It is unfortunate, however, the the courts have taken such a narrow view as to the actions that constitute an alteration of a structure, as the holdings arguably contravene the original intent of this statute.