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December 2005
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Define That Term #15

Yesterday's term was jobber, which is defined as:

n. a merchant who buys products (usually in bulk or lots) and then sells them to various retailers. This middleman generally specializes in specific types of products, such as auto parts, electrical and plumbing materials, or petroleum. A jobber differs from a broker or agent, who buys and acts for specific clients.

Slickdpdx's definition was pretty close.

Today's term is:


For now, take a guess, but stop back later.  I'll be posting about the new Supreme Court case on assisted suicide this afternoon.

Bush's Domestic Spying Program Challenged in Federal Court

As reported here, two civil liberties groups filed lawsuits today in federal court challenging the legality of the President's domestic spying program.  One of the groups, the Center for Constitutional Rights (CCR), filed a lawsuit in the United States District Court for the Southern District of New York.  A copy of the New York complaint can be found here.

According to this synopsis from CCR's web site:

The suit seeks an injunction that would prohibit the government from conducting warrantless surveillance of communications in the U.S.  CCR filed the suit in the Federal District Court for the Southern District of New York on its own behalf and on behalf of CCR attorneys and legal staff representing clients who fit the criteria described by the Attorney General for targeting under the NSA Surveillance Program.

I was happy to learn that the lawsuits were filed and am looking forward to following them.  The discovery process and any information obtained is bound to be interesting, to say the least. 

Should Out-of-State Civil Unions Be Recognized in NY So As To Allow Standing to Sue?

I came across an interesting article the other day while searching for New York legal news.  It addresses the issue of whether a gay partner has standing to sue in a wrongful death action in New York brought on behalf of his partner, with whom he'd previously entered into a civil union in Vermont. 

The article focuses upon a Second Department case, Langan v. St. Vincent's Hospital of New York, in which the Court concluded that the surviving partner had no standing to bring a claim and stated that:

Any contrary decision, no matter how circumscribed, will be taken as judicial imprimatur of same-sex marriages and would constitute a usurpation of powers expressly reserved by our Constitution to the Legislature.

I posted about a similar issue here, wherein the Court considered whether the Domestic Relations Law definition of "marriage" as between a man and a woman violated either the State or Federal Constitutions.  In that case, I identified more  with the dissent, and find myself doing the same in this case.  Here, the dissent stated:

I simply cannot reasonably conceive of any way in which New York's interest in fostering and promoting traditional marriage is furthered by a law that determines, based on a person's sexual orientation, whether he or she may have access to our courts to seek compensation for the loss of a pecuniary expectancy created and guaranteed by law.

New York recognizes marriages entered into in other states and should do the same for civil unions, at least in this context.  If malpractice did in fact occur, it should not go unanswered simply by virtue of the fact that a civil union was entered into as opposed to a marriage.   

Define That Term #14

Yesterday's term was venire, which is defined as:

(ven-eer-ay) n. the list from which jurors may be selected. See also: jury panel.

John Jenkins got it right!

Today's term is:


And, as always, no dictionaries.  And, no more creative variations of the phrase "good luck," since that apparently confuses people, and I would hate to do that.


Feds May Sue NY Due to Failure To Comply With Voting Reforms

According to this article,  New York is behind every other state in complying with the Help America Vote Act (HAVA) that requires the modernization of its voting systems.  The U.S. Department of Justice has threatened to sue as a result of the non-compliance. 

It was reported that:

The state has to date received $220 million that was earmarked to replace the 20,000 old voting machines statewide and for training of election officials in how to use new machines but so far, the money is just sitting collecting interest and the state has taken no steps to create the voter database, purchase and implement the new machines or provide the training.

I find it incredibly disheartening to learn that no changes have been made to the voting systems in New York and elsewhere more than 5  years after the voting fiasco that occurred during the 2000 presidential election.  Granted, New York wasn't the focus of the maelstrom, but nonetheless, I expect more from my state.   Let's hope Albany gets it together, and soon.

Third Department Holds "Proof of Claim" Is Not a Necessary Prerequisite to Pursuing SUM Claim

In Matter of Nationwide Mut. Ins. Co. v. Mackley, the insurer disclaimed its insureds' SUM claim on the grounds that the insureds had failed to provide a "proof of claim" pursuant to the terms of the insurance contract. 

The underlying automobile accident occurred on June 8, 2003 and the insureds' attorney sent the insurer a letter dated July 1, 2003 in which he notified the insurer of the no-fault claim and of a "potential uninsured/ underinsured motorist claim."   The insureds' attorney sent another letter dated July 15, 2003 and enclosed a police report which indicated that no other coverage existed for any other policy in the household or from the vehicle involved in the accident.

In January 2004, the insureds' attorney notified the insured that a SUM claim would be pursued, and the insurer then sent a letter enclosing a "proof of claim" form, which was not returned until April 14, 2004.  In the meantime, the insureds' attorney sent medical records to the insurer in February 2004, and the insurer disclaimed coverage on March 29, 2004 due to the insureds' failure to provide the "proof of claim" form.

The Court noted that:

The Court of Appeals has recently held that "where an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage" (Rekemeyer v State Farm Mut. Auto Ins. Co., 4 NY3d 468, 476 [2005]; see Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 496-497 [2002]; cf. Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339-340 [2005]). The rationale in Rekemeyer applies here...

The Court concluded that since the insurer had failed to establish prejudice as a result of the insureds' failure to provide the "proof of claim" in a timely manner, that it should not be allowed to disclaim coverage.

It would seem that the lesson to be learned is that form over function isn't always the rule. 

Third Department Rejects Challenge to Contraception Law

On January 12, 2005, the New York Appellate Division Third Department upheld a law requiring that employers who provide prescription drug coverage include coverage for contraceptives (hat tip:  Religion Clause).  In Catholic Charities of Diocese of Albany v. Serio, a number of employers that were religious organizations, but did not meet the narrowly defined statutory exemption for "religious employers" challenged the Women's Health and Wellness Act (WHWA), a comprehensive statutory initiative intended to improve group health insurance benefits for women's preventative health care.

The Court considered the religious organizations' arguments that the statute violated their state and constitutional rights by providing an exemption only for religious employers that focused on ecclesiastical as opposed to secular activities.  The Court concluded that:

while we recognize the burdens imposed upon plaintiffs' sincerely held religious beliefs by the WHWA's contraceptive coverage mandate, and the dilemma in which plaintiffs find themselves, our analysis leads us to the conclusion that the challenged provisions of the WHWA are not unconstitutional.

The New York Law Journal discusses the case more fully in this article.

Define That Term #12

Yesterday's term was inchoate, which is defined as:

adj. or adv. referring to something which has begun but has not been completed, either an activity or some object which is incomplete. It may define a potential crime like a conspiracy which has been started but not perfected or finished (buying the explosives, but not yet blowing up the bank safe), a right contingent on an event (receiving property if one outlives the grantor of the property) or a decision or idea which has been only partially considered, such as a contract which has not been formalized.

Slickdpdx got it right, but Richard gets bonus points for creativity!

Today's term is:

pro tanto.