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Define That Term #46

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

1) n. to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. Libel is the written or broadcast form of defamation, distinguished from slander, which is oral defamation. It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie. Publication need only be to one person, but it must be a statement which claims to be fact and is not clearly identified as an opinion. While it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it need only be obvious that the statement would do harm and is untrue. Proof of malice, however, does allow a party defamed to sue for general damages for damage to reputation, while an inadvertent libel limits the damages to actual harm (such as loss of business) called special damages. Libel per se involves statements so vicious that malice is assumed and does not require a proof of intent to get an award of general damages. Libel against the reputation of a person who has died will allow surviving members of the family to bring an action for damages. Most states provide for a party defamed by a periodical to demand a published retraction. If the correction is made, then there is no right to file a lawsuit. Governmental bodies are supposedly immune to actions for libel on the basis that there could be no intent by a non-personal entity, and further, public records are exempt from claims of libel. However, there is at least one known case in which there was a financial settlement as well as a published correction when a state government newsletter incorrectly stated that a dentist had been disciplined for illegal conduct. The rules covering libel against a "public figure" (particularly a political or governmental person) are special, based on U.S. Supreme Court decisions. The key is that to uphold the right to express opinions or fair comment on public figures, the libel must be malicious to constitute grounds for a lawsuit for damages. Minor errors in reporting are not libel, such as saying Mrs. Jones was 55 when she was only 48, or getting an address or title incorrect. 2) v. to broadcast or publish a written defamatory statement. See also: defamation libel per se public figure slander.

Had I realized that the definition was so long, I might not have chosen it.  We had a few...guesses, but none correct.

Today's term is:

exemplary damages.

No dictionaries, please.

NY Court of Appeals Holds Clergy Abuse Victims' Claims Not Tolled

Yet another significant case was handed down by the Court of Appeals yesterday in Zumpano v. Quinn, 2006 N.Y. Slip Op. 01245.  At issue was whether equitable estoppel applied to toll the statute of limitations for claims made by clergy abuse victims from Brooklyn. 

The Court considered the plaintiffs' claim that the defendants should not be allowed to benefit from their wrongdoing in covering up the alleged abuse and concluded that equitable estoppel was inapplicable and thus the claims were time barred.  The Court stated that:

A wrongdoer is not legally obliged to make a public confession, or to alert people who may have claims against it, to get the benefit of a statute of limitations. Plaintiffs do not allege any specific misrepresentation to them by defendants, or any deceptive conduct sufficient to constitute a basis for equitable estoppel. Nor is there any indication that further discovery would yield such information. No new separate and subsequent acts of wrongdoing beyond the sexually abusive acts themselves are alleged, and equitable estoppel is therefore inapplicable to these cases.

The Court also considered another argument for equitable estoppel: that in covering up the alleged abuse, the defendants breached a fiduciary duty owed to the plaintiffs.  The Court rejected this argument and stated that:

Even if the Court were to assume that a fiduciary relationship existed between the parties during plaintiffs' infancy and that the diocesan defendants had a legal duty to disclose any knowledge of prior incidents of sexual abuse and breached that duty, plaintiffs still failed to demonstrate how that breach prevented them from bringing a timely action.

The Court also rejected one plaintiff's claim that the defendants should be equitably estopped from asserting the statute of limitations as a defense since their misconduct caused him to suffer from a mental disability, thus rendering him incapable of protecting his legal rights. The Court stated that "this argument also lacks merit as he fails to establish a continuing disability."

The Court concluded that:

(H)owever reprehensible the conduct alleged, these actions are subject to the time limits created by the Legislature. Any exception to be made to allow these types of claims to proceed outside of the applicable statutes of limitations would be for the Legislature, as other States have done.

NY Court of Appeals Rules That Illegal Immigrant Can Collect Lost Wages

In Balbuena v. IDR Realty, LLC the Court of Appeals considered the issue of whether plaintiffs who are not legally authorized to collect lost wages in the United States can seek to recover lost wages. 

This case involved two separate lawsuits based, in part, upon Labor Law claims, brought by illegal immigrants against their employers for injuries sustained during the course of employment.

The Court analyzed the impact of the Federal Immigration Reform and Control  Act of 1986 and the Supreme Court's  decision in Hoffman Plastic Compounds Inc. v National Labor Relations Bd.,535 US 137.  The Court then considered conflict of law issues and concluded:

We therefore hold, on the records before us in these Labor Law §§ 200, 240 (1) and 241 (6) cases, and in the absence of proof that plaintiffs tendered false work authorization documents to obtain employment, that IRCA does not bar maintenance of a claim for lost wages by an undocumented alien.

In part, their rationale was based upon the concern that:

In the context of Labor Law claims, a per se preclusion of recovery for lost wages would condone the employers' conduct in contravention of IRCA's requirements and promote unsafe work site practices, all of which encourages the employment of undocumented aliens and undermines the objectives that both IRCA and the state Labor Law were designed to accomplish.

Matt Lerner at the New York Civil Law blog posted his take on this case here.

Define That Term #45

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

adj. of no force or effect; invalid. Example: a statute which is unconstitutional is a nugatory law.

There were a few rather entertaining guesses, but none were correct.

Today's term is:

libel (as opposed to slander, defamation, etc.).

Good luck, and no dictionaries.

People v. Calvin Moore--Founded Suspicion is Not Enough

People v. Moore, 2006 N.Y. Slip Op. 01249, is a return to sanity in the midst of the chaotic disassembling of our Constitutional rights in this post-9/11 world.  It nearly brought tears to this defense-oriented attorney's eyes. 

In this case, the Court of Appeals considered the issue of whether an anonymous tip devoid of predictive information can provide reasonable suspicion to justify a seizure by police.   In this case, the  police officers received a radio call reporting a dispute involving a black man with a gun who was described as approximately 18 years old and wearing a gray jacket and red hat.  The information had been obtained from an anonymous phone tip.  When the officers arrived upon the scene, no dispute was occurring; however the defendant, a black man wearing a gray jacket and red hat, was standing alone on a corner.

The officers approached him and he began to walk away.  Rather than attempt a verbal inquiry, the officers  drew their guns and ordered him not to move.  Then, according to the Court:

The defendant then turned and continued to walk a short distance toward a closed gate before stopping. When the officers told defendant to put up his hands, he made a movement toward his waistband as he raised his arms. Officer Racioppo patted down defendant, felt a hard object in his left jacket pocket and recovered a gun. Defendant was arrested and charged with criminal possession of a weapon.

The defendant moved to suppress the gun.  The lower court denied his motion and the Appellate Division affirmed that decision. The Court of Appeals reversed and held that:

Although we agree with the Appellate Division that the anonymous tip authorized only an inquiry, the police here failed to simply exercise their common-law right to inquire. Instead— in ordering him at gunpoint to remain where he was—the police forcibly stopped defendant as soon as they arrived on the scene. Because the officers did not possess reasonable suspicion until after defendant reached for his waistband, however—by which time defendant had already been unlawfully stopped—the gun should have been suppressed. Defendant's later conduct cannot validate an encounter that was not justified at its inception (see People v De Bour, 40 NY2d 210, 215 [1976]; People v William II, 98 NY2d 93, 98 [2002]).

In reaching this conclusion, the Court considered the four-level test established in De Bour and concluded that the gunpoint stop in this case constituted a seizure of defendant's person, as set forth in the third level in De Bour, and thus required reasonable suspicion.  The Court then stated that:

An anonymous tip cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive information—such as information suggestive of criminal behavior—so that the police can test the reliability of the tip...

Here, the tip did not provide any predictive information, nor did it accurately portray the alleged criminal activity. The tipster reported a dispute involving a man with a gun, but when the police arrived within a minute of receiving the radio call, they did not find a dispute in progress. Under J. L. and William II, such a tip was insufficient to afford the police reasonable suspicion of criminal activity, and thus did not support the gunpoint stop.

The Court then distinguished the facts of this case from those which would have warranted a forcible stop:

Under our settled De Bour jurisprudence, to elevate the right of inquiry to the right to forcibly stop and detain, the police must obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior. Had defendant, for example, reached for his waistband prior to the gunpoint stop or actively fled from the police, such conduct, when added to the anonymous tip, would have raised the level of suspicion.  However, we have frequently rejected the notion that behavior which is susceptible of innocent as well as culpable interpretation, will constitute probable cause. It is equally true that innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand. (Internal citations and quotations omitted.)

In other words:

(A) forcible stop requires reasonable suspicion that the suspect has committed a crime, not merely the founded suspicion—triggering the officers' common-law right of inquiry—present here. Surely the possibility that defendant had a gun merited investigation by the police, just not immediately at gunpoint. 

What beautiful, melodic music to my ears!  Sanity at long last!  My faith in the judicial system has been least for now.

Fourth Department Concludes Post-Accident Remedial Measures Discoverable

In Hughes v. Cold Spring Constr. Co., 2006 N.Y. Slip Op. 00888, the plaintiff sought disclosure of documents relating to control over traffic control devices from the State of New York pursuant to a subpoena.  The State was not a party to the lawsuit pending in Supreme Court, but a separate action regarding the same accident had been initiated by the plaintiff against the State in the Court of Claims.  The accident at issue in both cases was alleged to have occurred in a construction zone just past a set of tollbooths after the decedent had been diverted into oncoming traffic by inappropriate traffic control devices.

The State contended that it was not necessary for the plaintiff to obtain the documents at issue since the State conceded that it had control over the traffic control devices at issue.  The plaintiff, on the other hand, asserted that although the State had general control over the construction project, the general contractor, Cold Spring Construction Company, exercised enough control over the construction project to allow it to make changes to the traffic control devices and that a supervisor had in fact directed traffic away from the construction zone.

Accordingly, the Court concluded that:

The cases are legion in holding that evidence of subsequent repairs is not discoverable or admissible in a negligence case ...[, but e]vidence of subsequent repairs may be admissible if an issue of control ... exist. Here, plaintiff has raised an issue of control, and thus we conclude that documents disclosing the State's postaccident remedial measures are material and necessary in the prosecution ... of [this] action (CPLR 3101 [a]). (Internal citations and quotations omitted).

While this is not an earth shattering holding, it's always nice to be reminded of exceptions to the rule.

Define That Term #44

Yesterday's term was fruit of the poisonous tree, which is defined as:

n. in criminal law, the doctrine that evidence discovered due to information found through illegal search or other unconstitutional means (such as a forced confession) may not be introduced by a prosecutor. The theory is that the tree (original illegal evidence) is poisoned and thus taints what grows from it. For example, as part of a coerced admission made without giving a prime suspect the so-called "Miranda warnings" (statement of rights, including the right to remain silent and what he/she says will be used against them), the suspect tells the police the location of stolen property. Since the admission cannot be introduced as evidence in trial, neither can the stolen property. See also: Miranda warning.

A few former prosecutors posted comments, but, quite surprisingly, were unable to come up with the correct definition. Very puzzling, indeed.

Today's term was going to be "innocent", but in light of the difficulties encountered yesterday, I suspect that that term might pose a problem as well.  So, instead, today's term is:


As always, no dictionaries, please.

Bush Plans to Give Control Over Major US Ports to United Arab Emirate-owned Company

Generally, I try to avoid blatantly political posts on this blog, but this is an unusual situation that warrants it, in my mind. 

At first, I thought it was a joke when I heard that the Bush administration planned to give significant control over the nation's biggest ports, including New York, New Jersey, Baltimore, New Orleans, Philadelphia and Miami, to a company based in the United Arab Emirates.  According to this article:

The administration refuses to release specifics about the selection process but reiterates that Dubai Ports World was carefully vetted and poses no threat.

The "investigation" that was conducted prior to making this decision reportedly took only 20-25 days, with only a few days of that time spent considering security issues. 

A concern voiced by many is that at least 2 of the 9/11 hijackers were from the United Arab Emirates and some of the money used to finance the attack was laundered there.

I wholeheartedly agree with the following two statements from the article:

(S)ecuring the nation's ports is difficult enough. So why add to the complications by letting a "company which could have an al Qaeda infiltration," know U.S. ports' security measures.


"Most Americans are scratching their head wondering why this company, from this region, now," Sen. Lindsey Graham, R-S.C., added.

I'm not sure what this administration is thinking.  Perhaps the obvious answer is they're not.

Holocaust Denier, David Irving, Sentenced to Three Years in Austria

As explained in this article, David Irving, the Right-wing British historian, was sentenced to three years in jail after pleading guilty to an Austrian law which applies to "whoever denies, grossly plays down, approves or tries to excuse the National Socialist genocide or other National Socialist crimes against humanity in a print publication, in broadcast or other media." 

Additionally, according to the article:

In 1992, a judge in Germany fined him the equivalent of $6,000 for publicly insisting the Nazi gas chambers at Auschwitz were a hoax.

Irving was also in the news last year as a result of his lawsuit for libel in a British court against American Holocaust scholar.  The claim was ultimately dismissed.

I'm not sure what to make of the 1992 fine or of his current jail sentence.  While I find it repugnant that he would deny the Holocaust, I find it equally as repugnant that freedom of expression is being infringed upon, especially to this extreme.  And, the Austrian law that he plead guilty to seems vague and vulnerable to subjective enforcement.  Quite frankly, it's disturbing that such a law exists.  Let's hope that our country isn't headed in the same direction.