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March 2006
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May 2006

These Guys Don't Deserve the Title "NY's Finest"

The decision of the day blog summarized an interesting 2d Circuit decision, Locurto v. Giuliani, 04-6480 (2nd Cir., Apr. 27, 2006), which was aptly described as a "high profile First Amendment case(that)  pits the rights of New York policemen and firefighters to be complete jackasses against the City’s right to fire them."

In this case, the plaintiffs, a police officer and two firemen, participated in a Labor Day parade float that mocked African Americans.  Their despicable behavior was described in the decision:

For the September 7, 1998 Labor Day parade, the group, which included the plaintiffs, decided to enter a float called “Black to the Future – Broad Channel 2098.” The conceit, a play on the 1985 time-travel film Back to the Future, was to depict how Broad Channel would look in 2098 when, presumably, the community would be more integrated than it was in 1998. Each of the float participants, including the plaintiffs, covered their faces in black lipstick, donned Afro wigs... The float itself featured two buckets of Kentucky Fried Chicken on the hood of a flatbed truck. One of the participants (not a plaintiff in this case) ate a watermelon and at one point threw the remains into the crowd...Plaintiffs Steiner and Walters yelled to the crowd, “Crackers, we’re moving in,” andWalters simulated “break dancing” alongside the float.

Near the end of the procession, and apparently without the others’ knowledge, Walters held onto the truck’s tailgate, pretending to be dragged by the truck, and yelled, “Look what they did to our brother in Texas, we would not allow them here . . . .” The scene was intended to invoke and parodically recreate the dragging death of James Byrd, Jr., an African-American man who had been murdered months earlier outside of Jasper, Texas after being chained to the back of a moving pickup truck by three white men. After the media aired footage of the float, the plaintiffs lost their jobs and subsequently sued the City for terminating them in violation of their First Amendment rights.

The decision of the day blog provides an in depth analysis of the issues presented, and I recommend that you give the post a read.  But, for those of you who just have to know how it all turns out: 

(T)he Court concludes that the City’s interests outweigh the plaintiffs’ "not insubstantial" right to be jackasses. Thus, the Court decides that the defendants are entitled to summary judgment.

In my opinion, justice was well served.  These guys didn't deserve a dime.

It's Not a Bird Or a Plane--But It Does Present an Issue of Fact

Apparently, my rationale in this post made sense after all.  I hereby revoke my humble apology.

I've been officially vindicated by the Fourth Department's recent decision in Sanly v. Nowak, 2006 NY Slip Op 03221, which was decided last Friday.  In this case, the plaintiff sought damages for injuries sustained when the defendant's vehicle skidded out of control and crossed into the oncoming lane of traffic in which the plaintiff was traveling.  The Court concluded that although the emergency doctrine was inapplicable, there was a triable issue of fact.  The Court stated that

(The defendant's conduct) is only prima facie evidence of negligence ...; it does not mandate a finding of negligence.  Such evidence[,] together with the explanation given by [defendant], presents factual questions for determination by the jury...(T)here is a triable issue of fact whether defendant's admitted violation of Vehicle and Traffic Law § 1120 (a) may be excused on the ground that defendant's conduct was reasonable under the circumstances.  (Internal citations and quotations omitted.)

So, it would seem that even when the emergency doctrine is inapplicable, it is still within the province of the jury to determine whether a defendant's conduct in crossing into oncoming traffic is reasonable under the circumstances.

I'm not sure how this holding squares with the Court's holding in Kizis v. Nehring, 2006 NY Slip Op 01952, the case that I discussed in the post mentioned above.  The only difference that I can see is that Sanly addressed a pre-trial motion while Kizis addressed a post-trial verdict. 

Nevertheless, issues of fact are for the jury to determine, and I fail to see why the specific testimony elicited in Kizis was so clear cut so as to remove that determination from the jury's consideration.

Any thoughts?  I'm truly baffled...

Define That Term #95

Yesterday's term was holographic will, which is defined as:

n. a will entirely handwritten, dated and signed by the testator (the person making the will), but not signed by required witnesses. Under those conditions it is valid in about half the states despite the lack of witnesses. A letter which has all the elements of a will can be a holographic will, as can a will scratched in the dust of an automobile hood of a person dying while lost in the desert. See also: will.

Both Damin J. Toell and Slickdpdx chimed in, and between the two of them, they got it right.

As for New York's stance on holographic wills, the information on this web site is in accordance with my recollection on this issue and appears to comport with EPTL s. 3-2.2, but I can't guarantee its accuracy:

A handwritten will is called a "holographic will". New York recognizes handwritten wills only in there very limited situations:
- By a member of the armed forces of the United States while in actual naval or military service during war or other armed conflict in which members of armed forces are engaged.
- Person who serves with or accompanies an armed force engaged in actual military or naval service during such war or armed conflict
- Mariner while at sea
To be accepted as a handwritten will, the making of the will must clearly be established by two witnesses.

Now, on to today's term, which is:


Good luck, and no dictionaries.

I Always Feel Like Somebody's Watching Me--And I Get No Privacy

Here are a few updates on privacy issues that I've covered as of late, in addition to a few new items of interest.

***  First, I'd previously posted about a pending lawsuit against AT&T which alleges that the company violated state and federal laws by surreptitiously allowing the government to monitor phone and internet communications of AT&T customers without warrants.  As reported here, the government has now stepped into the lawsuit and is requesting that the judge dismiss the lawsuit since it may reveal state and federal secrets.

***  Quite recently, I'd posted about the government's admission that it was monitoring law student's protests against military recruitment.  One of the concerns about the TALON program that had been mentioned in the linked articles from my post is that the information regarding the protests had been retained for excessive amount of time in the TALON system. 

       I came across another document that sets forth a number of anti-war groups that were monitored by the government and the disposition of the surveillance, which can be found here.

       A similar issue has arisen regarding the Pentagon's alleged excessive retention of information regarding potential recruits.  As reported here, a number of potential recruits have now filed suit against Donald Rumsfeld alleging that: 

(T)he Pentagon improperly collected data on people as young as 16 and kept it beyond a three-year limit, and said that the law does not allow for keeping records on race, ethnicity, gender or social security numbers.

***   As reported here, the Justice Departmnet has now released specific data indicating that last year the FBI sought information regarding 3,501 U.S. citizens and legal residents from their banks and credit card, telephone and Internet companies without a court's approval or a grand jury subpoena by using an administrative subpoena called a National Security Letter (NSL).

      It was also reported that: 

The department also...received a secret court's approval for 155 warrants to examine business records last year under a Patriot Act provision that includes library records. However, Attorney General Alberto Gonzales has said the department has never used the provision to ask for library records.

The number was a significant jump over past use of the warrant for business records. A year ago, Gonzales told Congress there had been 35 warrants approved between November 2003 and April 2005.

***  Finally, I recently discovered an interesting web site, The National Security Archive, which collects and publishes documents obtained through Freedom of Information Act requests.  The documents include a number of interesting items relating to privacy rights.  Check it out.

Define That Term #94

Yesterday's term was collusive action, which is defined as:

n. a lawsuit brought by parties pretending to be adversaries in order to obtain by subterfuge an advisory opinion or precedent-setting decision from the court. If a judge determines the action does not involve a true controversy he/she will dismiss it. See also: collusion controversy precedent advisory opinion.

Slickdpdx got it right!

Today's term is:

holographic will.

No dictionaries allowed.  Good luck!

Fourth Deparment Reverses Judgment in Med. Mal. Case

In Catanese v. Furman, 2006 NY Slip Op 01915, the Court considered whether the trial court properly granted the defendant's motion in limine, which sought to preclude the plaintiffs from offering proof that the defendant, a pathologist, prepared, examined, and misread additional tissue slides on the day following the plaintiff's surgery. 

In this case, the plaintiff alleged that the defendant negligently misdiagnosed the plaintiff as suffering from a rare form of cancer by relying on a "frozen tissue" section slides during an operation rather than deferring the diagnosis until he could view a more  definitive "permanent tissue" section slide.  The plaintiffs also alleged that as a result of the misdiagnosis, the plaintiff's surgeon removed a mass in the plaintiff's pelvic area, which required him to sever the nerve root to the plaintiff's right leg.

The Court noted that although rulings regarding the relevancy of proposed evidence are discretionary decisions to be made by the trial court, the evidence precluded was highly relevant because: 

(the) misreading of the permanent section slides on the day following plaintiff's surgery is relevant because it tends to prove that defendant's misdiagnosis was not caused by the time constraints inherent in intraoperative diagnoses or by the limitations inherent in using frozen section slides. Rather, that evidence tends to prove that defendant's misdiagnosis with respect to plaintiff was caused by defendant's lack of knowledge and skill as a pathologist.

Accordingly, the Court held that the trial court should have granted the plaintiffs' motion to set aside the verdict and for a new trial.

I agree with the Fourth Department's decision.  The evidence was extremely relevant to the plaintiffs' case and the ruling that precluded the admission of that evidence made it far more difficult for the plaintiff's to prove their case, as is evidenced by the verdict in favor of the defense.  And, I'm curious as to the trial court's rationale for excluding the evidence.

Court of Appeals Info.

The Court of Appeals has announced that a live webcast of the arguments in the same-sex marriage appeals will be broadcast.  From the Court's website:

Due to public interest, and the limited space available at Court of Appeals Hall, oral argument of four same-sex marriage appeals will be webcast live on Wednesday, May 31, 2006, beginning at 2:00 P.M. An archived version of the entire proceeding will remain on this website for several months.

The cases are Hernandez v. Robles, Samuels v. New York State Department of Health, Matter of Kane v. Marsolais, and Seymour v. Holcomb.

Some of the above cases have been discussed in this post, this post, and this post.


Welcome and an Update

I'd like to welcome any new or return visitors who came across this blog as a result of my comments at this post from the Brian Leighter's Law School Reports blog or this post from Orin Kerr's blog (which has since been deleted from his blog for some reason).

Take a look around and please stop back again.  And, you're more than welcome to subscribe to my blog via one of the links to the right of this post.

Again, welcome!  Hope to see you again soon.

And, as an update to this post regarding the monitoring of law students at anti-military recruitment protests, the NYU Dean has issued a strong statement regarding the government's activities, a portion of which can be found here at Brian Leighter's Law School Reports blog.

Labor Law 240(1) Proximate Cause Issues Addressed by NY Court of Appeals

In Robinson v. East Med. Ctr., LP, 2006 NY Slip Op 02457, the plaintiff was injured while working on a 6-foot ladder and alleged that the defendants were liable under Labor Law s. 240(1) since his foreman failed to deliver an 8-foot ladder to him and was thus forced to complete his work with the "unsafe 6[-]foot ladder."

The Court of Appeals first set forth the applicable law:

Where a plaintiff's actions [are] the sole proximate cause of his injuries, . . . liability under Labor Law § 240(1) [does] not attach.. Instead, the owner or [*4]contractor must breach the statutory duty under section 240(1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker's injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them. (Internal citations and quotations omitted.)

The Court then held that:

In short, there were adequate safety devices — eight-foot ladders — available for plaintiff's use at the job site. Plaintiff's own negligent actions — choosing to use a six-foot ladder that he knew was too short for the work to be accomplished and then standing on the ladder's top cap in order to reach the work — were, as a matter of law, the sole proximate cause of his injuries.

Matt Lerner at New York Civil Law posted about this decision here.  Matt also posted about a recent Third Department case which applied the law set forth in Robinson here.