Sui Generis--a New York law blog

Short Court of Appeal's Labor Law s. 240(1) Decision

The New York Court of Appeals handed down a very short Labor Law s.240(1) decision on August 29th.  Here is the substantive portion of Schroeder v. Kalenak Painting & Paperhanging, Inc. in its entirety:

Plaintiff concedes that wallpapering is not an enumerated activity under the Labor Law (see Labor Law § 240[1]). Moreover, plaintiff fails to allege sufficient facts to establish that her work was part of a larger renovation project subject to coverage under the statute (see Martinez v City of New York, 93 NY2d 322, 326 [1999]; cf. Prats v Port Auth. of New York and New Jersey, 100 NY2d 878 [2003]). Plaintiff's section 241(6) argument is similarly without merit.

I include this decision in the hopes that it's helpful for at least one of my readers!

The Robing Room

There's an interesting website called the Robing Room, self-described as the place "where judges are judged."  This site allow lawyers and litigants (or, as Evan Schaeffer points out, those pretending to be lawyers or litigants) to anonymously rate and comment on federal judges.

It's an interesting concept, but only time will tell if it actually proves to be useful or is simply abused by those unhappy with the judicial process.

Define That Term #138

Sunday's term was liquidated damages, which is defined as:

n. an amount of money agreed upon by both parties to a contract which one will pay to the other upon breaching (breaking or backing out of) the agreement or if a lawsuit arises due to the breach. Sometimes the liquidated damages are the amount of a deposit or a down payment, or are based on a formula (such as 10% of the contract amount). The non-defaulting party may obtain a judgment for the amount of liquidated damages, often based on a stipulation (clear statement) contained in the contract, unless the party who has breached the contract can make a strong showing that the amount of liquidated damages was so "unconscionable" (far too high under the circumstances) that it appears there was fraud, misunderstanding or basic unfairness. See also: contract damages.

No one guessed this time around.

Today's term is:

gravamen.

Good luck and no dictionaries, please.

Wednesday's NY Legal News Round Up

Here are some interesting New York legal news headlines from the past week:

• Attorney's $2 Million 9/11 Fee Called 'Shocking, Unconscionable'
• NY state senator charged with misusing group's funds
• H&R Block, Beneficial to pay $39mn to settle tax loan lawsuit
• New Long Island Court Handles Only Sex Offences
• Judge To NYU: Pothead Punishment Too Strict
• Federal Judge Orders NYC To Provide Food Stamps, Other Aid to Immigrant Women, Children Exposed to Violence

Comedic Break

A courtroom transcript for you:

Attorney:  What was the first thing your husband said to you when he woke that morning?

Witness:  He said, "Where am I Cheryl?"

Attorney:  And why did that upset you?

Witness:  My name is Kathy.

First Department Invites Legislature to Spring Into Action

People v. Zimmerman, 2006 NY Slip Op 06312 is an interesting case for a number of reasons, not the least of which is the fact that the First Department held that there is no county in New York that would serve as an appropriate venue in which to prosecute the defendant even though the State of New York had jurisdiction to prosecute the defendant.

In this case, the Attorney General was investigating alleged antitrust violations by department stores in New York and examined the defendant under oath in Ohio prior to commencing a civil or criminal action in New York.  The Attorney General then commenced a grand jury proceeding in New York County based on allegations that the defendant lied under oath six times during the examination in Ohio and subsequently obtained an indictment for perjury in the first degree. 

The First Department upheld the trial court's ruling that dismissed the indictment on the grounds that New York County was an inappropriate venue:

Although, as defendant concedes, New York State has jurisdiction to prosecute him pursuant to CPL 20.20(2)(b) based on the "particular effect" that his perjury has on the State, New York County does not.Assuming arguendo that defendant committed perjury based upon the statements he made in Ohio during the course of the New York State Attorney General's investigation, the "particular effect" venue provision would only confer geographical jurisdiction upon New York County if "[s]uch conduct had, or was likely to have, a particular effect upon such county...and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein" (CPL 20.40[2][c]). Criminal conduct constituting an offense has a "particular effect" upon a county when it "produces consequences which . . . have a materially harmful impact upon the governmental processes or community welfare of [the] particular [county], or result in the defrauding of persons in such [county]" (CPL 20.10[4])...

(A)ll that can be reasonably inferred from the facts (in this case) is that at the time he made his statements in Ohio, defendant knew his conduct would have a deleterious effect on the governmental or judicial processes of the State of New York, but not on any particular county.

The Court then noted that under the current statutory scheme, no county in New York State would serve as an appropriate venue:

We find it perplexing that under the particular circumstances of this case, where the State of New York has jurisdiction to prosecute defendant, there is no county in the entire state which would serve as an appropriate venue under the current statutory scheme...(T)here should be a statute which directs a prosecutor to an appropriate county for venue purposes. We would invite the Legislature to consider amending the statute to accomplish this goal.

What's all this talk I hear about judges legislating from the bench?  Not in New York!  No sir!  Rather, we simply extend polite invitations for our oh-so-efficient legislature to spring into action.  I wonder if they'll get around to it before the statute of limitations for perjury expires.  I don't know about you, but I'm not holding my breath.

But, on the bright side, a victory for the defense is a victory for the defense, statutory loopholes notwithstanding.

Monday's NY Blawg Round Up

It's Monday again.  Here's the New York blawg round up from the past week:

Indignant Indigent:

• AD4: No cocaine, no arrest
• AD4: refusal to allow cross-examination concerning motive to fabricate rape allegations = denial of right to present a defense

Jamestown Lawyer:

• Specialized Courts

Second Circuit Blog:

• Prosecutor Cannot Avoid Brady Obligation by Claiming that He Did Not Believe Witness's Exculpatory Statement
• IEEPA's Delegation of Authority to President Is Constitutional
• Conscious Avoidance Doctrine Applicable to Defendant's "Belief" where Underlying "Crime" Is a Government Sting

Second Circuit Sentencing Blog:

• Fast-Track Disparity As A Basis For A Non-Guidelines Sentence "Rejected" By The Second Circuit
• More On The 100:1 Crack/Powder Ratio And Disparity From The Second Circuit

Second Opinions:

• Discriminatory Transfer.

Doh! Brooklyn Law School Lets the Cat Out of the Bag.

I'm glad I wasn't in Brooklyn Law School's pool of applicants this year.  As reported in this article, the law school made the unfortunate error of printing academic calendars for its entering class of 2006, consisting of 495 students, on the back of internal admissions reports.  The reports contained the personal admissions data or more than two dozen applicants, including three students enrolled in the entering class of 2006. 

Well, you think, it can't be that bad.  How much private information was actually included in the internal admission reports?   Apparently, the answer is a lot:

An e-mail the admissions office sent to the 27 applicants on the morning of Aug. 4 stated: "Specifically, it cited your internal Brooklyn Law School account number, your name, college attended, high LSAT score, undergraduate degree-school GPA, your application status here, merit scholarship award status (if any), gender and ethnicity, as well as several internal index calculations. While some of the data appear coded, some are in plain text."

The good news is that the personal information disclosed was for 27 applicants, all of whom were accepted to the school.  So, presumably, their grades and LSAT scores weren't anything to scoff at. 

The school promised that it will:

(E)nsure that this doesn't happen again "by making sure that outdated internal reports are rounded up and promptly shredded -- such that outdated reports aren't in people's offices that might get put into a copy machine," Haverstick said.

Sounds like a plan.  But, I wonder how the outdated reports were mistakenly placed into the copy machine in the first place.  What a strange turn of events.  And, what an unfortunate result.

Define That Term #137

Thursday's term was uninsured motorist clause, which is defined as:

n. the clause in a policy of insurance on an automobile which provides that if the owner (or a passenger) of the automobile is injured by a negligent driver of another vehicle who does not have liability insurance, then the insurance company will pay its insured's actual damages.

No one guessed.

Today's term is:

liquidated damages.

Educated guesses only, please.  No dictionaries!

Civil Rights Round Up

A number of interesting civil rights issues caught my eye recently:

• First, as reported here, the DOJ filed a complaint in federal court this week against Verizon Communications and the Maine Public Utilities Commission seeking an injunction preventing the latter from demanding that the former provide a sworn statement attesting to its prior assertion that it had not turned over consumer phone records to the NSA.  In its complaint, the DOJ argued that if Verizon complies with the demand for a sworn statement, national security could be negatively affected.  Me thinks the DOJ doth protest too much.  If records weren't turned over, then why should the DOJ care about this? 
• Second, as reported here, an interesting First Amendment issue was raised in a case where the home and business of a New Yorker who provides satellite broadcasts to his customers was raided by federal agents--because he allegedly provided broadcasts that included the Hezbollah station Al Manar (along with other broadcasts, such as Christian evangelists).  (Hat tip:  Talk Left).  Mr. Iqbal is now in custody and held on $250,000 bail based on allegations that he provided material support for terrorism.  Can one really "support terrorism" simply by virtue of broadcasting programming that is readily available in much of the world?   Yet another story that makes me wonder if we live in China, where the government censors the information that reaches its citizens, or America, pre-9/11, where the First Amendment allowed for the free dissemination of information and ideas.
• Finally, as reported here, a Muslim physician, also an American, was removed from a U.S. flight earlier this week based upon allegations of suspicious behavior--provided by an allegedly drunk fellow passenger.  (Hat tip:  Kevin M.D.) The suspicious behavior?   Flying while Muslim and reciting his evening prayers:

"The whole situation is just really frustrating," Farooq said. "It makes you uneasy, because you realize you have to essentially watch every single thing you say and do, and it's worse for people who are of colour, who are identifiable as a minority"...

When flight personnel were alerted, the 27-year-old radiology resident and two colleagues — a man and a woman — were taken off their flight. They had been returning from a conference in San Francisco.

Farooq said that even officials from the Transportation Security Administration soon realized the flight crew had overreacted, but by the time that conclusion had been reached the trio were forced to stay in Denver for the night and catch a flight the next day — at their own expense.