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June 2007

D-Day For NY Lawyer Advertising Rules Lawsuit?

Attorney_adsAs I'd posted previously, D-day for the Lawsuit challenging the New York lawyer advertising rules is June 18, 2007.  The parties stipulated to the facts and waived the trial that had been previously scheduled.  Instead, the plaintiffs have cross-moved for summary judgment, and on June 18th, at the very least, the Court is expected to rule on the motion for a preliminary injunction, and may possibly offer a ruling on the motions for summary judgment as well.

Available for your perusal are the following documents:

Additional coverage can be found here at the New York Personal Injury Attorney Law blog.

Define That Term #218

DictionarySunday'a term was aleatory, which is defined as:

adj. uncertain; usually applied to insurance contracts in which payment is dependent on the occurrence of a contingent event, such as injury to the insured person in an accident or fire damage to his insured building.

No one guessed this time around. 

Today's term is:


As always, no dictionaries, please.

New York Legal News Round Up

Latest_newsIt's time for the round up of interesting New York legal news headlines from the past week:

Big Brother's Eyes Are On Us

Drlogo11This week's Legal Currents column, which is published in The Daily Record, is entitled "Lady Law Is Not Entirely Inflexible."  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.


I always thought that George Orwell’s novel 1984 was, at most, a disturbing work of fiction.

Inexplicably, in the wake of 9/11, many aspects of the horrifying and surreal society described in Or-well’s most famous novel have become reality in America.

Pervasive video surveillance is one of the more obvious and disturbing manifestations of this fictional work. In many cities across America, intricate video surveillance networks, both publicly and privately owned, are being established to capture the day-to-day activities of ordinary citizens.

By way of example, in 1998 there were only 769 surveillance cameras in New York City. Today, it is estimated that there are more than 10,000, with more being added each day. At this rate, the city will soon catch up to London, which has more than 500,000 video surveillance cameras monitoring citizens’ every move.

Other cities throughout the country are following in step and our fair city of Rochester is not immune to the phenomenon: In November 2006, Roch-ester was awarded funding to establish a video surveillance network and the Rochester Police Department is in the process of implementing a surveillance system.

Some fear that at this rate, in just a few years, the United States will soon have more surveillance cameras within its borders than the 4 million video cameras currently installed throughout Britain.

Proponents of video surveillance contend “video never lies.” Recent court decisions suggest that the appropriate inquiry is not whether video is truthful, but rather, what isthe meaning of the images portrayed on video?

In the recent U.S. Supreme Court decision, Scott v. Harris, no. 05-1631, the answer to this inquiry was, not surprisingly, that reasonable minds can differ. In Scott, the court viewed videotape of a high speed chase and concluded that: “[W]ith regard to the factual issue [of] whether respondent was driving in such fashion as to endanger human life … [r]espondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him.”

The decision was reached despite the fact that the 11th Circuit Court of Appeals viewed the tape and concluded there were issues of fact concerning that issue, as Justice John Paul Stevens did in his dissent.

Similarly, in a recent First Department decision, Rivera v. City of New York, 2007 N.Y. Slip Op 04153, videotape of a protest, which resulted in arrests the plaintiffs alleged were unlawful, was viewed by a jury, the trial court and the First Department.

The jury concluded that the arrest was unlawful and awarded $80,375,000 to the plaintiffs. The trial court agreed with the jury’s factual findings, but determined the award to be excessive, reducing it to $635,000.

The First Department, after watching the same videotape viewed by the jury and the trial court, vacated the judgment and dismissed the complaint against the defendants, concluding that: “Any rational person, objectively looking at the video and reviewing the other evidence, would find the police more than justified in their concern that this episode might escalate into violence.”

It would seem that the lesson to be learned is that while a video never lies, interpretations of its content can be drastically different.

In the post-9/11 era of increasing video surveillance, is it the new rule of law that, when facts can be gleaned from videotape, the interpretations of judges on higher courts trump the less rational perspective of lower court judges and juries? Will the need for juries and lower courts be erased with the advent of increasingly invasive and pervasive video surveillance? Will appellate judges take on the role of Big Brother and decide the facts for us?

For the sake of our country and our judicial system, I certainly hope not.


Here's a disturbing CNBC video on how American's lives are being monitored by our government and by private parties.

And, the following video is an NBC report on the use of "talking" video surveillance cameras in the UK.  The wave of the future for the US, perhaps?  Let's hope not.

The Memorial Day New York Blawg Round Up

I hope that everyone takes time out this Memorial Day to remember those who have served our country and are doing so as we speak.  We owe them our deepest  gratitude and respect.  And, I hope that you all enjoy this day off in their honor.

Blawgs_2And, now for the New York legal blog round up:

Indignant Indigent:

Juz The Fax:

  • How DO They Do It?  (Discusses 2 contradictory First Department holdings relating to prevailing wages under the Davis-Bacon Act)

Mental Disability Law Blog:

New York Attorney Malpractice Blog:

New York Legal Update:

NYSBA General Practice Section blog:

Second Opinions:

  • Converting a Kidney  (Second Circuit acts on answer to question certified to the New York Court of Appeals)

Simple Justice:

The Sienko Law Office blog:

Fourth Department on Serious Injury

Gavel_2 At issue in Mc Carthy v Bellamy, 2007 NY Slip Op 0338, was whether the trial court properly denied the defendants' motioin for summary judgment. 

The plaintiff commenced the lawsuit seeking damages for injuries to her cervical spine allegedly sustained as a result of a motor vehicle accident.  The defendants subsequently brought a motion for summary judgment on the grounds that the plaintiff failed to allege serious injury. 

The Fourth Department concluded that the motion should have been granted:

"E]ven where there is objective medical proof [of a serious injury], when additional contributory factors interrupt the chain of causation between the accident and claimed injury——such as a gap in treatment, an intervening medical problem or a preexisting condition——summary dismissal of the complaint may be appropriate... Here, the record establishes that in 1999 plaintiff complained of left-sided neck pain that had persisted for three months, resulting in an x-ray showing "minimal spondylosis" and "possible minor cervical degenerative disease." Plaintiffs' failure to acknowledge or address that preexisting condition in opposition to the motion renders the opinion of plaintiffs' expert "speculative"...

We likewise agree with defendants that plaintiffs' failure to explain a 15-month gap in plaintiff's treatment renders summary judgment dismissing the complaint appropriate...(Internal citations and quotations omitted).

I suppose the lesson to be learned from this case, assuming the plaintiff's response to the defendants' motion is characterized accurately, is that it's probably not a good idea to ignore your opponents' assertions. Simply setting forth facts which establish serious injury without addressing the alleged weaknesses in your case is probably unwise--at least in the Fourth Department and most certainly in this case.

Second Circuit Certifies Question to the NY Court of Appeals

Check Earlier this month, in O'Mara v Town of Wappinger, Docket Nos. 06-0078-cv(L), 06-1323-cv(CON), the Second Circuit certified the following question to the New York Court of Appeals:

Is an open space restriction imposed by a subdivision plat under New York Town Law § 276 enforceable against a subsequent purchaser, and under what circumstances?

Is Intoxication an Affirmative Defense to Third Degree Sodomy?

Gavel_2_2 People v. Newton, 2007 NY Slip Op 03754, is a really interesting New York Court of Appeals decision from earlier this month--and one that I disagree with.  My disagreement with the decision comes as bit of a surprise to me, since I have a difficult time wearing my criminal-defense-attorney-colored-glasses when it comes to sex crimes.  I can do it, but it's not easy for me.

But, in this case, when I put those glasses on, I find myself disagreeing with the Court's decision.

The Court upheld the trial court's ruling which denied the defendant's request to charge the jury that his intoxication at the time of the alleged conduct was an affirmative defense to the charge of Sodomy in the Third Degree.  Instead, the trial court advised the jury that intoxication is not a defense to that crime "under any circumstances."

As explained in the Court's decision:

To be guilty of third-degree sodomy under Penal Law § 130.40(3), defendant was required to have engaged in the sexual act "with another person without such person's consent where such lack of consent [was] by reason of some factor other than incapacity to consent."

The Sexual Assault Reform Act fleshed out this crime by specially defining "lack of consent" for purposes of third-degree sodomy as     "circumstances under which, at the time [of the sexual act], the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances" (Penal Law § 130.05[2][d]).

The Court concluded that since the "defendant's subjective mental state is not an element of the crime of third-degree sodomy, evidence of intoxication at the time of the sexual act is irrelevant."  The Court's rationale was that:

(T)he proper inquiry for the factfinder is not whether a defendant actually perceives a lack of consent, but whether the victim, by words or actions, clearly expresses an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that the victim was not consenting.

I've got a problem with that conclusion.  Granted, the defendant's mens rea is not an element of this crime, but the defendant's perception of the victim's alleged lack of consent is important.   Lack of consent is to be viewed from the perspective of one in the defendant's situation, and one's intoxication can certainly affect one's perception. 

I don't think that intoxication should be an absolute defense to any crime, especially not sex crimes.  If that were the case, then everyone would have a green light to get loaded and then rape and pillage to their heart's content with the knowledge that their intoxication effectively shielded them from prosecution for their actions. 

Not a great message to send to our citizens--especially those living in fraternity houses, but I most certainly digress.

I think that Eric at Indignant Indigent hit the nail on the head with his analysis of this case:

(I)t seems to go a bit further than necessary to say that evidence of intoxication is "irrelevant" to the crime of third-degree sodomy...If the defendant is intoxicated at the time of the incident, then it would seem the proper inquiry for the jury is whether a reasonable, intoxicated person would have understood the complainant's words and actions to indicate a lack of consent. While not technically an affirmative defense that needs to be charged to the jury, a defendant's intoxication is nevertheless a fact to be considered by the jury in determining guilt.

Gov. Spitzer Appoints Judge Lippman As Presiding Justice of 1st Department

Lippman2As reported in this Buffalo Business First article, yesterday Governor Spitzer appointed Chief Administrative Judge Jonathan Lippman to serve as Presiding Justice for the Appellate Division, First Department:

Lippman is the longest serving chief administrative judge in state history. He was appointed to that position in 1996 while serving as judge on the Court of Claims, and has continued serving as such since then.

In 2005, he was elected as a Supreme Court justice for the 9th Judicial District and was then appointed as an associate justice for the Appellate Term for the 9th and 10th Judicial Districts.

A New York City native, Lippman received both his undergraduate and law degrees from New York University.