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The New York Legal News Round Up

Latest_news It's been another eventful week in New York in the wake of Spitzer's resignation.  But, I think we've all heard more than enough about that, so you'll find no headlines regarding that debacle in this week's round up of New York legal news headlines:

Et tu, Eliot?

Drlogo11 This week's Daily Record column is entitled "Et tu, Eliot?"  The article is set forth in full below and a pdf of the article can be found here.

My past Legal Currents articles can be accessed here.


Et tu, Eliot?

“Over the course of my public life, I have insisted — I believe correctly — that people take responsibility for their conduct. I can and will ask no less of myself.”

       -- Eliot Spitzer in his resignation speech

The salacious news of our now ex-governor’s entanglement with a high-end prostitution ring has been the talk of the town — nay, the country — for the past week.

Unless you’ve been hiding under a rock, you already know that Eliot Spitzer, our state’s former Attorney General and a “law and order” prosecutor, reputedly, and repeatedly, utilized a call girl service to the tune of nearly $80,000 over the period of a few years.

The particular encounter at the center of the maelstrom involved a young woman only four years older than Spitzer’s eldest daughter.

From the moment I learned of the scandal, my mind was drawn to an episode of “The Sopranos” that I found to be extremely disturbing and which haunts me to this very day.

In Episode 32, Tracee, a young stripper employed by Bada Bing, the strip club owned by the mafia and frequented by Tony Soprano and his cohorts, is brutally beaten to death by Ralphie, the father of her unborn child and one of Tony’s underlings.

Throughout the episode, Tracee attempts to befriend Tony and parallels are drawn between Tracee and Tony’s daughter, Meadow, both of whom are the same age.

Meadow lived a privileged existence, attending college and dating a respectable young man. Tracee, on the other hand, a single mother from the wrong side of the tracks, tried to make ends meet the only way she knew how — by profiting from her youth and good looks. As a stripper at Bada Bing, she was routinely degraded, dehumanized and subjected to the unpredictable and capricious whims of dangerous and heartless men.

Ultimately, she was killed with nary a blink of an eye; yet another casualty exemplifying the harsh reality of the unconnected, unprotected or uneducated women in this world.

This outcome was not unexpected or unpredictable given the show’s setting, although I found the juxtaposition of Tracee’s existence with Meadow’s to be troubling. Likewise disconcerting was Tony Soprano’s ability to compartmentalize the two women in his mind.

Meadow, his daughter, was a human being deserving of his respect, love and protection. Tracee, on the other hand, was a second class citizen — a nameless, faceless commodity of pleasure — easily and readily discarded when her mere existence became inconvenient.

That a heartless mobster like Tony Soprano was capable of engaging in such fine tuned hairsplitting was not surprising to me, but Eliot Spitzer, law and order enforcer? Eliot Spitzer, champion of many liberal causes? Eliot Spitzer, pro-choice advocate? Eliot Spitzer, father to three daughters; husband to a beautiful Harvard Law-educated woman?

How does an educated, supposedly enlightened and intelligent man like Eliot Spitzer rationalize paying a young woman half his age for sex, in violation of the laws he swore to uphold and spent much of his legal career enforcing?

In what sort of bizarre mental gymnastics did he engage that allowed him to justify his decision to repeatedly, and in violation of his wife’s trust, order the services of a woman for his personal pleasure as though she were an item on a menu? Most importantly, how was he able to look his wife and daughters in the eye the next day?

Spitzer degraded and dehumanized women, violated the trust of those who believed in him and threw away his career and unique ability to leave a positive and lasting effect on the world around him; and all for a few fleeting moments of pleasure.

Inexplicably, like any number of powerful men before him, his unchecked desires were the cause his downfall. I would expect as much from Tony Soprano, but not you, ex-Gov. Spitzer.

Et tu, Eliot? Et tu?

Here's a clip from Episode 32 of the Sopranos.  The way that women are depicted continues to haunt me--in large part because it's not really fiction.  It's a reality with many men at all levels of our society, as is evidenced by our ex-Governor's apparent ability to, without a second thought, repeatedly buy the use of the bodies of young women not much older than his own daughters.

The New York Legal Blog Round Up

Blawgs Since last week's round up, we've now got ourselves a new governor.  How about that?

Enjoy this week's round up of interesting posts from my fellow New York blawgers.  I can only hope that the week that follows this post will be ever-so-slightly less eventful than last week!

Indignant Indigent:

New York Attorney Malpractice Blog:

New York Legal Update:

New York Personal Injury Law Blog:

No-Fault Paradise:

Simple Justice:

Wait a Second!:

Continue reading "The New York Legal Blog Round Up" »

How Much of Your Finger Must Be Missing to Constitute a "Grave Injury"?

Gavel2 In Castillo v 711 Group, Inc., 2008 NY Slip Op 01255, the Third-Party Appellant apparently believed that although Workers' Compensation Law § 11 expressly defined "grave injury" as including the loss of one's index finger, the plaintiff did not suffer a grave injury since an "amputation stump" remained on his injured index finger.

Specifically, "the plaintiff demonstrated that he lost both interphalangeal joints of his left index finger, leaving a 'painful amputation stump" that required two corrective surgeries to desensitize.'"

Not surprisingly, the New York Court of Appeals rejected the Third-Party Appellant's argument and denied its motion for summary judgment, concluding that:

(The) plaintiff established that he suffered the "loss of an index finger" within the meaning of Workers' Compensation Law § 11 (cf. Mentesana v Bernard Janowitz Constr. Corp., 36 AD3d 769, 770 [2d Dept 2007]; Blackburn v Wysong & Miles Co., 11 AD3d 421, 422 [2d Dept 2004]; McCoy v Queens Hydraulic Co., 286 AD2d 425, 425 [2d Dept 2001]).

Thank goodness.  I don't know about you, but I'd have been both concerned and disconcerted had the court accepted the hyper-technical argument that no grave injury existed since a "stump" remained.

The New York Legal News Round Up

Latest_news It's been a rather slow week in term of New York law-related news, but I'll do my best to come up with a round up worth reading.  Take note of the first few headlines about a newsworthy case that has received very little news coverage:

Muzzling Minor Dissent

Drlogo11 This week's Legal Currents column, which is published in The Daily Record, is entitled "Muzzling Minor Dissent"  The article is set forth in full below and a pdf of the article can be found here.

My past Legal Currents articles can be accessed here.


Muzzling minor dissent

“How come Andrew gets to get up? If he gets up, we’ll all get up, it’ll be anarchy!” — “THE BREAKFAST CLUB” (1985)

It is the thorn in the side of every school administrator: organized student dissent, which “substantially and materially interfere[s]” with schoolwork and discipline.

This legal standard, which controls all student speech, was first enunciated in the pivotal U.S. Supreme Court decision on the First Amendment rights of students, Tinker v. Des Moines, 393 U.S. 503 (1969).

The issue of student free speech rights was re-visited last year in Morse v. Frederick, 127 S. Ct. 2618 (2007). At issue in Morse was whether a high school student’s unfurling of a banner stating “Bong Hits 4 Jesus” on a sidewalk not located on school property was speech protected by the First Amendment. The Supreme Court concluded that the First Amendment does not protect student speech that could “plausibly be interpreted” by school administrators to promote illegal drug use in violation of “established school policy.”

Central to the court’s decision in Morse was its conclusion that the conduct at issue, while not occurring on school property, happened during a school-sponsored event, rendering the protections of the First Amendment inapplicable to the speech at issue.

Last week, the U.S. Court of Appeals for the Second Circuit Court heard arguments in another interesting student speech case, Doninger v. Niehoff, 3:07-cv-1129.

In this case, the plaintiff, a 17-year-old high school senior, alleges the officials at her high school violated her First Amendment rights by preventing her from serving on the student council as a result of statements she wrote on a blog, from her home computer, regarding the administration.

Specifically, she expressed her disappointment with the cancellation of the school’s annual “Jamfest,” a musical event she had helped to organize, and blamed the “douchbags [sic.] at the central office” for the cancellation.

The school administrators learned of the comment two weeks later, and subsequently barred her from serving on the student council as a direct result of the blog post.

The U.S. District Court of Connecticut found in favor of the school, concluding the penalty imposed — barring her from serving on the student council — was not discipline but, rather, the denial of a privilege, thus failing to implicate her First Amendment rights.

Alternatively, the court concluded the off-campus blog entry actually was on-campus speech for First Amendment purposes, since it was related to school issues and it was reasonably foreseeable other students would read it.

In other words, the court decided to engage in the creative endeavor of redefining “discipline” and “reality” rather than accepting an unpalatable alternative: acknowledging that students have the constitutional right to criticize school administrators, as long as the on or off-campus critique does not “substantially and materially interfere” with school operations or the dissent levied on-campus is not lewd, profane or sexually explicit, see, Tinker, supra. and Bethel v. Fraser, 478 US 675 (1986).

Granted, the blog post in question certainly is not a shining example of the diplomatic use of terminology. However, the fact remains that it was created using a computer that was not located on school grounds. Even assuming the language used was, in fact, lewd or profane, it simply does not fall within the Bethel exception to Tinker and, likewise, cannot be viewed as substantially and materially interfering with school operations.

The method of delivery of the dissent is irrelevant, and the advent of new ways of communicating should not alter this conclusion. A blog post is no different than the use of a megaphone or mass mailing.

The First Amendment protects students from being subjected to in school penalties as a result of their off-campus dissent, no matter how upsetting or annoying the conduct may be to school administrators. As Judge Sonya Sotomayor aptly noted during oral arguments last week: “Pedagogical rights can’t supersede the rights of students off campus to have First Amendment rights.”

Continue reading "Muzzling Minor Dissent" »

The New York Legal Blog Round Up

Blawgs It's a cold, cold Monday and time for the weekly round up of interesting posts from my fellow New York blawgers:

Indignant Indigent:

Juz the Fax:

New York Legal Update:

New York Personal Injury Law Blog:

New York Public Personnel Law:

Simple Justice:

Wait a Second!:

Continue reading "The New York Legal Blog Round Up" »

$12 Million Inheritance Not Enough For These Heirs

Erandisi_2_2We've all heard of the "Prudent Investor" rule for Trustees and Executors of estates.  But just how "prudent" does a Trustee have to be?  Does a Trustee have a duty to do some possibly risky planning to avoid estate taxes on the death of the income beneficiary of a trust?  Or is that something the Trustee should avoid?  And whose opinion matters more, the lifetime beneficiary (in many cases, the surviving spouse) or the remainder beneficiaries (the kids)? 

An interesting article in Trusts & Estates Magazine reviews a Minnesota case where the kids sued the corporate Trustee because it did not pursue an aggressive estate tax planning strategy with regard to Mom's Trust assets.  The kids disputed the requirement that they pay nearly half of their $25 million inheritance to Uncle Sam.  (Spoiler alert:  the kids lost.)

The court found that the corporate Trustee had no duty to invest the Trust assets in tax-avoiding vehicles.  Of particular importance to the court was that during Mom's lifetime, she made it clear that she was concerned with maximizing her own income stream and didn't care much whether taxes would be due upon her death. 

What may concern Trustees and other fiduciaries when reading this article is that the court took 177 pages of opinion to reach this conclusion.  The authors of the article, Samantha E. Weissbluth and Erika Alley, both of Foley & Lardner, end by urging Trustees to document all estate planning and tax planning meetings with clients, in order to forestall additional litigation.

-Authored by Elizabeth Randisi, a Rochester, New York attorney associated with the law firm WeinsteinMurphy.  Her practice focuses on Trusts and Estates and elder law.

Define That Term #274

DictionaryLast Thursday's term was long cause, which is defined as:

n. a lawsuit in which it is estimated that a trial will take more than one day. In many courts the so-called "short cause" cases will be scheduled more quickly than long cause cases, since "short cause" cases are easier to fit into busy court calendars. If a trial estimated as a "short cause" turns out to take longer than one day, the judge may declare a mistrial and force the parties to try the case over again from scratch at a later date as a "long cause."

Edward Wiest's guess, while humorous, was incorrect.

Today's term is:

floating easement.

As always, no dictionaries, please.

The New York Legal News Round Up

Latest_news It's time, once again, for the round up of interesting New York legal news headlines from the past week: