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The New York Legal Blog Round Up

Blawgs Due to the Columbus Day holiday, it's now time for the belated round up of posts from my fellow New York blawgers:

Juz the Fax:

New York Attorney Malpractice Blog:

New York Civil Law:

New York Criminal Defense:

New York Federal Criminal Practice:

New York Law Blog:

New York Personal Injury Blog:

Simple Justice:

Wait a Second!:

New York Court of Appeals Leaves Question of Fact to the Jury

Gavel2 The title of this post might seem to state the obvious, but in my experience, trial level and appellate courts seem all too eager to conclude that summary judgment is appropriate even where arguable issues of fact exist.

In Frutchey v Felicita  2008 NY Slip Op 06745, however, the New York Court of Appeals got it right in my opinion.  At issue was whether the defendant's motion for summary judgment was properly denied by the trial court.

The underlying facts of this personal injury lawsuit were set forth in the Third Department's decision:

This action arises out of a three-car accident that occurred on Route 427 in the Town of Ashland, Chemung County. At the time of the accident, it was snowing and the roadway was covered with two to three inches of slush. Defendant Jacqueline Felicita was traveling eastbound when she lost control of her vehicle and entered the westbound lane of travel where she collided with a westbound vehicle operated by Linda Nichols. Defendant Michael V. DeLosa was operating a westbound vehicle owned by defendant Allen's Plumbing, Heating and Air Conditioning, Inc. (hereinafter collectively referred to as defendants) behind Nichols and, when he observed Felicita cross over into his lane of travel, he immediately turned into the eastbound lane in an effort to avoid the collision. Unfortunately, Felicita's vehicle caromed off Nichols' vehicle back into the eastbound lane and collided with the vehicle driven by DeLosa...At the time of the accident, plaintiff Damon Frutchey, an infant, was a passenger in the Felicita vehicle and was seriously injured.

The Third Department concluded that the reaction of the operator of the vehicle owned by Allen's Plumbing was reasonable as a matter of law:

While it ordinarily is a question of fact as to whether a driver's response to an emergency is reasonable, where, as here, the evidence establishes the reasonableness of the driver's response, summary judgment is appropriate.

However, the New York Court of Appeals held that there were issues of fact regarding that driver's potential negligence,.  Specifically, the court noted that issues remained as to whether:

(1) defendant DeLosa acted negligently in traveling at an excessive speed and in following too  closely to Nichols's vehicle, given the road and weather conditions and, (2) if so, such negligence was a proximate cause of the accident (see Herbert v Morgan Drive-A-Way, 202 AD2d 886, 888-889 [1994]...

There were absolutely issues of fact regarding DeLosa'a negligence, and to grant summary judgment in DeLosa's favor effectively decided those factual issues rather than letting the trier of fact make that determination.  Fortunately, the Court of Appeals corrected this error, and these factual issues will now be resolved by the appropriate party.

The New York Legal News Round Up

Latest_news It's time for the weekly round up of New York law-related news headlines:

Technology, social media and the Penal Code.


This week's Daily Record column is entitled "Technology, social media and the Penal Code."

A pdf of the article can be found here  and my past Daily Record articles can be accessed here.


Technology, social media and the Penal Code.

While working on the annual update for the West criminal law treatise that I co-author, “Criminal Law in New York,” I noted with interest the effect of the increasing use of social media and technology on New York’s penal code and interpretive case law.

Not surprisingly, the crime of Aggravated Harassment, which prohibits certain forms of harassing or annoying communication, soon will be amended to keep pace with the concepts of “communication” and “data storage,” which always are evolving as a result of technological advancements.

Effective Dec. 3, Penal Law §240.30(1) will be amended to prohibit a person from communicating or
causing communication to be initiated, whether anonymously or otherwise, “by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm.” Also effective Dec. 3, a new subdivision will be added to Penal Law §240.30, to clarify the meaning of subdivision one, providing that “[f]or the purposes of subdivision one of this section, ‘Form of written communication’ shall include, but not be limited to, a recording as defined in subdivision 6 of section 275.00 of this part.”

Penal Law §275.00 defines “recording” as “an original phonograph record, disc, tape, audio or video cassette, wire, film, or any other medium on such sounds, images, or both sounds and images are or can be recorded or otherwise stored, or a copy or reproduction that duplicates in whole or in part the original.”

Rapid technological changes and the increasing use of social media, likewise, have required New York courts to grapple with issues of whether the use of new forms of communication violate the
crime of Aggravated Harassment.

In People v. Rodriguez, 19 Misc.3d 830, 860 N.Y.S.2d 859 (Crim.Ct. 2008), the court noted that messages transmitted through MySpace, an online social networking site, can constitute Aggravated Harassment, as long as there is evidence that the communications were unwelcome.

Similarly, in M.G. v. C.G., 19 Misc.3d 1125(A), 862 N.Y.S.2d 815, (Fam.Ct. 2008), the court concluded that e-mails also are a form of communication and, thus, can constitute Aggravated Harassment. In another case, text messages sent using a cellular telephone were held to violate this statute. People v. Limage, 19 Misc.3d 395, 851 N.Y.S.2d 852 (Crim.Ct. 2008).

Not surprisingly, another area of the Penal Law affected by technological change is Article 275, which sets forth offenses related to unauthorized recordings.

One recent case of interest is People v. Colon, 46 A.D.3d 260, 847 N.Y.S.2d 44 (First Dept. 2007). In
Colon,the defendant was accused of selling pirated music and, subsequently, was convicted of failing to disclose the origin of a recording in the second degree.

On appeal, the defendant argued his inclusion of the manufacturer’s Web site address on the allegedly pirated music satisfied the address requirement of Penal Law §275.35, precluding his conviction. The First Department disagreed, concluding the term “address” refers to a physical location, as opposed to an Internet address.

The holding surprised me. Arguably, the legislative intent of the statute is to ensure credit where credit is due, and it seems the defendant in this case did just that. A Web site provides far more information about the manufacturer than the physical address does, and the physical address most likely can be found on the Web site, in any event.

I suspect that, with the passage of time, ideas that were once universally understood, such as that of an address, will become more malleable as technology alters the landscape of our lives. Clearly, such adaptation occurs more easily with the concept of communication as opposed to that of location.

While the courts, initially, may resist the rapidly changing conceptual framework of our culture, eventually, as in the case of the Aggravated Harassment statutes, change will occur.

The New York Legal Blog Round Up

Blawgs Finally, a New York blawg round up.  It's been a while, and for that, I apologize!

Coverage Counsel:

New York Attorney Malpractice Blog:

New York Federal Criminal Practice:

New York Law Blog:

New York Public Personnel Law:

Rochester Family Lawyer:

Second Opinions:

Simple Justice:

Organize your law practice, and your life, online


This week's Daily Record column is entitled "Very Nice: Borat Takes Glorious Victory in Federal Court."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Organize your law practice, and your life, online

A few weeks ago I encouraged you to explore Google’s free, online Web applications, such as Gmail, Google’s word processing platform, Google Docs and Google’s online calendaring system.

One of the reasons I recommend using Google’s applications is their compatibility with innumerable free
Web-based productivity applications and organizational tools.

Many programs are designed to interface with Gmail and Google Calendar, making them particularly useful and convenient.

One of the most popular task management programs is Remember the Milk, a free Web-based application that allows you to create tasks, to-do lists and schedule regular reminders for approaching deadlines. It can be accessed using most smart phones, and is compatible with iPhones, Black-
berries and Windows Mobile.

Tasks can be added either online or via e-mail and RTM will send reminders via e-mail, SMS or instant messenger. RTM also integrates with Google Calendar, allowing all tasks to appear on your calendar. You can also use RTM to easily access Google maps when interfacing with Google Calendar in order to determine the location of your daily tasks or appointments.

I use RTM to remind me of tasks I tend to forget, such as car inspections and annual doctor’s appointments. It also can be used as a tickler system for important dates, such as looming statutes of

When RTM is used in conjunction with another Web-based application, Jott, the ability to create and manage tasks and schedule appointments becomes mind bogglingly simple.

Jott is, at its essence, a voice transcription service that you access using your cell phone. You simply make a phone call and dictate short notes and reminders and schedule appointments on your calendar. RTM then automatically adds the items to your calendar.

Jott can be accessed online, and is fully compatible with Outlook, Google Calendar, Blackberries and iPhones. Using your Blackberry, you can simply and easily reply to e-mails, and create to-do lists on your iPhone with a phone call.

Jott also is compatible with TSheets, a Web-based time tracking system. With a single phone call, you can track time spent on a particular matter.

Until recently, all features on Jott were free; however, over the summer Jott enacted a fee-based pricing plan that is quite reasonable, all things considered. Various features are available for either $4 or $13 per month.

If the idea of a voice transcription service appeals to you, but you’re not interested in a fee-based system, there are free alternatives that include many of the features offered by Jott.

First, there’s ReQall, which allows you to dictate notes, to-dos and shopping lists using a cell phone. It recognizes certain words, such as “buy” and “meet” and automatically files those memos in the appropriate category of your account. Reminders can be e-mailed to you at intervals that you determine.

It has a really nifty iPhone application, which I find particularly useful, and also is compatible with Windows Mobile, integrating some of that system;’s calendaring programs.

Finally, another free Web-based voice transcription application is Dial2Do ( With Dial2Do, call a number on your phone and record reminders or send e-mails and text messages. The
application comes in handy if you’re frequently on the road and need a viable hands-free alternative for communicating with friends and colleagues.

The Web-based applications I’ve described here are rapidly increasing in popularity due to their ease of use and accessibility.

And, of course, you can’t beat the price.

For busy lawyers attempting to manage law practices and home lives, such organizational tools can’t be beat. I think you’ll find them to be useful and time-saving alternatives to the traditional methods to which you’re accustomed.

The New York Legal News Round Up

Latest_news_2 The 2007-08 update for my West book, Criminal Law in New York, is in, and it's back to business as usual here at Sui Generis.

It's Wednesday, and, of course, time for the weekly round up of New York law-related headlines from the past week: