New York Legal Update

Dead Man's Statute Applies in Attorney Disciplinary Hearings - Sort Of

The Dead Man's Statute (CPLR 4519) essentially prevents a witness from testifying in his own behalf against an estate as to conversations he had with the deceased person. Last Thursday (August 23rd), the First Department was confronted with the issue of whether the Dead Man's Statute was applicable in attorney disciplinary hearings in Matter of Zalk, 2007 NY Slip Op 06505.

The attorney at issue, Richard Zalk, Esq., was accused of violating various disciplinary rules basically for misappropriating funds from his escrow account. The funds in the escrow account had come from the sale of a building owned by the attorney's client. The client was a widow, and the attorney had represented both her and her husband's estate over many years.

In his defense at the disciplinary hearing, the attorney testified that his now deceased client had told him shortly before her death that he could keep the money in the escrow account as his fee for the services he had performed over the many years. The estate of the client of course disputed that the monies held in escrow should belong to the attorney.

The Departmental Disciplinary Committee took the position that the Dead Man's Statute precluded the attorney from relying on his testimony as to the alleged fee arrangement. The Referee however disagreed finding that the Dead Man's Statute would only apply in an action brought by the estate.

The First Department agreed with the Committee and found that the statute (CPLR 4519) was applicable in attorney disciplinary hearings on the merits of the charges. Thus, because the attorney could not rely on his testimony as to his conversations with the deceased concerning the fee arrangement, it sustained the charges of misappropriation of funds.

However, the First Department went on to hold that such testimony by the attorney could be admissible in the context of determining the nature of the discipline to impose on the attorney. It stated that the punishment determination was separate and distinct from the hearing on the merits of the charges, and the estate of the deceased had no interest in the nature of the punishment imposed against the attorney. The Court did in fact consider the attorney's testimony in imposing the punishment, and found the attorney's testimony to be credible, and his actions to be non-venal. The Court found that the attorney honestly believed the funds in escrow to be his. Thus, the Court imposed the sanction of a two year suspension rather than a disbarment.

In short, the Dead Man's Statute (CPLR 4519) applies in attorney disciplinary hearings on the merits of the charges, but not in the consideration of the appropriate punishment.

New Legislation Increases Rights Of The Disabled

Last Friday (August 24th) the Governor signed new legislation which will make it easier for disabled New Yorkers to seek relief when public facilities fail to reasonably accommodate their disability.

Specifically, the new statute would make it a discriminatory practice under New York law for places of public accommodation to:

- Refuse to make reasonable modifications in policies, practices, or procedures necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless making such modifications would fundamentally alter the nature of the facilities, privileges, advantages or accommodations;

- Refuse to take steps necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless taking such steps would fundamentally alter the nature of the facility or would result in an undue burden; or

- Refuse to remove structural architectural or communication barriers in existing facilities, and transportation barriers in existing vehicles and rail passenger cars, where removal is readily achievable.

These principles bring New York State law in alignment with the federal Americans with Disabilities Act. It is thus thought that it will not present businesses or government agencies with a new or unfamiliar set of rules to follow.

The new law will allow persons with disabilities the ability to file certain complaints related to discriminatory practices through the State Division of Human Rights rather than pursuing costly litigation in federal court. Individuals can bring their complaints at one of the numerous DHR centers around the State. If the Division finds probable cause of a violation, a lawyer will present the complainant’s case. In addition, the Division itself can bring affirmative investigations and initiate complaints.

For comments on the new legislations see the Governor's Press Release. The legislation will go into effect on January 1, 2008.

Governor Signs Law To Give Rape Victims Information About Medical Risks

Last Thursday (August 23rd), Governor Spitzer signed new legislation which will allow victims of sex offenses to get timely information that can help them guide their medical treatment. Under this new law, New York courts can order that an indicted defendant be tested for the HIV virus. Previously, victims could only request and receive such information at the time of a defendant’s conviction.

The legislation will apply when a defendant has been indicted for the crime, and the victim makes a request to the court within six months of that crime. The court is required to order HIV testing of the indicted defendant whenever it finds that such testing would provide medical or psychological benefit to the victim.

Assemblywoman Nettie Mayersohn, who sponsored the legislation, said: “It is critical that a rape victim be given the information on the HIV status of the alleged rapist as soon as possible. Victims are counseled to begin taking the medication immediately after the rape. When the victim then receives information on the rapist's HIV status, she and her doctor can make an informed decision on whether or not to continue treatment” (see Press Release).

The law also enhances hospital services for victims and requires hospitals to provide HIV post-exposure treatment therapies. The bill requires hospitals to inform victims that they may be eligible to receive reimbursement for costly HIV treatments from the Crime Victims Board, a state agency that helps victims cover various expenses. In addition, it will require the State Department of Health to develop guidelines to ensure that accurate and current medical information regarding testing, counseling and medical treatment is available, and that testing is done for a medical benefit.

The new law adds a new section 210.16 to the Criminal Procedure Law. The full text of the new laws can be found by  Clicking Here  and searching on Bill No. S6357.

More Efforts To Make Case Law Available Free Online

As a follow up to last Friday's post about Columbia Law School's AltLaw.org project, the New York Times online recently posted an Article about another attempt to make case law research online free. This effort is being pursued by a man whom the Times calls "an Internet gadfly" - Carl Malamud. Mr. Malamud, who is a self-styled Robin Hood of the information age, has begun a project using advanced computer scanning technology to copy court decisions with the ultimate goal of making them available online and for free. This effort is a direct challenge to the subscription based legal research services of Westlaw and Lexis/Nexis. Mr Malamud has placed the first batch of 1,000 pages of court decisions from the 1880s online at his public.resource.org site. He obtained the documents from a used Thomson microfiche, he said.

Mr. Malamud and a diverse group of backers argue that the control of publishing court rulings subverts the original intent of the framers of the Constitution by making the nation’s laws difficult to obtain by those outside the legal profession. In a letter recently sent to West Publishing, Mr. Malamud said his intent was to make federal and state court decisions available to a population that cannot afford the subscription costs. Legal codes and cases are the “operating system” of the nation, he said. “The system only works if we can all openly read the primary sources,” he said in the letter. “It is crucial that the public domain data be available for anybody to build upon.”

Will Westlaw and Lexis/Nexis be able to survive if there are free searchable caselaw database online? It is going to be extremely interesting over the next couple of years to see how legal publishing is going to change. Competition and providing better services at lower cost - these are fundamental notions in improving the lives of all. Why shouldn't this be the case in legal publishing? I can only applaud the efforts of Mr. Malamud and the others pursuing these efforts.   

Drivers Must Signal Every Lane Change

Admit it, you don't always turn on your blinker when you change lanes. Well you should. It is not only a courtesy to your fellow drivers, but according to a recent appellate decision, failing to signal lane changes gives the police adequate justification to pull you over and find all those not so legal things you are carrying around.

The case was People v Rice, 2007 NY Slip Op 06503 decided by the First Department on August 23. In that case, two New York City police officers were on patrol when they observed a Mazda move from the left lane to the right lane without signaling. The police ran the vehicle's license plate number, and learned it was a rental car, which had not been reported stolen. They then witnessed the Mazda move from the right lane back into the left lane, again without signaling. At that point the police officers pulled the vehicle over.

The officers requested the driver to produce his license and the vehicle's registration. The driver, defendant Wayne Rice, presented a valid New York State driver's license in his name. Defendant then fumbled around in the glove compartment before handing the officer a rental agreement in the name of Sylena Cole. The officer remarked to defendant that the agreement was in a woman's name, prompting defendant to search the glove compartment a second time, resulting in the production of another rental agreement in defendant's name. The officer testified that defendant was acting nervous and offered no explanation for the duplicate agreements.

The officer, upon examining the agreements, noted that most of the information on them, except the drivers' names, was identical. The officer further observed that the rental agreement indicated that the car had been due back to the rental company two days prior to the stop. The officer testified that although the computer check revealed the vehicle was not stolen, such information was not conclusive since he had been involved in many cases where a vehicle was stolen from a rental company lot and the theft was not discovered and reported for one or two weeks. The officer accordingly believed there something was wrong with the agreements. The defendant offered no explanation for the different agreements. The officer then asked defendant what he was doing in the area, to which he responded that he had come there to get a haircut, although he did not know the name or location of the place where he intended to get a haircut, or how long he had been in the area. The officer subsequently inquired if defendant had any weapons on him and, after defendant responded in the negative, the officer asked him to step out of the vehicle. As defendant complied, the officer noticed a knife clipped and hanging from defendant's left pants pocket. The officer seized the knife.

The police then proceeded to frisk defendant to ensure that he did not have another weapon, and discovered an abnormal, unnatural bulge in defendant's groin area. The officer asked defendant if he had anything on him, to which defendant replied in the negative. The officer testified that he knew from his training, as well as his experience, that rental cars are often used to transport narcotics and that the contraband is often transported in the groin area as if it were part of the human anatomy. Accordingly, the officers arrested defendant and brought him to the precinct. Once at the precinct, the officer recovered $1,849 from defendant's person and, after again feeling the unnatural bulge in defendant's groin area, took defendant to a private room, and directed him to remove his pants and underwear. After defendant complied, the police recovered a clear plastic package the size of a tennis ball containing cocaine, which had been wrapped inside defendant's underwear.

The defendant moved to suppress the evidence seized on the grounds that the automobile stop violated his Fourth Amendment and New York State constitutional right to be free of unreasonable searches and seizures thereby compelling suppression of the fruits of that unlawful stop. The hearing court granted the motion finding that while the Vehicle and Traffic Law (VTL) required the use of directional signals on all turns, it did not require signaling when a lane change can be made in complete safety without such a signal.

The First Department disagreed and reversed. The Court relied on the language of VTL § 1163 which provides:

(a) No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section eleven hundred sixty, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided (emphasis added).

(d) The signals provided for in section eleven hundred sixty-four shall be used to indicate an intention to turn, change lanes, or start from a parked position and not be flashed on one side only on a parked or disabled vehicle, or flashed as a courtesy or do pass' signal to operators of other vehicles approaching from the rear (emphasis added).

Thus, based on the emphasized language above, the Court found that the statute unequivocally required the use of a signal in all instances when a lane change is made. The Court found further support in a review of the legislative intent indicating that VTL § 1163 was amended to impose an absolute duty to use signals when making any movement of a vehicle.

So unless you want to be pulled over, use those directional signals.

Columbia Law School Launches Free Searchable Database of U.S. Court Decisions

In an effort to make researching federal case law fast, easy, more accessible to the public, and free – Columbia Law School and the University of Colorado Law School have launched a new Web site called AltLaw.org. AltLaw.org contains nearly 170,000 decisions dating back to the early 1990s from the U.S. Supreme Court and Federal Appellate courts. The site’s creators, Columbia Law School’s Timothy Wu and Stuart Sierra, and University of Colorado Law School’s Paul Ohm, said the site’s database will grow over time.

Wu said he started to build AltLaw.org because he wanted a way to quickly search through court decisions the same way that the public now can search a wide array of information through such Internet search engines as Google and Yahoo! "It’s been more than 10 years since the start of the Internet revolution, and case law is one area that has not budged. Somebody has to take the initiative," Wu said. "We want to open the law to the public."

Currently lawyers and other legal researchers must use one of the big two proprietary law databases which can cost hundreds of dollars per hour for a research session. Thus, AltLaw.org has the potential to dramatically change the landscape of case law researching.

Ohm wrote thousands of lines of code that download cases to AltLaw.org from more than a dozen court websites each night. He said the data comes from the courts themselves, and AltLaw.org is designed as an extremely open platform so that others can take the raw material and use it in various ways.

AltLaw.org is a joint project of Columbia Law School’s Program on Law and Technology, and the Silicon Flatirons Program at the University of Colorado Law School. For additional information see Columbia Law School's Press Release.

New York Legal Update highly applauds this effort. For too long access to case law has been controlled by the big two legal publishers at outrageous prices. Access to all law should be free or as close to free as possible. We can only hope that similar efforts will be made by Columbia or others to create a similar searchable database for New York case law. 

Seduction, Sex, and The Synagogue - A Cautionary Tale

What is worse - lying to get sex, or being so gullible as to believe anything a guy will say? It is a tough call in the facts that were before the First Department yesterday in Marmelstein v Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, 2007 NY Slip Op 06504. Legally, however, the issues were not so hard to decide thanks to an often forgotten provision of the Civil Rights Law - section 80-a. Every woman (and I suppose everyone) should keep Civil Rights Law § 80-a in mind the next time some guy starts telling you things that just don't seem right. Let the following facts be a cautionary tale. 

In 1994, Adina Marmelstein became acquainted with defendant Mordecai Tendler, the founder and spiritual leader of a synagogue. Defendant Tendler was known within the Orthodox Jewish community as a scholar, educator and community leader. He also held himself out as a counselor and advisor with an expertise in women's issues [There was the first hint. Watch out for any man who claims to be an expert in woman's issues]. In 1996, Marmelstein began attending services at the synagogue, and Tendler began advising her with respect to her personal, legal and financial problems. He also represented that he would assist her in finding a prospective husband so she would be able to marry and have children. Lo and behold, beginning in November 2000, the two began a sexual relationship that lasted through May 2005.

Plaintiff Marmelstein claimed that she was induced by defendant Tendler to engage in this physical relationship "as part of a course of sexual therapy which he represented would lead to her achieving her goals of marriage and children." He told her she was "closed to the possibility of finding a husband" and "would never find a husband in her current state." He advised her "to permit him to have sexual intercourse with her so that her life will open up and men will come to her." He also told her he "was as close to God as anyone could get," and engaging in sexual relations with him would be her "only hope."

Plaintiff Marmelstein did not find another man for a husband. And she eventually saw the light that defendant Tendler was not a God. She alleged that Tendler "physically and emotionally abused [her] for his own sexual pleasure and gratification," and warned that if she told anyone about their sexual relationship he "would have her placed in a straight jacket," "have her put in the penitentiary," and "would turn the community against her." She thus commenced an action against the synagogue and Tendler asserting causes of action for fraud, negligent infliction of emotional distress, breach of fiduciary duty, and intentional infliction of emotional distress. The first two causes of action were dismissed by the lower court and plaintiff did not appeal their dismissal. Only the breach of fiduciary duty, and intentional infliction of emotional distress claims came before the First Department.

As to the claim for breach of fiduciary duty, the complaint alleged that defendant "occupied a position as fiduciary to the plaintiff . . . as her counselor, advisor and therapist and owed her a relationship of trust and confidence," which he breached. Plaintiff asserted that she was physically violated, her reputation impugned, and that she was ostracized from her synagogue and lost her standing in the community. The claim for intentional infliction of emotional distress alleged that defendant engaged in conduct - including falsely inducing plaintiff into a sexual relationship, physically violating and abusing her, and causing her to be harassed, threatened, intimidated and ostracized by the community - which would and did result in severe emotional distress.

The First Department dismissed both of these remaining causes of action relying on Civil Rights Law § 80-a. It provides:

The rights of action to recover sums of money as damages for alienation of affections, criminal conversation, seduction, or breach of contract to marry are abolished. No act done within this state shall operate to give rise . . . to any such right of action.

The First Department noted that seduction is broadly defined in the case law as any conduct on the part of a man, without the use of force, in wrongfully inducing a woman to surrender to his sexual desires. And the Court found that the plaintiff's allegations, boiled down to their essence, came within the ambit of Civil Rights Law § 80-a, and thus, were not actionable.   

What a line! - "Have sex with me, and other men will want you." I hope there are not more such gullible woman out there.

Assumption Of Risk In Gym Class

One who voluntarily engages in sporting or physical activities is generally deemed to have consented to apparent or reasonably foreseeable consequences of engaging in the sport and thus cannot recover for any injuries. This doctrine is known as assumption risk. What about gym class? How voluntary is participating in gym class activities? A case from the Second Department yesterday - Calouri v County of Suffolk, 2007 NY Slip Op 06455 - demonstrates that questions can arise as to how voluntary the activities really are in gym class.

The case arose at a physical education class at Suffolk County Community College. The plaintiff was a 40-year-old woman, who enrolled in a course called "backpacking" to satisfy the college's physical education requirement. The plaintiff was the oldest student in the class by approximately 20 years, as well as the shortest. The plaintiff believed that the backpacking course was the least strenuous of the several courses offered to satisfy the requirement. Two weeks into the semester, the students in the backpacking class were divided into two teams. The gym instructor directed them to perform an activity in which the plaintiff had never engaged, and which she never heard of. In this activity, a rope was tied to the back of two folding chairs and the instructor advised the students that each team member had to go over the rope without making contact with it. If any team member touched the rope, the whole team had to start the task again. The team members were also instructed that each of them had to remain in physical contact with another team member while attempting to clear the rope.

The plaintiff made several unsuccessful attempts to clear the rope without any assistance. Eventually, she advised her teammates that she was unable to do so and that they should continue without her. The gym instructor, who had been observing the class from the back of the room, approached the members of the plaintiff's team and said, "let me give you a hint," and with those words, pointed to the members of the other team. One of the members of that team was kneeling on the floor in front of the rope and the other members of that team were using his knee as a prop to step over the rope. Thereafter, one of the plaintiff's teammates knelt down in front of the rope on his left knee. His right foot was placed on the ground such that his right thigh was parallel to the ground and rope. The plaintiff proceeded to place her own right foot on the "step" created by her fellow student's extended right thigh. However, as the plaintiff placed her left leg over the rope, she felt the male student's thigh begin to wobble. This caused her to lose her balance, such that her left foot slammed to the floor. As a result, the plaintiff sustained fractures in her leg and ankle.

The Second Department found that there were questions of fact whether assumption of risk applied, and thus denied the College's motion for summary judgment. The Court stated that since the plaintiff was a neophyte with regard to the activity she was directed to perform, the doctrine of assumption of risk should not be applied with the same force as in the case of an experienced athlete. In addition, the Court stated that the relationship between the gym instructor and the plaintiff, a complete novice, was such that, for all intents and purposes, the gym instructor was the plaintiff's superior whose directions she was obliged to follow. Thus, whether the plaintiff acted voluntarily in attempting the strategy suggested by the gym instructor should be decided by a jury.

 

New Law Protects Intellectual Property Of Recording Artists From Impersonators

Yesterday Governor Spitzer signed into law new legislation which will protect the income and artistic rights of musical groups that are victimized by impersonators and deceptive promotion. The new law, known as the "Truth in Music Advertising Law," was inspired when well-known recording artists such as the Platters, the Coasters, and the Drifters suffered significant financial losses when their acts and routines were copied without permission or authorization, and patrons were mislead by false and deceptive advertisements.

The new law adds a new article to the Arts and Cultural Affairs Law. It authorizes the Attorney General to protect the rights of original artists and prohibits those who copy their style and performances through false representations such as invoking similar names, billings and promotion of the original artists by another performer. The law also provides for civil penalties ranging from $5,000 to $15,000 for violations of the new law.

The full text of the new law can be found by Clicking Here and searching on Bill No. S05743

New Law Strengthens Child Abuse Reporting Requirements

Governor Spitzer today signed new legislation that strengthens the reporting requirements in instances of suspected child abuse or neglect. The new legislation, is known as “Xctasy’s Law.” It requires social service workers to refer all instances of suspected child abuse to the New York State Child Abuse Hotline – an action which immediately triggers an official investigation. Under current law, social service workers are only mandated to report suspected child abuse cases that they either personally observe or learn about from contact with a child’s parents or guardian. There was previously no requirement for social service workers to refer incidents that they were informed about by a third party.

The legislation is named for four-year-old Xctasy Garcia, a Schenectady child whose case inspired the new law. In late May, a patron at the Twins Motor Inn, where Xctasy was staying with her parents, heard screams and loud noises coming from an adjoining room. He reported this to the manager of the motel, saying that he believed a “man might be harming a child.” The manager twice called the Schenectady County Department of Social Service to report these concerns, but there was no follow-up investigation. Two weeks later, parishioners at a nearby church found Xctasy severely beaten and badly burned with bleach. They quickly rushed her to a local hospital. Only then did a child abuse investigation begin.

The new law amends Social Services Law section 413(1) and provides:

Social  services workers are required to report or cause a report to be made in accordance with this title when they have reasonable cause to suspect that a child is an abused or maltreated child where a  person comes  before them in their professional or official capacity and states from personal knowledge facts, conditions  or  circumstances  which,  if correct, would render the child an abused or maltreated child.

The full text of the new law can be found by Clicking Here and searching on Bill No. S849-A

The law will take effect on October 14, 2007.