New York Legal Update

Attorney Discipline Proceedings Apply To Licensed Legal Consultants

Licensed Legal Consultants are foreign attorneys who may render certain legal services in the State within the provisions of 22 NYCRR Part 521. On Tuesday the First Department decided a case in which it held that the attorney disciplinary mechanism must be applied to license legal consultants as well - Matter of Antoine, 2007 NY Slip Op 07935. In that case, the Departmental Disciplinary Committee for the First Department sought to immediately revoke a legal consultant's license without filing any formal charges or holding a hearing after the consultant made certain false representations that he was admitted to practice in New York, and held himself out as an attorney.

The First Department found that to do so was impermissible. Citing 22 NYCRR 610.7 and 22 NYCRR 521.5, the Court stated that the Committee must follow the same procedures in disciplining legal consultants as for attorneys, namely it must file formal disciplinary charges and hold a hearing before a Referee on those charges.

 

No Noose Is Good Noose

In the wake of recent documented appearances of nooses in the State and around the United States, the Senate passed legislation on Monday (October 22) to make it a felony to etch, paint, draw or otherwise place or display a noose on public or private property. The legislation is sponsored by Senator Dean Skelos (R-Rockville Centre) who remarked,

This is a vile act that must be dealt with harshly. There is no place for racism and intimidation in America and this rash of incidents clearly demonstrates the need for tough new penalties.  The Senate passed a bill today to make displaying a noose a felony and I encourage the Assembly to reconvene and pass this legislation as soon as possible.

Recently a noose was discovered in the locker room at the Hempstead police station on Long Island and in the basement of the Hempstead town garage, while another was found on the door of a Columbia University Teachers College professor in Manhattan. The issue has also received national attention in the wake of the "Jena 6" case in Louisiana, in which a group of six black teenagers were charged with beating a white teenager at Jena High School in Jena, Louisiana.  The beating followed a number of racially-charged incidents in the town, including an incident in which three white students hung nooses from a tree at Jena High school.

The anti-noose legislation (S6499) would amend New York’s aggravated harassment statute (Penal Law Section 240.31) to make it a class E felony to etch, paint, draw, place or display a noose with intent to threaten, intimidate or harass. In 2006, in response to similar past incidents involving swastikas and burning crosses, the State Legislature supported and former Governor Pataki approved amending the State’s penal law to make the use of those symbols a crime. The bill was sent to the Assembly, where it is sponsored by Assemblyman Joe Lentol.

The full text of the Bill can be found by Clicking Here and searching on Bill No. S6499.

Senate Passes Bill To Prohibit Driver's Licenses For Illegal Aliens

The controversy surrounding Governor Spitzer's plan to give driver's licenses to illegal aliens continues to heat up. Yesterday, the State Senate passed legislation which seeks to stop the Governor's plan by requiring a social security number or proof of authorized presence in the United States to obtain a New York State driver's license or non-driver identification card. 

The legislation (S.6484) is sponsored by Senator Frank Padavan (Queens). It would require applicants for a driver's license or non-driver identification card to submit a social security number. When a social security number cannot be provided, the applicant must demonstrate they are ineligible to get a number and provide satisfactory proof that the applicant's presence in the United States is authorized under federal law.

Senator Padavan said, "My legislation ensures that the most important form of personal identification, the New York state drivers license, maintains its high standard of security and integrity. This comprehensive legislation reverses the Spitzer administration's dangerous policy that grants illegal aliens drivers licenses and enacts the necessary safeguards to help eliminate the fraudulent issuances of drivers licenses throughout the state while helping to protect the safety, security and well-being of all New Yorkers."

The Senate held a public hearing on the legislation last week.  Experts on national security, immigration, secure driver's licenses and ID cards, and representatives of the families of 9/11 victims spoke out against the Governor's plan, calling it a threat to security.

The Bill was passed on a 39 to 19 vote, and was sent to the Assembly. For additional comments on the Bill by Senators Click Here.

Nail And Mail Service Upon Attorney Rejected

CPLR 308 requires that service be attempted by personal delivery of the summons "to the person to be served" (CPLR 308[1]), or by delivery "to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode" (CPLR 308[2]).

An alternative methods of service pursuant to CPLR 308(4), commonly known as "nail and mail" service, may be used only where service under CPLR 308(1) or 308(2) cannot be made with "due diligence."  Nail and mail service is effected "by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person . . . at his or her actual place of business" (CPLR 308[4]).

Just what constitutes "due diligence" so as to permit nail and mail service under CPLR 308(4)? A case from the Second Department last week demonstrates that a single attempted personal service may not be sufficient - Estate of Edward S. Waterman v Jones, 2007 NY Slip Op 07815.

The action was one for legal malpractice. The process server attempted to serve the defendant attorney with a copy of the summons and complaint at his actual place of business on August 23, 2004, at 10:00 A.M. The process server observed the defendant's name on an outside shingle, but the office was closed, locked, and without a doorbell. The process server used his cellular phone to call the number listed on the outside shingle and received neither a personal reply nor an answering service reply. Nonetheless, that same day the process server mailed the summons and complaint to the very same premises in order to ostensibly effectuate "nail and mail" service. On the following day, August 24, 2004, the process server returned to the same location at 9:00 A.M. and, upon seeing that the conditions were the same as the day before, affixed the summons and complaint to the door. The affidavit of service did not refer to any efforts to ascertain the defendant's residential address and to serve process at that location.

The Second Department found that the purported nail and mail service was ineffective since the plaintiff's one purported personal service attempt at the defendant's place of business failed to comply with the "due diligence" requirement of CPLR 308(4). The Court found it significant that the affidavit of service did not describe any efforts to ascertain the defendant's whereabouts, dwelling place, or place of abode. Also, there was no indication that the process server made any inquiries to the commercial neighbors, checked telephone listings, or conducted any search with the Department of Motor Vehicles to determine the defendant's residential address. Moreover, although the process server observed that the place of business was closed, locked, without a doorbell, and without an answering service, he nonetheless mailed the papers to that address notwithstanding the fact that CPLR 308(4) also authorized him to mail the papers to the defendant's last known residence.

Thus, the Court granted the defendant attorney's motion to dismiss for lack of personal jurisdiction. 

Martin Act Does Not Preclude Common Law Fraud Claim

The Martin Act (General Business Law art. 23-A) grants the Attorney General the power to investigate and bring an action against entities who engage in fraud or deceptive practices in connection with the sale of securities (including the sale of condominium and cooperative interests). There has been some confusion in the case law whether the Martin Act thus precludes a private party from bringing a common-law fraud claim in connection with the sale of such securities.

On Tuesday, the First Department clarified the issue in Kramer v W10Z/515 Real Estate Ltd. Partnership, 2007 NY Slip Op 07763. The First Department held that the Martin Act does not preclude a private party from prosecuting an otherwise valid common-law fraud claim.

The confusion in the case law arose as follows. Under the Martin Act, the Attorney General does not need to allege or prove either scienter or intentional fraud. Thus, in a case Whitehall Tenants Corp. v Estate of Olnick, 213 AD2d 200 [1995], lv denied 86 NY2d 704 [1995], it was held that private parties could not use artful pleadings to press claims of the type that the Attorney General could bring and styled as one for common-law fraud, where the essential elements of common-law fraud were lacking. Unfortunately, as the First Department recognized, Whitehall was erroneously extended in a number of case which were at the pleading stage where the elements of common-law fraud were alleged.

Thus, in Kramer the First Department held that as long as a plaintiff pleads all the elements of fraud with particularity, there is nothing in the Martin Act to prevent that plaintiff from pursuing the common-law fraud cause of action.

Court of Appeals Rejects Third-Party Negligent Spoliation Of Evidence Action

CPLR 3126 provides for sanctions against litigants who loose or destroy evidence during litigation. But what should happen if the evidence is lost or destroyed by a third-party - someone not involved in the litigation? A few jurisdictions have recognized an independent tort of third-party negligent spoliation of evidence to address the wrong.

However, yesterday the Court of Appeals in Ortega v City of New York, 2007 NY Slip Op 07741 held that New York will not recognize such a third-party negligent spoliation of evidence cause of action. The facts were as follows.

The plaintiff Castalia Ortega purchased a minivan from a private owner. She then brought the vehicle to a service station for an inspection and tune-up. The day after the vehicle was serviced, while Ortega and plaintiff Manuel Peralta were driving in the vehicle, the minivan burst into flames, causing Ortega and Peralta to suffer severe burns. New York City police officers investigating the accident had Ridge Transport Systems, a towing contractor, remove the vehicle from the roadway. Ridge towed the van to its facility where it remained until November 7, 2003 when it was transported to the New York City Police Department's Auto Pound. Peralta's attorney attempted to inspect the vehicle while it was in Ridge's possession but was refused access because Peralta did not own the vehicle and could not produce a title document or bill of sale. Ridge explained that the van would be destroyed if not claimed by its rightful owner.

On October 31, 2003, Peralta commenced a special proceeding against Ridge and the New York City Police Department to preclude destruction of the vehicle until it could be inspected. Neither Ridge nor the Police Department opposed the application. Supreme Court issued an order on November 18, 2003 granting Peralta a period of 60 days to inspect the vehicle and precluding its alteration or destruction. The Legal Bureau of the Police Department promptly forwarded a written request, along with a copy of the court order, to the property clerk at its Auto Pound directing preservation of the vehicle pending Peralta's inspection.

For unknown reasons, the memo and order were either not received by the property clerk or were not properly acted upon. Instead of preserving the minivan as directed by Supreme Court, the Pound followed its ordinary procedures for the disposition of unclaimed vehicles and tried to contact the owner of the vehicle and warn that if it was not contacted within 15 days, the vehicle would be deemed abandoned under Vehicle & Traffic Law § 1224 and would be destroyed. Because Ortega did not contact the Pound within the designated time period, the vehicle was destroyed  on December 30, 2003. The Legal Bureau of the Police Department — which had attempted to assist Peralta's attorney in his efforts to enforce the preservation order — did not learn of the vehicle's destruction until February 2004, at which point it notified Peralta and the court of the Pound's disposition of the vehicle.

Ortega and Peralta did not pursue a personal injury action against the manufacturer of the vehicle, the previous owner or the service station that had inspected the van. Instead, the plaintiffs sued the City of New York seeking compensation for the personal injuries they sustained as a result of the automotive fire. Plaintiffs asserted that the City should be held liable for all damages stemming from the fire because, by destroying the vehicle, the City had breached its duty to preserve evidence, thereby committing the tort of negligent spoliation of evidence.

In rejecting the notion that such a cause of action existed, the Court of Appeals first noted that there was no indication that the City acted with malice or an intent to prevent the plaintiffs from obtaining recovery for their burn injuries, nor was the City's destruction of the car a proximate cause of those injuries. It then noted that the City's violation of the preservation order did interfere with the plaintiffs' interest. However, it concluded that to allow the cause of action to proceed against the City would just be too speculative to meet "traditional proximate cause and actual damages standards at the foundation of our common-law tort jurisprudence."

The Court stated that even if the vehicle had not been destroyed and was inspected it could be possible that (1) the fire caused so much damage to the van that an inspection would fail to disclose a conclusive cause, (2) an inspection could result in conflicting expert opinions with differing views on causation, rendering plaintiffs' success in a lawsuit dependent on which party's expert the jury found most credible, or (3) an inspection of the vehicle might not have disclosed any maintenance issues, manufacturing deficiencies or design defects, thereby failing to supply a basis to hold anyone liable. With these possibilities, there would be no meaningful way for the jury to reliably resolve whether the destruction of the vehicle was the cause of the plaintiffs' failure to obtain damages for their bun injuries from the original tortfeasors.

Similarly, there would also be too much speculation with respect to how to assess damages against the City. Assuming that the plaintiffs would be able to obtain a judgment from the underlying tortfeasors there would be no reasonable means for the jury to determine how liability might have been apportioned among the tortfeasors in the original litigation.

The Court also noted that the plaintiffs were not without any remedy against the City as it could have pursued civil contempt proceedings against the City for violating the Court order of preservation [the plaintiffs did bring such proceedings but did not pursue the claim before the Court of Appeals].

Personal Commentary: I find it very refreshing when courts refuse to expand notions of liability. For too long the courts have seemed to want to hold anyone responsible for any injuries regardless of the circumstances. But as the Court wisely recognized in its opinion: "While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Not every deplorable act is redressable in damages" (citations omitted). If only the courts could keep this idea in mind more frequently.

The Cable Guy and Labor Law § 240(1)

Does the work of the cable guy or telephone repairman fall within the protection of Law Law § 240(1)? A case from the First Department last week - Rhodes-Evans v 111 Chelsea LLC., 2007 NY Slip Op 07540 suggests that for many instances it does not.

The plaintiff was a Verizon field technician who was assigned to splice fiber optic cable in an existing cable box located in the parking garage of the defendant's building to provide new digital telephone service to a tenant in the building. The cable box was 10 to 15 feet above ground level. The floor of the garage was littered with construction and other debris, and the plaintiff had to clear an area to place a ladder that she used to reach the cable box. Unable to move a large piece of sheet metal on the floor, the plaintiff placed the ladder so that at least two of its legs were on the metal. Plaintiff stood on the second rung from the top of the ladder looking for the splice on which she was to work. The box in which the splice was encased was to her right, thus necessitating that she turn the upper part of her body in that direction. As she searched for the splice, the ladder started going backwards. To avoid falling, plaintiff twisted her body and grabbed onto the cables and used her body to pull the ladder back into position. In so doing, she injured her back. The ladder never actually fell. Nor did plaintiff.

The building owner moved for summary judgment, inter alia, on the grounds that the plaintiff was not entitled to any relief under Labor Law § 240(1) since she was not engaged in construction-related activity. In order to be entitled to the statutory protection of Labor Law § 240(1), a worker must establish that he r she sustained injuries while engaged in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240[1]). The Supreme Court had denied the owner's motion finding that the work in which plaintiff was engaged constituted an alteration.

However, the First Department reversed and granted the owner's motion. The Court stated that in order to constitute an alteration, the statute required making a significant physical change to the configuration or composition of the building or structure. And it stated that there was nothing in this record to suggest that splicing a fiber optic cable located in a box was making a significant physical change to the garage or building. 

If the plaintiff had been installing a new system, perhaps by installing a new box, and not splicing wires, perhaps the results would have been different. The plaintiff had attempted to make this argument, but the Court found that record did not support such a claim.

Saving Provision of CPLR 205(a) Does Not Apply To A Different Related Corporate Entity

CPLR 205(a) is a savings provision which adds a six month grace period to the statute of limitations in certain situations. It provides:

If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

Last Thursday (October 11th) in Reliance Ins. Co. v Polyvision Corp., 2007 NY Slip Op 07500, the Court of Appeals was asked in a certified question from Second Circuit the following:

Does New York CPLR § 205(a) allow a corporation to refile an action within six months when a previous, timely-filed action has mistakenly been commenced in the name of a different, related corporate entity, and has been dismissed for naming the wrong plaintiff? (474 F3d 54, 60 [2007]).

The Court of Appeals concluded that it did not. The Court stated that it has never read the words "the plaintiff" in the statute to include an individual or entity other than the original plaintiff. And it reasoned that to allow a separate but related corporate entity to benefit from the grace period of CPLR 205(a) would only breathe life into stale claims, and prevent corporations from exercising the minimal care necessary to determine, before bringing suit, which of its family members had been wronged.

Newspaper's Publishing Of Plaintiff's Social Security Number Did Not Violate His Privacy Or Civil Rights

An interesting little case from the Fourth Department last week should give all pause to consider the power of the press to publish almost any personal information -  Valeriano v Rome Sentinel Co., 2007 NY Slip Op 07163.

In that case, the plaintiff was involved in an illegal sports gambling operation. In publishing a story about the operation, the defendant's daily newspaper published the plaintiff's name, address, date of birth, and his Social Security number along with information concerning 12 other individuals involved. The plaintiff brought an action asserting causes of action under Civil Rights Law § 50 and for negligence. The Supreme Court found that the complaint failed to state a cause of action and the Fourth Department agreed.

Civil Rights Law § 50 provides:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the  name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent  or guardian, is guilty of a misdemeanor.

The Fourth Department stated that the newspaper article did not violate § 50 because the information was published by the defendant in a "newsworthy article" and was not used for advertising or trade purposes. In addition, the Court stated that the complaint did not state a valid cause of action for negligence because the defendant was not a government or private entity with a statutory, contractual or fiduciary duty to protect the confidentiality of plaintiff's personal information. Thus, the plaintiff's "negligence" cause of action was in reality the functional equivalent of a common-law privacy tort, which the Court stated New York did not recognize.

I personally don't see what is newsworthy about an individual's Social Security number, but the state of the law does seem to allow for its publication. Is there a need for some statutory protection from publishing one's Social Security number? 

Albany Law School Event Offers Free Legal Assistance To Seniors

On October 27th, Albany Law School will present its 14th Annual Senior Citizens' Law Day, a free event for Capital Region seniors and their caregivers. Seniors will be able to take advantage of more than 30 programs including such topics as:

• Hiring Home Repair Contractors;
• Identity Theft;
• Options for Fighting Investment Fraud;
• Reverse Mortgages;
• Raising Grandchildren;
• Staying Safe in Your Home;

Attendees will be offered free 30-minute individual meetings with a practicing elder law attorney, courtesy of the Elder Law Section of the New York State Bar Association. Registration is not required although attendees are encouraged to sign up for a meeting on the morning of the event as the number of appointments is limited. For more information Click Here.