New York Legal Update

Court Dismisses Trespass Class Action Against Distributor Of Advertising Fliers

You get them on your doorstep all the time - advertising fliers. I personally like them; I like to get that menu from the local Chinese restaurant. You never know when you might want to order take out. But others hate them finding them a nuisance and contributing to litter and the cutting down of trees. Can you commence a lawsuit for trespass against the distributor of such fliers? How about a class action?

Last week in Leyse v Domino's Pizza LLC, 2008 NY Slip Op 01798, the First Department dismissed such an action. The plaintiff attempted to commence a class action against Domino's Pizza seeking an injunction and a judgment declaring that Domino's trespassed on the plaintiff's property by slipping an advertising flier under the door to the plaintiff's apartment without the plaintiff's permission. The plaintiff had not given prior notice to Domino's that he objected to the delivery of the flier. In upholding the dismissal of the action, the First Department stated that such prior notice by the plaintiff to Domino's that he objected to delivery of the flier was required by Domino's constitutional right of free speech. In addition, the Court was concerned about a floodgate of litigation by apartment dwellers suing distributors of restaurant fliers. The Court, however, did not find that the action was frivolous.

So the next time you get that menu slipped under your door don't run to the court house. Instead, order in and watch a good movie or something.

County To Challenge Recognition Of Canadian Gay Marriage

On February 1st, the Fourth Department gave legal recognition in New York to a homosexual marriage that was performed in Canada in Martinez v County of Monroe, 2008 NY Slip Op 00909 (See My Post of February 3rd).

According to canada.com, Monroe County will now appeal the Fourth Department's decision to the Court of Appeals. Monroe County's top political official, Republican executive Maggie Brooks claimed that the Fourth Department's decision was a clear "misinterpretation" of New York law and must be challenged. She stated, "we're letting people in Ontario, Canada define marriage for people who live in New York State. I don't think that's appropriate."

The conservative Coalition to Save Marriage in New York has applauded the appeal stating, "one activist court is not at liberty to substitute a foreign law for our state's law simply because that court may prefer the foreign law. This decision compromises the sovereignty of our state and violates its public policy."

The couple involved in the marriage, Patricia Martinez and Lisa Ann Golden, were not surprised by the appeal. However, the couple said: "We still view our marriage as legitimate. No court decision will devalue or negate what our marriage means to us."

An Important Statute For Blawgers

Sometimes in reading the cases handed down by the Courts I come across a statute which I never knew existed. This happened last week in reading McRedmond v Sutton Place Rest. & Bar, Inc., 2008 NY Slip Op 01086. The statute is an important one that fellow blawgers out there might want to take note of and remember. The statute is Civil Rights Law section 74, entitled  - Privileges in action for libel. It provides:

A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published. This section does not apply to a libel contained in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof.

As noted by the Court in McRedmond, to be "fair and true," the account need only be "substantially accurate." So, blawgers such as this writer can be comforted in knowing that that in summarizing important appellate decision, a defamation action cannot be maintained. If you are a blawger you might want to remember this statute.

NY Blawger Found Liable For Advertising

New York Blawger Andrew Lavoot Bluestone, who writes the New York Attorney Malpractice Blog, was found liable last week by the First Department for impermissible advertising prohibited by the Telephone Consumer Protection Act of 1991 (47 USC § 227) (Stern v Bluestone, 2008 NY Slip Op 00611). He was not found liable because of his blawg. Rather, he was found liable because of a series of faxes he sent to another attorney.

The Telephone Consumer Protection Act (TCPA) of 1991prohibits unsolicited faxes that have the effect and purpose of advertising services, directly or indirectly. In enacting the TCPA, Congress aimed to prevent cost-shifting to unwilling fax recipients and their deprivation of fax machine use. The relevant statute, 47 USC § 227(b)(1)[C] of the TCPA, provides in its pertinent part:

It shall be unlawful for any person within the United States, . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless (certain conditions apply)

The covered material is that which "advertis[es] the commercial availability or quality of any... service." (47 USC § 227[a][5]).

In the case decided by the First Department, Mr. Bluestone sent a series of 14 unsolicited faxes to Peter Marc Stern, Esq., a solo practitioner, between November 25, 2003 and March 29, 2005 [7 of the faxes were addressed to Stern, while the other 7 were addressed to a subtenant of Stern who shared the same fax machine with Stern]. The faxes were entitled "Attorney Malpractice Report" and subtitled "Free Monthly report on Attorney Malpractice From the Law Office of Andrew Lavoott Bluestone." Bluestone authored the faxes, and his legal practice consists primarily of representing plaintiffs in attorney malpractice claims.

Each "Attorney Malpractice Report" consisted of a one-page essay on legal malpractice containing information regarding issues and trends in that area. The faxes included generic statements about the elements of professional malpractice; the most common causes of attorney malpractice litigation; and brief discussions of situations that have given rise to attorney malpractice cases. At the bottom of each fax was a box containing Bluestone's contact information, office address, telephone number, fax number and web site address. Another web site address appeared at the top of the faxes. In seven of the faxes, the box also contained a telephone number to call in order to be removed "from this list." Six of the faxes contained the notation: "This is not an advertisement of the availability of services." Two of the faxes stated that the report is "[p]resented as an [e]ducational document by the [l]aw offices of Andrew Lavoott Bluestone." Bluestone obtained Stern's fax number from the New York Lawyers Diary and Manual.

Attorney Stern sought monetary damages of $500 for each fax sent, as well as treble damages for a willing and knowing violation of the TCPA, plus an injunction. Stern moved for summary judgment asserting he never authorized Mr. Bluestone to fax him, and never had a business relationship with him.

In opposition, Bluestone claimed, inter alia, that his "Attorney Malpractice Report" was not a solicitation for his services, and it was not, and was never intended to be an advertisement. In addition, Bluestone argued that the "Attorney Malpractice Report" was a fully protected non commercial exercise of Bluestone's First Amendment right of free speech.

The First Department affirmed a summary judgment award in favor of Mr. Stern. The Court stated:

While Bluestone contends that his faxes were purely informational and do not explicitly offer services, his position defies common-sense. The faxes at issue certainly have the purpose and effect of influencing recipients to procure Bluestone's services, which are for the specialized field of legal malpractice claims. First, the faxes include the name of Bluestone's law firm and contact information. Second, while the faxes do not directly offer Bluestone's services as a legal malpractice attorney, they indirectly advertise the commercial availability and quality of such services. Not only do the faxes invite contact for further information but they also list two web sites that boast Bluestone's specialization in attorney malpractice suits. Thus, it is clear that the faxes indirectly proposed a commercial transaction and had the effect of influencing recipients to procure Bluestone's services. * * * Bluestone's motive is not a factor in the determination that these faxes are advertisements. It is not necessary to probe that deeply, since simply looking at the faxes in the context in which they were sent is sufficient to establish them to be advertisements. The faxed "commentaries" are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services. By merely stating on the faxes that they are not advertisements of the availability of
services does not make it so, nor should it allow Bluestone to evade the prohibitions of the TCPA (citations omitted). Moreover, Bluestone's professional role as an attorney specializing in legal malpractice claims supports the conclusion that the faxes advertise his services.

Personal Observations: If you ask me, it is the First Department's decision which defies common sense. It is clear that the faxes merely contained educational material about the law of attorney malpractice. It did not list Mr. Bluestone's successful cases, the verdicts he achieved, or anything to the effect that clients were encouraged to contact his office. And the only other thing that the faxes contained was Mr. Bluestone's name, address, telephone number, and website address. Is the court saying that any time an attorney provides educational material about the state of the law and provides his name he is soliciting business? That is just silly. If that were the case any time a CLE lecturer or law professor gave a lecture and gave his name and affiliation he would be "guilty" of advertising. There was nothing on the faxes such as: "Please contact my office if you believe you have been a victim of attorney malpractice." In fact, the faxes explicitly stated that they were not advertising the availability of services, indicating to me that Bluestone did not want to be contacted about his services. Instead, the Court seemed to have the ability to read Mr. Bluestone's mind, an ability which I guess one acquires by wearing a black robe. In addition, the faxes were not sent to potential clients. It would seem to me that for an advertisement to be an advertisement, it must be sent to the potential pool of customers. Unless Mr. Stern himself was a victim of attorney malpractice, I don't see how the faxes could be an advertisement. And there was also nothing on the faxes requesting referrals.

Even if Mr. Bluestone's faxes were advertising, so what. Ok, maybe clogging someone's fax machine is a little annoying, and maybe the TCPA is a good thing. But in terms of legal advertising, it continues to perplex me why attorneys believe they are somehow different or special from the providers of other goods or services. I like advertising. Advertising gives me information about the availability of good and services that I may desire. Imagine a world in which there were no advertising. How would I know what was available to satisfy my wants.  And when it come to legal information, which arguably can be the most confusing of information to absorb, isn't it a good thing that attorneys like Mr. Bluestone seek to educated consumers about the law? 

Appellate Division Recognizes Gay Marriage From Canada

On Friday, in the first ruling of its kind, the Appellate Division, Fourth Department gave legal recognition to a gay marriage from another jurisdiction. The other jurisdiction was Canada, and the Court gave recognition to the marriage under the State's longstanding "marriage recognition rule"  - Martinez v County of Monroe, 2008 NY Slip Op 00909. The facts were as follows:

On July 5, 2004, the plaintiff Patricia Martinez married her same-sex partner, Lisa Ann Golden, in the Province of Ontario, Canada. Ms. Martinez was an employee of the defendant Monroe Community College, in Rochester.  On the basis of that marriage, Ms. Martinez applied to the college two days later on July 7, 2004 for spousal health care benefits for Golden. The College admittedly provided health care benefits for the opposite-sex spouses of its employees. However, on November 24, 2004, the College's Director of Human Resources denied the plaintiff's application for spousal health care benefits.

The plaintiff then commenced an action seeking, among other things, a declaration that the College's failure to recognize her marriage for purposes of her spousal health care benefits application violated her rights under the Equal Protection Clause of the New York State Constitution and Executive Law § 296, and damages incurred as a result of those violations. The Supreme Court had granted the College summary judgment declaring that plaintiff's marriage was not entitled to recognition in New York and that the College did not violate the Equal Protection Clause or Executive Law § 296.

However, as indicated, the Fourth Department reversed and gave recognition to the gay marriage. The Court explained the State's "marriage recognition rule" as follows:

New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the "positive law" of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of "natural law". Thus, if a marriage is valid in the place where it was entered, it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute (quotation and citations omitted).

The Court then stated in part:

We conclude that plaintiff's marriage does not fall within either of the two exceptions to the marriage-recognition rule. * * * The Legislature has not enacted legislation to prohibit the recognition of same-sex marriages validly entered into outside of New York, and we thus conclude that the positive law exception to the general rule of foreign marriage recognition is not applicable in this case.

The natural law exception also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or marriages offensive to the public sense of morality to a degree regarded generally with abhorrence (quotations and citations omitted), and that cannot be said here.

* * *

The Legislature may decide to prohibit the recognition of same-sex marriages solemnized abroad. Until it does so, however, such marriages are entitled to recognition in New York.

Having concluded that plaintiff's marriage to Golden was entitled to recognition in New York, The Court further concluded that, by refusing to recognize plaintiff's valid Canadian marriage, the College violated Executive Law § 296 (1) (a), which forbids an employer from discriminating against an employee "in compensation or in terms, conditions or privileges of employment" because of the employee's sexual orientation. Having found the statutory violation the Court stated it did not need to consider the Equal Protection argument.

It is not immediately clear whether Monroe County or Monroe Community College, the employer in the case, would appeal. Daniel DeLaus Jr., the county attorney for Rochester, said his office was reviewing the decision and would decide whether to seek an appeal. Attorney General Andrew Cuomo also declined to comment, noting that his office may be involved in an appeal as the traditional defender of state agencies. Monroe Community College is a branch of the State University of New York (see, New York Times).

A personal observation: The Court found that gay marriages do not go against "natural law", which it defined as those things which are, "offensive to the public sense of morality to a degree regarded generally with abhorrence." In so deciding, the Court did so as a matter of law, by granting summary judgment to the plaintiff. Forgetting biology for a moment, can it really be said as a matter of law that gay marriages are not "offensive to the public sense of morality to a degree regarded generally with abhorrence." Most major religions still condemn gay marriages as an offense against moral codes, and in vote after vote in various jurisdictions people continue to reject gay marriages by significant margins. The Court thus seemed to brush aside the public's rejection of gay marriage in various forms. It is at least questionable whether people consider gay marriage with abhorrence. Thus, I believe the Court should not have decided the issue on summary judgment, and instead it should have let the matter proceed to a jury. 

Cell Phones, Schools, and Searches - How Far Can They Go?

The issue of cell phones in schools seems to keep coming up. New York City's ban on cell phones in schools has been upheld, but the issue remains contentious between parents and school administrators.                 Now the issue may be turning from the ban itself to just how far can school administrators go to search students for prohibited cell phones. And what if in searching students for cell phones, other more illegal contraband is found? An interesting case from the First Department yesterday sheds some light on the matter - Matter of Elvin G., 2008 NY Slip Op 00555.

Elvin G. was a 15 year old student in middle school. The teacher of his class reported to the dean of the school that a noise, which sounded like a ringing cell phone, was disrupting her class. The dean entered the classroom to investigate and enforce the school rule that prohibited cell phone use in class. According to Elvin, the dean had the students stand up, and started checking their pockets for something that was making the musical sounds. As a result, Elvin G. took a hunting knife with a six-inch blade out of his pocket. The cell phone apparently was not found.

Elvin G. was then charged as a juvenile with criminal possession of a weapon in the fourth degree, and unlawful possession of a weapon by a person under sixteen. He moved to suppress the knife on the grounds that it was unlawfully obtained in violation of state law and the Federal and State Constitutions [The presenting agency claimed that in fact no search occurred because Elvin was holding the knife in plain view]. The Family Court summarily denied Elvin's motion to suppress without conducting a hearing.

The First Department affirmed accepting Elvin's version of the events as true. The Court set forth the law as follows: When there are reasonable grounds for suspecting that a search will turn up evidence that the student has violated or is violating the law or the rules of the school, a search is permissible when the measures adopted are reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction. And it stated:

[A]lthough the dean may not have had reasonable suspicion that [Elvin G.] was the offending student, such individualized suspicion in the context of an administrative search such as this was not required. The dean clearly had a reasonable basis to believe that some student in the classroom was violating school rules and there is no question that such breach was disrupting the class.

[I]t cannot be said, as a matter of law, that asking students to empty their pockets in order to restore order to the classroom and enable the classroom teacher to resume the lesson was unreasonable or overly intrusive.

The next case to come along will probably be where school administrators not merely ask students to empty their pockets, but have some school personnel actually reach into students' pockets or bags.

Multiple Sclerosis Disability Discrimination Verdict Overturned

It is unlawful to terminate an employee because of a disability. The specific New York law prohibiting such discrimination is Executive Law § 296(1)(a) which provides in part:

It shall be an unlawful discriminatory practice for an employer * * * because of the disability * * * of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

It is not easy to recover on an action commenced under Executive Law § 296(1)(a) as is illustrated by the First Department's decision last week in Jordan v Bates Adv. Holdings, Inc., 2007 NY Slip Op 10465. In order to recover in a disability lawsuit an employee has an initial burden of establishing a prima facie case of discrimination. The employer then can overcome the prima facie case by showing a legitimate reason for terminating the employee. However, the employee must then demonstrate that the employer's reasons for termination were pretextual, and the ultimate issue of discrimination always remains with the employee.

In the Jordan case, the plaintiff had multiple sclerosis who used a cane. She was hired as a senior vice president by a small advertising agency. Approximately six months later the advertising agency merged with another advertising company. Less than a year after the merger, the plaintiff was terminated. When asked about her use of the cane, the plaintiff had lied and told her bosses that she had a skiing injury. Company officials then repeatedly questioned her about the use of the cane and she did not reveal the truth because she believed that if she did reveal her disability she would be fired. In one instance at a presentation one executive knocked over the plaintiff's cane which was leaning on a chair and sarcastically remarked, "we've got a cripple."

After the merger of the two companies, the plaintiff was told that the company that it could not afford everyone, and she had been relieved of a major account. Later she was terminated.

A jury awarded the plaintiff $2.5 million dollars plus attorney's fees. However, the First Department overturned the jury's verdict based on the employer's reasons for termination. The employer's executives testified consistently that that plaintiff's termination was financially motivated, and that the merger and the loss of major clients had precipitated layoffs of a large portion of the workforce, including executives more highly placed than plaintiff. The employer's former chief financial officer also testified that as a result of the merger, approximately half of the staff was terminated.

Because the plaintiff introduced no evidence to contradict the evidence that her termination was financially motivated, the Court found that jury's verdict was against the weight of the evidence and vacated the award.

Surviving Partner Of Civil Union Not Entitled To Workers' Compensation Death Benefits

More and more jurisdictions are recognizing civil unions between same sex couples. What happens when one of the partners to a civil unions dies because of a work related injury. Is the surviving partner entitled to New York Workers' Compensation Death Benefits? The Third Department was faced with this question yesterday in Matter of Langan v State Farm Fire & Cas., 2007 NY Slip Op 10438 and decided that the surviving partner is not entitled to Workers' Compensation Death Benefits.

In that case, John Langan and Neal Conrad Spicehandler entered into a civil union in Vermont (see Vt Stat Ann, tit 15, § 1201) in November 2000. In February 2002, Spicehandler (decedent) was struck by a car while working. After undergoing resulting surgery the decedent died. Langan (claimant) filed workers' compensation claims for decedent's injuries, and for death benefits as decedent's surviving "spouse" pursuant to Workers' Compensation Law § 16 (1-a). The Worker's Compensation Board found that the claimant did not have standing as a "spouse" to assert the death benefits claim.

Under Workers' Compensation Law § 16 (1-a) certain benefits are payable to the surviving spouse, which is defined as "the legal spouse" of the deceased employee. No other definition of spouse if given.

On claimant's appeal, he made three arguments: (1) Workers' Compensation Law § 16 (1-a) includes a partner to a civil union as a surviving spouse; (2) the doctrine of comity required New York to recognize claimant as decedent's surviving spouse for death benefits purposes and, (3) the deprivation of death benefits to same-sex partners of a civil union violates the Equal Protection Clause of the US Constitution. The Third Department rejected each argument.

First, the Court examined the statute's plain language and legislative history and determined that a "legal spouse" was a husband or wife of a lawful marriage. Second the Court found that doctrine of comity did not require New York to confer upon partners of civil unions all of the legal benefits recognized by Vermont. The Court noted that while Vermont considered parties to a civil union to be "spouses" under that state's law it did not consider such parties to be part of a "marriage"(see Vt Stat Ann, tit 15, § 1204 [a], [b], [e] [9]; Vt Stat Ann, tit 15, § 1201 [2], [4]). The Court further stated that extension of benefits to civil union partners should entail a consideration of social and fiscal policy more appropriately left to the Legislature. Third, and finally, the Court found that prior case law had established established that confining marriage and all the laws pertaining either directly or indirectly to the marital relationship to different sex couples was not offensive to the Equal Protection Clause.

Will Your Neighbor's Deed Be Available Online?

More and more public records are being made available online. This is a generally a good development. After all, who wants to trudge on down to the County Clerk's Office and deal with the clerk or the microfiche reader. Various commercial enterprises are seeking to put this public data online seeking to make a buck. One such company is Data Tree, LLC.

On Tuesday the Court of Appeals had before it an interesting Freedom of Information request by Data Tree to get access to Suffolk County land records in order to put them online - Matter of Data Tree, LLC v Romaine, 2007 NY Slip Op 09906. 

Data Tree is a national company that provides online public land records such as deeds, mortgages, liens, judgments, releases and maps, and maintains a database of nearly two billion documents, providing its customers with immediate electronic access to the information. Its customers are those entities who purchase, sell, finance and insure property. Data Tree obtains the public land records by requesting them from county clerks, or other public officials who have the responsibility of recording and archiving such documents, throughout the country.

In January 2004, Data Tree, pursuant to the Freedom of Information Law (FOIL) [Public Officers Law § 84 et. seq.] wrote the Suffolk County Clerk's Office requesting copies of public land records from January 1, 1983 to the present. Data Tree requested the records in TIFF images or in images in the electronic format used by the County, on CD-Rom or other electronic storage medium regularly used by the County.

The Clerk denied the request on three grounds: (1) the FOIL request would require re-writing and reformatting of the data; (2) disclosure would constitute an unwarranted invasion of personal privacy due to the volume of the records requested and the commercial nature of Data Tree's business; and (3) the records were available for copying and/or downloading from the computer terminals at the Clerk's Office.

After the Clerk denied the request, Data Tree commenced an Article 78 proceeding directing the Clerk to provide the records. Both the Supreme Court and the Appellate Division granted summary judgment to the County denying Data Tree's request.

However, the Court of Appeals reversed and found that questions of fact existed as to whether compliance with Data Tree's request would require the Clerk to disclose private information exempt from FOIL, and whether the Clerk had the ability to comply with the request in the format sought by Data Tree.

The Court of Appeals stated that Data Tree's commercial motive for seeking the records was irrelevant; Data Tree was not seeking a list of names and addresses to solicit any business. Rather, Data Tree was seeking public land records for commercial reproduction online. The Court acknowledged that some of the documents could contain private information, such as social security numbers and dates of birth etc. However, the Court stated that there were questions whether such private information could be redacted and thus remitted the matter to Supreme Court to determine whether such information could be redacted. The Court also found that there was conflicting affidavits, and thus questions of fact, as to whether Data Tree's request could be fulfilled by merely retrieving information already maintained electronically by the Clerk's office or whether complying with Data Tree's request would require creating a new record.

The march of public data to online sources is likely unstoppable. The more appropriate question might be whether we should require all public agencies to put all data online easily accessible to all? Or should we rely on commercial enterprises like Data Tree to provide such information?   

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?