You've got under a week to apply!

Here's the announcement that appeared the other day in the New York Law Journal:

Lawyers interested in obtaining the Democratic nomination for a county-wide Civil Court vacancy in Manhattan must submit their application to a screening panel formed by the New York County Democratic Party no later than Friday, June 6. Copies of the required application forms may be obtained from the panel's administrator, Vilia B. Hayes, of Hughes, Hubbard & Reed, (212) 837-6000, or from the Party's office, (212) 687-6540. Under party rules, it may only endorse a candidate approved by its screening committee. The panel is required to forward the names of the three candidates it finds best qualified for the position. The Civil Court vacancy has been created by the appointment of Civil Court Judge Shirley Werner Kornreich to an interim seat on the Supreme Court in Manhattan.

"And they're off!"

Everyone knows Al Gore likes to eat. But should a dinner run a guy $28,500?

Apparently, the Democratic National Committee (DNC) thinks supporters should fork over a small fortune for a "private" dinner with the former VP.

Here's the text of the e-mail I just received:

This Saturday, May 31st, Vice-President Al Gore will be coming to New York City to raise funds for the Democratic National Committee. After a long, healthy, and grueling campaign season, it's time to unite as a party. By funding the DNC, your funds will go to aiding the Democratic nominee for the long fight ahead against Senator McCain.  Whether you’re a Clinton or Obama supporter, please consider contributing to the DNC to ensure a Democratic victory in November. I hope to see you on Saturday for what promises to be a memorable evening.

Tickets for the reception are $1000 and tickets to the private dinner are $28,500.

How's that for an inconvenient truth?

Got an invitation to an interesting CLE event hosted by the Jewish National Fund on Monday, June 2, 2008, at 6:30 PM.

The evening's topic is: "Estate Planning & Cohabitation Agreements for Unmarried Couples."

Here's a copy of the invite:

Here's some information about the instructors:

In Muniz v. Katlowitz, David Muniz sought to recover damages for medical malpractice from Doctors Katlowitz and Lehman and the Maimonides Medical Center (MMC).

Muniz alleged that his ilioinguinal nerve (a groin area nerve) was injured during the course of surgery performed by MMC’s physicians -- Lehman (a resident) and Dr. Katlowitz (the attending physician).

When the Richmond County Supreme Court denied the defendants’ request to dismiss the case, an appeal to the Appellate Division, Second Department, ensued.

The AD2 determined that Dr. Lehman and his employer, MMC, were both entitled to relief in their favor because: “A resident who assists a doctor … and who does not exercise any independent medical judgment cannot be held liable for malpractice so long as the doctor’s directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene.” (Dr. Lehman and MMC satisfied that burden by way of deposition testimony and hospital records.)

Dr. Katlowitz wasn’t as fortunate. Since his expert’s statements weren't in proper form -- the affirmation wasn’t made under penalty of perjury -- the court was unwiling to accept the analysis. Katlowitz also failed to show that a “reasonably prudent person” in Muniz’s position would have undergone the procedure if fully informed of the consequences.

Guess you could say Katlowitz took that one to the groin.

To download a copy of the Appellate Division’s decision, please use this link: Muniz v. Katlowitz

Is starting (or maintaining) a business as challenging as finding a date? 

Many appear to think so. That's why the good folks over at "The Hatchery" are promoting an event called "Hatch Match."

It's very much like "Speed Dating" -- where you're "forced" to go from table to table meeting different people (for a delineated time period) -- except this is for business networking and related purposes.

Here's a copy of the e-mail I received earlier today. (The spacing problems were in the original e-mail I received. I also took the liberty of deleting the accompanying advertising.)

HATCH MATCH in conjunction with Pace University SCI2 Incubator for New York's Internet Week     DETAILS:       WEDNESDAY, JUNE 4, 6-8PM PACE UNIVERSITY 100 Spruce St (between Gold St and Williams St)                                           FOOD & DRINKS           COST:       $15 ONLINE UNTIL JUNE 3 $20 AT THE DOOR           DRESS:       Business Attire   WHAT IS HATCH MATCH? Active facilitated networking with a twist.What defines a great networking event is meeting the people you need to meet and having great conversations. So, we will help you do that. Hatchery will create introductions and provide you access to advisors and experts to help you grow your businesses.The twist is a component like speed dating. There will be about 20 experts from angel investors, venture capitals, technologists, legal, marketing, etc. All there for you to access.

When we checked the The Hatchery's website just a few moments ago, this is the list of people the company claims will be in attendance on the 4th:

Name	Company	Title
David Reiff	Manor Trade Development Corp	President
Michael Novi	Rahha, Inc.	President
Jeff Frese	Freshman Fund	Founder
Tom Grech	thecollegenitelife.com	Director
Sunil Sreenivasan	Anagraf	software engineer
Charlie Oliver	Blue Orchid Films LLC	CEO / Founder
David Reinke	StyleHop	President
David Reinke	StyleHop	President
Marc Scoleri	The Art Institute of NYC	Director of Career Services
parnell pierre-louis	Alloy Marketing.com	OOH & Interactive, specialist
Sam Hodges	Pequot Ventures	Associate
Mary Lee	Innovative Microsystems Consulting, Inc.	President
Dmitri Soubbotin	SenseBot	Founder
parnell pierre louis	alloy	Interactive, Specialist
Patrick Dolan	IAB	SVP & Chief Administrative Officer
Froilan Mendoza	StyleHop Corp	Chief Technology Officer
Andy Chang	Panther Express CDN	Business Development
Lloyd Trufelman	Trylon SMR	President
Eli Mandelbaum	Parentricity, Inc.	Founder
Joel Solar	Meyers Associates L.P.	Investmant Banker
Belinda Ephraim	Manilla Consulting Group, Inc.	President
rajan tawate	http://www.meetingflex.com	founder
Matthew Knell	MTV Networks	Sr Manager, Social Media Product Development
Tim Kaelin	Darwinian Media Interactive	CEO
David Maccarella	AdChannel	Founder
Milla Bakhareva	istari technologies	CEO
Will Suarez	Minyanville Publishing & Multimedia	VP Sales
Tom Stein	Goosie Cards	COO
Jeff Marchetti	Goosie Cards	Managing Partner
Yuli Ziv	http://myitthings.com	President & Co-founder
Jordan Stolper	Startup	Founder
Steve Ward	Trademark Associates of NY Ltd.	President
Ed Gould	EAG Americas Corp	President
Tim Marman	Notches, Inc.	Founder & CTO
Heekyung Kim	Pequot Ventures	Associate
Jeevan Padiyar	element^n	Principal, Marketing and Business Development
Dawn Rowan	Rowan Communications	President
Rich Hutnik	IAGO World Tour	President
Ido Tuchman	tuchmanlaw.com	owner
Susan Fleming	Shulman Fleming & Partners	Partner
Norm Shulman	Shulman Fleming & Partners	Partner
Norm Shulman	Shulman Fleming	Managing Partner
Shakhruz Ashirov	Dandelife Inc	CTO
Jon Thornton	ParkWhiz	CTO
Michael Hallinan	MediaMerx	COO
Richard Nacht	Blogging Systems Group	CEO
Michael Gruen	Greyworks	Associate
Shenlei Winkler	Fashion Research Institute, Inc.	CEO
Asi Burak	ImpactGames	Co-Founder
Aaron Carver	PoPo Media	Founder
Denise Edwards	Edwards Consulting	President
Zachariah Durand	itMayBe Media	Co-Founder
Robert Samet	Madison Search Partners	Managing Director
roget romain	sample my melodyz Inc.	CEO
lloyd williams	sample my melodyz Inc.	Web Administrator
Andrew Ward	TrustFX	CEO
Jared Weiss	madProper	The Guy
Charles Strout	Local Fork, Inc.	President
Rose-Del Davies-Adewebi	First Touch Technology	Principal
Joao Carreira	Critical Links Inc	CEO
simon lloyd	DUBAI DREAMZ	MR
Michael Rodov	ZepFrog	CEO
Matthew Jording	RadiusIM	Developer
Andrew Breen	KnowMe	Founder
Vikash Mishra	MediaMerx, Inc.	CTO
Michael Feigin	Law Office of Michael J. Feigin, Esq.	Patent & Trademark Attorney
Douglas Krugman	Protocol Partners	Partner
Spencer Bartels	TruPing	Vice President Sales & Marketing
Angela Ciccotti	TruPing	COO
Yossi Zilberman	Buffalo north	President
Susan Mangiero	Pension Governance, LLC	President and CEO
Kevin Hawkins	Feed2Cell	Owner
Jeff Marchetti	Goosie LLc	Partner
Anthony Jones	The Jones Firm	Partner
Karen St. Clair	Wett Giggles,Inc	President
Ariel Steinlauf	Newkio	Founder & CEO
David Owen	Sinu	principal
Ilya Zatulovskiy	Camlink	CEO
Deniz Onal	Goldman Sachs	Vice President
Julie Ruvolo	VentureBeat and others	Consultant and Contributor
Bill Weber	Bill Weber Studios/RoleModel.TV	Chief Creative Officer
Jeff Justice Williams	Seedco's Business Solutions Center	Business Consultant
Charles Harris	J.Ester MarquezLtd	V.P.of Marketing
Seth Hidek	MiltonAlexander LLC	Associate Partner
Rodney Settles	Cogent Communications	Regional Account Manager III
Christine Warner	Pari Passu	Sales Rep
Matthew Sola	UBS AG	Investment Consultant
Robyn HATCHER	Robyn's Speakeasy Communications	Owner
Elli Papadopoulos	NYC Business Solutions	Account Executive
Swatick Majumdar	Chatsworth Securities LLC	Managing Director
Tess Ross	SpellSpace.com	CEO
Dave Ross	SpellSpace.com	CTO
Valerie Gurka	Inspire Solutions	Founder
Eric Schlissel	FanRocket	Consultant
Gregory Tarris	Business Development Associates, LLC	Managing Partner
Gregory Tarris	Business Development Associates, LLC	Managing Partner
Alan Powell	LookNow Inc	VP Marketing
Nance Schick	Law Office of Nance L. Schick	Attorney/Entrepreneur
Jonathan Landau	WeHive	Founder
Erika Arno	Kurland Realty	Real Estate Salesperson
Tereza Nemessanyi	High Ridge Group LLC	Managing Partner
lucinda cross	LC Associates	President
Robert Abrams	Robert Abrams Consulting / ExploreDance.com	President
Barbara Bellafiore	Bell Communications	Consultant
Janet Neal	The Professional Women's Center	Executive Director & Founder
Avishai Weiss	Gridpop	Founder
Donald Schwartz	Imagelink Productions	Director of Online Promotion/Technical Writer
dawn barber	NY Tech Meetup	Co-Organizer
Ken Zamkow	Project Honeybee	Founder
James Wallace	Price Protectr LLC	Co-founder
karl schmieder	messaginglab	managing partner
Joseph Okojie	Sweetsecond.com	Founder
David Brooks	SPS Group Inc.	President
Markus Wagner	i5invest Incubator	Founder
MIRIAM SAKOL	BRANDISHMENTS Consulting	Managing Director
Frank Waters	The 1209 Affair	President
Mark Shore	Shore Capital Management LLC	President & Chief Investment Officer
Russell Hanson	SciColab	CEO
James Dorans	Keltic Nation	Jr Partner
Sumya Ojakli	Evolution & Strategy	Managing Director
Emmanuel St Jean	WaMu	Financial Center Manager
Tim Watson	Gagos Technologies, LLC	Owner
james decrescenzo	internet area network inc	president
Marcelo Ballester	LatinVision Finance	SVP
Frank Russo	RoughWave Advisory Group	Consultant
Anne Andiorio	Corporate Development Advisory	Director
Anita Modha	UPWorld	Mktg Manager
Srini Masanam	NYSE Euronext	Managing Director
mike garcia	AnotherMonster.com	Principal Strategist
Anya Feinberg	Manufacturing In China	owner
RONALD ENGLAND	Westbrook Capital	Partner
ron mullen	workflowone	sales mgr
David Salinas	Digital Surgeons	CEO
Mitria Di Giacomo	Nexus Plexus	President + Chief Branding Strategist
Kate Fischer	NotHomeAlone	Project Director
Josh Rosenberg	Grubb and Ellis	Associate Director
Rand Brenner	Licensing Consulting Group	President & CEO
Peter Rothberg	Duane Morris LLP	Partner
marc dole	Hatchling Studios	CEO
Terence Dover	Txttunes	SVP
Chuck Sacco	PhindMe	CEO
Arpan Jhaveri	SIPHS, LLC	CEO / Co-Founder
Josh Levy	BeenVerified.com	CEO
Ross Cohen	BeenVerified.com	VP, Business Development
Ben Yandell	Yandell and Company	President
Jane Lu	DressKing Inc.	CEO
Frank Davis	Lek securities	Senior Boat Man
Matthew Gordon	Oak Street Advisors	Managing Director
Barbara Shimoda	ShimodaWorld LLC	VP
leslie fox	lfoxcopy inc.	copywriter
Bill HARDING	TCO	CRO/General Manager
Jabril Bensedrine	The Triana Group, Inc.	Managing Director
Joel Solar	meyers Associates L.P	investment Banker
Bill HARDING	TCO	CRO/General Manager
Craig Alberino	ActiveCause	Founder, CEO
Damion Hankejh	ActiveCause	Founder, CTO
Susan Pickman	The Pickman Group LLC	President
Justo Valladares	Merrill Lynch	Financial Advisor
Todd Bacastow	VC	Associate
David Owen	Sinu	principal
kiho shin	compact-impact.com llc	partner
Sean O'Rourke	Syzygy 3, Inc.	Principal

This could be eggciting.

If you'd like to sign up for the event, you can use this link: Business Speed Dating (June 4, 2008)

In Wosner v. Elrac Inc., Moshe Wosner was seriously injured in a vehicle rented by Joel Leibowitz under a long-term lease with Elrac Inc.

While the accident occurred in New Jersey, both occupants — Wosner and Leibowitz — lived in New York.

Things got a bit more complicated because the other driver was a Pennsylvania resident, and Leibowitz’ rental car was registered and insured in New Jersey by Elrac (a Delaware Corporation with New Jersey headquarters). Yet, when litigation ensued, the New York County Supreme Court found that New York law governed, and Elrac’s request that Jersey law be applied was denied.

On appeal, the Appellate Division, First Department, noted that “when the driver-host and the passenger-guest share a common domicile, the law of that state generally controls.” Interestingly, the AD1 viewed the fact that the accident occurred in Jersey as unavailing since the Wosner and Leibowitz “were traveling between two New York locations” and “happened to pass” into another state.

Now how fortuitous was that?

To download a copy of the Appellate Division’s decision, please use this link: Wosner v. Elrac Inc.

A reader sent us an observation which we thought we'd share with you.

Over six months ago, the New York City Department of Buildings (DOB) posted a "Partial Vacate Order" on the building which houses the New York City Department of Education (DOE)'s Manhattan headquarters.

While the DOB's Order (dated 11/13/07) indicates there are on-site conditions which are "imminently perilous to life," we're advised that the DOE continues to operate from the structure.

Here's the commentary that accompanied the reader's photograph:

The Dept of Education has so much time and resources to persecute its employees, but apparently none to correct the violations that led the Buildings Dept to place a partial vacate order on DOE headquarters -- the Tweed Courthouse. Since the order states that the entire outside perimeter of the building is unsafe and should be vacated, shouldn't people be kept away from the building's perimeter and concomitantly, the building itself? I guess it's more important to collect $3,000.00 fines than look after the safety of the Department staff and the students who attend the High School located in the building.

Can I have Joel Klein arrested for crossing the perimeter and entering the building in violation of the order?

Have Chancellor Klein arrested?

We dare ya!

Here's an opportunity to attend a free CLE sponsored by our friends over at AmericanLand (and earn three CLE credits):

For additional information, please contact our friend, Marc Lawrence, VP of Sales and Development, at 212.239.6531, c 917.204.5363 or e mlawrence@americanlandservices.com

In Snyder v. Simon, Donna Snyder sued Dr. John Simon alleging he committed malpractice and failed to secure her “informed consent” to eye surgery which caused double vision, pain, and an outward-turned right eye.

When the Albany County Supreme Court granted Simon’s request to dismiss the case, Snyder appealed to the Appellate Division, Third Department, claiming that her witnesses’ sworn statement raised issues which needed to be examined at a formal hearing or trial.

While the Appellate Division, Third Department, affirmed the malpractice claim’s dismissal (because Snyder failed to address how Simon's treatment deviated from “accepted medical practice”) it saw unresolved issues as to whether Snyder had been warned of the surgery’s consequences -- such as the possibility of double vision.

"There’s no disguise for that double vision.”

It's never a good idea to take advantage of the people that work for you -- particularly if you're employed by the City of New York.

Erica Zigelman is a principal at Middle School 322 (MS 322) here in Manhattan.

In 2006, through 2007, three teachers from the school were asked to assist Zigelman's daughter with her Math, Spanish and English assignments.

Of course, the New York City Conflicts of Interest Board (COIB) eventually got wind of the arrangement (as did the New York City Department of Education (DOE)) and an investigation ultimately resulted in an admission by Zigelman that her conduct violated DOE's Rules and Procedures and the New York City Charter.

According to materials released by COIB on May 8, 2008, the principal's children attended school up in Rockland County. Since that County had a greater number of weather-related school closures (due to snow), Zigelman claimed to have had only "two choices:" stay home with her daughters or bring them to MS 322. (She obviously chose the latter.) Zigelman also claimed that a "sex offender" was "loose" in the neighborhood and that she was uncomfortable leaving her daughters at home while she was at work.

Notwithstanding these explanations, Zigelman eventually conceded that her conduct violated rules which prohibit City employees from using their positions to secure any "personal or financial benefit" for themselves or "any person or firm associated" with them, and, agreed to pay fines totaling $3000.

We're thinking it would have been a whole lot cheaper to hire a babysitter.

To download a copy of the underlying papers released by COIB, please use this link: Press Release, Stipulation & Disposition

Acclaimed painter and photographer, Chuck Close, will be hosting a reception for Congresswoman Carolyn Maloney at his Manhattan studio on Monday, June 2, 2008, from 6:00 to 8:00 PM.

Should you have an interest in attending, here are the event particulars:

To download a copy of the event flyer and contribution form, please use this link: Close with Maloney

St Vincent Catholic Medical Centers wants to build a 625,000 square foot state-of-the-art medical facility which will house 365 beds, 18 operating rooms, and a new emergency room and trauma center.

BUT the plan involves destroying landmarked structures and has also triggered vehement community opposition.

Here's how the hospital's lobbyists are spinning the proposal:

St. Vincent’s and the Rudin Family Introduce Revised Design While St. Vincent’s Applies for Hardship Exemption on O’Toole Building

Saint Vincent Catholic Medical Center badly needs a new hospital – currently its medical facilities are inefficiently dispersed among eight separate buildings - but lacks sufficient funds for construction. 

To remedy this problem, it had sought to execute with the Rudin family what both sides regard as a mutually beneficial deal. St. Vincent’s would sell to the Rudins eight buildings on the east side of Seventh Avenue between 12th and 13th streets, for $310 million. The Rudins would demolish these buildings to clear space for a new residential tower and several town homes; St. Vincent’s would put the money it received from the Rudins toward construction of a new $835 million, 21-story hospital on the site where the O’Toole building currently stands.

As St. Vincent’s buildings sit within a historic district, the planned demolitions require the approval of the New York City Landmarks Preservation Commission (LPC). Earlier this month LPC dashed the St. Vincent’s/Rudin proposal when the commissioners unanimously rejected demolition of the O’Toole building, citing it as an important example of modern architecture. Some commissioners also objected to elements of the Rudin design plan for residential development.

Though the LPC ruling presents a major challenge, this week St. Vincent’s and the Rudin family took steps intended to keep their project moving forward. St. Vincent’s filed with LPC a “hardship application” meant to show that demolition of the O’Toole building is critical to enabling St. Vincent’s to carry out its charitable mission of providing medical treatment. 

Though LPC has not granted a hardship exemption since 1986, at a public meeting Monday night with members of Community Board 2 representatives of St. Vincent’s expressed confidence that they could demonstrate why a new hospital building was essential for St. Vincent’s, why the O’Toole building site is the only reasonable location for such a facility, and why preservation of the O’Toole building is incompatible with construction of a modern hospital.

On another front, the St. Vincent’s and the Rudin family released new design plans that respond to comments from LPC. The new proposal would preserve four buildings within the historic district that had been slated for demolition; it would also significantly decrease the height and bulk of the planned residential tower. Specifics of the revised St. Vincent’s/Rudin design plan include:

• The preservation, renovation and adaptive reuse of four buildings East of Seventh Avenue and within the existing St. Vincent’s campus (Nurses, Raskob, Smith, Spellman)
• A reduction of 30 feet in height and 60 feet in width of the main residential building slated for 7th Avenue between 11th and 12th Streets; these changes will diminish the width of the building by nearly a third
• A reduction of 9 percent on the height of the proposed hospital, bringing the total height (including mechanical installations) below 300 feet; also a reduction in the width of the tower by 53 feet

Public discussion of St. Vincent’s hardship application and of the Rudin family’s revised design will begin at an LPC meeting on June 3.

 

 

In Crooms v. Sauer Bros. Inc, James Crooms filed a personal injury lawsuit after he fell in the backyard of Sauer Brother’s apartment building.

Crooms fractured his left foot’s metatarsal bone and developed a deep vein thrombosis from the cast. In addition, Crooms’ ankle and spine injuries required two surgeries. After a jury trial, the Bronx County Supreme Court awarded Crooms a lowly $75,000 for past pain and suffering and zilch for future pain and suffering.

During the trial, Crooms was questioned about an affirmation he had signed in connection with an auto accident that happened after his fall and repeatedly testified that the affirmation was “erroneous.”

Although Crooms sought to offer into evidence a police report and other documents which would  bolster his testimony, the trial court rebuffed that effort since the issue was “collateral” and only spoke to credibility.

Crooms appealed to the Appellate Division, First Department, arguing that he should have been permitted to prove he hadn’t been in an auto accident after his fall so as to avoid any speculation by the jury. He further asserted that the jury’s verdict was “against the weight of the credible evidence” and materially deviated from “reasonable compensation.”

The AD1 concluded that the dispute over his affirmation was a “collateral matter,” as it had no relevance to “any issue in the case, other than credibility.” At no point did any questioning suggest that Crooms’ injuries were caused by the auto accident; rather, during the summation, defendant's counsel reinforced that the document had been offered to show Crooms had signed a false statement. The appellate court further held that because Crooms made a full recovery, with no disability or permanent injury, there was sufficient evidence to support the jury’s decision to deny him any compensation for future pain and suffering.

With that, Crooms was handed crumbs.

To download a copy of the Appellate Division’s decision, please use this link: Crooms v. Sauer Bros. Inc

If you're a Democrat living in the Sarasota (Florida) area, you've got to meet Christine Jennings.

Chris worked her way up from bank teller to founder and CEO of Sarasota Bank. In 2006, she ran for the congressional seat occupied by Katherine Harris. 

Ironically, the results of that last election met with considerable controversy, as 18,000 touch-screen votes were "lost" due to a purported malfunction, costing her to lose by only 369 votes. 

Since Election Day, Chris has worked tirelessly for election reform. She has made national headlines and helped produce changes in the way votes will be cast and counted in Sarasota and elsewhere in our nation.

I had an opportunity to meet with Chris and her son while they were visiting the New York City area. She is a fine lady, a person of integrity and resolve, who will serve her constituents with distinction and honor.

Here are the particulars for an event she is having on Wednesday afternoon, May 28, 2008:

To download a copy of the event flyer, please use this link: Jennings with Hoyer (May 28, 2008)

What great thinker came up with that line?

Not Plato or Socrates. 

Try "Dominque," a purported cheerleader and member of a "new all-girl singing group" called Beach Girlz.

According to her profile, which appears in the May 2008 issue of a South Florida sports magazine called UNRESTRICTED, "If she could give one piece of advice it would be to stay true to yourself."

Here's the article: 

I imagine myself outta here!

Have a great holiday weekend, everyone!

Senate Standing Committee on Judiciary
Senator John A. DeFrancisco, Chair
10:00 AM, Wednesday, May 28, 2008
Room 124 CAP

The Committee will consider the following nominations:

Shirley W. Korneich of New York City as a Justice of the Supreme Court of the First Judicial District
Jhilmil Ghaleb of Cooperstown as a Judge of the Otsego County Court
Honorable Stephen R. Hunter of Chester as a Judge of the Orange County Surrogate Court
Honorable Thomas E. Walsh, II of Haverstraw as a Judge of the Rockland County Surrogate Court
O. Peter Sherwood of New Rochelle as Judge of the Court of Claims

City Councilmember John Liu is having a fundraiser on Wednesday, June 11, 2008, at 2 Rivers Restaurant & Bar at 10 Murray Street, here in Manhattan.

It's rumored that John is considering a run for Public Advocate or Comptroller.

The suggested minimum contribution is $175.

Here's the invite:

In Timan v. Sayegh, Yvette Timan sought to have the venue of her medical malpractice and wrongful death case changed from the Bronx to Westchester.

Timan’s decedent committed suicide in Yonkers, where he lived with his family. He received medical treatment from doctors whose offices were located in Yonkers. His pharmacies were located in Yonkers. And, following the suicide, the Yonkers Police Department investigated the incident, and the Westchester County Medical Examiner’s Office performed the autopsy. Yet, Timan filed her lawsuit in the Bronx because that is where one of the defendants lived.

When several of the defendants sought to move the case from the Bronx to Westchester, the Bronx County Supreme Court granted the request.

On appeal, the Appellate Division, First Department, reversed. The AD1 concluded that “general statements as to witness inconvenience” weren’t enough to trigger a venue change. Rather, Sayegh would have to show that the witnesses had been contacted, that they were willing to testify, and that attending trials in the Bronx would be an inconvenience. Further, since most of the witnesses resided in Yonkers -- which is equidistant between the Bronx and Westchester County -- any inconvenience was viewed as inconsequential.

Apparently, the Justices of the AD1 have never tried to park in the Bronx.

 To download a copy of the Appellate Division’s decision, please use this link: Timan v. Sayegh

Bronx Boro President (and candidate for New York City Comptroller) Adolfo Carrion, will be honored at a reception to be held on June 19, 2008, from 6:00 to 9:00 PM at Bayard's Events & Catering, One Hanover Square (here in Manhattan).

ESPN's Radio Host and New York Yankees' Broadcaster MICHAEL KAY will be the event's special guest.

Before you go running over, the suggested minimum contribution is 500 bucks. Here's a copy of the invite:

In Martinez v. Pioneer Transp. Corp., Gladys Martinez and Juan Rivera (plaintiffs) sued Pioneer Transportation after they were hit by one of the company's school buses.

Although Martinez and Rivera were taken to the hospital and released later that day, Martinez lost three months’ of work, while Rivera missed two months of school. Yet, Pioneer argued that the case should be dismissed since the plaintiffs hadn’t suffered a “serious injury.”

When the Bronx County Supreme Court granted Pioneer’s motion the plaintiffs appealed.

On its review of the record, the Appellate Division, First Department, found that there were unresolved issues which warranted further inquiry. Although some of the medical reports showed no serious injury, others demonstrated that the plaintiffs each had herniated discs and a limited range of motion. Because of that conflicting medical evidence, the AD1 was of the opinion that Pioneer wasn’t entitled to the lawsuit’s dismissal.

Now that’s serious!

To download a copy of the Appellate Division’s decision, please use this link: Martinez v. Pioneer Transp. Corp. 

Last night, the Judicial Screening Panel for the First District (Manhattan) selected three candidates who may vie for the Civil Court seat formerly occupied by the Honorable Paul G. Feinman -- now a New York County Supreme Court Justice.

The three contenders (in random order) are:

HON. GERALD LEBOVITS (a Housing Court Judge)

NANCY M. BANNON

FRANK NERVO

When contacted, Sylvia Di Pietro, the Panel's Administrator, would not offer a comment (citing confidentiality concerns and her unwillingness to compromise the integrity of the process).

Our sincerest congratulations to all.

To see a related post on this topic, please use this link: Who Wants to be a Civil Court Judge

In Campos v. Ofman, Mendel Ofman allegedly agreed to pay $7,000 for each apartment Martin Campos renovated. When he went unpaid after finishing nine units, Campos filed suit with the Kings County Supreme Court.

Ofman claimed that Campos had been hired as a helper to assist with the renovations, and was fully compensated for those services. After a jury found in Campos’ favor, the parties stipulated to damages in the amount of $51,000.

On appeal, the Appellate Division, Second Department, determined that the jury's verdict was supported by a fair interpretation of the evidence. It further concluded Ofman wasn’t entitled to challenge the amount awarded since he agreed, in writing, to that sum.

You certainly have our word on that.

To download a copy of the Appellate Division’s decision, please use this link: Campos v. Ofman

Tomorrow night, May 21, 2008, the Judicial Screening Panel for the First District (Manhattan) will be reporting out three candidates who will vie for the Civil Court seat formerly occupied by the Honorable Paul G. Feinman -- now a Supreme Court Justice.

This year's pool of applicants consists of ten extremely capable and qualified individuals. They are (in random order):

HON. GERALD LEBOVITS*

JENNIFER SCHECTER

JAMES E. D'AUGUSTE

HON. DAVID COHEN*

MICHAEL KATZ

W. FRANC PERRY

LYNN R. KOTLER

NANCY M. BANNON

ANTHONY CANNATARO

FRANK NERVO

Should be interesting to see who makes the cut.

*David Cohen and Gerald Lebovits are sitting Housing Court Judges seeking elevation to the Civil Court.

New York City Councilmember Peter F. Vallone, Jr. is having a fundraiser on Friday, May 30, 2008, at a comedy club in Astoria, Queens, and 20 bucks gets you in as a "Heckler."

For $100 you can be a "Prankster." "Class Clown" status will run you $500.

$1000 will make you a "Comic." And, if you aspire to be a "Seinfeld," that privilege will cost you $3,850.

Here's a copy of the actual invite:

We wondering if PETA is going to find the cartoon -- of a guy choking a defeathered bird -- foul.

To download a copy of the event flyer, please use this link: Laughs with Vallone

In Rivera v. Konkol, Annette Rivera’s downpayment was in jeopardy when she was unable to pay the balance of her new home’s purchase price.

While Rivera claimed that some of those funds had been embezzled by her attorney, seller Kent Konkol still had his attorney send a letter advising Rivera that she had violated the contract of sale’s “time of the essence” provision and thus forfeited her downpayment.

When Rivera filed suit, the Bronx County Supreme Court sided with her, and found the letter sent by Konkol’s lawyer hadn’t provided a clear and unequivocal statement her failure to close on or before October 18, 2006, would be considered a default upon which she would lose her down payment.

On appeal, the Appellate Division, First Department, reversed because any irregularity with the attorney’s letter wasn’t “the dispositive issue.” According to the AD1, neither the alleged embezzlement nor her failure to obtain a mortgage, excused Rivera’s non-performance. Thus, her downpayment could be released to the seller.

Clearly, Konkol was on solid ground.*

To download a copy of the Appellate Division’s decision, please use this link: Rivera v. Konkol

*Konkolo is Zulu for “concrete” or “solid foundation.”

Sources advise that, New York State Governor David A. Patterson was admitted into Mt. Sinai Hospital (here in Manhattan) earlier this morning complaining of migraine-type symptoms. 

While tests are now underway, the results have thus far been inconclusive.

Could it be all that stress is getting to our new Guv?

In Alberta & Orient Glycol Co., Ltd. v. Factory Mutual Insurance Co., Alberta & Orient (A&O) filed suit against Factory Mutual alleging breach of contract.

A&O claimed that its chemical reactor in Alberta, Canada, was covered by an all-risk insurance policy and that Factory Mutual had wrongfully denied coverage for A&O’s losses. Factory Mutual and other defendants sought to dismiss the case claiming that it had been initiated in the wrong forum and the court lacked “jurisdiction.”

When the New York County Supreme Court granted Factory Mutual’s request, A&O appealed.

The Appellate Division, First Department, concluded that jurisdiction over the various defendants -- Great Lakes Reinsurance Co., Commonwealth Insurance Co., and ACE INA Insurance -- was lacking because they were “not engaged in such a continuous and systematic course of doing business” that would trigger New York’s power over them. (Those companies lacked sufficient contacts with the state.) In addition, New York was an inconvenient forum -- or “forum non conveniens” -- since A&O was based in Canada (where the loss occurred), many of the witnesses lived and worked in that country, and a related case was pending in Canadian courts.

Was that a loonie outcome?

To download a copy of the Appellate Division’s decision, please use this link: Alberta & Orient Glycol Co., Ltd. v. Factory Mutual Insurance Co.

Got an invitation to attend a reception honoring Attorney General Andrew Cuomo.

Cuomo will be at Beacon Restaurant on Tuesday, June 10, 2008, from 5:30 PM to 8:30 PM.

There's a slight catch. The event isn't gratis.

Attendees are expected to fork over a minimum of $1000 for the privilege of being in Andrew's presence.

$10,000 gets you a private hour with the A.G. (That's about twice what the "ladies" were charging former Governor Spitzer for the same amount of time. A bit pricey, wouldn't you agree?)

Here's a copy of the actual invite.

To download a copy of the invitation, please use this link: Cocktails with Cuomo

In People v. Gray, Roy Gray was taken into custody in North Carolina for his involvement in the New York shooting death of Levi Bernard.

New York City Police Detective DePaolis traveled to North Carolina to return Gray to New York and to question him about the shooting. After DePaolis advised Gray of his rights, Gray supposedly accepted responsibility for the murder. DePaolis then handled Gray a written version of North Carolina’s Miranda warnings, which Gray signed and dated.

Detective DePaolis waited until he received a copy of an official “Miranda” form used by the New York City Police Department and, after a forty-five minute delay, Gray again waived his rights and began speaking about his involvement in the murder.

When he was eventually tried in the Bronx County Supreme Court, Gray moved to suppress the introduction of the statements made during the interrogation process. After that motion was granted, an appeal to the Appellate Division, First Department, ensued.

According to the AD1, there was no evidence that Gray’s constitutional rights had been violated. Not only had he been given repeated oral and written advisories, but Gray’s “extensive 10-year criminal record” reinforced that the defendant acted knowingly and voluntarily. As a result, there was no need to prevent the introduction of Gray’s admissions at trial.

Nothing Gray about that.

To download a copy of the Appellate Division’s decision, please use this link: People v. Gray

In Oszustowicz v. Admiral Insurance Brokerage Corp., Admiral learned that its employee, Stephen Oszustowicz, had issued certificates of insurance to various companies even though Admiral’s records didn’t reflect the policies had been purchased.

Since these certificates bore false policy numbers and were signed by Oszustowicz, Admiral terminated his employment and contacted law enforcement officials. And even though Oszustowicz was arrested and charged with possession of a forged instrument, the criminal case was never tried.

Oszustowicz later sued Admiral for “false arrest and imprisonment” and, when the Kings County Supreme Court granted Admiral’s motion to dismiss the case, an appeal ensued.

The Appellate Division, Second Department, found that the facts of the case didn’t jibe with any cognizable legal theory. For “false arrest” or “false imprisonment” to be triggered, Admiral needed to play an active role in the arrest, by advising or encouraging the authorities to act, or by demonstrating “officious and undue zeal, to the point where the officer is not acting of his own volition.” Since the company merely contacted the police, and the case never went to trial, the AD2 concluded that the lawsuit had been properly dismissed.

Now that’s some policy!

To download a copy of the Appellate Division’s decision, please use this link: Oszustowicz v. Admiral Insurance Brokerage Corp.

Here's a report we received from our political correspondent, Alan Flacks.

ANDERSON WINS CLUB ENDORSEMENT FOR SURROGATE

Surrogate practitioner Nora Anderson won a Democratic Party club’s endorsement for a New York County Surrogate seat being vacated by Renee Roth at year’s end. 

Last night (14th May, 2008) at the Three Parks Independent Democrats endorsement meeting on Manhattan’s Upper West Side, with just over 100 voting members present, Anderson beat out two other candidates -- Supreme Court Justice Milton Tingling (who was supported by the club’s present and former leadership) and John Reddy, an attorney in the Public Administrator’s Office.

The vote follows:

Anderson…...........….063     

Tingling..…............…039      Reddy................……002

No Endorsement…..…007

  * * * *

While Judge Tingling is favored to win the Surrogate's Court slot, this endorsement reinforces that the campaign ain't going to be a walk in the park.

To download a copy of campaign literature Anderson distributed to Three Parks club members, please use this link: Anderson wins Three Parks

Rafael Villaneuva was inspecting a building’s roof -- which had been repaired by Professional Environmental Systems (PES) -- when a heavy wind caused a loose piece of plywood to hit him.  Apparently, construction materials had been left on the property after PES’ completion of its work.

When the Kings County Supreme Court denied PES’ motion to dismiss the case, the company appealed to the Appellate Division, Second Department, which found there were unresolved questions as to whether PES had “adequately secured its equipment.”

Will poor PES get popped for its purported unprofessionalism?

To download a copy of the Appellate Division’s decision, please use this link: Villaneuva v. Professional Environmental Systems, Inc.

In Smalley v. Dreyfus Corp., five former at-will employees sued the Dreyfus Corporation for fraudulently inducing them to join and remain with the company under false pretenses.

In January of 2001, Gerald Thunelius, one of the five plaintiffs, heard a rumor that Dreyfus’ parent corporation was considering the acquisition of Standish Ayer & Woods, a funds management company. When Thunelius confronted Dreyfus’ Chief Executive Officer about the merger, the latter denied any negotiations were underway.

Of course, Standish was acquired three months later and, from 2001 to 2004, assurances were given to Thunelius, and others, that the “Taxable Fixed Income Group” (TFIG) wouldn’t merge with Standish. In reliance of those promises, and presumably the inference of job stability, the five employees either remained with TFIG or accepted new employment with the Group. In 2004, Standish and TFIG merged, and every TFIG member was terminated.

When litigation ensued, the New York County Supreme Court denied the former employees’ claims in their entirety, finding that “at-will employees cannot reasonably rely upon their employer’s promises of continued employment, and that these employees failed to allege injuries apart from their termination.”

On appeal, the Appellate Division, First Department, modified the Supreme Court’s order by reinstating the fraudulent inducement claim. The AD2 noted that, “Dreyfus misrepresented a material fact” and held that the employees had asserted injuries apart from mere termination.

On review, the Court of Appeals reversed.

New York law provides that without "a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired."

Since there was no promise to keep the individuals employed, the reliance of the “no-merger” representations was immaterial and no individual injury or damage could be established by their employment’s termination.

Our state’s highest court noted that, “Absent injury independent of termination, plaintiffs cannot recover damages for what is at bottom an alleged breach of contract in the guise of a tort.”

No TGIF for TFIG.

To download a copy of  the Court of Appeals’ decision, please use this link: Smalley v. Dreyfus Corp.

After thirteen years, NBC-TV news reporter, Lynda Baquero, may be forced to leave the station.

According to an e-mail that is being circulated by Angelo Falcon, President and Founder of the National Institute for Latino Policy (NILP), Ms. Baquero is "too expensive and thus expendable."

In view of the Hispanic community's underpresentation in the major broadcast news media, NILP believes Baquero's departure would pose a "real setback." 

Here's the text of an e-mail I received from NILP earlier today:

Our good friend, Lynda Baquero, who anchors the NBC-TV News in New York, may be forced to leave the station after working there 13 years! Many of you know her not only as the popular news anchor, but also the host of Visiones and someone who knows firsthand and has been supportive of the Latino community over the years.

Well, you may have been reading about all of the changes at NBC, with the shifting of executives and a series of cutbacks, changes that are foreboding for Telemundo as well, which they now own. It seems that with all of the changes in the industry, many of the Latino veterans journalists are becoming too expensive and thus expendable. We need to turn this around as a community.

It is urgent that the Latino community show our support for Lynda now while she is renegotiating her contract with the station. We are already underrepresented in the major broadcast news media as it is, losing a veteran like Lynda would be a real setback for all of us.

 

Below is a letter that the New York Chapter of the National Hispanic Media Coalition (which I co-chair with Marta García) has sent to Jeff Zucker and other NBC executive express our support for Lynda. We urge you to send them your own messages to let them know that Lynda has a board base of support in our community.

 

Un abrazo,

Angelo

In People v. Mendoza, the Suffolk County Supreme Court found that a five-year-old child (who had allegedly been abused) could give sworn testimony at Mendoza’s trial. (In this instance, the child appreciated the difference between the truth and a lie, promised to tell the truth, and knew “she would punished by her family and by God if she lied.”)

When Mendoza was found guilty of a “criminal sexual act in the first degree, sexual abuse in the first degree (two counts) and endangering the welfare of a child,” he appealed to the Appellate Division, Second Department, contending that it was an error to allow the child to testify and that the evidence was insufficient to establish the elements of “oral sexual conduct” and “sexual gratification.”

The AD2 found that the child’s testimony had been properly considered since it was corroborated by other evidence, including Mendoza’s own statement to the police. When viewed in its totality, the evidence was “legally sufficient” to establish the crimes charged “beyond a reasonable doubt.”

Is there any doubt Mendoza got what he deserved?

To download a copy of the Appellate Division’s decision, please use this link: People v. Mendoza

What's Howard Dean up to these days?

Well, tomorrow, he'll be up in Rochester, New York, supporting Erica Massa, a local candidate for Congress.

Here are the particulars:

To download a copy of the event flyer, please use this link: Dean in Rochester

Got an invitation to a political fundraiser that is going with a "Sex and the City" theme.

For just $250, you can be "Mr. Big." $50 buys you a "Carrie."

Here's the invite:

And this is the text that accompanied the invitation:

We're only a weeks away from the Big announcement...

Yes, Mr. Big is back, as are our on-screen fashion icons Carrie, Samantha, Miranda and Charlotte.

One day before the "Sex and the City" extravaganza begins, let's raise our cosmos and toast the girls, the dates, and the great city they will frolic in and shop throughout once again.

I'll be hosting a pre-party fundraiser on Thursday, May 29th at XES Lounge, complete with cosmopolitan specials, and some of our favorite episodes on screen.

Much as Carrie mused in a favorite episode about her love of New York City, I want to celebrate how far this wonderful city has come over the last six years. This is a city of opportunity, not just for our girls on screen, but all of us.

So as we gather to toast we also can discuss where our city stands now, and what we need to do to achieve greater success.

Much like our beloved Carrie, I believe in the future of our city, and that inspired, dedicated, and focused leaders can - and will make a difference. That's why I'm planning a run for office - and would love your support.

Please join me at an "Alfonso and the City" event at XES Lounge at 157 West 24th Street (between 6th and 7th Avenues ) on Thursday, May 29 from 6:30 to 8:30 PM.

You can RSVP to me at friendsofalfonso@yahoo.com or to Nelly at (347) 472-2522. I've attached a contribution card (if you could fill it out in advance,  that would help tremendously).

Please make personal checks payable to: Friends of Alfonso Quiroz. You can bring them to the event, or mail in advance to:

Friends of Alfonso Quiroz

75-22 37th Avenue, Box #58, Jackson Heights, NY 11372

Thanks again and I hope to see you on May 29th for a good time. I leave you with Carrie's words in a poignant episode dedicated to the City of New York:  "After all, seasons change. So do cities. People come in to your life and people go. But it's comforting to know the ones you love are always in your heart."

Alfonso Quiroz

* * * * *

Never was much of a fan ... of that show.

Alfonso, on the other hand, is a rising star in City politics. (While he hasn't formally announced, word is that he is running for City Council or District Leader out in Queens.)

Will there big a "big reveal" on May 29?

To download a copy of the event flyer, please use this link: Alfonso and the City

In DeLuca v. DeLuca, when she discovered that her ex-husband, Peter, had “fraudulently concealed assets from her and colluded with others to tamper with the divorce proceedings,” Jane sought to vacate the divorce settlement.

The alleged fraud took place in 1998, prior to the settlement, but Jane didn’t learn of the misconduct until 2003. Inexplicably, three years passed before she sought relief from the court.

The New York County Supreme Court found Jane’s fraud claim to be untimely and denied her request.  On appeal, the Appellate Division, First Department, referenced a state law -- CPLR 213[8] -- which provides:

A cause of action based on fraud must be commenced within six years from the time of the fraud, or within two years from the time the fraud was discovered or with reasonable diligence could have been discovered, whichever is later.

Because the alleged fraud occurred more than six years before she asked the court for assistance -- and she knew of the misconduct for over two years -- Jane won't recover a dime.

No, Jane, no!

To download a copy of the Appellate Division’s decision, please use this link: DeLuca v. DeLuca

In Rosenblatt v. Venizelos, Vsevold Rosenblatt was crossing the street when he was hit by a truck driven by Michael Venizelos.

The evidence established that Rosenblatt was walking within the crosswalk and that he looked for approaching traffic before he traversed. A police report also contained an admission made by Venizelos that he was responsible for the accident.

After a negligence case was filed, the Queens County Supreme Court found that Rosenblatt had a winning case against Venizelos.

On appeal, Venizelos argued that a trial was needed since there were unresolved questions as to whether Rosenblatt had been distracted by his cell phone use.

The Appellate Division, Second Department, viewed Venizelos’s argument as “feigned” and one which wouldn’t change the outcome, particularly since he didn’t deny the police report’s accuracy.

Venizelos clearly took a hit there.

To download a copy of the Appellate Division’s decision, please use this link: Rosenblatt v. Venizelos

In Altamirano v. Door Automation Corp., Christian Altamirano was injured when work undertaken by Door Automation (DA) was improperly performed.

Altamirano sued DA claiming that its work posed an “unreasonable risk of harm to others.”

When the New York County Supreme Court denied DA’s request to dismiss the case, the company appealed to the Appellate Division, First Department.

Although Altamirano didn't hire the contractor, the AD1 was of the opinion the company became responsible for his injuries when DA agreed to do the job and created a dangerous condition.

Meaning, that the case will now proceed to trial.

Ta Da!

To download a copy of the Appellate Division’s decision, please use this link: Altamirano v. Door Automation Corp.

In People v. Steinhilber, the Kingston District Attorney filed “driving while intoxicated” (DWI) charges against Leroy Steinhilber after he crashed his car on the way home from a local bar.

Steinhilber not only admitted that he consumed ten beers but was taken to a local hospital where a blood test revealed an alcohol content of 0.13%.

After a jury trial, Steinhilber was convicted of two counts of DWI. He was also convicted, after a nonjury trial, of aggravated unlicensed operation of a motor vehicle and was sentenced to 1-4 years in prison to be concurrently served.

On appeal, Steinhilber argued that his blood test and statements to the state trooper were inadmissible, because the resident who attended to him wasn’t a licensed physician and the trooper failed to give a Miranda warning.

The Appellate Division, Third Department, disagreed and affirmed Steinhilber’s conviction and sentence. As the AD3 observed, “Although this (medical) resident was not yet licensed at the time, the Legislature has long since dispensed with the requirement that a physician be licensed to qualify as a person authorized to draw blood under this statute.”

Additionally, because Steinhilber wasn’t in custody when he was speaking to the trooper, and the latter spoke with Steinhilber “to ascertain his identity and investigate the circumstances surrounding the accident,” a Miranda warning wasn’t required.

Moreover, due to his “extensive, persistent and varied criminal history,” including “alcohol related offenses” dating back to 1975, the AD3 concluded that the sentence wasn’t harsh or excessive, nor warranted a reduction.

Will there be another round?

A mouth of a perfectly happy man is filled with beer.
--Ancient Egyptian Wisdom, 2200 B.C.

To download a copy of the Appellate Division’s decision, please use this link: People v. Steinhilber

If you'd like to learn more about real property tax-deferred exchanges, and earn three free CLE credits in the process, check out this presentation scheduled for Wednesday, May 14, 2008, at 8:30 A.M., here in Manhattan:

Right before the trial in the case of Kraycar v. Monahan, Timothy Kraycar sought to add “new” injuries onto his “bill of particulars” and to recover punitive damages against Linda Monahan.

Although these new theories and claims didn’t appear in his original medical records and pleadings, and were being asserted some five years after the accident had occurred, the Suffolk County Supreme Court allowed these additional issues to be added to the case.

On appeal, the Appellate Division, Second Department, indicated that while a party may update “claims of continuing special damages and disability,” “new” injuries or damages couldn’t be added “on the eve of trial.”

As a result, permitting Kraycar to seek new relief or to make a claim for punitive damages was an “improvident exercise of discretion,” particularly since there was nothing in the record which suggested that Monahan acted with the requisite “willful or wanton negligence.” 

Sorry, but we haven’t got a last-minute addition to that.

To download a copy of the Appellate Division’s decision, please use this link: Kraycar v. Monahan

Just in case you missed it, our partner Lucas A. Ferrara was quoted in Sunday's New York Times.

While I don't agree with the analysis, it makes for interesting reading. (And is likely to stir up quite a bit of controversy.)

Here's the piece in its entirety.

Can a Bargain Rent Have Staying Power?

FOR landlords and some tenants in rent-stabilized buildings, few issues are more important than “preferential rent” — rent that is lower than the legal regulated rent registered with the State Division of Housing and Community Renewal. 

Lucas A. Ferrara, a Manhattan lawyer and an adjunct professor at New York Law School , said that before 2001, the courts held that a preferential rent would continue throughout the tenancy, even if the lease provided otherwise.

In 2001, however, an appellate court held that the lease would govern and that if a preferential rent was not “for the duration of the tenancy,” that provision should be honored.

In 2003, however, the State Legislature amended the Rent Stabilization Code to provide that preferential rents would terminate upon vacancy or renewal, allowing landlords to end preferential rents when leases expired.

But despite that change, in a 2003 decision, in a case known as Colonnade Management v. Sturgis Warner, another appellate court ruled that the increase to a higher rent was permissible only if the lease unambiguously allowed it. Based on that decision, Mr. Ferrara said, the Division of Housing and Community Renewal last month updated its fact sheet on preferential rents, which is issued as a tenants’ aid.

First, he said, if the lease makes clear that the reduced rent will apply only for a limited duration, the preferential rent will end at the time specified in the lease.

But, Mr. Ferrara said, if the agreement provides that the preferential rent will apply for the entire tenancy — or if the landlord fails to disclose the legal regulated rent in the lease — the reduction may not be rescinded.

And if the lease is ambiguous or silent about the duration of a preferential rent, the ambiguity is generally resolved in favor of the tenant and the preferential rent continues throughout the tenancy.

Sherwin Belkin, a Manhattan lawyer who represents landlords, said that owners who want to make sure a preferential rent will end must make that clear in the first lease set at the reduced rent.

The duration of preferential rents can be important when a building is being converted.

Errol A. Brett, a real estate lawyer in Floral Park, N.Y., says he is representing several tenants who were given preferential rents during the conversion process but whose landlords — now that the conversion is complete and the tenants are no longer eligible to buy — are trying to increase the rents to the legal regulated amount. He believes that those rents cannot be raised.

Under the law that governs conversions, he said, a tenant in occupancy has only 90 days after the plan is accepted for filing by the attorney general to buy at the “insider price.” By increasing the rent to the legal maximum after that period has expired, the landlord is essentially giving the tenant three options: buy at market price; pay the higher rent; or leave the apartment.

To download a copy of this article, please use this link: NYT: Preferential Rents (5/11/08)

HAPPY MOTHER'S DAY!

One reason landlords hate when commercial or residential tenants perform alterations in their buildings is that the activity triggers liability for any injury that may occur, even when the work is undertaken without the owner's consent.

In Uribe v. Fairfax, LLC, for example, Michael Garstin -- a tenant in a building owned by Fairfax, LLC (and others) -- hired a contracting company to perform alterations to his apartment. During the course of that work, John Uribe, one of the contractor’s employees, was injured when he fell off a ladder, filed suit under Labor Law 240(1) to recover for his injuries, and, was awarded relief against the landlord.

Because Garstin had breached his lease by permitting the alterations and hiring contractors without the owner’s consent, Fairfax sued Garstin for “indemnification” -- finding the tenant culpable and directing him to reimburse Fairfax for the monies paid to Uribe.

After the New York County Supreme Court dismissed its claim, Fairfax appealed to the Appellate Division, First Department, which affirmed.

Since Garstin wasn’t in the apartment when the project was underway, didn’t supply any tools nor instructed (or supervised) the work, the AD1 concluded that Garstin’s “alleged violation of the lease [was] not relevant to the issue of common-law indemnification in light of the lack of evidence that the accident was attributable to negligence on [Garstin’s] part.”

In other words, even though the tenant had "unclean hands," and disregarded the requirements of his lease, the owner ultimately got stuck with the bill for the accident.

What landlord wouldn't consent to an alteration of that outcome?

To download a copy of the Appellate Division’s decision, please use this link: Uribe v. Fairfax, LLC

In Burell v. City of New York, Dorian Burell sued the City of New York after he collided with a police cruiser.

Even though Burell alleged that the officer acted in “reckless disregard” for the safety of others, the Queens County Supreme Court dismissed the case.

On appeal, the Appellate Division, Second Department, found that in order to establish “reckless disregard” a claimant must show that an officer "intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.”

Since the City failed to establish that the police officer slowed down before proceeding past a red light, that emergency sirens and flashers had been activated, and, that his view of the intersection was unobstructed, the AD2 was of the opinion that “questions of fact” needed to be addressed at a formal hearing or trial.

Seems like the City might have been reckless in presenting its case.

To download a copy of the Appellate Division’s decision, please use this link: Burell v. City of New York

A reader sent us a link to a published attack on City Councilwoman Sara Gonzalez -- who is allegedly one of a number of local politicians embroiled in that whole City Council scandal involving millions of dollars in "misdirected" funds.

For some reason, Councilwoman Gonzalez is refusing to account for some $269,000 that were allocated to one of her local "nonprofit" groups.

Calls to the City Council (requesting the information) have been rebuffed.

So much for transparency and good government!

Of course, if the allegations prove true, Councilwoman Gonzalez is in deep sh*t.

posted by El Grito
Thu, 05/08/2008 - 10:34am

Earlier this week, while Council Member Sara Gonzalez was out on a Sunset Park pier with Council Speaker Christine “Oink, Oink” Quinn announcing new ferry service that most Sunset Park residents will never use, (Sara’s gift for voting in favor of congestion pricing) the Daily News was reporting about her refusal to name the recipients of some $269,000 of our hard earned tax dollars that she’s funneled through a local nonprofit.

If she can’t name these groups and offer why they received this money, she should resign immediately.

These last few weeks, Gonzalez, Speaker Quinn and many of their colleagues in the pig pen that is the New York City Council, have fully demonstrated their contempt for their constituents by stashing precious funds with phantom groups and then using these funds to reward friends and cronies who do their bidding.

 

At a time when there are so many good, legitimate, effective and innovative groups, schools and programs in our neighborhoods that could really put this money to good use, Gonzalez and many of her colleagues are doling this money out as if it were coming out of their own purses or wallets.

 

It’s shameful, outrageous and despicable. I applaud Civil Rights lawyer, and hopefully our next Public Advocate, Norman Siegel for filing a lawsuit against the New York City Council on behalf of the residents of this city who are outraged by this scandal.

 

If Sara Gonzalez won’t show us the list (the same way she’s refused to answer a recent Freedom of Information Act request), she needs to leave office now!

To view the original post, please use this link: El Grito Says, "Gonzalez Must Go!"

Hillary and Chelsea would like to celebrate Mother's Day with YOU!

The ladies will be hosting a "Mother's Day" event at the Sheraton on 53rd Street (here in Manhattan) on Saturday, May 10, 2008, at 1:30 PM. 

The suggested minimum contribution is $100 per person ($500 for two adults and all kids under 18).

If you contribute (or raise) $5,000 or more, you will be entitled to receive a "family photo" with Hillary and Chelsea.

Let's not keep Mother waiting!

In Jimenez v. Brenillee Corp., Jesseo Realty wanted to get involved in a lawsuit after it acquired property which was subject to a judgment held by Genesis Jimenez.

Jesseo sought to vacate the judgment for “lack of jurisdiction” on the grounds that its predecessor -- Brenillee Corp. -- had not appeared by counsel (as required by New York State law -- CPLR 321(a)).

When the Bronx County Supreme Court denied Jesseo’s request, an appeal to the Appellate Division, First Department, followed. 

While Jesseo was an “interested” party, there was nothing in the record that supported Jesseo’s contention that Brenillee had been unrepresented. Even if that had been the case, that would not have deprived the court of “jurisdiction" -- the power to hear the case -- and relief could issue against the entity on “default.”

According to the AD1, while the purpose of the State law -- CPLR 321(a) -- was “to ensure that the corporation has a licensed representative who is answerable to the court,” that statute didn't provide Jesseo with a basis for attacking the underlying judgment.

Apparently, Jesseo didn’t get the Genesis of that decision.

To download a copy of the Appellate Division’s decision, please use this link: Jimenez v. Brenillee Corp. 

In People v. Conyers, Darren Conyers was convicted of criminal possession of a controlled substance in the third and fourth degrees and was sentenced to a term of 6-12 years because he was a second-felony offender

Conyers was observed by an officer removing bags of drugs from a paint can and exchanging them for money. At no point did any other person approach the can and attempt to distribute the drugs. (In all, 48 bags of drugs were found inside the container.)

The Bronx County Supreme Court convicted Conyers of criminal possession of a controlled substance based, in part, upon an expert’s testimony that the amount of drugs in his possession was “indicative of a dealer, not a buyer.” On appeal to the Appellate Division, First Department, Conyers argued that since he was acquitted of the sale charges he couldn't be found guilty of possession with intent to sell. Additionally, he believed the testimony regarding his past drug convictions shouldn’t have been considered.

The AD1 didn't buy Conyers’ argument and affirmed the outcome based upon the “ample evidence.” The appellate court was also of the opinion that the inquiry into Conyers’ past crimes had been triggered by his misleading testimony. When Conyers clouded the record, the prosecutor needed to ask what Conyers meant by his statements. As the AD1 noted, Conyers “opened the door to such questions by volunteering the precluded facts.”

Of course, that decision sealed the possibility of Conyers' release from the can.

To download a copy of the Appellate Division’s decision, please use this link: People v. Conyers

THE FLACKS REPORT

On May 5, 2008, the N.Y. County Democratic Party screening panel for Surrogate Court judge reported all three of the applicants -- for the vacancy created by Surrogate Renee Roth's reaching mandatory retirement age -- as "most highly qualified."  They are:  Nora Anderson, a private practice litigator in Surrogate's court, John J. Reddy, Jr., one of the two counsel to the N.Y. County Public Administrator; and, Milton Tingling, a State Supreme Court Justice.

In addition, we hear that the N.Y. State Senate confirmation of Shirley Werner Kornreich as Justice of the Supreme Court (the Stephen Crane vacancy), as well as other nominees, may be either this week or next. Rep. State Senator Bruno better "unleash" his Republican Senators or Paterson may not give him any Republican Court of Claims seats this year (there are two vacancies).

"Round One!"

In Duncan v. 605 Third Ave., Duncan claimed that her medical condition prevented her from participating in an oral deposition, even one conducted from her own home by way of video conferencing.

Moved by Duncan’s condition, the Kings County Supreme Court directed that any questions 605 Third had for Duncan be presented in written form.

Since there was no evidence that oral questioning conducted via live video conferencing would be harmful to Duncan, the Appellate Division, Second Department, reversed, but noted that the deposition need not proceed should a court-designated physician agree that Duncan’s health would be endangered by the process.

We're not quite sure who took a dunkin' here.

"Say ah!"

To download a copy of the Appellate Division’s decision, please use this link: Duncan v. 605 Third Ave.

Christine C. Quinn, Speaker of the New York City Council, will be appearing tomorrow afternoon at a luncheon sponsored by the Greenwich Village-Chelsea Chamber of Commerce.

Will she tell us where the bodies are buried?

A reader forwarded a video made by the father of a soldier who served two tours of duty in Afghanistan and is stationed in Fort Bragg -- "Home of the Airborne and Special Operations Forces."

If you give it a look, you will be astounded by the substandard housing that American soldiers -- our heroes -- are being provided here at home.

The conditions shown in the tape wouldn't pass a Housing Court Judge's muster, so why would they be acceptable anywhere else in our great country?

To view the video, please use this link: Fort Bragg 2008

In Lapin v. Atlantic Realty Apts. Co., LLC, Toni Lapin filed a personal injury suit after her apartment buildings’ elevator door closed on her hand.

Apparently, there had been no prior complaints of a malfunctioning elevator from Lapin or any other building resident. In addition, the elevator had been renovated just a few months prior to Lapin’s injury and the company servicing the elevator hadn’t noted any problems.

Faced with that evidence, the New York County Supreme Court granted Atlantic Realty’s request to dismiss the case.

On appeal, the Appellate Division, First Department, affirmed, noting that Lapin “had failed to raise an issue of fact” concerning “the existence of a defect.” Her expert’s analysis wasn’t helpful since that individual inspected the elevator four years after Lapin’s injury. And while Lapin claimed elevator complaints had been made, she was unable to produce evidence of that.

Undoubtedly, Lapin didn't lap that up.

To download a copy of the Appellate Division’s decision, please use this link: Lapin v. Atlantic Realty Apts. Co., LLC

In Swezey v. Montague Rehab & Pain Mgt., P.C., Maria Swezey had surgery to remove an acupuncture needle that penetrated her heart and later filed suit in Queens County Supreme Court against various chiropractors and acupuncturists alleging that they were negligent in allowing the object to remain in her chest. 

She also sued various physicians, including Shama Rasool, claiming that the psychiatrist “departed from good and accepted medical practice” by treating Swezey for a psychosomatic disorder without performing tests to rule out an actual physical condition.

When the Supreme Court denied Dr. Rasool’s request to dismiss the case, an appeal to the Appellate Division, Second Department, followed.

Though Dr. Rasool claimed Swezey never complained of chest pain, the latter swore that she did and that those pains were thought by her doctor to be “imaginary.” In view of that disagreement, the AD2 was of the opinion that dispute couldn’t be resolved on the papers presented and that a formal hearing or trial was warranted.

So here’s the deal: If it ain’t Cupid’s arrow, it's best to keep pointed objects clear of your heart!

We received an invitation to a fundraiser being held for Assemblyman Jonathan Bing.

In the invite, the distinguished Assemblymember is depicted as a cartooned, caped crusader (with booties, tights and all).

If you ever had the desire to be a "citizen of Gotham," a "trusted sidekick," "hero" or "superhero," here's your chance. On May 15, 2008, from 6:00 to 8:00 PM, a cocktail reception for Bing will be held at the home of Larry Schwarz, Founder and CEO of the Animation Collective. 

For additional information, or to RSVP, please contact campaign@bing2008.com or call (212) 628-BING (2464).

In Matter of Ryan v. Selky, Sean Ryan was found guilty of murder, arson, escape, and assaults on staff -- all while in prison.

For over a decade, Ryan had been separated from the general prison population and housed in a special unit. In 2006, the Deputy Inspector General of the Department of Correctional Services recommended “administrative segregation” for Ryan.

The Albany County Supreme Court agreed that Ryan “posed a danger to the staff, inmates and the correctional facility in which he is housed.” When Ryan appealed that decision, the Appellate Division, Third Department, agreed that Ryan’s presence posed a threat to the safety and security of others.

Interestingly -- even in the absence of “recent misconduct” -- rumors and reputation are enough to place inmates in “administrative confinement” since the prison atmosphere is volatile and vulnerable to “disastrous incidents.”

Ironically, hasn't the same been said about the Civil Court?

To download a copy of the Appellate Division’s decision, please use this link: Matter of Ryan v. Selky

In Princeton Insurance Co. v. Jenny Exhaust Systems, Inc., Princeton sought damages for injury to property after work performed by Jenny Exhaust Systems was alleged to have caused a restaurant fire.

Jenny asked the Queens County Supreme Court to dismiss Princeton’s case based on “spoliation” -- the destruction or alteration of evidence. Although it had been previously denied that relief, Jenny reiterated its dismissal request after it received photographs of the fire scene. Once again, the Supreme Court was unwilling to extinguish the case since discovery hadn't been completed,

On appeal, the Appellate Division, Second Department, noted that Jenny failed to pursue certain objections when its first motion had been rebuffed by the Supreme Court. Since no justification was offered for that omission, the appellate court declined to consider those objections on appeal. Further, since the parties hadn’t yet engaged in discovery, the AD2 was of the opinion that Jenny was being premature.

"Jenny, I've got your number!"

To download a copy of the Appellate Division’s decision, please use this link: Princeton Insurance Co. v. Jenny Exhaust Systems, Inc.

Just in case you missed it, our partner, Lucas A. Ferrara, appeared in yesterday's (May 4, 2008) edition of the New York Post's Page Six Magazine.

Of course, that isn't Lucas pictured on the front cover.

You'll find him quoted on page 28 in an article entitled "Co-op Showdown," a piece on the growing number of New York area conflicts involving "annoying neighbors."

What can people do when they're faced with too much noise, foul odors, or other nuisance?  

After giving their neighbors -- and the landlord (such as a co-op) -- notice  of the offending conduct, Lucas addresses the pros and cons of taking these kinds of disputes to court.

Unfortunately, no link to an electronic version of the story is currently available. But we'll post a copy of the piece as soon as we're able. (We'll add them below.)

In the meantime, special thanks to Page Six Magazine contributor Kate Torgovnick for the ink!

Cheers!

On Monday, May 5, 2008, at 5:30 PM, the New York County Supreme Court, in conjunction with the Jewish Lawyers Guild, will be holding a Holocaust Remembrance Program in the Court's Rotunda (60 Centre Street, Manhattan).

Speakers include the Honorable Jacqueline W. Silbermann, the Honorable Martin Shulman, and Professor Sheri Rosenberg of Benjamin N. Cardozo School of Law.

Here's a copy of the event flyer:

In Yu Han Young v. Chiu, Yu Han Young sued Cathy Chiu to compel her to transfer certain real property.

Apparently, Chiu took it upon herself to promote her own personal interests by “secretly establishing a competing entity and acquiring the property at issue.” When Young got wind of the arrangement, litigation was filed to force Chiu to divest a 50% interest in the real property at issue.

When the Queens County Supreme Court granted Young’s request, Chiu appealed to the Appellate Division, Second Department, which concluded that Chiu, as a corporate officer, owed the entity her “undivided loyalty.”

Since Chiu diverted and exploited a company asset for her own benefit, the AD2 found that she violated her “fiduciary duty,” and had been properly ordered to transfer 50% of the property to Young.

Chiu probably thinks that bites!

To download a copy of the Appellate Division’s decision, please use this link: Yu Han Young v. Chiu

In People v. Mobley, Donald Mobley asked the Bronx County Supreme Court to suppress -- or prevent -- the District Attorney from admitting into evidence a gun found by two police officers.

Mobley and a young woman were seated in a parked car in an area of the Bronx known for crime and prostitution. After the officers approached Mobley’s vehicle, they inquired what he was doing in the area, exited their cruiser and approached on foot. The officers eventually searched Mobley’s car and found a firearm.

When the Bronx County Supreme Court granted Mobley’s suppression request, an appeal to the Appellate Division, First Department, ensued. In its decision, the AD1 observed:

Once the police questioned the occupants of the car and found nothing to create any degree of suspicion, the police clearly had no basis for their second approach and inquiry, made on foot. … Furthermore, we conclude the ultimate discovery of the firearm in the car was the direct result of the second inquiry, and cannot accurately be characterized as a mere observation, from a lawful vantage point, of contraband in plain view.

Because the search was unjustifiable, the AD1 agreed that suppression of the weapon was appropriate.

Sorry, but all this talk of suppression is getting to me.

To download a copy of the Appellate Division’s decision, please use the following link: People v. Mobley

Did you happen to catch the May 2008 edition of the New York State Bar Association Journal? (It's the one with lots of dead sardines all over the front cover.)

On page 64, you'll find a column authored by distinguished Housing Court Judge Gerald Lebovits.

Judge Lebovits regularly opines in the Journal on legal writing do's and don'ts. This month, he addresses "Legal Writing Punctuation."

You can imagine our surprise when we came across a disparaging reference to our award-winning, critically acclaimed, 2000-page, two-volume treatise -- Landlord and Tenant Practice in New York -- which I co-authored with my business partner, Daniel Finkelstein.

In a section of the article, demonstrating the proper use of "em and en dashes," this is what you'll find: 

In this example, the hyphen, en dash and em dash are used correctly: “Ms. Smith-Jones spent five minutes reading the Finkelstein–Ferrara text on landlord-tenant practice — and promptly fell asleep.”

Finkelstein–Ferrara promptly called their respective lawyers — and have filed to have their book patented as a sleep aid!

"Sleep tight —

and don't let the bedbugs bite!"

In Fotiadis v. City of New York, young Anthony Fotiadis fractured his leg when he fell off a swing.

Fotiadis disobeyed his mother by failing to attend a YWHA after-school program and went to a local park where his injury occurred.

When the Queens County Supreme Court granted a request made by YWHA and the City of New York to dismiss the case, Fotiadis appealed to the Appellate Division, Second Department.

The AD2 concluded that the YWHA was free of any liability since Fotiadis was injured outside the realm -- or “beyond the orbit” -- of YWHA’s authority. While the YWHA was remiss in its failure to notify Fotiadis’s mother that Anthony hadn’t shown up to the program, that omission wasn’t found to be the cause of the kid’s injuries.

Frankly, wouldn’t it have been out of this world if the AD2 had found otherwise?

To download a copy of the Appellate Division’s decision, please use this link: Fotiadis v. City of New York

In Clayton v. Best Buy Co, Inc., Natoya Clayton filed suit against Best Buy -- a seller of consumer electronics, home-office products, entertainment software, appliances and related services with nearly 1,300 retail stores across the United States, Canada and in China -- alleging sex discrimination, sexual harassment, intentional infliction of emotional distress, and retaliation.

Clayton claimed that she endured sexually inappropriate remarks from other Best Buy employees and that, after she reported one of these incidents, her work hours were reduced in  retaliation for the complaint.

The Bronx County Supreme Court granted Best Buy’s request to dismiss the case, finding that under New York’s Human Rights Law, “an employer cannot be held liable for an employee’s discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it.” Since Best Buy properly responded to Clayton’s complaints, and reprimanded the offending employee in a timely manner, there was no evidence to show that the company encouraged, condoned or approved of the harassment.

Upon review, the Appellate Division, First Department, reinstated parts of Clayton's case and directed that the matter proceed to a formal hearing or trial. The AD1 was of the opinion there were unresolved questions as to whether Clayton's hours had been reduced, and whether she was eventually fired, as a result of her sexual harassment charges.

Was Best Buy bested by Clayton?

To download a copy of the Appellate Division’s decision, please use this link: Clayton v. Best Buy Co, Inc.