Archive for March, 2011
A waitress who was paid only in tips could recover wage-related damages under the Fair Labor Standards Act (FLSA) and New York Labor Law at the regular minimum wage rate. Had the restaurant owners paid the waitress, they might have been able to treat a portion of her tips as a credit against their wage obligations under both federal and state law and pay her at a rate below regular minimum wage. It was not clear they intended to take advantage of those tip credit provisions, and even if they had, they would not have been entitled to do so as both state and federal law imposed certain notice requirements on employers that were “strict” prerequisites to taking such credits.
Despite being advertised as “ultra-durable and more scratch-resistant than ever,” Apple’s iPhone 4 smartphone is fragile and prone to break with normal use, according to a putative class-action suit filed in California state court. Plaintiff Donald LeBuhn’s complaint in the Los Angeles County Superior Court alleges breach of express and implied warranty in violation of Cal. Civ. Code 1790 and Cal. Com. Code 2313. The suit also alleges unfair and deceptive business practices in violation of California law. Read More
A California court’s divorce judgments, dissolving the parties’ marriage and distributing the marital assets, were entitled to full faith and credit by the New York courts. Under full faith and credit doctrine, out-of-state judgments give res judicata effect to those issues conclusively decided, thereby avoiding relitigation of those previously decided issues in any other State. Thus, the wife’s subsequent New York divorce action was barred by res judicata. The New York Supreme Court held that the California courts had requisite jurisdiction to dissolve the marriage, where, regardless of the wife’s domicile, the husband had was a resident of California. Furthermore, the California court had clearly asserted its jurisdiction over the wife in renewing the divorce action, despite initially withdrawing its jurisdiction over the action.
A student brought personal injury action against another student and the school district, seeking damages for injuries she sustained when she was stabbed in leg by that student on school grounds. The Supreme Court, Appellate Division, Fourth Department, held that a school district breached its duty to adequately supervise students in its charge, and thus the school district be held liable for personal injuries a student sustained when she was stabbed in the leg by another student on school grounds. The Court reasoned that given that the school district had notice of three altercations between the students prior to the stabbing, that the school district could have anticipated that another altercation would occur when the students returned to school following three-day suspensions, that the school district failed to provide counseling to the aggressor student despite concern over the student’s violent nature, and that the school district failed to comply with its own pre-class security plan. Read the Opinion
An innkeeper or shopowner has a duty to exercise reasonable care to protect its guests or tenants while on the premises to protect against foreseeable injury that may be caused to third persons. You must take reasonable protective measures, including providing adequate security to protect guests from third-party acts, especially when such acts are foreseeable. Although the innkeeper or shopowner is not considered by courts to be an absolute insurer of the safety of its patrons, it must exercise reasonable care under the circumstances to address the foreseeability of liability at the premises. If you own a restaurant, bar, nightclub or other business and need advice on the daily operation of your business, contact the attorneys at Bashian & Papantoniou, P.C.
New York case law has routinely held that a trespass to land is an intentional infringement of the real property right of another. In order to prove a trespass, the trespasser must have intended to do the act; the act must have resulted in damage to the property; and the intrusion must be the inevitable consequence of the act. It is not an element of trespass to prove the trespasser intended the damage that he or she caused. Courts have the authority to issue equitable relief or damages, as well as, compensatory damages, nominal damages and punitive damages, under special circumstances.