Litigation

07.05.2012 Blog, Family Law, Litigation No Comments

Katie Holmes Seeks Split from Tom Cruise Under New York Law

It appears a legal battle is waiting in the wings to determine the proper venue for the divorce suit between actors Katie Holmes and Tom Cruise, and custody over their daughter Suri.   According to New York state law, a couple must satisfy one of the following residency requirements to be divorced in New York:

  1. You or your spouse must have been living in New York State for a continuous period of at least two years immediately before the date you start your divorce action; OR
  2. You or your spouse must have been living in New York State on the date you start your divorce action and for a continuous period of at least one year immediately before the date you start the divorce action, and at least one of the following must also be true:
    1. Your marriage ceremony was performed in New York State; OR
    2. You lived in New York State with your spouse as married persons; OR
    3. You or your spouse must have been living in New York State for a continuous period of at least one year immediately before the date you start your divorce action and your grounds for divorce must have happened in New York State. (“Grounds” means a legal reason for the divorce); OR
    4. You and your spouse must be residents of New York State (no matter how long) on the date you start your divorce action, and your grounds for divorce must have happened in New York State. (“Grounds” means a legal reason for the divorce).

 Holmes is believed to have been renting an apartment in Manhattan just prior to her filing for divorce and also claims in her divorce papers that the former couple are residents of New York State.

05.22.2012 Blog, Litigation No Comments

Congratulations to the Massapequa High School Moot Court Team!

The Massapequa High School Mock Trial Team edged past Roslyn High School to win the Marcus G. Christ Championship Trophy in the New York State High School Mock Trial Tournament (“NYSHSMTT”).   The NYSHSMTT is the nation’s largest moot court competition for high schools and provides students with an opportunity to orally advocate their cases in the Nassau Supreme Court before New York judges and attorneys.  The competition hosts45 high schools, 500 students and more than 120 attorneys and judges.    New York trial attorney Erik M. Bashian credits the Nassau County Bar Association for doing a wonderful to coordinate the competition and create public awareness.

05.11.2012 Blog, Corporate, Litigation No Comments

A loan is usurious and unenforceable if it seeks recovery of annualized interest rate in excess of 16 % from individual borrowers

The New York General Obligations Law provides that the legal rate of interest charged on a loan is six (6) percent per annum unless a different rate of interest is fixed under section 14 (a) of the Banking Law.  Section 14 (a) of the New York Banking Law holds that the maximum rate of interest shall be sixteen (16) percent per year.  Therefore, it is black letter law that a loan agreement that charges an individual borrower with interest in excess of 16% is usurious, on its face, and may be unenforceable.   Please contact the New York trial attorneys at Bashian & Papantoniou for a consultation, if you have been sued under a loan agreement that seeks annualized interest at a rate in excess of 16%.

05.10.2012 Blog, Corporate, Litigation No Comments

Lenders that seek to recover compound monthly interest on loans for less than $250,000 are unenforceable and void

New York statutory law limits a lender’s ability to collect compound interest on any loan for $250,000 or less.  Indeed, “compound interest” is commonly defined as interest on interest or interest that is paid on both the principal and the previously accumulated interest.  “Compound interest” contrasts with “simple interest,” which is “paid on the principal only and not on accumulated interest” in that simple interest does not merge with principal and thus does not become part of the base for the computation of future interest.  A promise to pay “interest upon interest” is void if made at a time before simple interest has accrued.  In 1989, the legislature enacted the relevant statute, as a mean of public policy to prevent creditors from silently permitting debts to progressively mount at the expense of debtors who, often unaware of the consequences of such agreement, tend to confuse forbearance with indulgence.  Please contact the New York trial attorneys at Bashian & Papantoniou for a consultation, if you have been sued under a loan agreement that seeks monthly compound interest on a loan for less than $250,000.

05.09.2012 Blog, Litigation No Comments

How to Resolve Attorney-Client Fee Disputes in New York

The New York Supreme Court in Emery Celli Brinckerhoff & Adaby v. Rose, Index No. 103871/10, recently ruled that the “account stated rule” makes a client liable for the outstanding balance on a legal invoice.  The court reasoned that when a client pays part of a bill, such client is generally deemed to have accepted the entire billing as valid.   The court also noted that the invoices, which were challenged by the client detailed the outstanding bills and were not rebutted as to why or how they were excessive.   In New York State, the Court  
System has established a Statewide Fee Dispute Resolution Program (“FDRP”) to resolve attorney-client disputes over legal fees through arbitration and sometimes even mediation.  Generally, an attorney may not sue a client in court over a fee dispute unless he or she first provided the client with notice of the right to utilize the FDRP.  Once the client has received this notice, he or she has 30 days to decide whether to use the FDRP. If the client doesn’t choose to participate in the FDRP within 30 days, the attorney is free to pursue the matter in court.   Read more to learn about your rights here: http://www.nycourts.gov/admin/feedispute/pdfs/FD_brochure.pdf and contact the attorneys at Bashian & Papantoniou, PC, to resolve your attorney fee disputes.

04.10.2012 Blog, Entertainment, Litigation No Comments

Erik Bashian, head of the Litigation Department of Bashian & Papantoniou, discusses the “lost” Green Jacket of ’59 Masters Champion Art Wall Jr. with The Star-Ledger

In 1959, Art Wall Jr. obtained his most notable career victory by winning the Masters Tournament and being awarded his first and only green jacket.  A few years later, the Wall family claims the treasured green jacket that Wall wore as an Augusta champion disappeared from his family’s’ home and was not discovered until two weeks ago when it was put up for auction on a the golf memorabilia website http://www.greenjacketauctions.com.

This week, Erik Bashian, an attorney and head of the Litigation Department for Bashian & Papantoniou, discussed Walls’ rights to the jacket in an article with The Star-Ledger.

Bashian, likened the facts of Wall’s lost jacket to those in the 1991 New York Court of Appeals case Solomon R. Guggenheim Foundation v. Lubell, where the court ruled that because many other difficulties exist for a rightful owner in locating and recovering artwork that may have been lost or stolen, such owner should not also have to bear the additional burden in demonstrating due diligence in tracking down the lost art.  He added that, “with a potential good-faith purchaser lined up to make a substantial purchase, there should be absolute certainty on their part as to how the jacket was acquired initially.”

 Under New York law, an action to recover damages for the unlawful taking of one’s property, such as sports memorabilia, must be commenced within three years, from the time the theft occurs.

However, a rightful owner’s replevin action for the return of such property against who may be an innocent purchaser does not accrue until the rightful owner demands the return of the stolen property from the possessor and such possessor refuses to return it.  As a matter of substantive law, the good-faith purchaser has not done any wrong until he/she refuses a demand for the return.   Although, in New York, an owner’s failure to exercise due diligence in locating a lost chattel has not been held to be a factor in determining the accrual of the statute of limitations, it may be relevant with respect to a trial court adjudicating the good faith purchaser’s equitable defense of laches. If you have a legal issue concerning sports memorabilia and would like to speak with one of the sports memorabilia attorneys at Bashian & Papantoniou, please contact us at (516) 279-1555 to schedule a consultation.

 At Bashian & Papantoniou, our sports memorabilia attorneys in Long Island and New York provide invaluable advice and guidance to buyers, sellers and auctioneers on various legal issues that may arise in connection with a sports memorabilia transaction.

 Read the Full Article Here

03.30.2012 Blog, Entertainment, Intellectual Property, Litigation No Comments

Nike Obtains Court Order Preventing Reebok From Selling Tebow-Related Products

Nike successfully obtained a temporary restraining order barring Reebok from selling apparel with Tim Tebow’s name on it, following the Jets’ acquisition of Tebow in March.  Nike is set to replace Reebok, a subsidiary of Adidas AG, as the official supplier of NFL uniforms on April 1. Reebok was the NFL’s supplier of on-field apparel, including game uniforms, and sideline apparel for the past decade, according to ESPN. Nike will be supplying that apparel exclusively for all thirty-two NFL teams for the next five years. Prior to March 1, 2012, Reebok has printed and sold Broncos jerseys with Tebow’s name and number, per Reebok’s contract with the NFL. However, Nike contends that at this time, Nike, to Reebok’s exclusion, possesses the license required to manufacture and sell jerseys related to Tebow after his move from the Broncos. Nike contends that Reebok was shipping large volumes of Tebow-related products to capitalize on his recent move to the Jets, harming Nike’s ability to capitalize on a “unique and short-lived opportunity,” according to Nike’s lawsuit and ESPN.

Federal District Judge Castel of the Southern District of New York in Manhattan agreed with Nike, ordering Reebok to stop producing and selling any Tim Tebow-related products that were manufactured after March 1, 2010, and all Tebow-related products that relate to any other team than the Broncos. However, in the published court order, Judge Castel stopped short of requiring that Reebok “destroy all unauthorized Tebow products that are now in, or hereafter come into, Reebok’s custody, possession, or control.” A preliminary injunction hearing will take place on April 4, 2012.

03.29.2012 Blog, Litigation No Comments

Generic Drugs Same as Name-Brand? Big Differences Exist Regarding Consumer Remedies

Even though many Americans assume that there is no difference between a brand-name drug and its generic equivalent, the legal remedies for victims of a drug’s side-effects of medication may depend in large part on the distinction. The Supreme Court, in deciding Pliva v. Mensing last summer, established protections for generic pharmaceutical companies for claims alleging failure to warn; such protections do not exist for brand-name manufacturers. The difference is with regard to who controls what is said on the drug’s label.

Under federal law, drug manufacturers may establish that the drug they produce is equivalent to a brand-name drug already on the market. In doing so, the a drug manufacturer establishes that its medication is a “generic” drug, and sidesteps a lengthy FDA approval process. One consequence of this process is that the generic drug manufacturer must adopt the label of the brand-name equivalent.

Since generic drug manufacturers do not have control over the label that is placed on the drugs they produce, the Supreme Court reasoned that those manufacturers do not have liability for inadequate labels. This means that when a patient is harmed by a side-effect of a drug, that patient can sue the drug manufacturer alleging a failure to warn of those side-effects only if the manufacturer has control over the label – this requirement exempts generic drug manufacturers from liability.

However, both the FDA and Congress have the power to restore a patient’s right to sue a generic drug manufacturer for failure to warn, by providing the generic drug manufacturer the responsibility to warn about side-effects without regard to the warning label provided on the brand-name equivalent. Until such a change, however, patients who take brand-name drugs have access to a broader range of legal remedies than do patients who take generics.

03.29.2012 Blog, Employment, Litigation No Comments

Supreme Court Rules to Limit Ability of Plaintiff to Sue State Employers for FMLA Violations

The Family and Medical Leave Act, passed in 1993, permits individuals to sue their employers for failing to provide time away from work under certain circumstances, including time to recover from an illness. The Supreme Court this week, in Coleman v. Court of Appeals of Maryland (10-1016), ruled that Congress did not have the authority to permit plaintiffs to sue their employers when those employers are states. “Documented discrimination against women in the general workplace is a persistent unfortunate reality, and we must assume, a still prevalent wrong. An explicit purpose of the Congress in adopting the FMLA was to improve workplace conditions for women. But states may not be subject to suits for damages based on violations of a comprehensive statute unless Congress has identified a specific pattern of constitutional violations by state employers,” wrote Justice Kennedy in the court’s plurality opinion. Additionally, for states to be sued under FMLA, “Congress must… tailor a remedy congruent and proportional to the documented violations. [Congress] failed to do so when it allowed employees to sue state for violations of the FMLA’s self-care provision.” 

In Coleman, the plaintiff, employed by the state of Maryland, requested a ten day medical leave pursuant to the FMLA, and his requested was denied. The plaintiff then sued the state for damages under the FMLA, and his case was dismissed. While Maryland acknowledges that it must abide by the substantive provisions of the FMLA and provide leave to its employees, state employees may not file suits against their employers when those employers violate the FMLA.

While a majority of the court agrees, Justice Ginsburg authored a forceful dissent, joined by Justices Breyer, Sotomayor, and Kanag, in which she wrote that “Congress … reduced employers’ incentives to prefer men over women, advanced women’s economic opportunities, and laid the foundation for a more egalitarian relationship at home and at work.” However, Ginsburg added, “at least the damage is contained. The self-care provision remains valid Commerce Clause legislation and therefore applies, undiluted, in the private sector.” Under this decision, employees may still request a judge to reverse potential violations, and the Department of Labor may still sue a state employer and gain monetary relief for harmed employees, noted Ginsburg.

03.28.2012 Blog, Litigation No Comments

Justice Department Files False Claim Act Against AT&T, Alleges Participation in Fraud

The Justice Department has filed a suit against AT&T, alleging that AT&T knowingly permitted its IP Relay system to be used fraudulently by users overseas, and then received reimbursement from the federal government for that use.

The 1990 Americans with Disabilities Act led to the creation of a nationwide telecommunications relay service, know as IP Relay, for deaf and speech-disabled people to communicate through phone lines. Pursuant to the Act, phone carriers implement the system and are reimbursed by the federal government. AT&T received $16 million in federal reimbursements in the last two and a half years alone.

The federal complaint alleges that AT&T deliberately employed a verification system that would not detect fraud, and that the company permitted the fraudulent use of its IP Relay system in order to collect government reimbursements. Fraudulent use of this system is popular among oversees con artists who intend to defraud American merchants, according to the National Law Journal.

The complaint states, “AT&T adopted electronic registration procedures that it knew would not verify that each user was located at the U.S. mailing address provided. AT&T also failed to adopt any procedure to detect and/or prevent dozens of fraudulent users from registering with the same U.S. mailing address, despite knowing that this was occurring on its system.”

For its part, AT&T denies the allegations and maintains that it is bound by federal law to complete all calls by customers who identify themselves as disabled.  The suit was spurred by whistleblower Constance Lyttle, a former employee of AT&T. The Justice Department is seeking the money paid to AT&T in reimbursements, along with $11,000 in treble damages for each abuse