Litigation

The  Supreme Court, Appellate Division, 4th Department  held that an owner of underground cables failed to establish that a new defendant was vicariously liable for original defendant’s alleged damage to cables, and as a result there was no unity of interest between the new and original defendants as required for owner to assert claim against new defendant (after expiration of the statute limitations period) under the “relation back doctrine.”   Under the “relation back doctrine,” a claim may be brought against a new defendant, despite the expiration of the statute of limitations, when the new defendant is united in interest with the original defendant and as a result of such relationship, it can be found that as a result of  notice of the original lawsuit, the new defendant will not be prejudiced in its defense on the merits in the new action.   Read  Verizon New York, Inc. v. Labarge Brothers Co., Inc.

The International Agency for Research on Cancer  (IARC), a branch of the  World Health Organization  (WHO), announced on Tuesday, May 31 some concerning findings. Cell phone usage, the radiation of which has now been classified as a carcinogen, may cause some forms of brain cancer. The study suggests that mobile devices, now finding itself in the same category as engine exhaust and chloroform, have been linked to a malignant form of brain cancer known as glioma. This conclusion was not based on any new scientific research but was instead, the result of an extensive review of numerous past studies. Namely, the decade-long Interphone research study that showed a 40% increase in risk for glioma for people who used their cellphones for an average of 30 minutes per day over a 10 year period.

So what are the legal ramifications of such findings? To get the manufacturers and service providers on the hook, the IARC’s re-classification of cell phone radiofrequency emissions will need to be enough to support a cancer or fear of cancer claim; an unlikely occurrence. The precedent setting case of  Ferrara v. Gallagher  decided in 1958 in New York provides insight to a “fear of cancer” claim. The Plaintiff suffered from bursitis in her right shoulder following a series of negligently administered X-ray treatments. Approximately two years after receiving the treatments that left her with some scarring and discoloration in skin pigmentation, she visited a dermatologist who informed her that she should have her shoulder checked every six months, as the area may become cancerous. The Court ultimately awarded her a judgment of $25,000 for “mental suffering” based largely on the testimony of a neuro-psychiatrist indicating that the Plaintiff was suffering from a severe cancerophobia, that is, the phobic apprehension that she would ultimately develop cancer in the site of the radiation burn.

However, since then, the court has supplemented this mental suffering with the requirement of physical proof evidencing the toxin or its effects on one’s body. Thus, plaintiffs will have to do more than simply present their existence of glioma and cite to the IARC’s re-classification of the mobile device radiofrequency emissions as a carcinogen. They will have to show the link between the two, and specifically, that the emissions were the cause of the manifestation in the brain which led to cancer; a complex and exceptionally high burden. Although the providers of 6 billion cell phone users globally will sleep easier knowing this, the public is left more than a little uneasy and uncertain about the veritable dangers of this new information and its related hurdles in the justice system.

As of September 2012, tobacco companies in the United States will need to make some pretty expensive and undesired changes to the packages and advertisements of their products. As per the new  Food and Drug Administration  (FDA) regulations, tobacco companies will be required to modify the packaging of their cigarette products to include 1 of 9 horrifyingly vivid images along with a caption demoting smoking. The images and textual warnings are the result of efforts made by  The Family Smoking Prevention and Tobacco Control Act  (Tobacco Control Act) which was signed into law by President Obama in 2009. The goal: to make tobacco-related death and disease part of the nation’s past, and not our future.

The pictures, which can be found on the FDA’s website, include a mouth with an open soar and rotten teeth, a dead man with his body sewn up, and a man with a hole in his neck. The text warnings alert readers to cautions such as, “Tobacco smoke can harm your children” and “Cigarettes cause fatal lung disease.” The new cigarette health warnings will cover the top 50% of both the front and back of each cigarette package and occupy at least 20% of the upper portion of each cigarette advertisement.

A requirement now mandated under the Tobacco Control Act, a bipartisan law passed by Congress in June 2009, leaves tobacco companies without a choice in the matter. That does not mean however, that they are taking this decision lying down. The FDA reported that letters received both from  R.J. Reynolds  and  Phillip Morris USA , the two largest tobacco companies in the U.S. expressed their beliefs that the new requirements violate their First and Fifth Amendment rights and are thus unconstitutional. They argued that forcing tobacco companies to stigmatize their own product, and in such an imposing size violates their constitutional rights. In response, the FDA points to case law and highlights that the images and warnings convey information about the effects of smoking that is factual and uncontroversial and thus subject to a more lenient standard of review. Citing to the court in  Commonwealth Brands v. United States , the FDA calls attention to the district court’s opinion that, “the government’s goal is not to stigmatize the use of tobacco products on the industry’s dime; it is to ensure that the health risk message is actually seen by consumers in the first instance.”

The United States is joining the more than 30 countries including our Canadian neighbor who have already implemented this regulation, marking the first change in cigarette warnings in the U.S. in over 25 years. According to the  Centers for Disease Control and Prevention , tobacco use is the leading cause of premature and preventable death in the United States, responsible for 443,000 deaths each year and causing 8 million to live with a smoking-related disease. This is coupled with the nearly $200 billion annual price tag to our economy in medical costs and lost productivity. Although this new regulation may be causing tobacco gurus to dig deep into their pockets, with figures like those mentioned above, it’s costing the American government and its people a much more unforgivable expense.

Related litigation resulting from the attacks of September 11, 2001 has soared to unimaginable levels. Correlated lawsuits include a total of more than 12,000 plaintiffs, 1,000 defendants and representation by more than 600 attorneys. A Federal law effective shortly after 9/11 resulted in the necessity of each one of those cases to pass through the federal Court in Manhattan.  The cases can be divided into four umbrella topics: 1) Survivors of those killed and people injured by the attacks, 2) property, business owners and insurers, 3) the first responders and clean-up workers at Ground Zero, and 4) the first responders and clean-up workers at buildings in close proximity to Ground Zero.

Nearly 3,000 people, mostly the families of the deceased, have chosen to apply for the Federal Victim Compensation Fund. It was enacted by Congress following the September 11 attacks in efforts to provide financial remedies for the families of those harmed and killed as a result of the attacks. The Fund was also offered as a compensation option in an effort to protect the airlines from an onslaught of litigation. Although the Fund dispensed more than 7 billion dollars, there still remain countless parties who refused the money and instead, sought their own form of reimbursement via the legal system.

Likewise remedies were enacted for the thousands of emergency personnel and rescue teams who worked in the rubble thereafter developed illnesses and conditions related to pervasive respiratory problems and exposure to toxins.  The claims of more than 10,000 plaintiffs were consolidated and settled with the city which will pay out more than $600 million to those involved. Such payments will range from the thousands to possibly the millions, contingent upon the severity of one’s condition.

A decade later, post 9/11 litigation still ensues with hundreds yet to enter the courtroom. The intricacy and density of the cases, the plaintiffs and the extent of consideration needed in assessing damages and liability shall continue to plague Manhattan’s Federal court.

Brothers-in-law  Fred Wilpon  and Saul Katz, co-owners of the  New York Mets , were given some relief in what had the potential to be a $1 billion lawsuit. Currently, nine of the eleven counts in the complaint of  Irving Picard , the court-appointed trustee of assets seized from  Bernie Madoff , have been dismissed. The two men, along with several others connected to the team’s ownership group,  Sterling Equities , were brought before the court on allegations of fraudulently earning money via involvement in a Ponzi scheme with the notorious Madoff.

All counts relating to constructive fraud have been dismissed, however, Picard still stands to gain up to $383 million. A paramount allegation that still remains to be litigated is whether or not Wilpon and Katz earned nearly $300 million in fictitious profits by investing in a Ponzi scheme that they knew to be fraudulent.  According to U.S. District Judge Jed Rakoff, Picard can recover up to $83 million in fictitious profits and $300 in principal. The two require separate standards of proof. To recover fictitious profits, Picard will only need to show that defendants Wilpon and Katz did not provide any sort of value for the monies they received. This should not prove to be a difficult feat seeing as the defendants, if portrayed as intelligible investors, would have known their profits to be entirely unrealistic given their investments. Somewhat more of a challenge however, will be obtaining the proof necessary to succeed in recovering the principal. Rakoff noted that Picard must prove that defendants were “intentionally blind” to Madoff’s fraudulent and illegal actions. Thus, Picard will need to establish that Wilpon and Katz had substantial and informed suspicions of Madoff’s fraudulence and evidence of their states of mind.

With the New York Mets losing tens of millions of dollars each year, this lawsuit does not bold well for Wilpon and Katz’s hold on their ownership of the team.

The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against individuals with disabilities in all areas of public life. In the employment context, ADA litigation often revolves around whether an employer has made reasonable accommodations for an employee with a disability. Expert witnesses can play a crucial role in ADA litigation by providing specialized knowledge and insights that help the court understand the issues at hand. In this blog post, we will discuss how to select and utilize expert witnesses in ADA litigation effectively.

1. Choose the Right Expert Witness for Your Case

When selecting an expert witness, it is essential to choose someone with the appropriate qualifications and experience. Consider the following factors when evaluating potential expert witnesses:

• Relevant expertise: Choose an expert who has specialized knowledge in the specific area related to your case. For example, if your case involves determining whether an employee's disability can be reasonably accommodated, you may need an expert in vocational rehabilitation or workplace ergonomics.
• Experience in ADA litigation: Look for an expert who has previously testified in ADA cases and is familiar with the legal standards and requirements.
• Credibility and communication skills: The expert's testimony will be more persuasive if they can effectively communicate their opinions and findings to the court. Choose an expert who can articulate complex concepts in a clear and concise manner.

2. Prepare Your Expert Witness for Testimony

Once you have selected an expert witness, it is essential to prepare them for their testimony. Here are some tips on how to do this:

• Provide the expert with all relevant documents and information: Ensure that your expert has access to all the necessary materials, such as medical records, employment records, and any relevant policies or procedures.
• Discuss the legal standards and issues: Make sure your expert thoroughly understands the legal standards and issues in your case. This will help them tailor their testimony to address the specific questions and concerns of the court.
• Conduct a mock trial or deposition: Practice sessions can help your expert become more comfortable with the process and refine their testimony.

3. Present Your Expert's Testimony Effectively

Presenting your expert's testimony effectively is crucial to the success of your case. Keep the following tips in mind:

• Focus on the key issues: Structure your expert's testimony around the central questions and issues in your case. This will help the court understand the relevance of the expert's opinions and findings.
• Use visuals and demonstrations: Visual aids and demonstrations can help clarify complex concepts and make your expert's testimony more persuasive.
• Anticipate and address potential challenges: Be prepared to address any potential challenges to your expert's testimony, such as questions about their qualifications or the basis for their opinions.

Expert witnesses can make a significant impact on the outcome of ADA litigation by providing specialized knowledge and insights. By selecting the right expert, preparing them effectively, and presenting their testimony persuasively, you can strengthen your case and improve your chances of success.

At Bashian & Papantoniou, P.C. , we have extensive experience in handling ADA litigation, including working with expert witnesses. Contact us today to learn more about how our team can help you navigate the complexities of ADA litigation and ensure your rights are protected.

A plaintiff commenced an action seeking damages for injuries he sustained in a motorcycle accident when he attempted to avoid hitting the defendants’ dog, which had entered the road. The lower court denied defendants’ motion seeking summary judgment dismissing the complaint. The  Supreme Court, Appellate Division, Fourth Department , however reversed the lower Court’s decision and granted the defendant’s request for dismissal.  The Court reasoned that it is well established that the negligence of the owners of a domestic animal is not a basis for liability for injuries caused by the, unless the owners knew or should have known that the animal had a vicious which includes a propensity to interfere with traffic. 

In the case at hand, it was undisputed that, on the date of the accident, the defendant closed the gate on the six-foot chain link fence surrounding defendants’ yard but failed to secure it and that the dog pushed open the gate and ran down the 100–foot driveway and into the road. However, the defendants established that the dog had never been unrestrained outside of the confines of their yard prior to that date and further, the defendants submitted plaintiff’s deposition testimony that he lived one-quarter mile from defendants’ house and that he passed defendants’ house at least twice per day and had never seen the dog prior to the date of the accident.  The Court concluded that the plaintiff failed to raise a triable issue of fact whether the dog had a propensity to interfere with traffic and therefore reversed the lower Court’s order and granted the motion dismiss the complaint.

The trial of two former accountants began last week in Tampa, Florida.  George B. Calvert and Gregory F. Guido, both Florida natives, are alleged to have masterminded an energy tax credit scheme that defrauded the Internal Revenue Service of more than $30 million .

The case revolves around an IRS provision that allowed producers of fuels from nonconventional sources to claim a tax credit on sales of the fuel to third parties.  The defendants allegedly forged documents stating that the owners of various landfills used to produce methane gas, which qualifies under the provision as fuel from a nonconventional source, had signed over to them the rights to the energy tax credits resulting from sales of the methane. In reality, most of the landfills did not even exist, and those that did were incapable of producing methane gas.  

Calvert and Guido then involved Tax preparers from all over the country into their scheme.  The tax preparers were recruited convince their clients to invest in the methane-producing landfills.  They were told that in exchange for investing, they would receive the tax credit that they could apply to their tax return.  From the perspective of the investors, there seemed to be very little risk, as they were not required to pay any money until after they received the tax refund from the IRS. 

The investors were provided with falsified promissory notes, giving them the impression that they had invested in the landfills.  The investors were then directed to include the fake promissory notes with their tax returns in order to receive the credit.  Upon receipt of their IRS refund, the investors would then send up to eighty percent of the refund to Calvert and Guido’s company.  Calvert and Guido used a portion of the money to pay off the tax preparers and kept the rest for themselves.  At this point, it is unknown whether the IRS will attempt to recover any of the ill-gotten money from individual taxpayers.

The key witness for the prosecution, Robert H. Anderson, was a prior co-conspirator in the tax credit scheme.  Anderson pled guilty in a previous lawsuit to charges related to his role in the fraud and was sentenced to thirty-seven months in prison.  Both Calvert and Guido were also named in the previous lawsuit.  Both men agreed to permanent injunctions barring them from any involvement in the tax credit program. The federal trial is expected to last approximately a month.  If found guilty of all ten counts of fraud and money laundering, both Calvert and Guido could each face up to ninety-five years in prison and be required to pay restitution.

The facts of the case as indicated in the court documents are as follows: Plaintiffs Simon Cheffins (“Cheffins”) and Gregory Jones (“Jones”) (collectively “Plaintiffs”) brought and action against Michael Sewart (“Defendant”) alleging conversion and violation of their rights under the  Visual Artists Rights Act, 17 U.S.C. § 106A  (“VARA”).  The complaint stems from Defendant’s  destruction of La Contessa , an artwork described by Plaintiffs as a “mobile, interactive replica of a 16th Century Spanish galleon,” on or about December 5, 2006.  Plaintiffs created La Contessa and claim to be its owners. La Contessa was an art piece resembling a Spanish galleon ship and built over a school bus.  On May 8, 2002, Cheffins received a $15,000 grant from  Black Rock City LLC  (“ Burning Man “) to support the construction of La Contessa. In exchange, Cheffins granted Burning Man a five-year license to use La Contessa at its events, a right of first refusal in the event the artwork was sold, and a number of other rights. After obtaining the grant, Cheffins bought and registered in California a used school bus and therafter built La Contessa. Beginning in September 2003,  La Contessa  was stored on a ranch with the permission of the ranch’s life estate tenant, Joan Grant.  Defendant, through his company Granite Investment Group, LLC, was at all relevant times the owner of the ranch.  Sometime in 2005, Grant moved off the ranch and abandoned her life estate, causing the property to revert to Defendant. Some time after the property reverted to Defendant, one of his representatives notified Burning Man, but not Plaintiffs, that if La Contessa was not removed it would be destroyed. On or about December 5, 2006, Defendant destroyed La Contessa by setting it on fire.

Pursuant to VARA, the “author of a work of visual art” has the right:

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

In this case, the Defendant’s expert witness concluded that La Contessa was applied art because “its primary purpose . . . was to provide transportation and other uses . . . for the days long  Burning Man festival  and for the extreme revelries that characterize this event.” The Court accepted the Defendant’s argument and concluded that the because a bus is a utilitarian object, the purpose of which is to move and transport people, and since, La Contessa was built on top of a bus and retained the bus’ innate function of movement and transport, La Contessa was thus a functional object and not protected under the VARA. Read the Court’s  Opinion .

The Supreme Court, overturning a decision by the  9th U.S. Circuit Court of Appeals , ruled in favor of the retail giant. The Court dismissed the class action suit brought on behalf of 1.6 million of Wal-Mart’s past and current female employees. Alleging that they had encountered a glass ceiling in regard to pay and promotions in their posts as Wal-Mart employees, Betty Dukes and 5 others began this class-action nearly 10 years ago. At the trial stage, this case would have been certain to cost the corporation billions, setting new precedent for sex discrimination suits against other conglomerate of moguls present in the American market.

Both parties provided the Court with differing statistical information concerning women and their salaries and positions at Wal-Marts across the nation. Attorneys for the corporation argued that a class action representing every female employee of the company would be far too encompassing given that hiring and promotion decisions were made on an individual basis, independent of their counterparts. The Court sided with Wal-Mart; Justice Scalia noting the lack of commonality in the elements tying together “literally millions of employment decisions at once.” In essence, merging all Wal-Mart female employees both past and present into a single class and claiming that they have altogether been subjected to gender discrimination was not supportable.

The Supreme Court decision, crippling the women from bringing their claim in the form of a nationwide class action, is devastating to their cause and that of women fighting similar claims against other sizeable employers. Such a decision leaves the 6 original Plaintiffs and their successors with the somewhat unrealistic option of pursuing their claims individually, a task that would require them to take on the dauntingly exorbitant costs of doing so singularly.

Young v. Metro Learning Inst. Inc. is a case about a visually impaired plaintiff who could not get information about classes offered on the defendant's website, claiming a violation of Title III of the ADA. The defendant claimed that the plaintiff was not a plausible student because most of their classes were for non-English speakers and/or require visual acuity. However, the court denied the defendant's motion to dismiss for lack of personal jurisdiction and 12(b)(6) motion, allowing the defendant to take jurisdictional discovery on the issue of whether the plaintiff has Article III standing.

The court found that a plaintiff need not provide detailed factual allegations to survive a motion to dismiss and that the defendant's allegation that the plaintiff did not fit the demographic of students that would plausibly enroll was not sufficient. The court also clarified that claims under the Rehabilitation Act and the NYSHRL are subject to the same legal standard.

The court interpreted arguments about the non-plausibility of the plaintiff actually taking the defendant's classes as going to standing and found that the plaintiff had established past injury under the ADA, but the defendant was permitted to take jurisdictional discovery on the issue of whether the plaintiff intends to return.

In conclusion, this case shows that website accessibility is a significant issue for visually impaired individuals and businesses must ensure that their websites comply with Title III of the ADA. Businesses should take proactive measures to ensure their websites are accessible and comply with the ADA, even if there is no physical location. This case also demonstrates the importance of establishing standing when bringing a claim under the ADA.

Young v. Metro Learning Inst. Inc., 2023 U.S. Dist. LEXIS 23206

Toro v. Merdel Game Mfg. Co., 2023 U.S. Dist. LEXIS 23215 (SDNY 2023) is a recent case that sheds light on the legal proceedings related to default judgments and the Americans with Disabilities Act (ADA).

In the case, the plaintiff missed the deadline to file for default judgment, and the court ordered the plaintiff to file for default judgment, while also ordering the defendant to show cause why a default judgment should not be granted.

The ruling provides insights into the criteria for entering a default judgment against defendants and establishes that a court's decision to enter a default does not entitle plaintiffs to an entry of a default judgment. Additionally, the court noted that a valid cause of action under the ADA must be alleged in the Complaint.

It's worth noting that the court found that the ADA excludes websites of businesses with no public-facing, physical retail operations from the definition of public accommodations.

Toro v. Merdel Game Mfg. Co., 2023 U.S. Dist. LEXIS 23215 (SDNY 2023) highlights the importance of complying with legal procedures and requirements when filing for default judgments in ADA cases. It also underscores the need to ensure that a valid cause of action is alleged in the Complaint. For businesses, understanding the ADA's definition of public accommodations is essential to ensure compliance and avoid potential legal issues related to their website's accessibility

The Americans with Disabilities Act (ADA) has been a cornerstone in ensuring equal rights and opportunities for individuals with disabilities. Title III of the ADA specifically addresses public accommodations and services, aiming to eliminate barriers and promote accessibility. In the vibrant state of New York, where diversity thrives, understanding ADA rights under Title III becomes crucial for creating an inclusive environment.

1. Defining Title III:

   Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation, commercial facilities, and private entities that offer certain examinations and courses related to educational and professional certification. Public accommodations include a wide array of businesses and services, ranging from restaurants and hotels to theaters and museums.

2. Key Provisions of Title III:

   • Architectural Accessibility: Ensuring that physical spaces are designed and constructed to be accessible to individuals with disabilities. This includes ramps, accessible parking spaces, and accommodations for those with mobility challenges.

   • Effective Communication: Businesses are required to provide effective communication for individuals with disabilities. This could involve offering auxiliary aids or services, such as sign language interpreters or Braille materials.

   • Reasonable Modifications: Public accommodations are obligated to make reasonable modifications to policies, practices, and procedures to accommodate individuals with disabilities, unless it poses an undue burden.

Pursuant to Section 3213 of the New York CPLR, a plaintiff may obtain such accelerated relief when an action is “based upon an instrument for the payment of money only or upon any judgment.”   A promissory note has been deemed to be an instrument for the payment of money only, provided that it contains an unconditional promise by the borrower to pay the lender over a stated period of time.

In Weissman v. Sinorm Deli Inc., 669 N.E.2d 242, 245 (1996), the New York Court of Appeals described an instrument for the payment of money only to be “a negotiable instrument for the payment of money—an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time.”  Pursuant to CPLR 3213, when an action is based on such an instrument, a plaintiff may simply serve the defendant with a summons with notice of motion for summary judgment and supporting papers in lieu of a complaint.  The statutory framework will then allow the plaintiff to obtain a judgment in an expeditious fashion by circumventing the requirement to serve a complaint and the responsive pleadings that come in any litigation.

Last month, the Second Department of the Appellate Division held in Von Fricken v. Schaefer, 118 AD3d 869, 870 (2d Dept. 2014) that a handwritten note by a borrower, which did not contain an unconditional promise to repay the borrowed sum upon demand or at definite time was insufficient, as a matter of law, to entitle the plaintiff to summary judgment. In Von Fricken, the action focused on a handwritten instrument executed by the defendant before a notary public, in which document provided that the defendant borrowed the sum of $25,000 from her now-deceased mother (hereinafter the decedent), and that she “will pay her [mother] back in full with [her] lawsuit money from Billy—of Cool Temp Mechanical—or any debt will be paid in full.”  The Von Fricken decision stresses the importance of ensuring that the proper language is included within a promissory note when lending money to a borrower.   In addition, it provides hope for borrowers when confronted with a 3213 action that defenses may be available to create issues of fact.

If you are in need of having a promissory note or other instrument for the payment of money drafted or are a party in a litigation involving the payment or defense against such instrument then please feel free to contact the attorneys at Bashian & Papantoniou to represent your interests in the handling of such matter.