General Practice Section

Law.com - Pay Raise for N.Y. Judges Gets Boost in Spitzer's First Budget

Via New York Law Journal (entire article)
February 1, 2007

New York Gov. Eliot Spitzer on Wednesday included more than $111 million in his executive budget to provide all state judges with a pay raise retroactive to April 1, 2005.

The bold and apparently unprecedented initiative of including a judicial pay increase in an executive budget would result in an average salary hike of about 25 percent for the judges, who have not had so much as a cost-of-living increase in eight years.

Under the proposal, which mirrors one first advanced by Chief Judge Judith S. Kaye, the salaries of all judges -- including Housing Court judges, who were excluded under a Pataki administration plan -- would see a pay hike of roughly 23 percent as of April. The remaining 2 percent would kick in if Congress approves a cost-of-living increase for federal judges.

In his budget commentary, the governor noted that the cost of living has increased more than 20 percent as the salaries of judges have remained stagnant. Spitzer said a pay raise is warranted "as a matter of fairness to judges and their families and as a matter of public policy."

The pay structure would, for now, link the salaries of state Supreme Court justices to those of federal district judges, while tying the salaries of the other state judges to those of Supreme Court justices. If Congress approves the next scheduled cost-of-living increase for federal judges, the salaries of New York's judges would be calculated as follows on April 1:

MuniWireless - Law Review Article: Wi-Fi Everywhere

Hannibal Travis, Assistant Professor of Law, has written a law review article entitled Wi-Fi Everywhere: Universal Broadband Access as Antitrust and Telecommunications Policy where he argues that Congress and state legislatures should encourage cities and counties to provide free and low-cost Wi-Fi broadband service. The article looks at US federal and state legislation, the Telecom Act of 1996, anti-competitive factors in US broadband policy and the regulatory framework in other countries where there is competition in the market for broadband services.

The primary thesis of this Article is that Congress and the states should encourage cities and counties to provide free and low-cost Wi-Fi broadband to their citizens. The American public has a compelling national interest in equalizing access to computers and the Internet across racial, economic, and geographical lines.

...

Download the PDF from here.

All Via MuniWireless:The Vocie of Public Broadband

Lusk v. Village of Cold Spring, No. 05-4999 (2d Cir. January 31, 2007)

Denial of a permanent injunction against the enforcement of a section of the Village Code, requiring approval for physical alterations to buildings in the Historic District, which the Village enforced with respect to the plaintiff's display of political signs adjacent to his home, is reversed where although the standards employed by the code are constitutionally permissible, the procedures it employs to effect them are not.

[To view the full-text of cases you must sign in to FindLaw.com.]

Public Citizen | Press Room - New Lawyer Advertising Rules in New York Violate Free Speech, Impede Internet Communications and Nonprofit Legal Services

WASHINGTON, D.C. – New rules governing lawyer advertising set to go into effect in New York violate free speech and would impose anti-consumer restrictions on lawyers’ advertising and Internet communications, according to a lawsuit filed today by Public Citizen and a New York law firm.

The lawsuit seeks to prevent enforcement of New York's attorney advertising rules that are scheduled to take effect on Feb. 1. The new guidelines are part of a revision of the rules contained in New York's Code of Professional Responsibility for lawyers, which is designed to protect consumers by prohibiting false and misleading lawyer advertisements. The rules were released on Jan. 4 by the presiding justices of the four divisions of New York's appellate courts.

...

To view the lawsuit, click here.

To read more about this issue, visit the Consumer Law & Policy Blog, co-sponsored by Public Citizen’s Consumer Justice Project.

Meraki

Meraki’s mission is to bring affordable Internet access to the next billion people. Meraki’s new approach to wireless networking empowers individuals and groups to bring access to local communities, anywhere in the world.

Meraki has focused on changing the economics of access since it’s beginning as a MIT Ph.D. research project that provided wireless access to graduate students.

Using their research, Meraki got its start at a low-income housing community in the US. News about Meraki’s products spread by word of mouth into over 25 countries around the world. Every day, new Meraki networks bring access to locations ranging from urban apartment complexes in London to villages in India.

Meraki makes it easy to spread Internet access across your home, building, or community. Setting up a network is as easy as plugging in a few Meraki repeaters and connecting one or more to the Internet. The system takes care of the rest, providing Internet access to all your users.

Meraki featured in New York Times Business Section Article

NAWBO-NYC | National Association of Women Business Owners | New York City

The 2007 NAWBO-NYC Signature Awards Gala, theirpremier event of the year, will be held on Tuesday, March 20, 2007 from 5:30-9:00 PM at the TriBeCa Rooftop, in Manhattan's hip New York Neighborhood.

Each year, the Signature Awards honors four notable women business owners and bestows one Lifetime Achievement Award.

Signature Award winners are remarkable women business pioneers who have left their unique mark — their "signature" — on their business and on the New York business community.

Via Imke Ratschko, Esq. and her New York Small Business Law blog.

Law.com - N.Y. Justices Group Opposes Role in Screening

In a controversial move, the association representing New York Supreme Court justices has passed a resolution calling upon the judiciary to refrain from any involvement in the screening of candidates for elective judgeships.

The resolution was adopted unanimously by more than 100 justices who attended the association's Jan. 27 annual meeting, held in Manhattan as part of the New York State Bar Association's convention.

The resolution puts the 325-member association on a collision course with Chief Judge Judith S. Kaye and the four presiding justices of the Appellate Division who are in the process of implementing a court rule adopted last February deeply involving the judiciary in the screening of all candidates for elected judgeships.

The proposal comes at a particularly sensitive time because the 2nd U.S. Circuit Court of Appeals last August affirmed a decision by Eastern District of New York Judge John Gleeson ordering the state to reform its 86-year-old convention system. The court ordered that primaries must be held this year if the legislators did not adopt an acceptable alternative.

The Association of Justices of Supreme Court also adopted a resolution asking that justices on the bench before the ruling in Lopez-Torres v. New York State Board of Elections went into effect be exempted from any solution, whether imposed by the Legislature or the courts, requiring nomination in a primary.

And, in a third resolution, the association asked that pay raises not be linked to any other legislative issues. With Governor Eliot Spitzer's inclusion of money for pay raises in his executive budget last Wednesday, the prospects for a raise without linkage to legislators' salaries -- the issue that doomed judicial raises last year -- brightened considerably.

...

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Law.com - Judicial Watchdog Resigns Over ABA Panel's Change to Ethics Rules

Accusing an American Bar Association panel of secretly watering down judicial ethics rules, the administrator of the New York Commission on Judicial Conduct has resigned in protest from an ABA advisory council.

In a resignation letter released Monday, Robert H. Tembeckjian objected strenuously to what he said is a plan to diminish the thrust of an ethics precept that says judges should "avoid impropriety and the appearance of impropriety." Tembeckjian said the ABA would make a "monumental mistake" if, as proposed, it relegates the "impropriety and appearance of impropriety" provision to an unenforceable guideline.

Currently, under the Model Code of Judicial Conduct, which many states use as a template for their own rules, judges who violate the provision are subject to disciplinary action. But a revision inserted into a updated code and slated for consideration by the ABA next week would change that so the "impropriety and appearance of impropriety" admonition would no longer constitute a rule. Rather, it would simply be a guideline.

...

Read full text of article by John Caher via NY Law Journal.

Via the National School Boards Association's free e-newsletter "LegalClips". Sign up for a free subscription to "Legal Clips" here.

The Department of Education's Office for Civil Rights (OCR) has issued a "Dear Colleague" letter, below, reminding recipients of OCR's new Title IX regulations on nonvocational single-sex classes, extracurricular activities, and schools at the elementary and secondary education levels.

Title IX prohibits gender-based discrimination in federally funded education programs.

The Legal Clips summary of the regulations, with links to the regulations and related information on single-sex programs and legal questions, is available at the second link.

In addition to highlighting some features of the new regulations, the letter also provides a dedicated e-mail address, T9singlesexTA@ed.gov, for submitting questions and requests for technical assistance in connection with these new requirements. This e-mail address will be in operation until December 31, 2007.

[OCR "Dear Colleague" letter]

[NSBA School Law pages on single-sex regulations]

"The Federal Bureau of Investigation (FBI) has launched a service that sends out electronic mail (e-mail) alerts when new and vital information is posted on the FBI.gov Web site.

Subscribers select which topics that they want updates on, such as new electronic scams (e-scams) and warnings, most wanted terrorists, top ten fugitives, and local and national press releases. The alerts are transmitted as soon as updates are posted to the FBI's Web site or published in their daily, weekly, or monthly digests. The FBI views this service as a means of furthering American citizens' safety by keeping them informed. No personal information is required to sign up for this service, just an e-mail address to where the alerts will be sent. To sign up for the service please visit the www.FBI.gov."

Or click here.

See new forms from Judicial Title:

Equity Purchaser's Affidavit

Seller's Affidavit

Subsequent Purchaser's Affidavit

Phase-Out Credit for Toyota and Lexus Hybrids Continues With Reporting of Fourth Quarter Sales

IR-2007-28, Feb. 8, 2007

WASHINGTON — After reviewing the fourth quarter sales of Toyota Motor Sales USA Inc., the Internal Revenue Service announced that purchasers Toyota and Lexus vehicles may continue to claim the Alternative Motor Vehicle Credit. Given the number of vehicles sold, the phase out period for Toyota vehicles began on October 1, 2006.
Toyota sold 67,857 qualifying vehicles to retail dealers in the quarter ending Dec. 31, 2006. This brings the cumulative sales of qualified Toyota hybrid vehicles sold from the period of Jan. 1, 2006, through Dec. 31, 2006, to 212,073.
Taxpayers may claim the full amount of the credit up to the end of the first calendar quarter after the quarter in which the manufacturer records its sale of the 60,000th qualified vehicle. For the second and third calendar quarters after the quarter in which the 60,000th vehicle is sold, taxpayers may claim 50 percent of the credit. For the fourth and fifth calendar quarters, taxpayers may claim 25 percent of the credit. No credit is allowed after the fifth quarter. The sale of Toyota ’s 60,000th qualified vehicle occurred in the quarter ending September 30, 2006.

The applicable credit amounts are found here:

See Related Item: Hybrid Cars and Alternative Motor Vehicles

Law.com - NewsPoint Newsreader

What is Law.com NewsPoint?

Law.com NewsPoint is a desktop newsreader. It allows you to sign up to receive updates from Law.com and other online publishers. Once you’ve installed Law.com NewsPoint on your computer, it will automatically check for news updates from Law.com and the other publishers you’ve added. This means you can get the latest updates directly on your computer desktop, without having to surf lots of different websites to find it.

Sorry MacUsers--Windows only at this point. Download here.

ADMINISTRATIVE LAW, PROPERTY LAW & REAL ESTATE, TAX LAW

O'Shea v. Board of Assessors of Nassau, No. 19 , 20, 21 (N.Y. February 13, 2007)
In case involving thousands of owners of residential real property in Nassau County whose home values soared after a countywide revaluation, and thus increased property taxes, dismissal of petitions challenging the revaluation is affirmed over claim that the revaluation violated Real Property Tax Law section 1805(1).
[To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.lp.findlaw.com/data/ny/cases/app/19-21opn07.pdf

BANKING LAW, SECURITIES LAW

J.A.O. Acquisition Corp. v. Stavitsky, No. 1 (N.Y. February 13, 2007)
In case arising out of a stock purchase transaction, order dismissing complaint is affirmed as plaintiff did not raise a triable issue of fact on its negligent misrepresentation and fraud claims against defendant bank.
[To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.lp.findlaw.com/data/ny/cases/app/1opn07.pdf

CRIMINAL LAW & PROCEDURE

People v. Kisoon, No. 15, 16 (N.Y. February 13, 2007)
The trial court did not commit a mode of proceedings error when it failed to disclose, or significantly paraphrased, a jury note in court.
[To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.lp.findlaw.com/data/ny/cases/app/15&16opn07.pdf

FAMILY LAW

In the Matter of Sheena D., No. 10 (N.Y. February 13, 2007)
Family court was without authority to set the duration of orders of protection in favor of respondent/father's children until they reached the age of 18, as the fact-finding dispositional order incorporating the orders of protection had no expiration date.
[To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.lp.findlaw.com/data/ny/cases/app/10opn07.pdf

Sui Generis--a New York law blog: New York Lawyer Advertising Rules--What About Home Offices?

Nicole Black raises an interesting question about 1200.6 (h); i.e., what happens to lawyers who practice from home and are concerned about his/her home address being made available to the public?

Due to changes in statutes, a petition for a name change for an adult should have different language, L. 2006, ch. 481, as an example:

I am not responsible for any child support obligations.
(OR) My child support obligations are have been satisfied and are up to date. (OR) The amount of child support arrearages currently outstanding is $__. The court that issued the child support order is ___. The support collection unit is ___.


I am not responsible for any spousal maintenance.
(OR) My spousal maintenance obligations have been satisfied and are up to date. The amount of spousal arrearage currently outstanding is $__. The court that issued the support order is ___


Also, the Order for Name Change should be revised as well, based on L. 2006, ch. 258: change "twenty" to "sixty" days for date of publication, and change "forty" to "ninety" for date when affidavit of publication is to be filed.

With "Thanks" to:

Gary Muldoon
Muldoon & Getz
144 Exchange Boulevard
Rochester, NY 14614-2108

See extended entry for link to free LoisLaw

This presentation will be held in the Great Hall of the New York City Bar on the evening of February 22, 2007. The event runs from 6 p.m. to 8 p.m., is free and will provide CLE ethics credits for attendees.

The presentation will be the public introduction of the newly adopted Rules of Conduct and is open to the legal community, but is specifically aimed at providing information to the City’s administrative law judges and hearing officers now covered by the Rules effective February 13, 2007.

The program is co-sponsored by the Office of the Administrative Justice Coordinator, the Administrative Judicial Institute at OATH, and the New York City Bar's Committees on Administrative Law, Government and Ethics, and Litigation. The presentation will provide a basic overview of the Rules and their purpose, highlight key provisions and important obligations, and allow time for questions and answers.

To register, please contact Frank Ng at 212-442-4941 or by email: fng@oath.nyc.gov

For Full Text of Rules of Conduct, see extended entry:

ADMINISTRATIVE LAW, CIVIL RIGHTS, CONSTITUTIONAL LAW, GOVERNMENT LAW, LABOR & EMPLOYMENT LAW

In civil rights and wrongful discharge case involving defendant city council members' budget vote to eliminate funding for plaintiffs' positions, an order denying a motion to dismiss complaint is reversed. Legislative immunity applies not only to the members' budget vote to eliminate such funding, but also to any discussions and agreements members may have had regarding the new budget prior to the vote, regardless of whether those discussions and agreements took place in secret.
[To view the full-text of cases you must sign in to FindLaw.com.] http://caselaw.lp.findlaw.com/data2/circs/2nd/062010p.pdf

Everything you always wanted to know about cemeteries and crematories and their operations in New York State.

Selected Laws, Rules and Regulations of the New York State Cemetery Board are available for downloading in pdf at:

http://www.dos.state.ny.us/cmty/pdfs/cemeterylaw.pdf

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NYPD Can't Routinely Tape Protests

LARRY NEUMEISTER
Associated Press Writer

(AP) - NEW YORK-A judge on Thursday said police cannot routinely videotape demonstrations when they involve purely political activity.

U.S. District Judge Charles S. Haight said New York Police Department videotaping of two recent protests was as egregious as police conduct at anti-Vietnam War demonstrations 35 years ago that led to permanent court oversight of police surveillance and intelligence collecting methods at large gatherings.

The judge said the city had violated the Handschu guidelines, created to settle a 1971 lawsuit brought by the Black Panther Party alleging that police engaged in widespread surveillance of legitimate political activity.
"Solely politically based investigations are flatly prohibited by the guidelines," the judge wrote. "In other words, there must always be a legitimate law enforcement purpose - having a purpose of investigating political activity exclusively for its own sake is never allowed."

...

Read the entire article.

...

UPDATE:

Read Full Text of Decision

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Their regular service is free and there are no costs, no matter how much you use it.

When you sign up your free account, you also receive all the additional features of their Pro Accounts during the first month; you can decide later if you find them useful.

Justia Blawgs.FM

This site features links to the most popular Blawgcasts; i.e., pod casts on legal issues, many done by other lawyers.

Blawgcasts are sorted by category and the site is searchable.

Blawg Post tags and a "cloud" for recent search terms give this site a very Web 2.0 feeling.

Direct links to the most recent blawgcasts keep you current.

Vox - Your world online. Start a FREE personal blog today!

A new service, Vox (www.vox.com), offers free personal blogging sites where you can decide who will see each posted item. If you post pictures of your children, for example, you can mark them for family-member-only viewing. But if you write a book review, you may mark it for friends as well as family, or even for public viewing.

Featured in today's Sunday NYTIMES here.

Grandmother brought proceeding for visitation against surviving parent of grandchild, who challenged constitutionality of DRL §72(1) which, inter alia, gives grandparent standing to intervene and seek custody or other rights where one or both parents of infant are deceased. Supreme Court’s granting of petition and holding statute constitutional as affirmed by Appellate Division, with modification of visitation schedule, affirmed by Court of Appeals.

Matter of E.S. v. P.D.

In separate cases, one a drug prosecution conviction and the other a murder conviction, each trial court failed to read written questions, presented by the jury in each case, to counsel before calling each jury back and responding to the questions.

Appellate Division's reversal of convictions and ordering of new trials in each case affirmed, because failure to read written jury questions to counsel constitutes a mode of proceedings error under CPL 310.30. Court of Appeals reiterates its procedures for jury notes: “[W]henever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses…[T]he trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made.”

People v. Kisoon

Respondent (attorney) charged with neglect of legal matters and failure to communicate with clients. Respondent moved to stay disciplinary proceeding to permit him to enter the alcohol and substance abuse program of the New York State Bar Association’s Lawyer Assistance Program (LAP), to which petitioner consented. LAP is a recognized diversion program under 22 NYCRR 806.4(g). Stay granted until such time as respondent either successfully completes rehabilitation or commits additional misconduct.

Matter of Anonymous.

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Global Warming Education Event: The 2010 Imperative Global Emergency Teach-In

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...

I am impressed by the level of sophistication shown by the New York Academy of Sciences in their web cast, including a simultaneous translation into Spanish.

How S Corporations Save Taxes, Bellevue & Redmond, WA Accountant Services: Stephen L. Nelson, CPA

Stephen L. Nelson is the author of the bestselling books "Quicken 2006 for Dummies" and "QuickBooks 2005".

His page on S-Corps is succinct.

Via Imke Ratschko, Esq.'s New York Small Business Law.

AGRICULTURE, ANTITRUST & TRADE REGULATION, COMMERCIAL LAW

Weyerhauser Co. v. Ross-Simmons Hardwood Lumber Co., Inc., No. 05-381 (U.S.S.C. February 20, 2007)
In the antitrust context of Section 2 of the Sherman Act, the test the Court applied to claims of predatory pricing in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993), also applies to claims of predatory bidding, which involves the exercise of market power on the buy side or input side of a market to drive the price of a critical input to high levels.
[To view the full-text of cases you must sign in to FindLaw.com.]

CIVIL PROCEDURE, CONSTITUTIONAL LAW, CONSUMER PRODUCTS, INJURY AND TORT LAW, PRODUCT LIABILITY, REMEDIES

Philip Morris USA v. Williams, No. 05-1256 (U.S.S.C. February 20, 2007)
A punitive damages award, based in part on a jury's desire to punish a defendant for harming nonparties, amounts to a taking of property from the defendant without due process. A judgment rejecting a tobacco company's challenges to a punitive damages award against it in a negligence and deceit case is vacated where the Oregon Supreme Court applied the wrong constitutional standard when considering the tobacco company's appeal.
[To view the full-text of cases you must sign in to FindLaw.com.]

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS

Lawrence v. State of Florida, No. 05-8820 (U.S.S.C. February 20, 2007)
28 U.S.C. section 2244(d)(2) does not toll the one year limitations period for seeking federal habeas relief from a state-court judgment during the pendency of a certiorari petition in the Supreme Court.
[To view the full-text of cases you must sign in to FindLaw.com.]

Fraudulent Telephone Tax Refunds, Abusive Roth IRAs Top Off 2007 'Dirty Dozen' Tax Scams

Fraudulent Telephone Tax Refunds, Abusive Roth IRAs Top Off 2007 "Dirty Dozen" Tax Scams IR-2007-37, Feb. 20, 2007

WASHINGTON-- The Internal Revenue Service today identified 12 of the most blatant scams affecting American taxpayers and warned people not to fall for schemes peddled by scamsters.

This year the 'Dirty Dozen' highlights five new scams that IRS auditors and criminal investigators have uncovered. Topping off the list are fraudulent refunds being claimed in connection with the special Telephone Excise Tax Refund available to most taxpayers this filing season. The IRS is actively investigating instances of this scam involving tax preparers who are preparing inflated refund requests.

Also new to the Dirty Dozen this year are abuses pertaining to Roth IRAs, the American Indian Employment Credit, domestic shell corporations and structured entities.

"Taxpayers shouldn't let their guard down," IRS Commissioner Mark W. Everson said. "Don't get taken by scam artists making outrageous promises. If you use a tax professional, pick someone who is reputable. Taxpayers should remember they are ultimately responsible for what is on their tax return even if some unscrupulous preparers have steered them in the wrong direction."

Involvement in tax schemes leads to problems for scam artists and taxpayers. Tax return preparers and promoters risk significant penalties, interest and possible criminal prosecution.

The IRS urges taxpayers to avoid these common schemes:

LAKHDAR BOUMEDIENE V. GEORGE W. BUSH
February 20, 2007

A U.S. federal appeals court dismisses cases filed by designated 'enemy combatants' being held at Camp X-Ray in the Guantanamo Bay Naval Base in Cuba. The majority rules that under the Military Commissions Act of 2006 (MCA), federal courts lack jurisdiction over any cases filed by detainees, and the MCA applies retroactively to detainees' habeas petitions.

COMMUNICATIONS LAW, CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE

Walton v. New York State Dep't of Corr. Servs., No. 12 (N.Y. February 20, 2007)
In case involving recipients of collect calls from prison inmates, dismissal of suit seeking to enjoin defendant from collecting a 57.5% commission on its 2001 contract with MCI and other relief is modified to reinstate as timely petitioners' constitutional claims alleging violations of "the power to tax," "due process rights," "the right to equal protection," and "free speech and association rights."
[To view the full-text of cases you must sign in to FindLaw.com.]

CONTRACTS, INJURY AND TORT LAW, MANUFACTURING, PRODUCT LIABILITY

Bradley v. Earl B. Feiden, Inc., No. 3 (N.Y. February 20, 2007)
In case involving a fire that broke out in plaintiff's kitchen that originated with plaintiff's new refrigerator, jury verdict for plaintiff on breach of warranty, which was reversed by the Appellate Division, is reinstated as sufficient evidence exists to support the verdict for plaintiff on breach of warranty claim against manufacturer and retailer of refrigerator, despite jury also finding for the manufacturer on a related products liability claim. The supplier of the bracket control assembly component of the refrigerator is contractually required to indemnify the manufacturer and retailer.
[To view the full-text of cases you must sign in to FindLaw.com.]

CRIMINAL LAW & PROCEDURE, EVIDENCE, PER CURIAM

People v. Grajales, No. 14 (N.Y. February 20, 2007)
Conviction and sentence for robbery are affirmed where the prosecution discharged its statutory obligation to provide notice of intent to offer identification testimony at trial by serving timely notice under CPL 710.30(1)(b) of an on-the-street point out identification, despite defense counsel's learning about a prior photographic identification sometime during pretrial discovery.
[To view the full-text of cases you must sign in to FindLaw.com.]

ELDER LAW, HEALTH LAW, INJURY AND TORT LAW, PER CURIAM

Giandana v. Providence Rest Nursing Home, No. 197 SSM 42 (N.Y. February 20, 2007)
In case where alleged negligent acts involved decedent, partial summary judgment for plaintiff is precluded where questions of fact remain relating to how decedent was injured, whether third-party defendant was involved, and whether defendant nursing home was otherwise negligent.
[To view the full-text of cases you must sign in to FindLaw.com.]

LABOR & EMPLOYMENT LAW

New York City Transit Auth. v. New York State Pub. Employment Relations Bd., No. 5 (N.Y. February 20, 2007)
In case arising out of appellant's interview of one of its employees for using a racial slur against other employees, Civil Service Law section 202, the Taylor Law, does not provide a right to public employees in New York similar to section 7 of the NLRA, which allows an employee to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline.
[To view the full-text of cases you must sign in to FindLaw.com.]

JURIST - Paper Chase: Supreme Court to hear NY trial judge selection, sentencing cases

Supreme Court to hear NY trial judge selection, sentencing cases

Via Jurist
Brett Murphy at 1:15 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] agreed to hear two cases Tuesday, including one dealing with the procedure the state of New York employs to choose trial judges. In NY Board of Elections v. Torres, state election officials join both the Democratic and Republican parties in an appeal of a Second Circuit decision [PDF text; JURIST report] that the current process that picks judicial candidates for the general ballot at political conventions violates the First Amendment rights of both candidates and voters. In the case [Brennan Center materials], the lower courts ruled that New York's system of nominating its elected state trial court judges in political conventions [NY Election Law s. 6-106, PDF] rather than through primaries for trial level judges resulted in only friends of political powers having their names placed on the ballots. AP has more.

In Logan v. US, the Court will review the threshold for when repeat criminals can be treated as career criminals for sentencing purposes, when the convictions are for misdemeanor crimes. SCOTUSblog has more. Read the Court's full Order List [PDF text].

...

If you are not using Jurist, you should consider it. This is a valuable resource for practicing attorneys-not just academics.

Emergency spurs Weis case mistrial - The Boston Globe

The Charlie Weis medical malpractice trial came to an abrupt end in Suffolk Superior Court yesterday when the doctors accused of mishandling Weis's care rushed to the aid of a juror who collapsed in the jury box and the judge declared a mistrial.

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Via BOSTON GLOBE (entire article)

Rules

In case you missed it, these rules were effective October 1, 2006.

BANKRUPTCY LAW

Marrama v. Citizens Bank of Massachusetts, No. 05-996 (U.S.S.C. February 21, 2007)
In a bankruptcy case involving the issue of whether a debtor in a Chapter 7 proceeding, despite bad faith conduct, has an absolute right to convert under section 706(a) of the Bankruptcy Code, the Court rules that the courts in this case correctly held that the debtor forfeited his right to proceed under Chapter 13. The Court does not indicate with precision what conduct qualifies as "bad faith" sufficient to permit a bankruptcy judge to dismiss a Chapter 13 case or to deny conversion from Chapter 7, except to indicate the debtor's conduct must be atypical.
[To view the full-text of cases you must sign in to FindLaw.com.]

View Docket Information for Marrama v. Citizens Bank of Massachusetts

CIVIL PROCEDURE, CIVIL RIGHTS, CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, INJURY AND TORT LAW

Wallace v. Kato, No. 05-1240 (U.S.S.C. February 21, 2007)
The statute of limitations for a 42 U.S.C. section 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.
[To view the full-text of cases you must sign in to FindLaw.com.]

View Docket Information for Wallace v. Kato

ABA-CLE | Planning for Retirement

A Guide for Firm Managers, Retiring Partners, and Solos

Date: Thursday, March 15, 2007
Duration: 90 Minutes

This program will explore how a large firm, Holland & Hart, a Rocky Mountain regional law firm with headquarters in Denver, Colorado addresses retirement planning. Ed Flitton, former managing partner of Holland & Hart, will describe the firm's current system and considerations for influx of retirement of boomers.


They will also explore what steps sole practitioners should take to handle their unique situation. Transition coach, Stephen P. Gallagher, and attorney, Frank G. D'Angelo, will share their experiences in transition planning for sole practitioners.

...

Update: From the Comments:

Try "Ask Bill" for the sole pratitioner's perspective.

LinkedInABox: Unleash Your LinkedIn Profile

LinkedInABox™ is a simple widget that can be embedded on any web page and provides a summary of your personal profile, as presented in your LinkedIn account.
Your log-in details will not be stored and will be used only to retrieve your profile details.

ANTITRUST & TRADE REGULATION, CLASS ACTIONS

Sperry v. Crompton Corp., No. 4 (N.Y. February 22, 2007)
Because the treble damages provision in General Business Law section 340 serves as a penalty for purposes of CPLR 901(b), such damages are not recoverable in a class action.
[To view the full-text of cases you must sign in to FindLaw.com.]

CIVIL PROCEDURE, CORPORATION & ENTERPRISE LAW, INJURY AND TORT LAW

Tedesco v. A.P. Green Indus., Inc., No. 13 (N.Y. February 22, 2007)
A dissolved corporation may, as part of winding up its affairs, bring a third-party claim for indemnity or contribution in an action arising out of pre-dissolution events.
[To view the full-text of cases you must sign in to FindLaw.com.]

CRIMINAL LAW & PROCEDURE, EVIDENCE, PER CURIAM

People v. Jackson, No. 17 (N.Y. February 22, 2007)
Conviction of statutory rapes is affirmed as, even though it may have been error to admit evidence of a prior uncharged sexual assault against another and defendant's simultaneously uttered out-of-court statement, the error was harmless.
[To view the full-text of cases you must sign in to FindLaw.com.]

Via the National School Boards' Ass'n "Legal Clips" free electronic newsletter. Sign up for free subscription.

In an unpublished opinion, the U.S. Court of Appeals for the Second Circuit ruled in November that a special education contractor's speech, which she alleged was the basis for retaliation, could not considered protected speech made as a citizen, because she herself asserted that the speech was made pursuant to her responsibilities as a contractor. The court based its decision on the U.S. Supreme Court's decision in Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), which held that a public employee's speech could not be considered to be speech as a private citizen on a matter of public concern for purposes of a First Amendment retaliation claim if that speech was made pursuant to the employee's official duties.

However, the Second Circuit concluded that other instances of speech by the contractor might serve as basis for a retaliation claim.

When Donna McGuire's special education service contract with the Orange County, New York, was terminated, she sued, alleging that her termination was in retaliation for her engaging in protected speech about. She also claimed that the county had violated the Fourteenth Amendment because an e-mail announcing her termination was stigmatizing, depriving her without due process of her liberty interest in avoiding stigma that may affect her future employment. The district court dismissed both claims.

The Second Circuit affirmed in part, vacated in part, and remanded the case to the lower court. The appeals court found that the letter cited by Ms. McGuire as the basis for the retaliation could not satisfy the requirement that the speech be made as private citizen on a matter of public concern, because the letter focused on an internal administrative matter that was not of interest to the community at large. However, the court found that the letter might not be the only speech that could serve as the basis of a retaliation claim. Ms. McGuire's complaint also discussed the parties' differing views on the proper method of providing special education services, and the statements she made more broadly might well be a matter of public concern and serve as the basis for a retaliation claim. Nevertheless, she herself alleged that she was acting pursuant to her responsibilities as a contractor at the time of the speech, which would run afoul of Garcetti. As a result, the Second Circuit vacated the lower court's judgment and remanded the case for the sole purpose of allowing Ms, McGuire 45 days to amend her complaint. Turning to the due process claim, the court found that Ms. McGuire had failed to allege that the statements in the e-mail were actually false, which the court has held is necessary for a liberty interest claim.

McGuire v. Warren, No. 06-0135, 2006 WL 3456538 (2d Cir. Nov. 30, 2006)

[Editor's Note: An unpublished opinion generally may not be cited as legal precedent. Background on Garcetti and how it has been applied by lower courts in other school cases is available starting at the link below.]

[NSBA School Law pages on Casey v. West Las Vegas Indep. Sch. Dist.]

NYSED Certified IHO

VESID
(the Vocational and Educational
Services for Individuals with Disabilities)
and the University at Buffalo Law School
have partnered to provide you with the
training and resources you need as an
Impartial Hearing Officer

New Postings & Alerts

Laws & Regulations

State Review Officer (SRO) Homepage

Commissioner of Education Decisions

Court Decisions

Impartial Hearing Reporting System (IHRS)

VESID Special Education Publications

Canada rules indefinite detention wrong - Yahoo! News

By BETH DUFF-BROWN, The Associated Press (Via Yahoo!!--entire article)

1 hour, 43 minutes ago

OTTAWA - One of Canada's most contentious anti-terrorism provisions was struck down Friday by the Supreme Court, which declared it unconstitutional to detain foreign terror suspects indefinitely while the courts review their deportation orders.

The 9-0 ruling was a blow to the government's anti-terrorism regulations. Five Arab Muslim men have been held for years under the "security certificate" program, which the Justice Department had insisted is a key tool in the fight against global terrorism and essential to Canada's security.

The court found that the system violates the Charter of Rights and Freedom, Canada's bill of rights. It suspended the judgment from taking effect for a year, to give Parliament time to rewrite the part of the Immigration and Refugee Protection Act that covers the certificates.

...

Read the full text of this ruling by the Supreme Court of Canada.

New Handbook Offers Tips for Mitigating E-Lawyering Risks

February 22, 2007

From describing their practices to offering legal advice over the Internet, e-lawyering has created new ethical and legal risks, according to underwriters at the Chubb Group of Insurance Companies.

Chubb has introduced a new handbook, "A Lawyer's Guide to Managing E-Lawyering Risks," to explain how lawyers and law firms can utilize new technologies while mitigating the associated risks. E-lawyering includes activities ranging from sending an e-mail to a client to online chatting or negotiating with clients or other parties. Some firms even have abandoned their bricks-and-mortar approach to become virtual law firms.

"The Internet and other technologies can help law firms serve clients, but these same tools can create risks that must be monitored closely," said James Rhyner, vice president, Chubb & Son, and global lawyers professional liability product manager, Chubb Specialty Insurance. "Lawyers must be able to operate on the Internet without violating ethical and legal rules, including confidentiality, duties owed to prospective clients and the unauthorized practice of law in jurisdictions where they are not admitted."

Chubb's handbook reviews a variety of risks that lawyers need to consider when conducting business over the Internet, including unintended client engagements, disclosure of confidential information, premature destruction of electronic documents, unauthorized practice of law and security breaches. It also explains how software packages can help law firms better manage their business and enhance their risk management efforts.

A copy of the handbook can be downloaded at www.chubb.com/businesses/chubb3331.html.

...

Hat Tip to Carolyn Elefant

ExpressPDF :: Convert online Word, Excel, Web pages to PDF Free !

ExpressPDF is an online service that lets you convert your Microsoft Office documents to PDF.
This service can also convert Web pages to PDF !

...

Hat Tip to Tom Mighell--Inter Alia

Event Registration (EVENT: 36643)

Wednesday, March 14, 2007
2:00 PM Eastern Daylight Time

Produced by MuniWireless.com
Sponsored by Firetide

Almost without fail, public safety is the first application deployed for public wireless networks in cities and counties of every size and geography. Whether it’s video surveillance, mobile reporting, fire and police first responders or temporary emergency networks, public safety applications have fast become a driving force for initial deployments – and a catalyst for network expansion into other municipal applications.


This free Webcast will cover a variety of topics that will help you successfully deploy wireless networks for public safety, and how to get the most out of those networks.

NYS Dept. of State--Division of Code Enforcement & Administration

A G E N D A

Date: Thursday, March 22, 2007 Time: 10:00 a.m.

Location: Empire State Plaza Convention Center, Meeting Rooms #6, Albany, New York

Contact: Ray Andrews, Assistant Director for Code Development, Phone: (518) 474-4073

1. Welcome

2. Minutes - December 6, 2006

3. Public Comment Period

4. Code Change Adoption: Uniform Code:

1) Repeal of Subchapter A of Chapter XXXIII (Parts 1220, 1221, 1223, 1224, 1225 and 1226) of Title 19 NYCRR
2) Addition of new Subchapter A of Chapter XXXIII (to include new Parts 1219, 1220, 1221, 1222, 1223, 1224, 1225, 1226 and 1227) to Title 19 NYCRR

5. Code Change Adoption: Energy Code:

Amendment of Section 1240.1 of Title 19 NYCRR

6. Proposal: Swimming Pool Alarms

7. Proposal: Carbon Monoxide Detectors

8. More Restrictive Local Standards: MRLS Update Report

9. Discussion: New Code Review Cycle

10. Other Business

CONDUCT OF MEETING

The Code Council will convene at 10:00 a.m., Empire State Plaza Convention Center, Albany, New York. Prior to the meeting, a briefing will be conducted to provide instructions to the Council. All Code Council meetings and briefings are open to the public.

Persons who wish to address the Council are requested to submit their written comments and a request to address the Council in writing as soon as possible in order to be included on the agenda. Please send the information to Ray Andrews, Assistant Director for Code Development at the Department of State, Codes Division, 41 State Street, Albany, New York 12231 or e-mail: codes@dos.state.ny.us

SERVICES AVAILABLE

If you have a hearing problem, an assistive listening system is available for your use. This listening system would amplify the speaker’s voice. If you are deaf, an interpreter may be provided. You must notify Joanne Kaminski at (518) 474-4073 of your need at least five days prior to the meeting.

IN RE: THE CITY OF NEW YORK
February 26, 2007

The federal judge overseeing the case brought by plaintiffs killed or injured in New York City's 2003 Staten Island Ferry crash denies the City's request to limit its liability to $14.4 million, representing the assessed value of the ship.

Special Education Law Blog

A special education legal resource discussing case law, news, practical advocacy advice, and developments in state and federal statutes and regulations.

Postings include insight and sometimes humor from Charles P. Fox, a Chicago, Illinois attorney who is also a parent of child with special needs, and other guest authors.

Independent Contractors vs. Employees

Before you can determine how to treat payments you make for services, you must first know the business relationship that exists between you and the person performing the services. The person performing the services may be -

An independent contractor

A common-law employee

A statutory employee

A statutory nonemployee

...

Full text of article and links to additional IRS resources.

...

See: NY Dept. of Labor

...

Hat Tip to New York Small Business Law blog. This blog is a resource well worth adding to your "favorites" or "bookmarks". Subscribe for timely small business info.

OpenCongress

OpenCongress brings together official government information with news and blog coverage to give you the real story behind what's happening in Congress.

OpenCongress is a free, open-source, non-profit, and non-partisan web resource with a mission to help make Congress more transparent and to encourage civic engagement. OpenCongress is a joint project of the Sunlight Foundation and the Participatory Politics Foundation.

Official information from Thomas, the website of the Library of Congress, made available by GovTrack.us: all the bills, Members of Congress, votes, committee reports, issue areas, and more.

News articles about Congress from Google News.

Blog posts about Congress from Technorati and Google Blog Search.

Campaign contribution information from OpenSecrets.org, the website of the non-profit, non-partisan Center for Responsive Politics.

OpenCongress makes it easy for anyone to track a bill, Member of Congress, or issue area, and to follow the latest developments by subscribing to an RSS feed for each.

...

Hat Tip to bespacific

About BlogHer Conferences & Events | BlogHer

What: BlogHer Business '07
When: March 22nd and 23rd, 2007
Where: Affinia Manhattan Hotel, New York, New York
Theme: How to Succeed in a Social Media World

...

Hat Tip to Carolyn Elefant at My Shingle

Seeking to end a system that forces New York judges to "beg and plead" for even a modest salary raise, Chief Judge Judith S. Kaye said Monday that the judiciary would submit legislation to create a mechanism for annual cost-of-living adjustments for officials in all branches of state government.

The proposal was one of the initiatives outlined in a reform-driven state-of-the-judiciary address. Most notably, Kaye said that the court system has endorsed a constitutional amendment prepared by a special commission that would consolidate the state's 11 separate trial courts -- "the most archaic and bizarrely convoluted court structure in the nation" -- into a Supreme Court and a District Court.

The chief judge also backed the proposal by another commission to transfer oversight of local probation agencies from the executive branch to the judiciary and to significantly increase state funding for alternatives to incarceration.

...

Via law.com (entire article)

Clipmarks | Firefox Add-ons | Mozilla Corporation

With Clipmarks, you can clip the best parts of web pages. Whether it’s a paragraph, sentence, image or video, you can capture just the pieces you want without having to bookmark the entire page.

Save what you clip, post it to your blog, send it to friends or share it with everyone on the Clipmarks site.

Works with: Firefox1.5 - 2.0.0.*ALL

...

Via TechCrunch:

Their CEO, Eric Goldstein, was a lawyer who was fed up with cutting and pasting citations into a Word file only to discover that the 100 page mess became unreadable and unusable. He and his team launched a first iteration of the product, which Marshall looked at months ago, but the latest version is considerably more fully-featured and quite interesting.

Robert Scoble has filmed an excellent demo of Ning from CEO Gina Bianchini.

...

Why should I, as an attorney, care about "social networks"?

If you substitute "solo practice" and/or "small firm"and your clients for each time you hear "social network", you will begin to get some idea of the possible uses.

You can do your own highly sophisticated, 2.0 web site, for free (ad sponsored) in a few minutes. Just watch the demo to see how easily you can do this yourself.

The Title Insurance Rate Service Association ("TIRSA") has informed its members that its filing of the 2006 ALTA policy forms, as submitted to the New York State Insurance Department, have been approved by the Department for use in New York State effective May 1, 2007.

Michael Berey

Effective March1, 2007, motions for pro hac vice admission must be electronically filed, with the associated fee paid via credit card through Pay.Gov.

Here is the link to the Court's website announcing this change.

If you have any questions at all, please contact one of the the Court's ECF Help Desks.

This link will show you the carriers available to sell legal professional liability insurance in NY, with some description of each carrier's policy.

This link gives you pointers about comparing different policies:

Gary Muldoon

Adoption

Resources on all aspects of domestic and intercountry adoption, including adoption from foster care. Includes information for prospective and adoptive parents; information about searching for birth relatives; and resources for professionals on recruiting adoptive families, preparing children and youth, supporting birth parents, and providing postadoption services.

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Child Welfare Information Gateway consolidates and builds upon the services formerly provided by the National Adoption Information Clearinghouse and the National Clearinghouse on Child Abuse and Neglect Information. The information and resources from the former NAIC website and more are available here.