June 2007 Archives

Mover Fails to Prove Jurisdiction in Suit Over Internet Site

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Law.com - Mover Fails to Prove Jurisdiction in Suit Over Internet Site

Beth Bar
New York Law Journal
June 29, 2007

A New York-based moving company cannot bring a lawsuit in Manhattan federal court against an Iowa resident who operates a Web site the company says defamed it, a 2nd U.S. Circuit Court of Appeals has ruled.

Finding that Best Van Lines failed to demonstrate personal jurisdiction under New York's "long-arm" statute, the circuit, in what it said was the first appellate decision to consider the issue, upheld a Southern District judge's dismissal of the complaint against the operator of MovingScam.com.

"We conclude that while New York appellate courts have not decided this precise issue, under well-settled principles of New York law, the district court did not have such jurisdiction," 2nd Circuit Judge Robert D. Sack wrote for the court in Best Van Lines v. Walker, 04-3924-cv


Read entire article with analysis on Law.com.

Carbon Monoxide Alarms-Pool Alarms

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Notice of Emergency Adoption

Carbon Monoxide Alarms -Notice of Adoption.
(Emergency Rule Effective Date: June 22, 2007 Expiration Date: September 19, 2007)

19 NYCRR Part 1228 - Additional Uniform Code Provisions

Pool Alarms - Notice of Adoption.
(Emergency Rule Effective Date: June 22, 2007 Expiration Date: September 19, 2007)

19 NYCRR Part 1228 - Additional Uniform Code Provisions

FINDLAW: Daily Opinion Summaries for U.S. Supreme Court - 06/28/07

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Leegin Creative Leather Prods., Inc. v. PSKS, Inc., No. 06-480
Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, which makes it per se illegal under section 1 of the Sherman Act for a manufacturer and its distributor to agree on the minimum price the distributor can charge for the manufacturer's goods, is overruled. Vertical price restraints are to be judged by the rule of reason.

Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, No. 05-908
In cases involving school districts that voluntarily adopted student assignment plans that rely upon race to determine which public schools certain children may attend, court of appeals' decisions upholding the plans are reversed as, under strict scrutiny, the districts failed to show that the interest they sought to achieve justified the means chosen.

Panetti v. Quarterman, No. 06-6407
Denial of a petition for a writ of habeas corpus brought by a prisoner convicted and sentenced to death in a Texas state court is reversed where: 1) the Supreme Court has statutory authority to adjudicate the claims raised in the habeas application; 2) a state court failed to provide the procedures to which petitioner was entitled under the Constitution; and 3) a federal appellate court employed an improperly restrictive test when it considered petitioner's claim of incompetency on the merits.


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New RealPlayer Instantly Downloads Online Video — www.RealPlayer.com

Change the way you experience Internet video
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The new RealPlayer gives you the ability to download videos from thousands of Web sites with just one click. Watch them whenever and wherever you want. Find the Internet video you're looking for – and Real it in.

Download Internet videos with one click

Build your own video playlist

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*DVD burning feature only available with RealPlayer Plus
Note: The newest RealPlayer is currently available only for Windows. The new RealPlayer is a beta version of their software.

NEW: NYSBA Real Property Section Blog

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Their Section is pleased to announce the debut of the new Real Property Law Section Blog. You can read the Blog at http://nysbar.com/Blogs/RPLS and if you wish to comment on a post simply click the comment button at the end of the post.

Just like here.

N.Y. Judges' Associations Prepare to Sue State for Salary Hike

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Via New York Law Journal (entire article)

Volunteer attorneys for judges' organizations are drafting a lawsuit to force New York Gov. Eliot Spitzer and the state Legislature to give state judges their first pay raise since January 1999. If filed by mid-July, as expected, the associations' suit would be the second before the courts seeking higher judicial pay. New York judges have been growing increasingly impatient after years of being told they deserve a raise only to see progress stalled by unrelated issues to which a pay hike has been linked.


The Supremes issued five decisions today:

Via Findlaw.com:

ADMINISTRATIVE LAW, CIVIL RIGHTS, GOVERNMENT LAW, PROPERTY LAW & REAL ESTATEWilkie v. Robbins, No. 06-219 In an action brought by the owner and operator of a commercial guest resort against officials of the Bureau of Land Management alleging harassment and intimidation aimed at extracting an easement across plaintiff's private property, denial of qualified immunity for defendants is reversed where the landowner has neither: 1) a private action for damages of the sort recognized in Bivens; nor 2) a claim against the officials in their individual capacities under the Racketeer Influenced and Corrupt Organizations Act (RICO).

Nat'l Ass'n of Homebuilders v. Defenders of Wildlife, No. 06-340, 06–549
Section 7(a)(2) of the Endangered Species Act does not effectively operate as a tenth criterion on which the EPA's transfer of certain permitting powers to state authorities under section 402(b) of the Clean Water Act must be conditioned.

Fed. Election Comm'n v. Wisconsin Right to Life, Inc., No. 06-969, 06-970In an action brought by a nonprofit corporation, Wisconsin Right to Life (WRTL), seeking declaratory and injunctive relief and alleging that the Bipartisan Campaign Reform Act section 203's prohibition on corporate election communications was unconstitutional as applied to certain ads, summary judgment for WRTL on its challenge is affirmed.

Hein v. Freedom from Religion Found., No. 06-157 In an action brought claiming that conferences held as part of the President's Faith-Based and Community Initiatives program violated the Establishment Clause of the First Amendment, a circuit court's decision reversing a dismissal of the action is reversed as the circuit court erred in holding that the plaintiffs had standing as taxpayers because the conferences at issue were paid for with money appropriated by Congress.

Morse v. Frederick, No. 06-278 Schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. Thus, school officials in the case at hand did not violate the First Amendment by confiscating a banner stating "BONG HiTS 4 JESUS" and suspending the student responsible for it.

Law.com - N.Y. Governor: 'Judges Should Know Better' Than to Sue for Raise

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Law.com - N.Y. Governor: 'Judges Should Know Better' Than to Sue for Raise

The judiciary would be bringing a "frivolous lawsuit" if it takes political leaders to court to demand a raise for New York's 1,200 judges, Gov. Eliot Spitzer said Friday as legislators again prepared to leave Albany without voting judges a raise.

"The judges should know better," Spitzer said at a Capitol news conference. "I sympathize with their frustration. I have been, I think, among the strongest proponents of giving the judges the pay raise they deserve. I will continue to push for it. Having said all that, I don't think litigation will be successful."


Read the entire article at Law.com

PODCAST: Avvo Ratings "...a Scam..." Says John Henry Browne

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Legal-affairs podcast Lawyer2Lawyer earlier this week spoke with attorney John Henry Browne, a lead plaintiff in the lawsuit against Avvo. Also on the program were bloggers Denise Howell and Legal Blog Watch's Carolyn Elefant. Avvo representatives declined to participate.

Via Robert J. Ambrogi

Rockland County Clerk Announcement

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On or about May 14, 2007 the Office of the Rockland County Clerk issued the following "Important Announcement":

"Effective June 1, 2007 documents will not be returned to filers unless an appropriately sized pre-addressed envelope, which contains adequate pre-paid postage stamps, accompanies them. If you would like to make alternative arrangements for return, please contact us at 845-638-5221 prior to submitting documents".

The New York State Land Title Association has been advised that the Clerk's Office will, for now, return documents notwithstanding the lack of the pre-addressed and stamped envelope. However, at some unspecified point in time compliance will be required.

Mike Berey

Supremes Say Passenger May Challenge Stop

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Brendlin v. California, No. 06-8120

When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and thus may challenge the stop's constitutionality.

2d Dept: LLC Must Be Represented in Court By Attorney

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Michael Reilly Design, Inc. v Houraney (2007 NY Slip Op 03890)


An LLC, like a corporation or voluntary association, is created to shield its members from liability and once formed is a legal entity distinct from its members (see Tierra West Apts., LLC v Bobadilla, NYLJ, Apr. 21, 1999, at 27 [Civ Ct, New York County]; Monte Carlo, LLC, v Yorro, NYLJ, May 7, 2003, at 25 [Dist Ct, Nassau County]). Accordingly, like a corporation or a voluntary association, the LLC may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the State of New York (id.; see also Limited Liability Companies: Tax and Business Law, Chapter 5, Paragraph 5.05[1][e]; Ribstein and Keatinge on Limited Liability Companies, Chapter 3).


For commentary see: New York Legal Update (Tom Swartz)

Special Education Law Blog

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Special Education Law Blog

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


This is an excellent resource for parents of individuals with disabilities in education. It is parent-oriented.


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Thoof - About

Thoof is a website that offers interesting news articles, websites, videos, photographs, and other links from around the web. Everything on the site is posted by Thoof readers, and can also be improved and edited by those same readers. What makes Thoof unique is a sophisticated algorithm which discovers a reader's interests and tailors the stories to each reader's individual tastes. Every Thoof reader will see a personalized page with stories he or she will find interesting. All that you, as a reader, have to do is simply read what you like, and Thoof takes care of the rest!


Choose Your News with Thoof


If you have not received an invitation, but would like to, please visit http://prelaunch.thoof.com/ and provide your email address to get added to the Thoof invite list.

FINDLAW: Daily Opinion Summaries for U.S. Supreme Court - 06/14/07

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Bowles v. Russell, No. 06-5306
The timely filing of a notice of appeal in a civil case is a jurisdictional requirement, and case law precedent setting forth the "unique circumstances" doctrine is overruled to the extent the cases purported to authorize an exception to a jurisdictional rule. In a habeas case in which a district court purported to extend petitioner's time for filing an appeal beyond the period allowed by statute, dismissal of petitioner's appeal for lack of jurisdiction is affirmed where petitioner's untimely notice, even though filed in reliance upon the district court's order, deprived the circuit court of jurisdiction.


Davenport v. Washington Educ. Ass'n, No. 05-1589
A state does not violate the First Amendment by requiring its public-sector unions to receive affirmative authorization from a non-member before spending that non-member's agency fees for election-related purposes. R


Permanent Mission of India to the United Nations v. City of New York, No. 06-134
The Foreign Sovereign Immunities Act (FSIA) does not immunize a foreign government from a law-suit to declare the validity of tax liens on property held by the sovereign for the purpose of housing its employees.

Senate Judiciary Committee Subpoenas Former White House Counsel

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(June 13, 2007) - The Senate Judiciary Committee issues a subpoena for former White House Counsel Harriet Miers in the ongoing investigation of the U.S. Attorney firings.

Click for download


There is not really much to see...just a "fill-in-the blanks" form with an attached list of documents sought.

FINDLAW:Daily Opinion Summaries for New York Court of Appeals - 06/12/07

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People v. Bratton, No. 79

Finding defendant guilty of resisting arrest related to a visit by parole officers at defendants' residence is reversed and the accusatory instrument dismissed for a warrantless arrest.


People v. Parilla, No. 76

Defendant was not denied effective assistance of counsel when his attorney failed to file a motion to dismiss the indictment on statute of limitations grounds, as defendant waived review of the statute of limitations issue when he entered his guilty plea.


Mayor of the City of N.Y.v. Council of the City of N.Y., No. 69

Mayor's challenge to validity of two local laws, passed by the City Council over his veto, that give certain fire department employees the status of "uniformed" fire service members for collective bargaining purposes is rejected as: 1) the local laws are not preempted by State law; and 2) the Council had the power to enact them without a referendum.


Rivera v. Anilesh, No. 78

In malpractice action by a patient against her dentist, the dentist's routine procedure for administering an anesthetic injection is admissible as habit evidence supporting an inference that the same procedure was used when treating the patient.


Greene County Dep't of Soc. Servs. v. Ward, No. 67

In case where appellant, an unmarried registered nurse, adopted a special needs child who was born prematurely at 27 weeks, followed by permanent surrender of parental rights after child exhibited severe behavioral problems, order of child support is affirmed over claims that: 1) appellant is exempt from support obligation as the single "parent" of a "child born out of wedlock"; or 2) respondent should be equitably estopped from enforcing the support order.

Safari 3 Public Beta

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Apple - Safari 3 Public Beta - Download

Now available for Windows XP or Vista as well as Mac OS X 10.4.9.

Blazing Performance
Safari is the fastest web browser on any platform.

Elegant User Interface
Safari’s clean look lets you focus on the web — not your browser.

Easy Bookmarks
Organize your bookmarks just like you organize music in iTunes.

Pop-up Blocking
Say goodbye to annoying pop-up ads and pop-under windows.

Inline Find
Search any text on any website with the integrated Find banner.

Tabbed Browsing
Open and switch between multiple web pages in a single window.

Instantly snap back to search results or the top level of a website.

Forms AutoFill
Let Safari complete online forms for you, automatically and securely.

Built-in RSS
RSS tells you when new content is added to your favorite sites.

Resizable Text Fields
Resize text fields on any website: Just grab the corner and drag.

Private Browsing
Keep your online activities private with a single click.

Apple engineers designed Safari to be secure from day one.



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Wyzo - The Media Browser

Wyzo is a new browser that focuses on optimizing your online media experience. Wyzo gives you access to all your favourite media sites, downloading media content and informing your friends about your discoveries.

Wyzo integrates your torrent downloads inside their download manager. Now you can manage your web and torrent downloads from the same window. Start downloads with just one click.

Wyzo allows you to browse the web securely using the latest protection and safety technologies. Built from the ground up on the Firefox core, Wyzo will make sure your experience is smart, safe, and hassle-free.

Wyzo is available for OS X and Linux is coming soon.

MicroSoft Surface--"Hands-on Technology"

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The 50 Most Influential Women Lawyers in America

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The 50 Most Influential Women Lawyers in America

Search for your name!! See if you agree? Congratulate your friends.


Entire Article from The National Law Journal

How Do We Increase Attendance At Summer Meetings?

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Law.com - Ex-Porn Star Dropped From N.Y. Bar Section Agenda

Joel Stashenko
New York Law Journal
June 8, 2007

An appearance by an ex-porn actress at the summer meeting of the New York State Bar Association's Family Law Section has been canceled.

Patrick C. O'Reilly, chair of the section, said Wednesday he did not know of Sydnee Steele's background in the adult video industry when he arranged in January for her to speak at the meeting.


Read Entire Article at Law.com

He canceled her July 13 appearance in deference to some attorneys who questioned the appropriateness of Steele's presence, O'Reilly said.

Law.com - Lawyer's Interest Charges on Unpaid Legal Fees Found to Be Excessive

Daniel Wise
New York Law Journal
June 7, 2007

A requirement in a retainer agreement compelling a client to pay 16 percent interest on unpaid fees is excessive and unenforceable, a Nassau County, N.Y., judge has ruled.

Instead, the client must pay interest on the unpaid fees at a rate of 9 percent, the amount of interest allowed by statute to be collected, both pre- and post-judgment, on amounts found collectible by courts, Nassau District Court Judge Gary F. Knobel ruled in Kutner v. Antonacci, 36363/06.


entire article from law.com

Op-Ed Contributor: Free Judges’ Pay

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Free Judges’ Pay - New York Times


Published: June 7, 2007

SINCE Gov. Eliot Spitzer reappointed me chief judge three months ago, fair pay for our judges has been the consuming issue. In these critical, final days before the Legislature adjourns, New Yorkers deserve a frank explanation of why raising judicial pay and replacing New York’s broken system of compensation matter — and why so much is at stake if Albany fails to act now.


Entire OpEd (May require free registration if you are not already subscribed)

Fox Television Stations, Inc. v. FCC, 06-1760-ag

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Law.com - 2nd Circuit Finds FCC's Policy on 'Fleeting Expletives' Arbitrary

The Federal Communications Commission did not provide sufficient justification for a policy change under which it planned to penalize the use of "fleeting expletives" on television, the 2nd U.S. Circuit Court of Appeals ruled Monday.

The circuit found that the FCC acted "arbitrarily and capriciously" when it warned the Fox Network it intended to sanction it for obscenities uttered by Cher and Nicole Richie on televised awards shows.

Judges Rosemary Pooler and Peter Hall, in an opinion by Pooler, held that the FCC "failed to articulate a reasoned basis for its change in policy" and voted to send the case back to the commission for just such an analysis.

Judge Pierre Leval dissented in Fox Television Stations, Inc. v. FCC, 06-1760-ag, saying the FCC had at least provided a "sensible, although not necessarily compelling reason" for the change.

The majority opinion was grounded solely in what it said was the FCC's failure to follow the Administrative Procedure Act, but the majority also said it doubted the FCC would be able to justify its policy change under the First Amendment.


Click here for entire article from LAW.COM

Daily Opinion Summaries for U.S. Supreme Court - 06/04/07

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Sole v. Wyner, No. 06–531
In the context of attorney's fee awards in private actions brought under 42 U.S.C. section 1983 and other specified measures designed to secure civil rights, prevailing party status does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.


Safeco Ins. Co. of Am. v. Burr, No. 06-84, 06-100

In the context of the Fair Credit Reporting Act (FCRA), which requires notice to any consumer subjected to "adverse action...based in whole or in part on any information contained in a consumer [credit] report" and imposes civil liability on one who "willfully fails" to provide such notice, willful failure covers a violation committed in reckless disregard of the notice obligation. Related Resources: • Additional Information, Briefs, and Resources on Safeco Ins. Co. of Am. v. Burr


Uttecht v. Brown, No. 06-413

Grant of a petition for a writ of habeas corpus setting aside a capital sentence, pursuant to a claim that the trial court had violated petitioner's constitutional rights by excusing a potential juror for cause, is reversed where the court of appeals neglected to accord the proper deference required of courts reviewing claims of Witherspoon-Witt error, and on the record it was error to find that a juror was not substantially impaired in the performance of their duties.


Claiborne v. US, No. 06-5618

As the petitioner in the case died in on May 30, 2007, the judgment of the United States Court of Appeals for the Eighth Circuit is vacated as moot. Related Resources: • Additional Information, Briefs, and Resources on Claiborne v. US

Child Support Standards Act-new tables

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NYS DCSE | New York Child Support

Child Support Standards

The Child Support Standards Act tables, released April 1, 2007, are now available. The tables are used to determine the annual child support obligation amount pursuant to the provisions of Chapter 567 of the Laws of 1989.

Fitzgerald Sentencing Memo on Libby

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Here is the sentencing memo in pdf.

Legal Ease Blog: What Are You Doing To Improve Your Practice This Summer?

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Legal Ease Blog: What Are You Doing To Improve Your Practice This Summer?

What Are You Doing To Improve Your Practice This Summer?

Allison Shields has an excellent short piece on how to spend the summer--if you're a lawyer. This is one of many helpful practice tips to be found on Allison's blog--Legal Ease. You'll want to subscribe via RSS

Home Office Lawyer: Value Billing, what is it, and how is it done? Part III

Value Billing, what is it, and how is it done? Part III

This is the final post in a three part series on value billing for Home Office Lawyer. Part I covered the definition of value billing and setting expectations with clients. Part II discussed setting the fee and using options and change orders. In this final post of the series, talks about guarantees and reiterate the elements involved in using a value billing system.


Via Grant Griffiths Home Office Lawyer

Allison Shields--Value Billing - What is it, and how is it done? Part II

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Home Office Lawyer: Value Billing - What is it, and how is it done? Part II

This is the second in a series of posts about value billing. Part I covered the definition of value billing and setting expectations with clients. This post will cover how to determine the fee, and how to use options and change orders. Part III will end the series with guarantees and an overview of the elements of value billing.


Via Grant Griffiths Home Office Lawyer

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