June 2009 Archives

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 6/30/09

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CRIMINAL LAW & PROCEDURE

People v. Gomez, No. 119
Defendant's drug conviction is reversed where the state did not sustain its initial burden of establishing that its search of Defendant's vehicle constituted a valid inventory search, and thus Defendant's motion to suppress should have been granted.


CRIMINAL LAW & PROCEDURE

People v. Buchanan, No. 101
Defendant's murder conviction is reversed where the trial court required Defendant to wear a stun belt during trial, and a stun belt may not be used to restrain a defendant in a criminal case without a finding of specific facts justifying the use of such a restraint.



DISPUTE RESOLUTION & ARBITRATION, INJURY AND TORT LAW, INSURANCE LAW

People v. Coventry First LLC, No. 115
In an enforcement action by the state claiming that Defendant life settlement providers concealed commissions to brokers, who persuaded their clients to accept Defendants' offers, the denial of Defendants' motion to dismiss or compel arbitration is affirmed where: 1) the state was not bound by arbitration agreements signed by Defendants' clients; and 2) the complaint stated a claim that Defendants knew that the life settlement brokers' conduct constituted a breach of fiduciary duty.

INJURY AND TORT LAW

Butler v. Gloversville, No. 116
In a personal injury action claiming that Defendants failed to use a recommended ground cover at a playground they operated, summary judgment for Defendants is reversed where Defendants presented insufficient scientific evidence to show that Plaintiff's injury would have occurred even with the recommended equipment.

PROPERTY LAW & REAL ESTATE

Buffalo Crushed Stone Inc. v. Cheektowaga, No. 118
In an action seeking a declaration that town zoning ordinances did not apply to Plaintiff's quarry due to prior nonconforming use, the trial court's order exempting portions of Plaintiff's property from the ordinances is modified where Plaintiff had manifested its intent to mine certain parcels long before the ordinances at issue.

FINDLAW: Daily Opinion Summaries for U.S. Supreme Court - 6/29/09

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BANKING LAW, GOVERNMENT LAW

Cuomo v. Clearing House Ass'n., L.L.C., No. 08–453
In an action claiming that certain state fair-lending laws were preempted by the National Bank Act (NBA) and accompanying regulations, an injunction in favor of Plaintiffs is affirmed in part, where the state's threatened issuance of executive subpoenas was an improper exercise of "supervisory power". However, the judgment is reversed in part where a federal regulation purporting to pre-empt state law enforcement is not a reasonable interpretation of the NBA.

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

Ricci v. DeStefano, No. 07–1428
In a Title VII action claiming that a city discriminated against white firefighter candidates for a promotion by discarding their test results based on a statistical racial disparity, summary judgment for Defendants is reversed where the city's action in discarding the tests violated Title VII, because a threshold showing of a significant statistical disparity is far from a strong basis in evidence that the city would have been liable under Title VII had it certified the test results.

task.fm

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task.fm - a personal digital assistant

Create reminders using natural language e.g "meeting with bob at 3pm" email, sms and voice calls
Reminders can be sent out via email (free), sms (pay), voice calls (pay) or all three

task.fm is also a simple to-do list manager. Create reminders for individual tasks works right from email. Never leave your inbox! Just send an email to reminder@task.fm and they will process it

Stonewall Riot Police Reports, June 28, 1969 - OutHistory

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Stonewall Riot Police Reports, June 28, 1969 - OutHistory

Seven pages of NYPD records reproduced on OutHistory.org were obtained in May 2009 by Jonathan Ned Katz, Director of the website, in consultation with historian David Carter, and two additional pages reproduced were obtained in 1988 by the late Michael Scherker, under the New York State Freedom of Information Law.

For the first time, in the seven documents obtained by Katz, the names of those arrested are not blacked out, providing the public and historians with important new evidence about the rebellion's participants. None of the nine NYPD reports made available on OutHistory.org have earlier been published.

Rental Car Magic

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Rental Car Magic

Rental Car Magic is a rental car rate search service. They do not rent cars and have no affiliations with any rental car agency.

They use a customized search process to maximize the use of special promotions and discounts in combination with standard rates to produce savings. These special rates are often hard to find and restricted to specific groups,certain days, dates, locations or vehicle types. However, when properly applied, these discounts can result in very significant rate reductions.

You tell them where, when and what type of rental car you're looking for. They'll search special discounts and promotion to find you the lowest rate which matches your needs. You make the rental reservation with the details that they provide to you.

The site, which charges $14.95 to $49.95, sends back a quote in a day or two.

***

Hat Tip to NYTIMES Practical Traveler.

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 6/25/09

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CONSTITUTIONAL LAW, GOVERNMENT LAW

Parkhouse v. Stringer, No. 111
In a motion to quash a government subpoena seeking information regarding false statements allegedly made by Petitioner at a public hearing, the denial of the motion is affirmed, where the First Amendment did not protect Petitioner's misstatement of the content of letters written by public officials.

EDUCATION LAW, GOVERNMENT LAW

New York Charter Schs. Ass'n. v. DiNapoli, No. 108
In an action challenging the State Comptroller's authority to conduct academic performance audits of charter schools, judgment for Defendants is reversed, where the legislature violated Article V, Section 1 of the state constitution when it assigned and directed the comptroller to audit charter schools.



INJURY AND TORT LAW, INSURANCE LAW, LANDLORD TENANT LAW

Kassis v. Ohio Cas. Ins. Co., No. 117
In an action seeking indemnification from an insurer regarding a slip and fall personal injury action, judgment for Defendant is reversed where a landlord is an additional insured under an insurance policy obtained by his tenant, such that the insurer is obligated to defend and indemnify the landlord in an underlying personal injury lawsuit.

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INJURY AND TORT LAW, INSURANCE LAW, TRANSPORTATION

Central Mut. Ins. Co. v. Bemiss, No. 113
In an action to stay an arbitration regarding Plaintiff-Insurer's obligation to settle a personal injury claim, judgment for Defendant is affirmed where consent-to-settle and subrogation-protection provisions in the supplementary uninsured/underinsured endorsement in an automobile liability insurance policy remain in force when an insured has exhausted the available policy limits of a single tortfeasor in a multi-tortfeasor accident.

FINDLAW: Daily Opinion Summaries for U.S. Supreme Court - 06/25/09

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ADMINISTRATIVE LAW, ADMIRALTY, INJURY AND TORT LAW, REMEDIES

Atlantic Sounding Co., Inc. v. Townsend, No. 08–214
In an action based on Defendant's alleged refusal to pay maintenance and cure to Plaintiff for injuries he suffered while working on Defendant's tugboat, the District Court's order holding that punitive damages were available is affirmed where punitive damages for the willful and wanton disregard of the maintenance and cure obligation remain available as a matter of general maritime law.

CIVIL PROCEDURE, EDUCATION LAW

Horne v. Flores, No. 08–289
In a motion by state legislators to purge the District Court's contempt order holding that the state was providing inadequate English Language-Learner instruction in the school district at issue, the denial of the motion is reversed, where the lower courts did not engage in the proper analysis under Fed. R. Civ. P. 60(b)(5), because they did not analyze whether changed circumstances warranted reexamination of the original judgment.



CIVIL RIGHTS, CRIMINAL LAW & PROCEDURE, EDUCATION LAW

Safford Unified Sch. Dist. No. 1. v. Redding, No. 08-479
In a 42 U.S.C. section 1983 action alleging an unlawful search of a student, the denial of summary judgment based on qualified immunity is affirmed where the search of Plaintiff's underwear violated the Fourth Amendment because the facts did not give school officials reasonable suspicion to search her underwear.

CRIMINAL LAW & PROCEDURE, EVIDENCE

Melendez-Diaz v. Mass., No. 07–591
Defendant's drug conviction is reversed, where the trial court's admission of the prosecution's certificates by laboratory analysts, stating that material seized by police and connected to Defendant was cocaine of a certain quantity, violated petitioner's Sixth Amendment right to confront the witnesses against him.

Top 20 iPhone Apps for Busy Attorneys

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Top 20 iPhone Apps for Busy Attorneys : The Mac Lawyer

POSTED ON JUNE 24, 2009 BY J. BENJAMIN STEVENS

There are many good iPhone Apps out there and€“ maybe so many that you're overwhelmed and unsure where to start looking at them.  If that applies to you, consider this list of "Top 20 iPhone Apps for Busy Attorneys" as a starting point and see if any of these will be helpful to you:

***

Hat tip to The MAClawyer-Using Macs in the Practice of Law.

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 06/24/09

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BANKRUPTCY LAW, COMMERCIAL LAW, TRANSPORTATION

Reiber v. GMAC, LLC, No. 109
The Court of Appeals answered a certified question from the United States Court of Appeals for the Second Circuit as follows: The portion of an automobile retail installment sale attributable to a trade-in vehicle's 'negative equity' is a part of the 'purchase money obligation' arising from the purchase of a new car, as defined under New York's Uniform Commercial Code.

BANKRUPTCY LAW, CONTRACTS

MHR Capital Ptnrs. LP v. Presstek, Inc., No. 114
In a breach of contract action, judgment for Defendant is affirmed where Defendant's obligation to perform under the stock purchase agreement at issue did not arise because an express condition precedent was not fulfilled.



CIVIL PROCEDURE, HEALTH LAW, INJURY AND TORT LAW

Bazakos v. Lewis, No. 112
In a medical negligence action, the dismissal of the complaint is reversed, where the applicable statute of limitations was two and one-half years, because a claim for negligently performing an independent medical examination is a claim for malpractice and thus governed by CPLR section 214-a.

CRIMINAL LAW & PROCEDURE

People v. Almeter, No. 84
Defendant's trespass conviction is reversed where Defendant was unaware that each of his charged offenses was being tried to a separate fact finder until the trial was nearly over, and a defendant should not be required to guess who the fact finder is at his or her trial.

The New York Law Journal - State Bar 'Refines' Position on Same-Sex Couples, Says Marriage Is the Only Possible Path to Equality


By Jeff Storey
June 23, 2009


Legalizing same-sex marriage is the only way to achieve full equality for gay and lesbian couples, the New York State Bar Association's policy-making body has concluded, abandoning a menu of legislative options it offered only four years ago.

The bar group's House of Delegates, meeting in Cooperstown on Saturday, overwhelmingly endorsed an amendment to the Domestic Relations Law "to allow same-sex couples to marry and to recognize their marriages if contracted elsewhere." The LGBT Committee's report is posted at nylj.com

Read the State Bar's proposed resolution, and Report and Recommendationon Marriage Rights for Same-Sex Couples
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Read full article with historical background..

The Kennedy-Mighell Report: "Lawyers and Smartphones"

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Do the iPhone 3GS and Palm Pre have what it takes to topple Blackberry as a lawyer’s smartphone? On this edition of the Kennedy-Mighell Report, co-hosts, Dennis Kennedy and Tom Mighell take a look at all three devices - hardware, software, functionalities and services - to compare.

Click here.

FINDLAW:Daily Opinion Summaries for U.S. Supreme Court -06/22/09

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ADMINISTRATIVE LAW, EDUCATION LAW

Forest Grove Sch. Dist. v. T.A., No. 08–305
In an action challenging a hearing officer's order reimbursing fees paid by Plaintiff's parents for his special education program under the Individuals with Disabilities in Education Act (IDEA), the award is affirmed where IDEA authorizes reimbursement for private special-education services when a public school fails to provide a free appropriate public education and the private-school placement is appropriate, regardless of whether the child previously received special-education services through the public school.


ADMINISTRATIVE LAW, ENVIRONMENTAL LAW, WATER LAW

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, No. 07–984
In an action against the Army Corps of Engineers challenging the Corps' grant of a permit to a mining company to discharge waste materials, summary judgment for Defendant is affirmed where the Corps, not the EPA, had the authority to permit the discharge, and the Corps' interpretation of Clean Water Act regulations was entitled to deference.


CIVIL RIGHTS, ELECTIONS, GOVERNMENT LAW

Northwest Austin Mun. Utility Dist. No. 1. v. Holder, No. 08–322
In an action seeking relief under the "bailout" provision in Section 4(a) of the Voting Rights Act, which allows a "political subdivision" to be released from the preclearance requirements if certain conditions are met, the dismissal of the complaint is reversed where the Act must be interpreted to permit all political subdivisions, including Plaintiff district, to seek to bail out from the preclearance requirements.


ALBANY, NY (06/22/2009)(readMedia)-- The New York State Bar Association released a new report outlining a comprehensive plan to help solo and small firm practitioners - the largest and fastest growing segment of its membership. The report, authored by the Special Committee on Solo and Small Firm Practice, was adopted by the House of Delegates, the decision- and policy-making body of the Association, at its June 20 meeting in Cooperstown.

The Special Committee, chaired by Past President Robert L. Ostertag (Ostertag O'Leary and Barrett, Poughkeepsie) and established in August 2008 by Immediate Past President, Bernice K. Leber (Arent Fox LLP, New York City), was charged with making a thorough study of the issues and challenges that confront solo practitioners and small firms in New York.

Committee members, working in four sub-committees, also reviewed the quality, accessibility and level of awareness of existing State Bar programs designed to assist solo practitioners and small firms. They recommended new programs, benefits, resources and services that should be developed to help these practitioners and their firms.

"One of my priorities over the next year as president is to make sure the State Bar offers programs and services that are relevant and helpful to our members, particularly as they struggle in these tough economic times. With more than 64 percent of our members now working in firms of 20 or fewer attorneys, these initiatives will bring value to the growing majority of our membership," said State Bar President Michael E. Getnick (Getnick Livingston Atkinson & Priore, LLP, Utica and of counsel to Getnick & Getnick, New York City). "I want to thank Bernice Leber and Robert Ostertag for their leadership on this critical issue."


For a full copy of the New York State Bar Association Special Committee on Solo and Small Firm Practice's report, go to www.nysba.org/SSFReport.

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FINDLAW:Daily Opinion Summaries for U.S. Supreme Court -06/18/09

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BANKRUPTCY LAW, CIVIL PROCEDURE, INJURY AND TORT LAW, PRODUCT LIABILITY

Travelers Indemn. Co. v. Bailey, No. 08–295
In objections to a settlement of tort claims against the insurer of an asbestos manufacturer, the Court of Appeals' order sustaining the objections is reversed where the terms of a prior injunction issued in bankruptcy proceedings regarding the manufacturer barred direct actions against Defendant, and the finality of the Bankruptcy Court's orders generally stood in the way of challenging their enforceability.


CIVIL RIGHTS, CRIMINAL LAW & PROCEDURE, EVIDENCE

District Attorney's Office for the Third Judicial Circuit v. Osborne, No. 08–6
In a 42 U.S.C. section 1983 action seeking the evidence used to convict Defendant of sexual assault for the purposes of DNA testing, summary judgment for Plaintiff is reversed where, assuming Plaintiff's claims could be pursued using Section 1983, he had no constitutional right to obtain post-conviction access to the State's evidence for DNA testing.



CRIMINAL LAW & PROCEDURE, SECURITIES LAW, WHITE COLLAR CRIME

Yeager v. US, No. 08–67
In an appeal from the District Court's order denying Defendant's motion to dismiss his wire fraud indictment on Double Jeopardy grounds, the order is reversed where an apparent inconsistency between a jury's verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the acquittals' preclusive force under the Double Jeopardy Clause.


LABOR & EMPLOYMENT LAW

Gross v. FBL Fin. Servs., Inc., No. 08–441
In an Age Discrimination in Employment Act (ADEA) action claiming a wrongful demotion, judgment for Plaintiff is reversed where a plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action.

LPM Tip of the Week

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Law Practice Management Tip of the Week

Tip of the Week is presented by Joel Rose and is a complementary feature of the New York State Bar Association's Law Practice Management resources.

Joel A. Rose is a Certified Management Consultant and President of Joel A. Rose & Associates, Inc., management consultants to the legal profession, Cherry Hill, New Jersey.
Mr. Rose calls upon 38 years of experience consulting with private law firms. His firm performs consulting assignments in law firm management and organization, strategic and financial planning, lawyer compensation, the feasibility of mergers and acquisitions and marketing of legal services.

Songbird 1.2

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Songbird - Open Source Music Player

Songbird is an open-source customizable music player that's under active development.

It supports integration with the iTunes Store, mashTape, Last.fm Radio, and concert tickets.

Songbird is non-proprietary and cross-platform (Mac, Windows, and Linux).

Download for free here.

Judge Refuses to Intervene In NY Senate Leadership Fight

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The New York Law Journal -Judge Refuses to Intervene In Senate Leadership Fight

By Joel Stashenko
June 17, 2009

ALBANY - A state judge refused to intervene yesterday in a leadership fight that has paralyzed the Senate, reiterating that the feuding parties should settle their own differences.

Acting Supreme Court Justice Thomas J. McNamara of Albany ruled that the imbroglio, which has two 31-senator factions each recognizing different presidents pro tem, is a "wholly internal" matter for the Senate to resolve.

"A judicially imposed resolution would be an improvident intrusion into the internal workings of a co-equal branch of government," Justice McNamara wrote in Smith v. Espada, 4912-09. "The practical effect of having a court decide this issue would be that its decision, if only by perception, would have an influence on the internal workings of the Senate including the setting of the Senate agenda. To have a court decide this issue would be improper."

***
To read full text of article, click here.

Opera Unite a/k/a Opera 10.0 Beta

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Opera Unite

Opera Unite allows you to share your data: photos, music, notes and other files. You can even run chat rooms and host entire Web sites with Opera Unite. It puts the power of a Web server in your browser, giving you greater privacy and flexibility than other online services.

Opera Unite services can be accessed from any modern browser, including mobile browsers! At home, just select what you want to share, and you can view it later using your work Web browser

Simply enable Opera Unite when you start Opera 10.0 Beta, and you are ready to go.

Download here.

Law.com - Insurer Blames N.J. Lawyer for Blot on Title

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Law.com - Insurer Blames N.J. Lawyer for Blot on Title

Suit shows that rubber-stamping title commitments can be dangerous
Henry Gottlieb
New Jersey Law Journal
June 16, 2009


A venerable title insurance company has done something unusual in New Jersey, and lawyers aren't likely to applaud.

Chicago Title Insurance Co. filed a malpractice claim against a homebuyer's attorney, saying he acted without diligence and owes a piece of the $300,000 the company paid to save a policyholder's home.

The Bergen County suit charged Albert Birchwale, of Basile, Birchwale & Pellino in Ridgefield, N.J., failed to investigate a previous sale in the chain of ownership to make sure there was no potential federal estate tax lien.

Veteran real estate lawyers say that they've heard of suits by title insurers against lawyers who weren't diligent but that this is the first they know of to allege an attorney failed to research previous sales in the property's history -- a job usually thought to be the role of title professionals.

Chicago Title, founded in 1849, is part of a conglomerate with 30 percent of the national title insurance market.

On Friday, Chicago Title said through its lawyer that the company had decided to voluntarily dismiss the case, Chicago Title Insurance Company v. Birchwale, Ber-L-483-09, but didn't backtrack from the position that the claim has merit.

***

Read the full text of this article here.

FINDLAW:Daily Opinion Summaries for U.S. Supreme Court -06/15/09

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ADMIRALTY, CONSTITUTIONAL LAW, OIL & GAS LAW, TRANSPORTATION

Polar Tankers, Inc. v. Valdez, No. 08–310
In a Tonnage Clause challenge to an Alaska ordinance imposing a personal property tax on large oil tankers, judgment for Defendant is reversed, where the ordinance was unconstitutional because it was designed to impose "a charge for the privilege of entering, trading in, or lying in a port."

CRIMINAL LAW & PROCEDURE, IMMIGRATION LAW

Nijhawan v. Holder, No. 08–495
Petitioner's removal from the U.S. based on his commission of an "aggravated felony" is affirmed, where the $10,000 threshold in 8 U.S.C. section 1101(a)(43)(M)(i) refers to the particular circumstances in which an offender committed a fraud or deceit crime on a particular occasion, rather than to an element of the fraud or deceit crime.

Cc:Betty

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Cc:Betty

Cc:Betty has been designed to enhance your existing email solution without a download! Just include betty@ccbetty.com in your initial outgoing mail message and Cc:Betty will start tracking your conversation and attachments. Only those included in your email will be able to access the web tracking page and all updates. As long as betty@ccbetty.com is included in all correspondence, Cc:Betty will track it. Everyone included in the initial email will receive an email from Betty which provides them with web address of the Cc:Betty tracking page and informs them to continue to include betty@ccbetty.com in further group messages.

NYS Senate Coup Action Filings

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CapCon has the legal filings. (Memorandum | Coup transcript | Breslin affirmation | Smith complaint).

***
Hat tip to The Albany Project.

***
See Breslin Affirmation and Smith Complaint in more detail here below:

Sen. Breslin Affirmation in NY Senate Coup Action

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Breslin Breslin Casey Seiler

Toggle full screen in UPPER right hand corner.

Smith Complaint in State Senate Coup Action

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Complaint Complaint Casey Seiler Malcolm Smith: Summons and verified complaint.

Toggle full screen in UPPER right hand corner.

New Podcasts This Week

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The Future of Search

On this edition of the Kennedy-Mighell Report, legal bloggers Dennis Kennedy and Tom Mighell discuss search, the new Wolfram Alpha "computational engine," the future of search on the Internet, and how it may apply to lawyers. In a brand new segment "Stuff That Dennis and Tom Are Talking About," Dennis and Tom will take an in-depth look at FriendFeed. Dennis and Tom will wrap up with Parting Shots, leaving you with lasting tips and observations. After you listen, be sure to check out Tom & Dennis' co-blog and book by the same name, The Lawyers Guide to Collaboration Tools and Technologies.

Download MP3

Safari 4

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Apple - Safari - Introducing Safari 4 - See the web in a whole new way

Free download for Mac & PC.

***

Safari is a web browser developed by Apple Inc. First released as a public beta on January 7, 2003 on the company’s Mac OS X operating system, it became Apple’s default browser beginning with Mac OS X v10.3, commonly known as “OS X Panther.” Apple has also made Safari the native browser for the iPhone OS.

Hat tip to CrunchBase, a great place to keep up with Tech nrews.

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 6/11/09

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CIVIL PROCEDURE, INJURY AND TORT LAW, PROPERTY LAW & REAL ESTATE

Bloomingdales, Inc. v. N.Y. City Trans. Auth., No. 99
In an action based on the flooding of Plaintiff's building due to a severed drainpipe, summary judgment for Defendants is reversed, where the statute of limitations was tolled because a trespass that constitutes an unlawful encroachment on a plaintiff's property is a continuous trespass giving rise to successive causes of action.

CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW

People v. Davis, No. 86
Defendant's conviction for being in a park after closing time is affirmed, where: 1) the use of a Judicial Hearing Officer to adjudicate the matter complied with the New York Constitution; and 2) the indictment did not need to plead that no police officer or Parks Department employee authorized Defendant to ignore a posted closing time.


CRIMINAL LAW & PROCEDURE

People v. Bailey, No. 97
Defendant's forgery conviction is reversed, where knowledge that the bills he was carrying were counterfeit was not alone sufficient to hold him criminally liable for possessing a forged instrument, because the government was required to prove his intent to use them.


CRIMINAL LAW & PROCEDURE

People v. Marte, No. 96
Defendant's robbery conviction is affirmed, where the trial court properly denied Defendant's motion to suppress evidence from a police lineup, because the rules authorizing suppression of eyewitness evidence tainted by suggestion do not apply when the suggestion did not come from law enforcement.

GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE, TAX LAW

Lackawanna Cmty. Dev. Corp. v. Krakowski, No. 83
In an action by a tax assessor seeking to tax real property owned by a nonprofit corporation, judgment for Plaintiff is affirmed where the property was "used" within the meaning of RPTL section 420-a(1)(a) by the for-profit lessee for manufacturing activities, and not by Defendant for an exempt purpose.

COMMERCIAL LAW, CONSUMER PROTECTION LAW, GOVERNMENT LAW, HEALTH LAW

New York v. Smokes-Spirits.com, Inc., No. 92
The Court of Appeals answered the following certified questions from the United States Court of Appeals for the Second Circuit in the negative: 1) Does New York City have standing to assert its claims under General Business Law section 349?; and 2) may the City assert a common law public nuisance claim that is predicated on N.Y. Public Health Law section 1399-ll?

CONSTITUTIONAL LAW, FAMILY LAW, GOVERNMENT LAW, JUVENILE LAW

Anonymous v. Rochester, No. 81
In an action claiming that the juvenile nighttime curfew adopted by the City of Rochester is unconstitutional, the dismissal of the complaint is reversed, where the curfew violated the substantive due process rights of minors to enjoy freedom of movement and of parents to control the upbringing of their children.



CONSTRUCTION, INJURY AND TORT LAW

Cunha v. New York, No. 91
In a personal injury action based on injuries sustained by Plaintiff while working at a roadway excavation, judgment for Plaintiff is reversed where, because New York City was only vicariously liable for violating the provisions of the Labor Law at issue, it was entitled to full common-law indemnification from its codefendant, the party actually responsible for the incident.

CRIMINAL LAW & PROCEDURE

People v. Decker, No. 102
Defendant's murder conviction is affirmed where: 1) although there had been a 15-year delay in re-indicting Defendant after the charges were initially dropped, the delay was justified by the witnesses' fear of testifying against Defendant; and 2) Defendant was not prejudiced by the delay.

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CRIMINAL LAW & PROCEDURE, SENTENCING

People v. Mingo, No. 94
Defendant's rape sentence is vacated where, with the proper foundation, internal documents generated by the District Attorney's office may support a risk level adjudication, but the trial court failed to require such a foundation, and thus the sentencing enhancement applied by the trial court was in error.

INJURY AND TORT LAW, PROPERTY LAW & REAL ESTATE

Petrone v. Fernandez, No. 100
In an action claiming that a dog at Defendant apartment complex owner's property injured Plaintiff, summary judgment for Defendant is affirmed, where Defendant did not own the dog and had no reason to know of the dog's vicious propensities.

FINDLAW:Daily Opinion Summaries for U.S. Supreme Court -06/08/09

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Criminal Law & Procedure, Military Law

US v. Denedo
08-267 - 06/08/09
In a petition for a writ of coram nobis seeking to void a fraud conviction in military court, the Court of Appeals for the Armed Forces' order permitting Petitioner to seek the writ is affirmed, where the Navy-Marine Corps Court of Criminal Appeals has jurisdiction to entertain Petitioner's request under Uniform Code of Military Justice Article 66.


Civil Procedure, Government Law

Iraq v. Beatty
07-1090 - 06/08/09
In an action alleging mistreatment by Iraqi officials during the 1991 Gulf War, the Court of Appeals' holding that the District Court had jurisdiction to hear the case is reversed where the District Court lost jurisdiction when the President exercised his Emergency Wartime Supplemental Appropriations Act authority to make 28 U.S.C. section 1605(a)(7) inapplicable with respect to Iraq.


Criminal Law & Procedure

Boyle v. US
07-1309 - 06/08/09
Defendant's Racketeer Influenced and Corrupt Organizations (RICO) Act conviction is affirmed where the District Court did not err in declining to instruct the jury that an association-in-fact enterprise must have an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages.


Civil Procedure, Constitutional Law, Ethics & Professional Responsibility, Government Law

Caperton v. A.T. Massey Coal Co.
08-22 - 06/08/09
In an appeal from the denial of a motion to recuse a state supreme court justice, where the justice had received campaign contributions in an extraordinary amount from the board chairman and principal officer of the corporation found liable for the damages at issue, the denial of the motion is reversed, as the probability of actual bias on the part of the justice was too high to be constitutionally tolerable.


Civil Procedure, Government Law

US v. New York
08-660 - 06/08/09
In a False Claims Act action challenging a fee charged by Defendant-City to nonresident workers, the dismissal of Plaintiff's appeal is affirmed where, when the U.S. has declined to intervene in a privately initiated False Claims Act action, it is not a "party" to the litigation for purposes of either 28 U.S.C. section 2107 or Fed. R. App. P. 4.

The Buffalo News Reports:

LOCKPORT — It is legally permissible for police to zap a suspect with a Taser to obtain a DNA sample, as long as it’s not done “maliciously, or to an excessive extent, or with resulting injury,” a county judge has ruled in the first case of its kind in New York State, and possibly the nation.

Read the full text of this decision here.

***

Hat Tip to Simple Justice, A New York Criminal Defense Blog.

BANKING LAW, SECURITIES LAW

Koehler v. Bank of Bermuda Ltd., No. 82
The Court of Appeals answered a certified question from the U.S. Court of Appeals for the Second Circuit as follows: A court sitting in New York may order a bank over which it has personal jurisdiction to deliver stock certificates owned by a judgment debtor (or cash equal to their value) to a judgment creditor, pursuant to CPLR article 52, when those stock certificates are located outside New York.

FAMILY LAW, INJURY AND TORT LAW, PROBATE, TRUSTS & ESTATES

Sargiss v. Magarelli, No. 93
In an action against the estate of Plaintiff's ex-husband claiming that the decedent misrepresented his assets in a prior divorce proceeding, the dismissal of the complaint is reversed, where the statute of limitations was tolled prior to Plaintiff's discovery of the alleged fraud.



GOVERNMENT BENEFITS, GOVERNMENT LAW

Callahan v. Carey, No. 68
In a motion seeking access to city homeless shelter eviction notices pursuant to a consent decree requiring Plaintiffs to be granted "access to any records relevant to enforcement and monitoring of the decree," judgment for Defendants is reversed, where the notices were conceivably relevant to the monitoring of the decree.

INJURY AND TORT LAW, SECURITIES LAW

Eurycleia Ptnrs., LP v. Seward & Kissel, LLP, No. 88
In a fraud action against counsel for a failed hedge fund for failure to disclose certain information, dismissal of the complaint is affirmed, where neither Plaintiffs' allegations nor the circumstances gave rise to a reasonable inference that Defendant participated in a scheme to defraud or knew about the falsity of the contested statements.

INSURANCE LAW, TRANSPORTATION

Allstate Ins. Co. v. Rivera, No. 89
In an action seeking arbitration regarding insurance proceeds under supplementary uninsured motorists' coverage (SUM), judgment staying the arbitration is affirmed where insureds can never use a SUM endorsement to obtain a greater recovery for themselves than is provided under the policy to third parties injured by the insureds.

FINDLAW: Sotomayor Senate Judiciary Questions & Answers

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Click on the TV icon in the lower right hand corner for full screen view.

New Hampshire Same-Sex Marriage Bill Becomes Law

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ADOPTION OF NEW HAMPSHIRE HOUSE BILL 73 (full text)

(Concord, New Hampshire, June 3, 2009) - New Hampshire Governor John Lynch signed into law legislation to legalize same-sex marriage. The new law extending marriage rights to gay and lesbian couples takes effect on January 1, 2010.

CapitolCamp NY

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From Albany Project:

As the Innovation Officer of the Senate, it is my mission to leverage the power of technology throughout the administrative and legislative activities of the Senate to help this institution serve the people of New York more efficiently, effectively, and transparently. To that end, we need YOUR input on how we should move forward. We invite you to share your thoughts with us in person at CapitolCamp, which will take place next Friday, June 5th, in the Capitol in Albany.

Our office, together with the New York State CIO's Office, is hosting this conference to come together with concerned citizens to share ideas about how technology can make government work better for all the residents of the Empire State across all of its branches of government. Our focus will be on using technology to increase transparency and participation in New York State government.

Here are the details:

CapitolCamp NY
Friday, 5th June 2009
From 10:30 am till 6:00 pm
New York State Capitol, Albany, NY
Proposed after party from 6:30 - 8:30 (Location TBD)
Register for free here.

Not An Alternative, a Brooklyn-based 501c3, is chartering a bus to depart at 9:00 pm, after the after-party. A limited number of $40 tickets and can purchased here.

The format of the event will be a traditional "un-conference" where participants (not the organizers) create the agenda for the day's events. To provide some structure, however, we have divided the day into three themes:

1. Senate 2.0: Technology, Transparency, and Participation in the NY State Legislature
We will begin with a discussion of the role that technology plays in the NY Senate, including a presentation of the "roadmap" for the NY Senate CIO's Office. We will also discuss the future of public access to State legislative data. The rest of these sessions will explore how technology can be leveraged to enhance public participation in lawmaking bodies.
2. Empire 2.0: Help Us Develop the NY State Strategy

We will begin with a discussion of the role of the Office of the State Chief Information Officer in developing the state strategy and roadmap for NY Executive Branch agencies. How can these agencies use web 2.0, new media, and social collaborative tools and technologies to better serve citizens and improve inter-governmental communications? This discussion will include a brief presentation of the current state and seek your input on how to answer this question and develop New York State's strategy in this area.

3. Web 2.0 for Government - Training Workshop
Expert online organizer Beka Economopoulos will offer hands-on training about how citizens, elected officials, and civil servants alike can Web 2.0 tools such as the new website, Twitter, and Facebook more effectively.We invite you to propose sessions on the CapitolCampNY's sessions page prior to the event by going here.

My team and I are thrilled to invite the public to share their thoughts, ideas, and solutions. We hope you will join us next Friday in Albany.

Contact us:

Twitter: Direct us a tweet via @CapitolCamp or use the hashag #CapitolCamp
Email: Email the NY Senate CIO's office at ciodesk@senate.state.ny.us

Opera 10 beta

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Opera Web Browser | Faster & safer | Download the new Internet browser free

Opera 10 beta (codenamed Peregrine) sports a surprising array of new features, a fresh look and feel, and enhanced speed and performance. Discover a better way to enjoy the Web by trying Opera 10 beta. It is completely free for Windows, Mac and Linux systems.

General Motors Files Bankruptcy

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IN RE: GENERAL MOTORS

(U.S. Bankr. Ct., S.D. N.Y., Jun. 1, 2009) - General Motors (GM), one of Detroit's 'Big 3' automakers, filed for Chapter 11 bankruptcy relief in New York. The global auto company lists billions in debt and liabilities, and has an extensive list of creditors to whom it owes money.

Click on icon in lower right hand corner for full screen version.

FINDLAW:Daily Opinion Summaries for U.S. Supreme Court -06/01/09

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CIVIL PROCEDURE, INJURY AND TORT LAW, PER CURIAM, TRANSPORTATION

CSX Transp., Inc. v. Hensley, No. 08-1034
In an action brought under the Federal Employers' Liability Act, based on Plaintiff's fear of developing cancer due to asbestos exposure, judgment for Plaintiff is reversed where the trial court denied an instruction that Plaintiff must have a "genuine and serious fear" to recover damages, because that instruction was required by the Court's prior decision in Ayers v. Norfolk & Western R. Co., 538 U.S. 135 (2003).

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS

Bobby v. Bies, No. 08-598
In a capital habeas matter, the Court of Appeals' order prohibiting the state court from holding a post-conviction hearing on whether Defendant was mentally retarded is reversed where the Double Jeopardy Clause did not bar the state court from conducting a full hearing on Defendant's mental capacity after trial.

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