FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 11/27/07

CIVIL PROCEDURE, CIVIL RIGHTS, CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE

Haywood v. Drown, No. 146Correction Law section 24, depriving New York courts of jurisdiction under state or federal law to entertain civil actions seeking money damages against correction officers, does not violate the Supremacy Clause of the U.S. Constitution.

CIVIL PROCEDURE, EVIDENCE, HEALTH LAW

Arons v. Jutkowitz, No. 147, 148, 153An attorney may interview an adverse party’s treating physician privately when the adverse party has affirmatively placed his or her medical condition in controversy, although the Health Insurance Portability and Accountability Act of 1996 through its Privacy Rule imposes procedural prerequisites unique to the informal discovery of health care professionals.

CONTRACTS, DISPUTE RESOLUTION & ARBITRATION, INJURY AND TORT LAW, LABOR & EMPLOYMENT LAW

Schreiber v. K-Sea Transp. Corp., No. 135In case where seaman’s agreement to arbitrate his Jones Act claim against his employer, made after the seaman was injured, such post-injury arbitration agreements are not prohibited, but a hearing should be held to decide whether the agreement is enforceable. The burden of proof at the hearing is on the party trying to invalidate the arbitration agreement.

CONTRACTS, HEALTH LAW, INSURANCE LAW, LABOR & EMPLOYMENT LAW

White v. Continental Cas. Co., No. 152The definition of “total disability” in a disability income policy is not ambiguous and plaintiff failed to establish his entitlement to benefits under the policy as a matter of law.

LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE

333 East 49th Assocs., LP v. New York State Div. of Housing & Cmty. Renewal, No. 183 SSM 30Respondent’s determination that petitioners failed to maintain adequate janitorial services warranting a rent reduction is affirmed as the determination is rationally based on the inspector’s observations of debris in the compactor rooms, which confirmed the tenants’ sworn complaint of filthy compactor rooms that were not maintained. 

Miro 1.0 - Turn your computer into an internet TV

About: Behind the Scenes

Miro is a free application for channels of internet video (also known as ‘video podcasts and video rss). Miro is designed to be easy to use and to give you an elegant fullscreen viewing experience.

There are thousands of free internet video channels that you can watch. You’ll be able to download all the videos that each channel offers and when new ones are released, Miro will grab them automatically.

Unlike tiny videos on websites like YouTube, Miro videos are usually very high quality and look great when watched full screen. Since Miro downloads videos completely before you watch, your videos will never skip or stutter while they are playing.

You should check out this video on One Laptop Per Child’s amazing mesh wireless network as an example:

I found it while using Miro, which you can download here.

Windows and Mac are both okay with Miro.

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 11/20/07

CIVIL PROCEDURE, CIVIL RIGHTS, CORP. GOVERNANCE

Congregation Yetev Lev D’Satmar, Inc. v. Kahana , No. 142Resolution of an election controversy between two rival factions of a religious congregation cannot be achieved through the application of neutral principles of law. Such resolution involves judicial intrusion into matters of religious doctrine.

CIVIL RIGHTS, PROPERTY LAW & REAL ESTATE

Congregation Yetev Lev D’Satmar of Kiryas Joel, Inc. v. Congregation Yetev Lev D’Satmar, Inc., No. 143In dispute over the ownership of a cemetery for members of the Satmar community, a distinct sect of Orthodox Judaism, reversal of summary judgment for plaintiffs, and voiding conveyance of one-half interest in cemetery property to plaintiff Monroe Congregation is affirmed where support in the record exists for the Appellate Division’s finding that the transfer was not in the best interests of defendant Brooklyn Congregation.

CONSTRUCTION, INJURY AND TORT LAW

Corsino v. N.Y.C. Transit Auth., No. 182 SSM 29In negligence suit, order should be modified by denying summary judgment as to certain defendants where triable issues of fact exist as to whether hazardous condition causing injured plaintiff’s fall was the result of negligence and as to whether the owner and contractor defendants exercised the requisite control over one defendant’s work. As another defendant did not exercise supervisory or safety control over the work in question, the complaint was properly dismissed.

CONTRACTS, HEALTH LAW, INJURY AND TORT LAW, INSURANCE LAW

Hosp. for Joint Diseases v. Traveler’s Prop. Cas. Ins. Co., No. 140In action by plaintiff hospital to recover no-fault insurance benefits for services rendered to a patient injured in a motor vehicle accident, the insurance company’s failure to timely request verification of the patient’s assignment of benefits to the hospital precludes the carrier from now contesting the validity of the assignment.

CRIMINAL LAW & PROCEDURE, EVIDENCE

People v. Greene, No. 139Evidence obtained as a result of a violation of the physician-patient privilege need not be suppressed at a criminal trial.

CRIMINAL LAW & PROCEDURE

People v. Jones, No. 145Conviction based on guilty plea to disorderly conduct is vacated where the factual allegations in the accusatory instrument failed to establish a prima facie case.

INJURY AND TORT LAW, SPORTS LAW

Haymon v. Pettit, No. 151A baseball park operator owes no duty to warn or protect non-patron spectators who are injured while chasing foul balls that are hit out of the stadium. 

Amazon Kindle

Amazon.com : Entertainment : A Video Demonstration of Amazon Kindle

Video: A Video Demonstration of Amazon KindleDescription: Watch a video demonstration of Amazon Kindle, the new ebook reader just in time for the Holidays.

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 11/19/07

ADMINISTRATIVE LAW, ASSET FORFEITURE, CIVIL PROCEDURE, CONSTITUTIONAL LAW, CONSUMER PROTECTION LAW, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW

Property Clerk of the Police Dep’t of the City of New York v. Harris, No. No. 138The N.Y.P.D. is not required to prove at a post-seizure retention hearing that the co-owner of a seized vehicle is not an “innocent owner” when trying to impound a vehicle during the pendency of a civil forfeiture proceeding. However, due process does require that an innocent co-owner be given an opportunity to demonstrate that his/her present possessory interest in a seized vehicle outweighs the City’s interest in continuing impoundment.

ADMINISTRATIVE LAW, ENVIRONMENTAL LAW, PROPERTY LAW & REAL ESTATE

Ingraham v. Planning Board of Town of Southeast, No. 2 No. 149, 150The lead agency under the State Environmental Quality Review Act (SEQRA), engaged in the requisite scrutiny of a project and regulatory changes that arose after the filing of a SEQRA Findings Statement, and made a reasoned elaboration, using studies and data already available in the file, that a second Supplemental Environmental Impact Statement (SEIS) was not necessary to address those changes.

ADMINISTRATIVE LAW, GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE

In Re: Sinclair Haberman, No. No. 132Where a zoning board of appeals has voted to grant a variance, the board’s lawyer, acting with actual or apparent authority, may agree to extend the time to build the improvements permitted by the variance. A second board meeting and vote are not required..

CONTRACTS, GOVERNMENT LAW, INJURY AND TORT LAW, INSURANCE LAW, SERVICES, TRANSPORTATION

Stiver v. Good & Fair Carting & Moving, Inc., No. No. 137New York State motor vehicle inspection stations cannot be held liable for failing to detect safety-related problems in inspected cars, and a third party cannot claim tort liability against a party with whom it lacks a contractual relationship, without being able to prove an exception to this rule under the court’s test in Espinal v Melville Snow Contrs, (98 NY2d 136 [2002]).

EVIDENCE, INJURY AND TORT LAW, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE

Miller v. Consolidated Rail Corp., No. 181 SSM 28Summary judgment in favor of defendant-landowner in a personal injury case is affirmed where the owner had no duty to provide lighting in the property at night where no hazardous or similar conditions were known. Even though defendant did provide lighting in the area where plaintiff was injured, plaintiff still failed to offer any proof that his injury was attributable to any negligence by the property owner. Read more…

Dutch Police Claim First Real-Life Arrest for Virtual Burglary

The First Post: Attacked in cyberspace? Call 999

News that Dutch police have arrested a teenager for stealing 4,000 euros worth of virtual furniture from an online, virtual-world hotel is the latest bizarre twist in an ongoing cyber-saga, in which virtual world property crimes are attracting real-life law-enforcement.

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The unfortunate Dutch 17-year-old is accused of tricking players out of their passwords, and using the information to steal virtual furniture, which he and a gang of five 15-year-old accomplices were storing in their own virtual hotel rooms.

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Read More

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 11/15/07

CIVIL PROCEDURE, CIVIL RIGHTS, INJURY AND TORT LAW

Nussenzweig v. diCorcia, No. 155In suit for violation of right to privacy based on photos taken of plaintiff in Times Square without his consent or knowledge, summary judgment for defendants is affirmed as the publishing event giving rise to plaintiff’s right of privacy claims first occurred no later than the fall of 2001, more than one year before he commenced suit, and, thus plaintiff’s claims are time-barred.

CIVIL RIGHTS, CONSTITUTIONAL LAW, PROPERTY LAW & REAL ESTATE

O’Mara v. Town of Wappinger, No. 141An open space restriction imposed by a subdivision plat under New York Town Law section 276, when filed in the Office of the County Clerk pursuant to Real Property Law section 334, is enforceable against a subsequent purchaser.

CONTRACTS, INSURANCE LAW

Raffelini v. State Farm Mut. Auto. Ins. Co., No. 129A “serious injury” exclusion in a supplementary uninsured/underinsured motorist endorsement to an automobile liability policy is enforceable.

CRIMINAL LAW & PROCEDURE, EVIDENCE

People v. Olson, No. 134Conviction and sentence for assault in the first degree and criminal possession of a weapon in the fourth degree are affirmed over claims that the Appellate Division erred in: 1) applying the incorrect legal standard in determining that the verdict was not against the weight of the evidence; and 2) not reversing his conviction as the trial court improperly shifted to defendant the burden of proving justification, failed to view the evidence of justification in the light most favorable to defendant, and applied the wrong legal standard regarding the amount of force one can use for justification purposes.

CRIMINAL LAW & PROCEDURE

People v. Hill, No. 144Conviction based on guilty plea to rape is vacated as to the plea where, since the trial court did not inform defendant that a period of postrelease supervision would follow his term of incarceration, he did not possess the requisite information knowingly to waive his rights and must be permitted to withdraw his plea.

PROPERTY LAW & REAL ESTATE

Simone v. Heidelberg, No. 130In case involving reciprocal easement agreement between two parties for use of a driveway, reversal of summary judgment for plaintiffs is reversed where the easement was extinguished when the common owners acquired title to both parcels and the common owners lacked the authority to recreate the driveway easement over the servient estate at the time they transferred the dominant estate. 

One Laptop Per Child–Ready Now!!

 

 

 

One Laptop Per Child intends to provide a means for learning, self-expression and exploration to the nearly two billion children of the developing world with little or no access to education. While children are by nature eager for knowledge, many countries have insufficient resources to devote to education—

sometimes less than $20 a year per child. Imagine the potential that could be unlocked by giving every child in the world the tools they need to learn, no matter who they are, no matter where they live, no matter how little they may have. 

 

If you’d like to donate an XO laptop today, click here. A donation of $200 will pay for and deliver one XO laptop to a child in a developing nation, $400 will pay for and deliver two XO laptops, and so on. 

 

Starting November 12, One Laptop Per Child (”OLPC”) will be offering a Give 1 Get 1 Program for a brief window of time in North America. For $399, you will be purchasing two XO laptops—

one that will be sent to empower a child to learn in a developing nation, and one that will be sent to your child at home.

OLPC was founded and is chaired by Nicholas Negroponte of MIT Media Lab fame.  

As one might expect, the computer that Negroponte and his fellow Media Lab faculty have developed is like no other computer. The XO laptop is a computer built for learning and designed specifically with children in mind. Because of this, the features deemed most valuable for its purposes are as good (and in many cases, better) than comparable features on a $1000 laptop. For instance, the XO’s screen can be viewed as clearly as a newspaper in broad daylight, and the wireless range of the XO is several times longer than your average laptop. It’s also more rugged, resilient and power efficient than most other laptops on the market. While other features, such as power and speed, cannot compare to a $1000 machine, they are excellent for the XO’s $200 price point and meet the necessary requirements for learning. The XO’

s operating system is based on a free and open source version of Linux.  

U.S. Immigration Service Requires Use Of New Employment Verification Form (I-9) For All Employers

On November 7, 2007, the United States Citizenship & Immigration Services (”USCIS”) issued a revised I-9 form. A copy of the new I-9 form (in English and Spanish) may be obtained by clicking on the links above.

Note: The Spanish version of Form I-9 may be filled out by employers and employees in Puerto Rico ONLY. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print this for their reference, but may only complete the form in English to meet employment eligibility verification requirements.

There is also a revised Employer Handbook (24.4 mbs) for I-9 compliance.

Law.com - N.Y. Bar Panel Urges Adoption of New Conduct Rules

Joel Stashenko

New York Law Journal (read Entire Article)November 7, 2007

Attorneys in New York state are a step closer to becoming the last Bar in the United States to have rules of ethical behavior based in form and substance on the American Bar Association’s Model Rules of Professional Conduct.

The New York State Bar Association’s House of Delegates last Saturday unanimously approved revisions that are designed to transform New York’s current Code of Professional Responsibility into new state Model Rules of Professional Conduct.

It took the State Bar’s Committee on Standards of Attorney Conduct nearly five years to produce the almost 500 pages of proposed rules, which will now be sent to the appellate division’s presiding justices for review and possible final adoption.

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