New York Court of Appeals Summaries for April 30, 2011

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New York Court of Appeals

Summaries for April 30, 2011

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Bessemer Trust Company, N.A. v. Francis S. Branin, Jr.

Docket: No. 63 Opinion Date: April 28, 2011

Judge: Ciparick

Areas of Law: Business Law, Corporate Compliance, Labor & Employment Law and Professional Malpractice & Ethics

Plaintiff sued a former employee after a number of the former employee’s clients left plaintiff’s wealth management and investment advisory firm for the firm that the former employee currently works at. The United States Court of Appeals for the Second Circuit certified the following question for the court: “What degree of participation in a new employer’s solicitation of a former employer’s client by a voluntary seller of that client’s good will constitutes improper solicitation?” In answering the certified question, the court continued to apply its precedents in Von Breman v. MacMonnies and Mohawk Maintenance Co. v. Kessler and held that the “implied covenant” barred a seller of “good will” from improperly soliciting his former clients. The court also held that, while a seller may not contact his former clients directly, he may, “in response to inquiries” made on a former client’s own initiative, answer factual questions. The court further held that the circumstances where a client exercising due diligence requested further information, a seller may assist his new employer in the “active development… of a plan” to respond to that client’s inquires. Should that plan result in meeting with a client, a seller’s “largely passive” role at such a meeting did not constitute improper solicitation in violation of the “implied covenant.” As such, a seller or his new employer may then accept the trade of a former client. View Case

In the Matter of James J. Seiferheld v. Raymond Kelly

Docket: No. 84 Opinion Date: April 28, 2011

Judge: Smith

Areas of Law: Constitutional Law, Government & Administrative Law, Labor & Employment Law and Public Benefits

Petitioner, a New York City police officer, retired in 2004 and was awarded disability benefits. In the following years, the police department received information indicating that petitioner was not disabled; that he made false representations to the Police Pension Fund (“Fund”); and that he had ingested cocaine, thus becoming ineligible to return to duty. At issue was whether the city should continue to pay petitioner a pension. The court affirmed the Appellate Division’s order annulling the termination of petitioner’s pension benefits and held that the benefits can only be terminated by the trustee of the Fund, who has not taken necessary action. View Case

The People v. John Lingle; The People v. John Parisi; The People v. Dominque Murrell; The People v. John Prendergast; The People v. Manual Rodriquez ;The People v. Darryl Sharlow

Docket: 65, 66, 67, 68, 86 and 87 Opinion Date: April 28, 2011

Judge: Read

Areas of Law: Constitutional Law and Criminal Law

Defendants, six individuals, sought relief upon resentencing from their statutory obligation to serve postrelease supervision (“PRS”). At issue was whether Double Jeopardy barred their resentencing to PRS; whether substantive due process barred their resentencing to PRS; whether a resentencing court may reconsider a defendant’s sentence at a resentencing to correct a People v. Sparber error; and whether the appellate division may reduce a defendant’s sentence on appeal from a resentencing to correct a Sparber error. The court rejected defendants’ Double Jeopardy argument and held that after it handed down People v. Sparber, the legislature promptly adopted legislation to allow resentencing as many defendants as possible to sentences that include PRS. The court also rejected defendants’ substantive due process argument where defendants did not give reason for the court to interpret substantive due process more broadly in these circumstances as a matter of state constitutional law. The court also held that resentencing to set right the flawed imposition of PRS at the original sentencing was not a plenary proceeding. The court further held that the Appellate Division could not reduce the prison sentence on appeal in the interest of justice when a trial court lacked discretion to reconsider the incarceratory component of a defendant’s sentence. Accordingly, the court affirmed the Appellate Division’s order except People v. Sharlow, where the the order should be reversed and the resentence imposed by the Supreme Court reinstated. View Case
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CALI::The Free Law Reporter

The Free Law Reporter™ is where free law meets accessibility. It’s an electronic case reporter that freely publishes nearly every recent appellate and supreme court opinion, from state to federal US courts.

FLR uses the RECOP project as a starting point, making its opinions searchable online and available as ebook collections, with more features in development.

The Free Law Reporter™ (FLR) is an experiment that builds onCarl Malamud’s Report of Current Opinions (RECOP).(more info about RECOP fromJustia,Robert Ambrogi and Ed Walters, CEO of Fastcase). The RECOP bulk feed can be found at

The goal of FLR is to develop a freely available, unencumbered law reporter that is capable of serving as a resource for education, research, and practice. The first step is to use FLR to provide greater access through enhanced and alternate formats of the weekly feeds coming from RECOP.

The weekly feeds provided by RECOP are a new source of court opinions from across the country with each weekly feed containing all slip and final opinions primarily from the appellate courts of the 50 states and the federal government released under a Creative Commons Zero License packaged as XML files in a single weekly archive.

Each weekly feed contains 2 groupings of opinions: slip opinions and paginated cases. The slip opinions are individual documents that come directly from the court, are paginated by the court, and contain little or no citation information. The paginated cases are individual documents that have been added to the West reporter system, contain West pagination and full West citations.

CALI’s FLR project is processing the slip opinion portion of the archives to create a body of court opinions that is accessible to anyone including educators, librarians, students, lawyers and the public. The raw XML of the archives is processed into valid XHTML and some meta data is added to facilitate the indexing and classification of the documents. The XHTML files are saved into a web folder structure organized by weekly RECOP volume and jurisdiction for viewing with a web browser. The XHTML files are fed into a search engine powered by Apache Solr allowing for sophisticated searching and analysis of the documents. Finally the weekly volumes are gathered by state and federal jurisdiction into ebooks in the .epub format viewable on virtually any desktop, laptop, tablet, smartphone and e-reader device. All of this available now at The FLR website is updated weekly as new RECOP archives are released.

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SmartBrief: Judges See Little Improvement in Foreclosure Procedures –


 Some judges are skeptical of claims by lenders that they have substantially improved their foreclosure procedures since controversy over the practices exploded last fall. F. Dana Winslow, a N.Y. State Supreme Court Justice in Long Island’s Nassau County, said there has been only “a marginal improvement in what is being submitted to the court.” For example, financial institutions are “showing a better chain of title” about who owns the debt, he said. “But I’m not seeing any additional clarity on who has control over the actual mortgage note signed by the borrower and lender and where the note is.”
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NYLJ: Family Court Struggles With Budget Reductions

Andrew Keshner 

New York Law Journal

April 29, 2011

Budget cuts have made this “the saddest and most professionally challenging season of my career,” New York City Family Court Administrative Judge Edwina G. Richardson-Mendelson (See Profile) said Wednesday evening.

The judge made her remarks during a panel discussion sponsored by the New York County Lawyers’ Association on “Doing More With Less: The Effect of Budget Cuts on the Family Court.”

But Judge Richardson-Mendelson said she had to “respectfully but strongly disagree” with the event’s title. “We will not be doing more with less,” she said. “We cannot do more with less. We will focus our efforts to do the very best we can in this difficult season but it will not be more, it will be less.”

The judge noted that Family Court night sessions are being eliminated in all five boroughs, and employees are being “re-deployed” so the courts can “get through the business of the day.”

And the day has gotten shorter. All but emergency court proceedings are being cut off at 4:30 p.m.

Read entire article (requires free registration).

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Kindle 3

I wanted to report on my kindle 3 after a month of casual use
The Kindle is fun to use and I’ve gotten a lot of great, free classic books, using and also Google Books, with the downloading software available
One “sleeper feature” I’ve taken to using on the Kindle is
 sending myself PDF copies of tax articles that I find on SSRN – – often through – – Professor Paul Caron’s super-useful tax website.  I
download the PDFs of the articles and then forward them to my
personal “” address on my Kindle.  Reading the PDF
articles on the Kindle is much easier than doing so on the computer
screen, and I don’t have to worry about battery life while traveling.  For
example, I read a bunch of PDF articles on the Kindle last week, on a
plane from Albuquerque to Baltimore, and it worked great.
With respect to copies of PDF law articles, I find  it easier to
adjust the Kindle to read in landscape mode.   The columnar width
is much better for reading than the standard portrait orientation
Vincent L. Teahan, Teahan & Constantino, Counsellors at Law,  41 Front St.,
Suite A ,  P.O. Box 1181,  Millbrook NY 12545, tel 845 677 2101, fax 845 677 1054

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NYLJ:Hearing Must Determine If Girl With Learning Disabilities Was Deprived of “Free and Appropriate Education” by Constant Bullying

T.K. v. New York City Dept. of Edu., 10-CV-00752

This case presents the largely unresolved issue of the extent to which bullying by other students inhibits a disabled child from being educated appropriately, and what her school must do about it. A strict legal test is developed and applied. Plaintiff L.K. acting through her parents, challenges her public school placement by the New York City Department of Education (“DOE”) under the Individuals with Disabilities Education Act. After exhausting her administrative remedies, she brings this action arguing that the placement was procedurally and substantively inappropriate, and her parents seek reimbursement for private school tuition. The DOE moves for summary judgment. The primary complaint is that L.K. was deprived of an appropriate education because her assigned public school did nothing to prevent her from being so bullied by other students as to seriously reduce the opportunity for an appropriate education. Such a contention, under the Individuals with Disability Education Act (“IDEA”) provisions that require a proper school placement and appropriate education, apparently have not yet been ruled upon by the Court of Appeals for the Second Circuit. For the reasons stated below, the issue requires a court evidentiary hearing, and, a possible remand to the state authorities for a rehearing.

Read the full text of decision here (requires free registration).

Apple – Press Info – Apple Q&A on Location Data

The iPhone is not logging your location. Rather, it’s maintaining a database of Wi-Fi hotspots and cell towers around your current location, some of which may be located more than one hundred miles away from your iPhone, to help your iPhone rapidly and accurately calculate its location when requested. Calculating a phone’s location using just GPS satellite data can take up to several minutes. iPhone can reduce this time to just a few seconds by using Wi-Fi hotspot and cell tower data to quickly find GPS satellites, and even triangulate its location using just Wi-Fi hotspot and cell tower data when GPS is not available (such as indoors or in basements). These calculations are performed live on the iPhone using a crowd-sourced database of Wi-Fi hotspot and cell tower data that is generated by tens of millions ofiPhones sending the geo-tagged locations of nearby Wi-Fi hotspots and cell towers in an anonymous and encrypted form to Apple.

NYLJ: ‘Unseemly Process’ to Follow Announcement of Job Cuts

Joel Stashenko 

New York Law Journal

April 28, 2011

ALBANY – The next round of layoffs in the state court system will touch off a scramble in which senior employees whose jobs are being eliminated will claim the positions of less-experienced colleagues.

See an explanation of the civil service bumping process.

“It is an unseemly process, which is why we always say it sounds better to say you are going to lay off workers than to actually do it,” said Steven Madarasz, a spokesman for the Civil Service Employee Association. The CSEA is the largest of 11 unions representing court employees, counting as members about 6,000 of the courts’ 15,200 nonjudicial workers.

“It is a pretty ugly process because who gets the initial layoff notice may well not be the person who actually goes out the door,” Mr. Madarasz added.

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Debt collectors must tread lightly on social media –

The lawsuit filed by Melanie Beacham over alleged harassment by MarkOne Financial is still ongoing. But in the meantime, a Florida judge has ordered the debt collector not to contact Beacham or her family and friends over Facebook or any other social networking site,reports the Orlando Sentinel.
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Jim Calloway’s Law Practice Tips Blog: Lawyers and Their iPads

iPad wordmark.
Image via Wikipedia

Image via Wikipedia

If you want a list of blogs focusing on the many ways a lawyer can use an iPad, here’s a list for you from Legal Tech Guru, Jim Calloway:

• Tablet Legal (
• TechnoESQ ( )
• MacsinLaw ( )
• The Mac Lawyer (
• Hytechlawyer (
• iPad 4 Lawyers (
• WalkingOffice (
• iPadmania ( ) is also a worthwhile site to visit, not legal specific.
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