This Weeks News

Court Adopts Test for Bringing Legal Malpractice Claims

Joel Stashenko | October 23, 2014

A client's failure to appeal in an underlying action bars a legal malpractice suit only where it is determined that the client was likely to have prevailed in the appeal, the state Court of Appeals had decided.

Anthony Fazio Jr. leaves federal court after his sentencing in August 2012.

Circuit Rejects Claims U.S. Evidence Tainted Trial

By Mark Hamblett |

A ruling that permitted evidence that three men accused of extortion against business owners had ties to organized crime did not taint the trial that ended in their convictions, the Second Circuit has ruled.

Rikers Island is New York City's main jail complex.

Judge Faults ICE Detainers as City Council Passes New Ban

By Tania Karas |

The New York City Department of Correction does not have the authority, without a court order or probable cause, to hold people beyond the end of their sentences based on detention requests issued by federal immigration authorities, a Brooklyn judge has ruled.

Funds Claim Firm's Malpractice Led to Loss of Investment

By Christine Simmons |

Two investment funds have sued 20-attorney Gilbride, Tusa, Last & Spellane, claiming the firm failed to perfect the funds' security interest in life insurance policies, leading to more than $84 million in damages.

D.C. Circuit Backs Admission of Steakhouse Chef

By Zoe Tillman |

Victory is sweet—or, more appropriately, savory—for Brazilian steakhouse chain Fogo de Chao, which prevailed on Tuesday in a dispute with federal immigration officials, who had refused to consider "culturally acquired knowledge" in deciding whether to grant a work visa for one of the company's chefs.

Khaled Al Fawwaz, left, and Anas Al Liby

Al Qaida Terror Trial Pushed Back to November

By Mark Hamblett |

Southern District Judge Lewis Kaplan Wednedsay told prosecutors and lawyers for Anas Al Liby and Khaled Al Fawwaz that the Nov. 3 date set for jury selection in their case is now Jan. 12.

Southern District U.S. Attorney Preet Bharara

U.S. Prosecutor Continues Closed Down State Probe

Southern District U.S. Attorney Preet Bharara, who took over the files of New York's Moreland anti-corruption commission, said Wednesday that investigations into Albany's pay-to-play politics are continuing.

The Appellate Division, First Department, at 27 Madison Ave.

Panel Grants Name Change Without Citizenship Proof

By Ben Bedell |

The Appellate Term, First Department, noted that the statute required only that the applicant, a transgender woman, state her "'residence', not legal residence, and considerations of citizenship immigration should not be lightly imported" into the statute.

Judge Blocks Recordings of Jail Inmate Phone Calls

By Andrew Keshner |

A judge has imposed a temporary restraining order blocking prosecutors from obtaining, without a court order, recordings of telephone calls from inmates at the local jail.

Court System Releases 2014 Election Guide

By Joel Stashenko |

The state's Unified Court System has released its voters guide for the judicial offices being decided this year.

Awards for Pro Bono Service

The City Bar Justice Center presented its sixth annual Jeremy G. Epstein Awards for Outstanding Pro Bono Service on Monday.

Corrections

Donald Telfair, center, of Suffolk County, a plaintiff in a suit that challenged the state's defense of the indigent, speaks with Schulte Roth partner Gary Stein and NYCLU senior staff attorney Corey Stoughton in NYCLU offices after announcement of a settlement with the state.

Plaintiffs Hope to Broaden Indigent Defense Pact

By Joel Stashenko |

The Cuomo administration and the NYCLU Tuesday announced the settlement of a suit challenging New York's system of providing legal services to indigent criminal defendants. The agreement applies to representation of the poor in the five counties named as defendants in the seven-year-old litigation.

Bobby Davis, left, and attorneys Gloria Allred, center, and Mariann Meier Wang talk to reporters after a defamation suit case against Syracuse University and basketball coach James Boeheim was argued at the Court of Appeals in September.

Defamation Suit Revived Against Syracuse Basketball Coach

By Joel Stashenko |

The state Court of Appeals reinstated a defamation suit Tuesday against Syracuse University and basketball coach Jim Boeheim for criticisms he leveled at two former Syracuse ballboys who accused his friend and top assistant Bernie Fine of molesting them.

Thurgood Marshall U.S. Courthouse at 40 Foley Square

Circuit Vacates Attorney's Sanction

By Mark Hamblett |

An attorney accused by a judge of ignoring his instructions not to mention punitive damages and of acting strangely during closing argument in the products liability litigation over the bone-density drug Fosamax has had sanctions against him lifted by a federal appeals court.

Pete's Tavern, with its sidewalk cafe

Pete's Tavern Wins Bid to Keep Sidewalk Cafe Open

By Tania Karas |

A historic bar and restaurant near Gramercy Park will be allowed to operate its sidewalk cafe through the end of its lease despite its landlord's refusal to give approvals required by New York City's sidewalk cafe license renewal process, a First Department panel has ruled.

Earth Leasing Property at 63-10 108th St. in Forest Hills, Queens

Temperature Data Not Enough to Melt Lawsuit, Judge Says

By Andrew Keshner |

A building owner's sole reliance on temperature records, without expert testimony or other evidence, was not enough to rebut the claim of a woman that the sidewalk where she fell was covered with ice, a state judge has concluded.

Justice Ruth Bader Ginsburg

Ginsburg: Emergency Orders Are Result of Time Pressure

By Tony Mauro |

Ruth Bader Ginsburg said that Saturday morning's unheard-of predawn order allowing new voter identification rules to take effect in Texas was the result of last-minute filings from parties on Friday, in addition to a mid-afternoon memo about the case circulated by Justice Antonin Scalia, the court member who handles emergency appeals from Texas.

Judge Jackson

City Criminal Court Gets New Administrative Judge

By Andrew Keshner |

Acting Manhattan Supreme Court Justice Melissa Jackson has been named administrative judge of New York City Criminal Court. Acting Brooklyn Supreme Court Justice Alexander Jeong will serve as deputy administrative judge.

Terror Suspect in Training Camp Case Pleads Not Guilty

By Mark Hamblett |

Haroun Aswat, a citizen of the United Kingdom accused of providing material support to al Qaida, pleaded not guilty to four charges yesterday in the Southern District.

Judge Preska

Preska to Update Bar on Southern District

By Mark Hamblett |

Southern District Chief Judge Loretta Preska will deliver her first annual State of the Southern District report on Thursday, Oct. 23 at the New York County Lawyers' Association.

Nassau Firm Sues Over Recorded Inmate Calls

By Andrew Keshner |

Criminal defense firm Raiser & Kenniff is suing the Nassau County district attorney's office and the sheriff, alleging prosecutors are listening to inmates' recorded jail calls and reviewing privileged conversations.

Suspended Lawyer Charged With Stealing From Clients

By Andrew Keshner |

Brooklyn prosecutors are accusing Kenneth Gellerman of Bellmore of stealing more than $100,000 from clients he represented in personal injury cases, failing to pay them some or all of their settlement money.

Muslim Bar Fights Hunger

More than 20 lawyers and law student members of the Muslim Bar Association of New York prepared and served 200 meals to the homeless in Manhattan's Tompkins Square Park at their first annual "MuBANY Fights Hunger" event.

On the Move

Kramer Levin, White & Case, Borah Goldstein and Bracewell & Giuliani have each added attorneys, while White & Case has promoted four attorneys to partner.

Magistrate Judge Ellis

Bid for Pretrial Sanctions in Terror Case Is Rebuffed

By Mark Hamblett |

Plaintiffs attempting to win sanctions and gain an advantage at an upcoming trial over terror attacks in Jerusalem have been rebuffed by Southern District Magistrate Judge Ronald Ellis, who said there was no proof to support allegations the PLO and the Palestinian Authority intentionally withheld documents.

Lawrence Fisher (left), a partner at Cohen & Willwerth in Pittsburgh, speaks to the press about a libel suit against ESPN brought by his client Laurie Fine (second from left) in 2012 in Geneva, New York.

Documents From Investigation of Coach Must Be Disclosed

By Joel Stashenko |

Documents related to Syracuse University's 2005 investigation into molestation allegations against former basketball coach Bernie Fine are not shielded from disclosure in a lawsuit filed by Fine's wife as attorney work-product, a federal magistrate judge decided.

Great Meadow Correctional Facility

Inmate Sought Higher Award, But Panel Gives Him Nothing

By Joel Stashenko |

An appellate court has rebuffed a state prison inmate's claim that a damage award of $80,000 he received was inadequate to compensate him for injuries he suffered in an altercation with guards—in the process ruling that he was entitled to no money at all.

Citigroup Centre, London

Citigroup Directors Prevail in Second LIBOR Lawsuit

By Ben Bedell |

For the second time this year, a shareholder derivative case against Citigroup's directors that alleged they should be held personally liable for losses stemming from the bank's misstatement of LIBOR has been rejected by the Commercial Division.

Samuel Pryor III

Obituary: Samuel Pryor III

By Christine Simmons |

Samuel Pryor III, a retired corporate partner at Davis Polk & Wardwell, died Oct. 17 of an infection following a long bout with pulmonary hypertension, said his son, Joseph Pryor. He was 86.

Facebook Sues Law Firms Over Ceglia Litigation

By Ben Bedell |

Facebook on Monday sued DLA Piper and three other law firms alleging they "knew or should have known" that the claim made by their client, Paul Ceglia, that he owned half of Facebook was a fraud.

City Hall

City Comptroller's Subpoena for Tax Data is Upheld

By Andrew Keshner |

A state judge has ordered New York City's Department of Finance to comply with a city Comptroller's subpoena seeking tax information from 2008 to 2012.

Ex-Clerk Gets Prison Term for Stealing Court Funds

By Joel Stashenko |

A former upstate town court clerk was sentenced to 2 1/3 to 7 years in prison Monday for stealing $198,397 in court funds in 2011 and 2012.

Bronx District Attorney Robert Johnson

After 'Terror' Conviction Upset, Man Found Guilty

By Andrew Keshner |

Almost two years after the Court of Appeals said Bronx prosecutors incorrectly invoked anti-terrorism laws in a gang member's case, another jury has found the man guilty on retrial.

Bench Trial to Begin on Defense of Indigent

By Joel Stashenko |

Acting Justice Gerard Connolly is expected to open the bench trial in 'Hurrell-Harring v. State of New York' by indicating his decision on whether the proceedings will be bifurcated or the issues of liability and a remedy decided at the same time.

Justice Leslie Stein

Cuomo Picks Third Dept. Justice for Top Court

By Joel Stashenko |

Gov. Andrew Cuomo said Friday he is nominating Appellate Division, Third Department, Justice Leslie Stein to replace Victoria Graffeo on the Court of Appeals.

East River Housing Corp., and

Court Bites State Agency in Dog Eviction Dispute

By Ben Bedell |

New York State's Division of Human Rights has been ordered to pay legal fees to a New York City co-op for botching a disability discrimination claim brought by a tenant threatened with eviction over her pit bull, "Rosie".

The plaintiff slipped on an icy sidewalk adjacent to 339 Convent Ave. in Harlem.

Panel Revives Slip-and-Fall Lawsuit From Icy Sidewalk

By Tania Karas |

The First Department, reinstating a case that underlines the role wintry weather often plays in litigation in northeastern courts, has held that New York City had enough time after a snowfall to clear a sidewalk on which a woman slipped four days later.

Thurgood Marshall U.S. Courthouse at 40 Foley Square

Circuit Finds Debt Calls Barred by Federal Law

By Andrew Keshner |

A man who ended up on a collection agency's call list after discontinuing the electricity at his deceased mother-in-law's apartment convinced a federal appeals court that the calls were prohibited by the Telephone Consumer Protection Act.

Class Status Recommended in Air Freight Price Case

By Amanda Bronstad |

Eastern District Magistrate Judge Viktor Pohorelsky has issued a report and recommendation certifying a class of tens of thousands of direct purchasers of air freight shipping services suing more than two dozen airlines in an alleged global price-fixing conspiracy.

Panel Rejects Attempt to Revive RMBS Claims

By Julie Triedman |

The First Department on Thursday unanimously affirmed a lower court decision dismissing breach of contract claims by monoline insurer Ambac against a Bear Stearns mortgage unit acquired by JPMorgan Chase & Co.

Attorney Quits After Taking $600,000 From Client Escrow

By Tania Karas |

The First Department accepted the resignation of real estate attorney Bernard Weintraub, who "without his clients' consent...'borrowed' $600,000 'to meet certain obligations in the face of the economic downturn and [his] consequent inability to borrow the money from regular institutional sources.'"

Law Firm Sued Over Text Message Ads

By Christine Simmons |

A Connecticut resident is attempting to bring a class action suit against a New York law firm for allegedly violating a consumer protection law by sending out unsolicited text message advertisements.

On the Move

Hodgson Russ has appointed Gary Schober, former firm president and CEO, as managing partner of its New York City office; Kirkland & Ellis and Goodwin Procter announce several promotions; and four other firms have added partners.

The Appellate Division, First Department, at 27 Madison Ave.

Panel Finds Suspect Failed to Understand Miranda Rights

By Andrew Keshner |

An illiterate young man confused about his right to counsel and unfamiliar with the criminal justice system did not make a knowing and intelligent waiver of his rights against self-incrimination, a Manhattan appeals court ruled Thursday.

Fashion Institute of Technology campus in Chelsea

Ruling Upholds Town Fee for College Costs

By Joel Stashenko |

A 1994 law did not relieve towns and cities from paying a share of the schooling for local residents attending public community colleges outside of their counties, the Court of Appeals held Thursday.

Justice Freedman

After 36 Years, Freedman Is Leaving Bench for JAMS

By Ben Bedell |

Asked why she was stepping down, Appellate Division, First Department, Justice Helen Freedman quipped that she was following another longtime player into retirement. "When Derek Jeter said he was ready to move on to something new, I had to consider whether I was too," she said.

North Shore Animal League's mobile rescue & adoption unit

Dog Bite Victim Can Proceed With Lawsuit Against Shelter

By Andrew Keshner |

A woman bitten by a dog can proceed with her suit against the shelter from which she adopted the animal, on claims that it failed to tell her the dog had been adopted and returned twice before.

Frank Grad

Obituary: Frank Grad

Frank Grad, a longtime professor at Columbia Law School and an expert in environmental and public health law, died Tuesday at age 90.

Airbnb's web site for rooms to rent in New York City.

Most Airbnb Listings Violate Law, AG Says

By Karen Matthews |

A report released Thursday by Attorney General Eric Schneiderman said that many of the listings on short-term rental service Airbnb are placed by commercial operators running illegal hotels, not by New Yorkers renting out a spare room.

Howard Robbins at the opening night of the Metropolitan Opera season

Q&A: Howard Robbins

By Jeff Storey |

As rehearsals continued for the opening of the new season at the Metropolitan Opera, contract talks with the unions representing approximately 2,400 workers sounded some sour notes. Observers increasingly wondered if there would be a Met season at all. Playing a central role in the contentious process was Howard Robbins, a Proskauer Rose partner who counseled the Met's general manager.

William Jay of Goodwin Procter

Justices Ponder Deference to Trial Courts in Patent Cases

By Tony Mauro |

The U.S. Supreme Court on Wednesday appeared torn on a contentious patent litigation issue: whether a trial court's factual findings about a patent claim deserve deference from the federal court that reviews such disputes on appeal.

Equal Justice Awards

Legal Services Corp. honored six New York lawyers and three firms for their commitment to equal justice at an Oct. 6 ceremony at the New York State Bar Association in Albany.

15 Counties Back State Defense of the Indigent

By Joel Stashenko |

Fifteen counties outside New York City are calling on the state to take over administration and funding of a system that provides legal representation to indigent criminal defendants.

General Motors Headquarters in Detroit, Michigan.

Class Action Complaints Target General Motors

By Amanda Bronstad |

Plaintiffs lawyers leading the fight against General Motors Co. over its ignition-switch recalls have filed two consolidated class actions on behalf of 30 million consumers across the country.

Mark Dreier arriving at court for a plea hearing during his 2009 trial

Bankruptcy Settlement Avoids Dreier Testimony

By Christine Simmons |

Marc Dreier, imprisoned since 2009 for a series of frauds that led to his law firm's collapse, was expected to be brought from a Sandstone, Minn., prison in late October to appear as a witness in the bankruptcy case of his firm.

Personal Notes on Lawyers

Abraham George, formerly a deputy bureau chief in the Brooklyn D.A.'s Office's Major Narcotics Investigation Bureau, has become general counsel at The Jeffrey Deskovic Foundation For Justice, and other moves.

First Department to Hold Call of Dismissal Calendars

The call of the calendars required by Section 600.12(c) of the Rules of Practice of the Appellate Division, First Department, will be held on Oct. 23, beginning at 10 a.m.

NYPD officers participate in a stop and frisk training exercise.

Circuit Grills Union Lawyers Over Stop and Frisk Delay

By Mark Hamblett |

Lawyers for police unions who want to upset New York City's settlement of litigation over police stop-and-frisk practices ran into some tough questions Wednesday at the Second Circuit.

David McCallum, left, who spent 29 years in prison, answers questions from the media after his conviction was vacated in Brooklyn Supreme Court Wednesday. With him are his mother Ernestine and his attorney Oscar Michelen.

Man Walks Free After Brooklyn Conviction Vacated

By Andrew Keshner |

Nearly 30 years after David McCallum was convicted of murder at age 17 on the strength of a confession he said was beaten out of him—and no other evidence tied him to the crime—he walked out of a Brooklyn courthouse Wednesday as a free man.

New York State Capitol in Albany

JCOPE Proposes Change to Limitations on FOIL Requests

By Joel Stashenko |

The state's government ethics panel is seeking input on a proposal that would lift restrictions on former state employees who seek public information from their former agencies within two years of leaving state service.

Jefferson Houses at First Ave. and 112th St.

Judge Upholds Arrest, Citing Officer's 'Custodian' Role

By Ben Bedell |

What started as an unlawful police pursuit in a public housing project eventually turned into a proper arrest, a state court judge has ruled.

Cadwalader Hails Nobel-Winning Client Malala Yousafzai

By MP McQueen |

Cadwalader, Wickersham & Taft hailed its 17-year-old pro bono client Malala Yousafzai of Pakistan for winning this year’s Nobel Peace Prize for her global advocacy of girls’ education, making her the youngest-ever recipient.

John B. Pessala

Obituary: John B. Pessala

By Tania Karas |

John Pessala, a retired Family Court and District Court judge in Nassau County who spent nearly his entire career in public service, died Tuesday at age 65 following a long illness.

Dentist office.  Photo: Gunay Mutlu/iStockphoto.com.

Justices Tackle Antitrust Impact on Licensing Boards

By Marcia Coyle |

In a case that could affect thousands of state licensing boards, the U.S. Supreme Court on Tuesday wrestled with whether a panel that drove nondentists offering teeth-whitening services out of the market violated federal antitrust laws.

Ronell Wilson was sentenced to death in 2007 and 2013.

Panel Reinstates Death Row Inmate's Paternity Petition

By Tania Karas |

The Second Department panel wrote that the state law that declares any person sentenced to prison for life "civilly dead" does not apply to Ronell Wilson since he was sentenced to death in federal court.

White Plains City Court, left, and Mount Vernon City Court

Court Upholds Pay of City Judges in Westchester

By Andrew Keshner |

An appellate court has found a rational basis for the discrepancy in salaries between full-time White Plains City Court judges and full-time judges in Mount Vernon City Court.

Judge Criticized for Evicting Non-English Speaking Man

By Joel Stashenko |

The Commission on Judicial Conduct ruled that it was Niagara Falls City Court Judge Robert Merino's responsibility to discern that a Spanish-speaking tenant was unable to understand English enough to participate meaningfully in the eviction proceeding against him.

Ticket-Fixing Investigation Wins First Conviction

A police lieutenant was convicted Wednesday of leaking information about a ticket-fixing investigation that embarrassed the NYPD. Lt. Jennara Cobb was found guilty of divulging an eavesdropping warrant, official misconduct and obstruction of governmental administration.

Brooklyn District Attorney Kenneth Thompson

New DA Bureau to Target Violent Crime in Brooklyn

By Andrew Keshner |

The Brooklyn District Attorney's office is fusing its Gang Bureau and Major Narcotics Investigations Bureau to form a Violent Criminal Enterprises Bureau.

NYU 2031 will create the buildings in white on the two large Greenwich Village blocks bordered by LaGuardia Place and Mercer, West Houston and West 3rd streets.

NYU Wins Bid for $6 Billion Greenwich Village Expansion

By Tania Karas |

A Manhattan appeals court has paved the way for New York University to proceed with a controversial expansion plan, overturning a lower court's ruling that would have blocked much of the development.

Deputy Solicitor General Anisha Dasgupta and Columbia Law School Professor Ronald Mann, left photo, argued in the Court of Appeals Tuesday that a rent-stabilized lease is

Judges Ponder if Rent Stabilization Is a 'Benefit'

By Joel Stashenko |

The value of rent on a stabilized apartment is conferred by the landlord, not the government, an attorney told the state Court of Appeals Tuesday in arguing for the proposed sale of a lease by a tenant's bankruptcy trustee.

Justices Thomas, Ginsburg, and Scalia joined in dissent Tuesday over the court's denial to review a sentencing dispute from the D.C. Circuit.

Justices Fall One Vote Short in Bid to Weigh Sentencing

By Tony Mauro |

An unusual lineup of three U.S. Supreme Court justices on Tuesday scolded the majority for declining to resolve a long-running dispute over judicial discretion in sentencing.

Ex-Prosecutor Demands Piece of Government Suit Against Sprint

By Ross Todd |

In an odd sort of reverse qui tam, a former prosecutor whose case against telecom companies was dismissed in 2009 is trying to insert himself into the government's action against Sprint, which is similar on its face, to lay claim to 15 to 25 percent of any potential government proceeds.

Penelope Andrews

Albany Law School Dean Says She Will Step Aside

By Andrew Keshner |

Penelope Andrews, the president and dean of Albany Law School, has announced she will resign at the end of the school year, concluding three years in the role.

Denis McInerney

Justice Department Official Rejoins Davis Polk

By Christine Simmons |

Denis J. McInerney, a former top official within the U.S. Justice Department, is returning to Davis Polk & Wardwell as a partner in its litigation and white-collar criminal defense and investigations practices.

Attorney Who Took $83,000 for Treatment Resigns

By Joel Stashenko |

Howard Hornstein admitted taking $83,000 in fees owed to his firm, Cozen O'Connor, and using most of the money to treat his Parkinson's disease.

A worker is seen force-feeding a duck recently at the Hudson Valley Foie Gras farm in Ferndale, N.Y.

High Court Won't Hear Challenge to Foie Gras Ban

By Joel Stashenko |

Hudson Valley Foie Gras of Ferndale, N.Y. was among the companies seeking to challenge a California law banning the production and sale of foie gras law on the ground that it impeded interstate commerce.

Eric Garner's arrest and subsequent death has led to calls for a federal investigation into police tactics.

Family Hires New Attorney in Fatal Chokehold Case

Eric Garner's family is hiring civil rights attorney Jonathan Moore, a partner in the law firm Beldock Levine & Hoffman. They previously had hired Sanford Rubenstein, who removed himself from the case after a woman accused him of sexual assault.