A Dog, a Cow and a Cyclist Ride into a Bar

       People get injured and they look to blame someone and if that someone has an insurance policy, a lawyer may be there to help.  Not every injury is awarded compensation.  For instance if you trip over a inch difference in the grade of a sidewalk, the courts will not likely award you anything. 

       What happens if you let you cow roam around the neighborhood?   In 2013 in a decision by the Court of Appealsin Albany, the highest court in the State, a woman was allowed to sue the owner of a cow she crashed into with her van. 
Sounded like the Court of Appeals felt people have to keep their animals on a leash or be liable for mishaps.  Or so that it is what two lower courts ruled.   The names of those cases were  Doerr v. Goldsmith and Dobinski v. Lockhart. The cases involved Wolfgang Doerr, who was injured in 2009 after crashing into a 45-pound shepherd mix on Central Park’s bicycle loop road, and Cheryl Dobinski, who fell from her bike in 2012 when she tried to avoid two German shepherds that ran onto the road near their rural home south of Buffalo.  In the New York City  case the lower court awarded significant damages to a cyclist who collided with a dog.  After a trial  the jury awarded the plaintiff $1,000,000.  On appeal the next highest court reduced that to $600,000.  I can only assume there was an insurance company funding the defense because this case was taken to the Court of Appeals.
 
       Just this June that Court ruled a cyclist cannot sue a dog’s owners, saying riders should be careful not to cross paths with animals that are a constant public presence.  To distinguish this decision from the 2013 cow case Judge Sheila Abdus-Salaam wrote, “In public parks, one regularly encounters dog owners with their unrestrained canine companions … whereas one ... certainly never expects to see someone taking his or her cow for a walk in the neighborhood.”  The court said the cyclists could not sue the dog owners because they had not shown that the dogs had a history of biting or attacking people.  A lower appeals court cited the cow case when it revived Doerr’s lawsuit, but the Court of Appeals last week  reversed the decision.

      I like this decision.  Dogs running after bikes is something I grew up with, it is common and that is just life.  Oh yea this has nothing to do with a bar, but I did think an award of $1,000,000 to the Central Park cyclist was a joke.



Alexander Novak, 

Partner, Novak Juhase & Stern

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Grandparents Have No Automatic Rights To Visitation

      In many of our families, grandparents play a special role in the lives of our children.  They are the source of free babysitting and frequently they are intimately involved in our children’s lives.  But what happens when there is discord between grandparents and their children and they are prevented from seeing their grandchildren?  Do they automatically have a right of visitation. The answer in New York is no.  If the parents refuse visitation, a grandparent must go to court and he may not win.

      Under N.Y. law, a grandparent’s right to petition for visitation is restricted to only two circumstances. When either parent of the grandchild has died, a grandparent has an absolute right to petition.  If both parents are living, a grandparent has standing to request visitation rights only if he can establish circumstances in which equity would see fit to intervene.  This means that the grandparent has to show that he has maintained a close and long term existing relationship with the child or tried to do so and was prevented by the parent.  Where contact has been sporadic or just involved sending birthday and holiday cards, the court will not grant the petition.  Allegations of love and affection are not enough.

     Even if a grandparent has standing to petition for visitation, he still has to show that visitation is in the best interests of the child.  Where both parents who are still married to each other strongly object to the grandparent’s visitation, it will probably be denied.  The N.Y. Court of Appeals (Article by the New York Sun) has held that there is a strong presumption that the parents’ wishes governs regarding the best interests of the child and this creates a high hurdle for petitioning grandparents to overcome.

      If, as a grandparent, you foresee possible visitation problems in the future, you should try to be involved in your grandchild’s life as much as is reasonable.  If the parents try to restrict your contact, you should document you attempts to do so.

Kim Steven Juhase, ESQ.

Partner, Novak Juhase & Stern

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Your Housekeeper May Sue You

          Do you employ a nanny for your children, a housekeeper or a companion for your sick or elderly parents, pay them in cash and fail to keep records of their employment? If so, you are leaving yourself open to a costly lawsuit.  Since 2010, household workers in New York are covered by the Labor Law’s minimum wage and overtime laws. Currently, the minimum wage is $8.75 an hour.  Their workweek is 40 hours (44 if residing with her employer).  Anything over that must be paid time and a half.  They must have one day off a week. You must obtain coverage for disability benefits and if they work at least 40 hours a week, you must obtain Worker’s Compensation coverage.

If You Want Modification, Better Hire an Attorney

         

        Perhaps the most prized possession of an average American is his or her home (although the iPhone is catching up). While it still retains its status as the ultimate expression of achieving the American Dream, at no time in US history was this dream subject to peril as it has been after the 2008 collapse of the housing market.

What could be worse in one’s moment of desperation and need of assistance than to be taken advantage of by some unscrupulous individual or a company that will claim to protect you but in reality take your money and disappear? As these fraudulent schemes made their way into the public eye, Federal and State governments responded with important protective laws.

School Interns Slaves No More: Harassment and Rights of an Unpaid Internship

SCHOOL INTERNS SLAVES NO MORE

            In 1865 the 13^th Amendment to the US Constitution outlawed slavery.  In 1938   the Federal Fair Labor Standards Act set a minimum wage for all employees.  In 1964 Title VII and New York’s Human Rights Law protected paid employees from   harassment and discrimination based on age, religion, sex, among others and with the passage of ADA law from discrimination based on disabilities including pregnancies.  Employers were cautious about blatantly violating these laws and lawsuits abound where discrimination is discovered.  That is except for student interns.

            Student interns have been unable to seek any such protection since they are not technically employees because they work for free.  Many college masters programs in speech, PT or social work require their students to participate in internships.  These are our children who believed they are so lucky to get unpaid internships in their fields of employment.  Yet at times, those internships are not so ideal.  When an unpaid intern in New York sued a Chinese news company, Phoenix Satellite Television, because, she said, a supervisor had groped and assaulted her; a federal judge dismissed her case.  Since she was not paid for her work, the law did not view her as an employee under Title VII.  The same thing happened in 1997, when an intern at a psychiatric hospital claimed that she was urged to join an orgy and to strip naked before meeting with a doctor.  The courts threw out her sexual harassment claim because she was not paid.  The same was true for minimum wage rules; students were not deemed employees in the eyes of the law.

NEW PROTECTION FOR INTERNS

Baseball: Suing For Getting Hit by a Foul Ball

            Spring is here bringing with it the thoughts of another baseball season.  It can also bring with it thoughts of death and severe injuries. While there have been only two fans so far killed at professional league ballparks, at least 49 fans have died at amateur games and countless others have been severely injured in the stands by foul balls. Strangely enough, if you are injured or killed in the stands by a foul ball, you generally have no legal remedy.

           

Almost all states, including New York and New Jersey follow what is called the limited liability rule.  This is set forth in the 1981 New York Court of Appeals case of Akins v. Glens Falls City School District.  In that case, plaintiff attended a high school baseball game. The field was equipped with a 24-foot tall and 50-foot wide backstop behind home plate but only a three-foot high fence along the baselines.  She decided to watch the game standing behind the three-foot fence and was struck in the eye by a sharply hit foul ball, causing her serious and permanent injury.  The plaintiff sued the school district.

International Sale Of Goods Not Governed by the UCC

   Robert in New York receives a telephone call requesting he deliver a container of his pickles to Toronto from a buyer he never dealt with. Robert agrees and delivers the pickles. Shortly thereafter, the customer complains that the type of pickles he ordered was not delivered.  Robert wants to sue.  What law governs?

   

   While many businessmen (and a lot of lawyers) would say New York’s Uniform Commercial Code (UCC) governs, but they would be wrong.  Since 1988, sale of goods between the U.S. and most other countries have been governed by a treaty called the United Nations Convention on Contracts for the International Sale of Goods. Since it is a treaty, it overrides the law of all 50 states including the UCC. It has been acceded to by 83 countries including Canada, Mexico, Israel and most of Europe except for the United Kingdom.

Novak Juhase & Stern, To Present CLE Lecture (Lakewood, NJ)

CLE Lecture for Continued Legal Education

Two of the partners at Novak Juhase & Stern will be presenting a lecture on The Mortgage Contingency Clause and Ethical Issues in Residential and Commercial Real Estate Contracts.

It will be presented by Alexander Novak and Kim Juhase. A 2-hour lecture to cover the following:

Ø  May the Buyer Apply to a Mortgage Broker?

Ø  How Soon Does the Buyer Need to Apply?

Ø  What if the Buyer Obtains a Commitment in a Different Amount than Provided in the  Contract?

Ø  Conditional Commitments: Do they satisfy the contract?

Ø  Commitments Given, then Revoked by Lender

Ø  Ethical Issues Regarding the Mortgage Commitment Contingency Clause

Ø Ethical Issues in Residential and Commercial Real Estate Contracts: Duty to Communicate,   Retainers, Dealing with Opposing Counsel, and Truthfulness.

Location: 1125 Ocean Ave # 1, Lakewood, NJ 08701

Date:       May 15, 2015
Time:      Breakfast starts at 8:30 (2-hour lecture)

               Kosher Food will be served

For reservations contact: 

Lainie Goldberg
Director of Education
Madison Commercial Real Estate Services

(732) 333-2783 - Direct
(732) 996-6768 - Cell

Hey Get Your Fence Off My Land

     Sometimes it happens when you buy land, you get a new survey taken of the property, and it shows that a neighbor’s fence or hedges encroaches on your land.  You want that fence or hedge removed and set on the property line.  You go to the neighbor and ask real politely, and it is like talking to the wall (pun intended).  Hopefully your first reaction is to call Alexander Novak, your lawyer, to start a lawsuit, but that is not such great advice.  Here is why:

   

   Old encroachments on your land call into play the law of adverse possession.  If the adverse possession lasted 10 years, you lose your land.  However, in 2008 the New York Legislature changed that law to make it much easier for you, the landowner, to win and get that fence taken down. The new legislation changed the common law rule of adverse possession. Under common law, things like erecting a shed, digging a trench, mowing, planting and raking grass, constructing underground dog wire fence, installing post for birdhouse, cultivating garden, and erecting fences were all winning arguments for adverse possession, but not any more. These actions are now called “permissive and non-adverse” actions. 

   

   But do not run to court so fast!  If your neighbor had already done those things for 10 years before the new 2008 law came into effect, she or he could still win despite the new law.  The courts in New York have ruled that the neighbor is entitled to the application of the old version in effect when her claim to the disputed property allegedly ripened into title.  The NY Court of Appeals said, “although a statute is not invalid merely because it reaches back to establish the legal significance of events occurring before its enactment, . . . the Legislature is not free to impair vested or property rights.” So if the neighbor could have won in 2008, then she or he could still win today.  This lawsuit will be very fact oriented.

Are Beth Din Arbitration Clauses Invalid?

      Under Orthodox Jewish practice, a Jew is not supposed to sue another Jew in secular courts. Instead, they are to arbitrate their disputes before a Beth Din, which is an arbitration panel of rabbis. In order ensure that the parties will follow this rule an arbitration clause is included in a contract. Most of these are extremely basic. The Beth Din of America, in its sample arbitration provision simply states that any controversy arising out of the contract shall be settled before the Beth Din of America in accordance with their rules and that any award may be entered in any court having jurisdiction. Apparently the assumption is that anyone entering into this agreement knows what a Beth Din is. At least in New Jersey, this clause and others like it is invalid and unenforceable.

Structuring Deposits: The IRS Apologizes...Again

      Last week, the United States IRS Commissioner John Koskinen made a startling apology in Congress. He apologized for the IRS seizing the bank accounts of businesses merely because they deposited a lot of cash. In most of these cases legitimate small business owners were depositing say $8000 cash every other day. Most of these stores were small grocery stores or candy stores which did a lot of cash business. Sometimes they were restaurants which did not take credit cards. The IRS used a well-known, but slightly obscure, rule that actually allows the IRS to seize assets from US citizens it believes – get it, that the IRS believes – violated Federal Cash Transaction Reporting requirements. You have seen those signs at banks: If you deposit more than $10,000 cash you must fill out a Currency Transaction Report (CTR). Who wants the hassle? So business owners would deposit less than $10,000 every other day. Banks must snitch on their customers who deposit so much cash.

      But if you deposit less than $10,000 where did go wrong? Ever heard of “structuring” deposits? That means you purposely divided your deposits below $10,000 to fly under the radar. The IRS was seizing bank accounts without ever bringing charges against the business owners. No due process.

I Want My Ring Back! Who Keeps The Ring In A Broken Engagement?

       

     Paul and Janet had been dating for about two years when Paul proposed marriage. Janet agreed and a wedding date was set. As a sign of their engagement, Paul gave her a family heirloom, an 8-carat pure white diamond on a white gold band. Three months later, Paul thought better of it and broke the engagement. He then requested the return of the ring. Janet refused, claiming it was Paul fault for breaking off the engagement and she had a right to keep it. Who wins?

      Paul does. Our firm won the lead case on this issue, Gagliardo v. Clemente, a New York Appellate Division, 1st Department case from 1992. The court held that giving an engagement ring is only a conditional gift given in contemplation of marriage. If the marriage does not go through, the gift is not completed and the ring must be returned. It is wholly irrelevant as to who caused the breakup. Just as New York has a no-fault divorce law, there is a no-fault engagement ring rule. The rule is the same in New Jersey according to Aronow v. Silver, a 1987 NJ Superior Court case.

       What if the man is already married and gave the engagement ring upon her promise to marry him when and if he got a divorce from his current marriage?

Do I Have to Testify Against My Child?

A parent’s worse nightmare. Your child comes home, all disheveled, and tell you he thinks he is in trouble. He had been at a party and may have drunk too much. On the way home, he believes he may have run someone over. He gives you all the details of what happened. He is shortly arrested and under the advise of the attorney you immediately retained for him, he refuses to speak to the police. The District Attorney figures that you must have spoken to your child about the crime and subpoenas you to testify as to what he told you before a Grand Jury. Can you be forced to reveal your child’s confidences?

The answer, at least in New York, is probably no. There is no statutory parent-child privilege, like that of attorney-client or priest-penitent privilege in New York or New Jersey. However, there is case law in New York that has arguably created such a privilege. In a case called Application of A & M, the N.Y. 4th Department Appellate Division ruled in 1978 that

Automatic Renewal Contract: There is a Way Out!

AUTOMATIC RENEWAL CONTRACTS

Don’t be misled by automatic renewal provision in your contract. In some cases, they may be invalid under New York law. Lets say that you have a 5 year contract with a computer maintenance company. The contract is about to expire and now you found a cheaper and more reliable company. You let the contract lapse and you sign with the new company. However, your old company continues to send you bills. When you contact them to complain, they tell you "sorry, but you did not read the fine print": If you did not notify them 6 months before the expiration date that you did not wish to renew, it was automatically renewed for another 5 years.

Do you have any remedy? In this case, and in many like them, you do. New York’s General Obligation Law sections 5-901 and 5-903 provides that no matter what is stated in your contract, if it is for a lease of personal property or is a contract for services, maintenance or repair to or for any real or personal property, the one providing the service must serve on you a writing, calling to your attention the renewal provisions in the contract. It must be served on you either personally or by certified mail at least 15 days and not more than 30 days prior to the time the contract calls for you to give notice whether you will renew or not. If such notice is not given, you may cancel the contract at any time, just paying for the service provided up to the time of the cancellation. However, if you do receive the notice and do nothing, you will be stuck with the renewed contract.

The courts have been very liberal in expanding the meaning of personal property. The statutes have been applied to include intellectual property, servicing MRIs, leases of vending machines, and answering services. It does not apply to personal services contracts such as providing legal services or other type of advisory services. These provisions were specifically designed to protect small businessmen who unwittingly find themselves stuck with a contract they did not want.

If you continue to receive bills from a supplier,  or a vendor claims that you are still stuck in a contract you thought had expired, don’t just assume they are right because the contract says that you did not give the proper notice. Immediately contact a lawyer. Most likely, they are wrong.

Kim Juhase, ESQ.

Partner, Novak Juhase & Stern, LLP

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Can One Word in a Contract Cost Over a $200,000?

Yes, sometimes a word or two,  even in a forty page contract can make a tremendous difference, and change the entire outcome of the case.  

We had a client's case that went up to the highest Federal court in New York and was then sent over to New York’s highest court in Albany, the Court of Appeals,  and a half of million dollar award was thrown out because of a few words.  In a case called Israel v Chabra (537 F.3d 86) the court held that the words  'provided that' "suggests a condition, and our conclusion in that regard is consistent with the punctuation and grammatical construction of the Guaranty's first paragraph.”   The entire argument the defense raised was the lack of notice of  default. Meaning,  the plaintiff, OUR CLIENT, who did not give the notice argued that the notice was not a big deal because the defendant knew about the default.  The lower court agreed with the plaintiff and awarded him over $330,000 and legal fees of $299,000.
This was all reversed on the two appeals.  This case wandered through three courts for as many years and each sides’ legal fees were well over $300,000.

In another matter, an employee was able to get his $150,000 bonus paid each year  of his three year employment  contract as apposed his employers offer of just one bonus for the first year.  Again, that was because of a change of just one word. 

Lawyers are not usually slow readers, we just have to think about how slight grammatical nuances can turn around a whole contract.  So that is how a word or two can cost or save you hundreds of thousands of dollars.

Alexander Novak, ESQ.
Partner, Novak Juhase & Stern

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Never Tell a Lie to a Fed!

Our mothers always told us never to tell a lie.  You remember the childhood taunt: "liar liar, your pants are on fire."  Well let’s face it, all of us lie every day. We tell white lies or little innocent lies at home and the workplace to keep peace with friends and family. All of us justify these dishonesties because that is just how life is.  And so what really is so bad? Will my pants really catch on fire?

Well telling a lie to a government agent like the FBI or the SEC is a crime, and in fact it is a big crime, it is a felony punishable with five years in a jail. The funny thing, or well maybe the scary thing, is the FBI can lie to you all day and for them it is just doing their job. But if you lie to them, then you have committed obstruction of justice or are impeding the government's information gathering process.  Courts take obstruction of justice very, very seriously.  Indeed the crime sounds particularly ominous.

Telling even the most innocuous lie to a Fed could put you in jail.  Ever heard of Martha Stewart? If you are reading our blog, then you have heard of Mrs. Stewart.  She served hard time, not because she was guilty of insider trading or a host of other securities fraud, rather she lied to the SEC and Assistant US Attorney.  All she said was she did not have a conversation with her broker on the day she sold a lot of stock. In doing so, she told a lie. She mistakenly thought, had she spoken to her broker that day, that she would have committed insider trading. The broker did not divulge any insider information because never had such in the first place. But with a non-criminal lawyer next to her, and not knowing better, she out right lied about the conversation they had.  That was the crime she went to jail for.  At trial it was revealed that what her broker had said to her that day was not insider information and the broker had a legitimate right to tell her and his other clients. This fact did not stop the prosecutors who just wanted to see Martha sit in jail, which she did so in Danbury women's prison.  It was no picnic. Once the government wants you they will pull out anything to convict you.  The government has a license to lie with impunity. Want a good book? Read "Licensed to Lie" by ex-US Attorney, Sidney Powell.

Just being aware of the draconian consequences of lying to the Feds should make you pause.
Many times an agent will catch you off guard and you will say a little lie just to get away.  Once they have that little lie you are the government's footstool. They will keep reminding you of that indisputable lie to make sure you become a very cooperative witness. This happens all the time.  You are always better off telling a Fed to contact a lawyer and that you have nothing to say. By the time they approach you they have built their case, and you fit in somewhere all ready.

Better advice than from dear old mom about lying: BEFORE YOU TALK TO THEM TALK TO ME. Never talk to an agent of the government before you tell your lawyer everything. Don't let your recalcitrance in revealing something a little ugly to your lawyer prevent you from letting him know why the Feds want to talk to you.  You do not help your cause if you lawyer is blindsided. Reveal everything to your lawyer.  You can't go wrong and your attorney will never reveal what was said in confidence to anyone in the world (yes, I keep secrets from my wife). Also, you stop talking to anyone but your lawyer including friends and family.  Otherwise you may make yourself an un-indicted co-conspirator and have to testify at trial. Who wants the publicity?

Alexander Novak, Esq.

Partner, Novak Juhase & Stern

Link to: Licensed To Lie, Sidney Powell

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