Essential Workers Discount | Estate Plans | Wills and Trusts

Essential Workers Discount | Estate Plans | Wills and Trusts

We hope that everyone is doing well during these unprecedented trying times.

We have been approached by numerous clients during this tumultuous time who wish to update or even create their estate plans, and with the help of video conferencing, we are able to offer our clients a way to check this important “to-do” off the list so they can focus on their families and staying healthy while maintaining social distance.

For those of you who have current estate plans in effect, now is a good time to reflect on whether you wish to make any changes.  If you do not yet have an estate plan, now is the time to think about your wishes concerning your health care and assets during your lifetime, and the distribution of your assets and decision-makers who will effectuate your wishes upon your passing.

Without a will, New York State intestacy law dictates who inherits from you upon your passing. A will is your opportunity to change the law’s automatic beneficiaries, and allows you the opportunity to choose who administers your assets on behalf of the beneficiaries, at what age a beneficiary can inherit, and in the case of those with minor children, to name a guardian.

Two examples: First, if a person is married with children and dies without a will, New York intestacy law dictates that the spouse inherits the first $50,000, plus one half of the remaining estate. The child(ren) of the decedent inherit the other remaining half. A child can inherit at the age of majority (18). It is very common, however, for people who are married with children to leave their entire estate to their spouse, and for the child(ren) to inherit only when the surviving spouse has passed, and usually at an age beyond 18.

Second, if a person is unmarried and without children, New York intestacy law dictates that the parents (if living) inherit the entire estate. Without any living parents, the siblings (or children of predeceased siblings, i.e., nieces and nephews) inherit equally. Having a will gives you the opportunity to pick and choose your heirs rather than have an entire class of people inherit.

There is no one-size-fits-all estate plan, as every family situation is unique. Your plan will be drafted in accordance with your express wishes and situation.

We highly recommend that our clients have the following basic estate planning in place:

  1. Wills;
  2. Powers of Attorney;
  3. Living Wills/Health Care Proxies; and
  4. Designations of Burial Agent.

The will designates who receives your assets upon your death.  The wills deal with probate assets (which are owned in your individual name without a joint owner or beneficiary).  In the case of a married couple with children, we suggest your will state that their assets pass to their spouse first, then, after the surviving spouse passes, to their children equally “per stirpes.”  Per stirpes means in the event of a predeceased child, that child’s children would “step up” and inherit the share.

The will also states at what age a child or grandchild can inherit (we suggest 25).  The will also names a Trustee who will manage the assets for any beneficiary under the age of 25, or for the surviving spouse if the survivor elects to establish a credit shelter trust.  You should name both an Executor (most appoint their spouse, if applicable), as well as an alternate Executor to handle the probate of your will.

The Power of Attorney gives very detailed authorizations to an agent to handle your finances in the event you are unable to do so.  Most people appoint their spouse, if applicable, as well as an alternate agent.  The power of attorney is “durable” which means it is not affected by your subsequent disability or incompetence.

The Health Care Proxy/Living Will designates who can make health care decisions for you in the event you are unable to do so.  Like the power of attorney, most people appoint their spouse, if applicable, as well as an alternate agent in the event the primary agent is unavailable and/or unable to make health care decisions for you.  The Living Will gives you the opportunity to decline certain treatments if there is no hope of recovery.

The Designation of Burial Agent appoints your agent (similar to the power of attorney and health care proxy, the spouse, if applicable), and allows you to make certain designations, such as where you wish to be buried or cremated, etc.  You should also appoint an alternate agent.

Once we receive the answers to the questions raised above, along with the full names, addresses and telephone numbers of all the children/decision-makers), we will e-mail drafts of these documents with a detailed letter of explanation.  Once the documents are reviewed and deemed satisfactory (or at any time prior), we can schedule a video conference to sign the documents before the required witnesses.

We are offering a 15% discount off our fee for the basic estate plan documents for our clients who are essential workers, as a thank you for your hard work and dedication to helping our community through this pandemic.

There are other estate planning tools available beyond the basic (although comprehensive) estate plan package detailed herein.  One example is a revocable trust, which is a vehicles to title assets where heirs are being disinherited or are unknown, and the goal is to avoid probate.  Another example is an irrevocable trust (also known as a Medicaid qualifying trust), where assets are transferred into trust to be managed by a trustee (NOT the grantors) to start the clock on the 5-year Medicaid look back period.  We are available to discuss these further.

Our trusts and estates partner is Christina A. Wilcox. She may be reached at or 631.694.2400 x 232. Please feel free to reach out to discuss your estate plan. We are here to assist you.

This newsletter is provided by Hamburger, Maxson, Yaffe & McNally LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such

Landlord Notices | Employment Discrimination | 14-Day Demand for Rent and Fees

Landlord Can’t Give Notice To Cure And A Termination Notice At The Same Time


In B&K 236 LLC v. DiPremzio, the Landlord commenced a summary proceeding which was predicated upon a “Ten (10) Day Notice to Cure and Notice to Tenant of Termination of Tenancy and Intention to Recover Possession,” which listed several alleged violations of the Occupancy Agreement, provided deadlines to cure the alleged violations, and purported to terminate the lease if the defects were not timely cured. The tenant challenged the legality of that Notice, and thus, the summary proceeding itself.

The Notice listed the following alleged violations of the tenant’s “Occupancy Agreement”: (1) failure to provide access for inspection; (2) smoking and obstruction of hallways; (3) having a dog; (4) allowing unauthorized occupants which caused overcrowding; and (5) illegally accessing the roof. The Notice concluded by stating:

TAKE NOTICE that you are hereby requested to cure said breach on or before June 5, 2017, that being more than (10) days after the service of this Notice to Cure upon you, and that upon your failure to cure the Landlord (B & K 236 LLC) hereby elects to terminate your tenancy in accordance with the applicable provisions of law.
TAKE NOTICE that in the event of failure to cure by June 5, 2017, unless you vacate and move you property from said premises on or before June 30, 2017, the day on which your term will expire, the Landlord (B & K 236 LLC) will commence appropriate proceedings to recover possession of said premises and remove you from said premises for holding over.

After allegedly failing to cure the defects by the deadline, the Landlord commenced a summary eviction proceeding. The Tenant-Respondent argued that the notice was defective, and thus deprived the Court of subject matter jurisdiction. However, the court rejected this argument, holding that even notice is defective that does not deprive the court of subject matter jurisdiction. “Failure of a petitioner to comply with a statutory notice requirement, where applicable, represents merely the failure to comply with a condition precedent to suit and cannot properly be said to affect the court’s jurisdiction.”

Nonetheless, the Court did agree with that the notice was defective, which proved fatal to the landlord’s case. The Court held:

None of the stated grounds is supported by a factual allegation. Petitioner does not state why or when it sought access to inspect respondent’s apartment; who was smoking in and obstructing the hallways, and when; the specific nuisance caused by the dog alleged to be in respondent’s apartment, if there is a dog; any description of the unauthorized occupants; when respondent illegally accessed the roof and the substantial obligation breached by respondent’s presence there. Further, each breach allegedly violates respondent’s “Occupancy Agreement.” However, petitioner does not provide any information about which sections of the agreement respondent violated. “The deficiency in the notice arises from its failure to cite any specific prohibition in the lease which had been violated.” The notice served here does not inform respondent of the conduct which violates his lease and is simply too vague and conclusory to constitute a proper predicate for this eviction proceeding.

The Court also rejected the landlord’s claim that a notice to cure and a notice of termination may be combined into one notice. The “notice to cure itself cannot function as a substitute for a notice of termination, and a termination notice may not predate the end of the cure period.” As such, the summary proceeding was dismissed.

Claim of Firing Because He Was Not Right “Cultural Fit” Warrants Jury Trial


Discrimination Dictionary Definition single word with soft focus

In Jain v. Tokio Marine Mgmt. Inc., the defendant Tokio Marine (TM), a commercial property and casualty insurer, hired plaintiff Rajiv Jain, a person of Indian descent, as a Senior Underwriter in its New York office in 2013. The crux of the dispute began when Jason Taylor took over as Jain’s boss and the interim Head of Property (“HOP”) of Tokio Marine’s New York office. Taylor and Jain experienced difficulties working together, culminating in Jain’s termination in November 2014. At that time, Taylor, together with the Global HOP and a human resources representative, met with Jain and terminated him. Jain claims that Taylor told him that Tokio Marine’s reasoning was that Jain was not the “right cultural fit.”

Relying on a Second Circuit Court of Appeals decision concluding the phrasing “better fit” or “fitting in” might have been about race and could create a fact issue for a jury, the Court here determined that the “cultural fit” language about Jain, even when isolated, was enough to create factual issues to warrant a jury trial, but especially so when used to describe the reasons why Tokio Marine did not promote Jain, precluding summary judgment.

Rent Demand With Additional Fees Found Reasonable, Fairly Apprises Tenant of Amount Due


In 120 Beach 26th St. LLC v. Samuel, the residential tenant, Samuel, sought dismissal of a non-payment summary proceeding arguing the predicate 14-day rent demand was defective because it sought to recover rent arrears and additional fees that were not part of the possessory claim and failed to apprise him of the accurate amount owed in this non-payment proceeding. He cited the newly amended RPAPL § 702 providing “no fees, charges or penalties” may be sought in a summary residential proceeding.

More accurately, the new law enacted as part of the “Housing Stability and Tenant Protection Act of 2019” provides as follows:

In a proceeding relating to a residential dwelling or housing accommodation, the term “rent” shall mean the monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement. No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language to the contrary in any lease or rental agreement.

We note that the tenant’s claim here, that “no fees, charges or penalties” may be sought in a summary residential proceeding, is a misconstruction of the new statute. The statute provides that no fees, charges or penalties “other than rent” may be sought in a summary residential proceeding. Because “rent” means the monthly or weekly amount charged in consideration for the use and occupation, and if the “fees” or “charges” sought are part of the consideration for the use and occupation, then a landlord should be able to seek them in a summary proceeding. Otherwise, “other than rent” would be rendered meaningless. The legislature did not say fees, charges or penalties may be sought in a summary residential proceeding.

The Court, however, never reached that argument. Instead, it found that the inclusion of additional fees in a rent demand merely gave tenant notice of landlord’s additional claim for contractual damages provided for in the lease and did not affect the rent demand’s validity. It found the amount sought in landlord’s rent demand was an approximate good faith estimate of rent owed.

It reasoned that a “rent demand is a condition precedent to commencement of a summary nonpayment proceeding, and as such, cannot be amended. The propriety of the rent demand is an element of landlord’s prima facie case. The predicate rent demand required by RPAPL § 711(2) must clearly state the approximate good faith estimate of the sum allegedly due as well as the period for which the rent is demanded.” It further found that it “has long been the standard that inclusion of attorneys’ fees or late fees in a rent demand merely gives Respondent notice of Petitioner’s additional claim for contractual damages provided for in the parties’ lease and does not affect the validity of the rent demand” and the “inclusion of late fees or other fees in the rent demand does not in and of itself invalidate the demand, instead, the inclusion of such fees is a factor the Court considers when reviewing the reasonableness of the demand and determining whether the tenant may have been prejudiced in its ability to respond to the demand, formulate defenses, and avoid litigation or eviction.”

The Court found that additional “fees” in the rent demand were for “Tenant Liability Insurance.” It did not evaluate whether they were part of the consideration for the use and occupation of the premises (and it is not clear whether that argument was even raised), but concluded that the “$19.00 in charges constitute less than 1 percent of the $3,350.00 in rent sought in the demand. That Petitioner is no longer permitted to collect the additional fees in the context of this summary proceeding does not in and of itself invalidate an otherwise valid rent demand. The standard of review for the predicate demand has not changed. It is still that of reasonableness in all attendant circumstances, and in the case at bar, the Court finds that the rent demand is reasonable and fairly apprises Respondent of the amount due.”

This newsletter is provided by Hamburger, Maxson, Yaffe & McNally LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such

Whistleblower; Employee Termination | First Amendment | Wills

Employee Terminated on Grounds Independent of Any Alleged Whistleblower Claim

employee terminated on grounds independent of any alleged whistleblower

In Tevlin v. Bd. of Ed. of Great Neck Union Free Sch. Dist., a former employee Tevlin brought an action under New York Labor Law §740 and Civil Service §75 stemming from his termination for poor attendance. Tevlin was a supervisor for security at the Great Neck Union Free School District responsible for 11 separate facilities and supervising 100 employees. Records indicated he began showing a pattern of excessive absenteeism–missing 69.5 days of work in the 2014-2015 year. He missed two unexplained weeks in May 2016 and charges were preferred. He claimed he was terminated due to a June 2016 incident–reporting what he believed was a “terroristic threat” by a bus driver to police, despite the transportation director deeming it unwarranted. The bus driver made a statement which Tevlin alleged was a “terroristic threat,” in which she showed a bus matron a picture of a friend of hers holding an assault weapon and indicating that her superiors should give her what she wants. Tevlin took part in a meeting with the director of transportation, and two other administrators. While Tevlin believed the situation should be reported to the Nassau County Police Department, the director of transportation and the other attendees disagreed. He then choose to inform a Nassau County Police Detective at a social event the next day of the situation, resulting in an investigation that did not end in any criminal charges for the bus driver.

In addressing the School’s motion for summary judgment, the Court recognized that under Civil Service Law §75-b “a public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee’s employment because the employee discloses to a governmental body information regarding a violation of a law, rule, or regulation, which violation creates and presents a substantial and specific danger to public health or safety or which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. However, where there are specific incidents of inappropriate, unprofessional, or insubordinate conduct which are found to demonstrate a separate and independent basis for the action taken, an employee may not assert a claim or defense under this section.”

It further recognized that under Labor Law §740 “an employer shall not take any retaliatory personnel action against an employee because such employee either discloses or threatens to disclose to a supervisor or to a public body an activity, policy, or practice of the employer that is in violation of law, rule, or regulation which violation creates and presents a substantial and specific danger to the public health or safety or provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any such violation of a law, rule, or regulation by such employer. On the other hand, this statute also provides that it shall be a defense to any action brought pursuant to this statute that the personnel action was predicated upon grounds other than the employee’s exercise of any rights protected under it. This section requires proof of an actual violation of law to sustain a cause of action and a plaintiff’s reasonable belief of a possible violation is not sufficient.”

In reviewing the details surrounding Tevlin’s absenteeism the Court noted that they “predated the incident involving the bus driver,” and found the issues with Tevlin’s “attendance at work well-documented,” beginning “more than a year and half before the alleged incident for which he categorizes himself as a whistleblower.” The Court said that the School District was “more than fair” in its treatment of Tevlin’s behavior, and provided him with “multiple opportunities to correct it, with each opportunity being squandered” by him.

The Court concluded that the School District had “established that there were specific instances of insubordination” by Tevlin “such that the grounds for his dismissal existed independent of any possible whistleblower claim he may have,” and granted summary judgment dismissing the complaint.

Removal of Student from Variety Show After He Went “Off-Script” Was Not A First Amendment Violation

removal of student from variety show after he went “off-script” was not a first amendment violation

In Vetrano v. Miller Place Union Free Sch. Dist., the plaintiff student sued his school district after he was not allowed to attend the second day of his High School’s annual two-day variety show because he improvised a line in a skit—satirizing the school’s enactment of a policy limiting bathroom use to one student at a time (Bathroom Skit)—that did not stick to the script approved by producer/director Mangiamele, also an Assistant Principal at the High School.  He received no other discipline. The District Court dismissed plaintiff’s action, brought under the Civil Rights Act and 42 U.S.C. § 1983, alleging the Miller Place Union Free School District, High School, Mangiamele, and Higuera, the District’s Superintendent of Schools, violated his constitutional rights to free speech, freedom of association, and due process. Finding that the Bathroom Skit constituted school-sponsored speech, the District Court concluded plaintiff’s First Amendment retaliation claim failed because he did not engage in protected speech.  Further noting he suffered at most a de minimis deprivation, the District Court concluded plaintiff did not show he suffered an adverse action in connection with his speech, and also concluded his freedom of association claim duplicated his meritless retaliation claim.

According to the District Court, each year the High School holds a variety show which consists of musical and other talent acts, separated by satirical skits performed by members of the senior class.  The skits often poke fun at faculty, school policies, and other school-related issues.

The Variety show is a school-sponsored event, with a general understanding that what is performed in the Variety Show has been approved by the High School and by Assistant Principal Mangiamele.  The skits are submitted for approval to the Executive Council, which passes them on to the Faculty Advisor for approval and after the Faculty Advisor approves the skit scripts, he or she submits them for approval to any faculty member who is mentioned by name or likeness.  If a faculty member is mentioned, he or she must approve the script in order for the students to be permitted to perform it in the Variety Show.  If a staff member does not approve the script, that person may not be mentioned in the Variety Show.

In addition, the Court noted that the Faculty Advisor follows the procedure for approving skits in accordance with the Code of Conduct’s expectations for acceptable conduct, and the anti-bullying and harassment policy.  The Code of Conduct articulates that all students, school staff, parents, and other visitors must meet the High School’s expectations for acceptable conduct while on school property and at school functions.  A “school function” is any school-sponsored event or activity held on or off school district property.

The Code of Conduct also prohibits conduct that is insubordinate, disruptive, or endangers the morals of others.  Insubordinate conduct includes failing to comply with the reasonable directions of teachers, school administrators or other school employees in charge of students, or otherwise demonstrating disrespect.  “Disruptive conduct” includes failing to comply with the reasonable directions of teachers, school administrators or other school employees in charge of students.  Conduct that endangers the morals of others includes harassment, bullying, or discrimination against any student.

Failure to comply with the Code of Conduct may result in certain disciplinary penalties and an Assistant Principal or Activity Director is authorized to remove a student from a school function when the student violates the Code, so long as it is consistent with the student’s right to due process.  The amount of due process to which a student is entitled before receiving a penalty depends on the penalty imposed.

The Code of Conduct specifies that participation in extra-curricular activities is a privilege earned by students who are in good academic standing and demonstrate good citizenship.  As a result, the Code of Conduct does not provide a hearing for students removed from an extra-curricular activity pursuant to Education Law § 3214.  Instead, the Code provides the student and the student’s parent a reasonable opportunity for an informal conference with the district official imposing the suspension to discuss the conduct and the penalty involved.

Plaintiff submitted his “Bathroom Skit” to the then-Executive Council President, who submitted them to Mangiamele for approval.  Mangiamele ensured that each of the faculty members represented in a Skit was given the script to review and approve.  The Bathroom Skit satirized the High School’s enactment of a policy which limited use of the bathroom to one student at a time, supposedly to combat smoking in the bathroom.

Mangiamele approved the skit as submitted and at the beginning of the Variety Show’s rehearsal, Mangiamele addressed the students as a group and advised them that they must stick to the script and not improvise lines.  Mangiamele also advised the students that they must make good decisions, and that any student who did not do so would be pulled from the show, potentially affecting upcoming events.  Mangiamele also reminded the students that faculty members signed off on the Skits, and that there were to be no changes to the approved Skits.

Before the show began, Mangiamele again sat the students in the gymnasium, and reminded them that they may not deviate from the approved script.  She advised the students to be on their best behavior and not to try anything that will get them in trouble and warned them that if they did not follow the rules, they can have other events taken away.

During the Bathroom Skit, the first skit of the show, the Plaintiff improvised the following line omitted from the drafts of the script approved by Mangiamele — “Is this why our Superintendent makes so much money, to ·write bathroom policy?”  Immediately after the Skit, Mangiamele spoke with the Plaintiff regarding his failure to stick to the script.  She told him they would discuss it the following morning, but that his actions may affect the second night of the Variety Show.  The Plaintiff agreed that the line in question was not part of the script but disagreed that his actions violated the rules.  The Plaintiff stayed for the remainder of the show and performed in two other Skits as planned.

Plaintiff was told on the day of the second Variety Show, that he would not be able to attend the second night of the Variety Show because he failed to stick to the approved script and did not follow the rules.  The Plaintiff received no other discipline.

The plaintiff then brought an action based on these facts in the Supreme Court of the State of New York for the County of Suffolk and pursuant to federal law, the defendants removed the action to the federal District Court, because the plaintiff’s Section 1983 claims invoke the Court’s federal question jurisdiction.

As for the First Amendment retaliation claim the District Court noted that generally “a plaintiff must establish that: (1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3) there was a causal connection between this adverse action and the protected speech.”

As to whether the plaintiff engaged in protected speech, the District Court noted that although students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the rights of students “are not automatically coextensive with the rights of adults in other settings, which must be applied “in light of the special characteristics of the school environment.”  The District Court said the Bathroom Skit constituted unprotected school-sponsored speech, because the plaintiff performed the skit during a school-sponsored Variety Show.

The Court further said that the Plaintiff could only sustain his objection by establishing that the Bathroom Skit was somehow of such a private nature that it no longer bore the imprimatur of the school, but that the “record does not support this conclusion, as Mangiamele, a faculty member, produced and directed the show and a general understanding existed that show’s performances were approved by Mangiamele and the High School.”

Because the High School “directly involved itself in the production of the Variety Show and regulated its content by selecting” the acts and skits, “it could be more reasonably inferred by the public that the High School endorsed or sponsored the speech included in the performances.”

As to whether the plaintiff suffered an adverse action the Court noted that under an “objective standard, an adverse action must be more than de minimis to support a First Amendment retaliation claim.  This test is ‘highly context-specific,’ ‘and “must be applied here ‘in light of the special characteristics of the school environment.’” Because the plaintiff’s claim did not “arise from a suspension or other similar student discipline, but rather the barring of his performance in the second night of the Variety Show — a voluntary, extracurricular activity” and because “the participation in extracurricular activities is a privilege, not a right,” any adverse action was found to be de minimis.

Lastly, as  to whether a causal connection existed, the District Court concluded that “the undisputed record shows that the plaintiff improvised lines in the Bathroom Skit, despite multiple warnings that he must adhere to the script, and that the defendants disciplined the plaintiff for failure to abide by those warnings.  The plaintiff puts forth no evidence suggesting that the defendants barred him from participating in the second night of the Variety Show for anything other than the fact that he violated the rules, and nothing else in the record otherwise illustrates an improper motive.”

No Sufficient Act of Obliteration Found to Effectuate Revocation of Will

no sufficient act of obliteration found to effectuate revocation of will

In Estate of Mandel, the petitioners, decedent’s stepson and brother-in-law, moved for summary judgment dismissing an objection to probate the propounded instrument alleging it was revoked by an act of obliteration or cancellation of dispositive provisions. The will left most of the estate to decedent’s spouse, and if he predeceased, to her stepson. It was undisputed that when decedent executed the will there were no handwritten markings on it other than hers and the witnesses’ signatures, but the will offered for probate had handwritten markings on 9 of 27 pages and within 7 of its 15 articles striking through provisions where decedent’s spouse, stepson, his spouse, and their children were named, and adding objectant AM’s name, her son or decedent’s brother-in-law. Decedent’s initials appeared next to the handwritten markings. The Court found the markings did not affect the entire Will or a “vital part” of it and not “each and every” dispositive provision was obliterated, ruling there was not a sufficient act of obliteration to effectuate a revocation, granting petitioners summary judgment.

In so ruling, the Court noted that New York’s Estates, Powers and Trusts Law (“EPTL”) Section 3-4.1 sets forth the procedures for the revocation of wills, and that Courts “‘have been as unyielding in demanding strict compliance with the requirements of EPTL 3-4.1 for the revocation of a will as they have in demanding compliance with the requirements of EPTL 3-2.1 for the execution of a will’” and that a “‘testator executing a will must satisfy a fair number of strictly construed formal requirements,’” but a “testator revoking a will also must adhere to some formalities.”

“EPTL 3-4.1(a)(2)(A)(i) provides that a revocation, ‘if intended by the testator, may be effected…by…[a]n act of burning, tearing, cutting, cancellation, obliteration, or other mutilation or destruction performed by…[t]he testator.’ In order to effectuate a revocation by obliteration or cancellation, there must be the concurrence of an act of revocation and an intent to revoke. As the Court of Appeals has observed, ‘Intent alone will not suffice. It must be “consummated by some of the acts specified in the statute…”.’”

The Court noted that numerous courts have held that whether markings on an instrument constitute a sufficient act under the statute “is a preliminary matter of law for the court to decide,” and to “constitute a sufficient act, the markings must affect the entire will or a ‘vital part’ thereof. The precedents have recognized ‘vital’ as the signature of the testator or of an attesting witness, as well as ‘each and every dispositive provision of [the] will.’”

In concluding that the markings did not affect the entire will or a “vital part” thereof, the Court reasoned that not “each and every dispositive provision has been obliterated. It is indisputable that two clearly dispositive provisions remain unmarked: the Article FOURTH bequest of $100,000 in trust for the primary benefit of decedent’s pets, and the Article SEVENTH(D) alternative provisions for the residuary and any ultimate remainder of a testamentary trust.”

It also concluded that “proof of decedent’s extrinsic expressions of an intent to revoke cannot be heard where, as here, the markings on a propounded instrument are insufficient to constitute an act of revocation under the statute” and because no such act had been shown to have occurred, the Court could not consider the objectants’ extrinsic proofs of decedent’s intent to revoke.

This newsletter is provided by Hamburger, Maxson, Yaffe & McNally LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such

Overtime | Use & Occupancy | Tenancy-At-Will

Employee Failed To Prove He Worked “Gap” Periods In Unpaid Overtime Action


In Kim v. Bogopa Inc., plaintiff Bong Chul Kim moved for summary judgment on his claim for unpaid overtime, seeking recovery of over $4,500 for violations of the Fair Labor Standards Act and related New York labor laws.

According to the decision, Kim began working as a Store Produce Manger in April 2005.  From at least the start of the year 2012 through July 2014, his hours were tracked by his employer through a punch-in/punch-out system.  Kim argued that his employer failed to compensate him for overtime because he was paid based only on the scheduled shift start and end times, and not the hours actually indicated by his punch-in and punch-out times, and that this “rounding scheme” resulted in his hours consistently being “rounded down.”  As an example, he argued that the records showed on July 30, 2012, his shift lasted 10 hours, excluding one hour (unpaid) for lunch break and he punched-in at 6:47 a.m. and punched-out at 6:06 p.m.  He alleged that for July 30, 2012, he was paid for that day eight hours in straight time and two hours in overtime; he seeks to be paid for an additional 19 minutes in overtime for that day (the sum of the 13 minutes from 6:47 a.m. to 7 a.m., and the 6 minutes from 6 p.m. to 6:06 p.m.).  After adding all the minutes for the other days for which he asserted he was not paid, Kim sought a total payment of $4,585.75 in overtime compensation, plus statutory damages equal to 100 percent of the outstanding amount, plus pre-judgment interest, plus $21,118.75 in attorney’s fees and $616.44 in costs.

His employer opposed the motion arguing that material issues of fact remain regarding 1) whether Kim was working during the pre-shift and post-shift minutes for which he sought compensation; 2) whether the employer had actual or constructive knowledge of any such work; and 3) whether Kim’s pre and post-shift time was spent performing his principal activities or activities that were integral to his principal activities or activities that were integral to his principal activities — a prerequisite for the time to be compensable.

In addressing the motion, that Court recognized New York’s rule provides that “an employer shall pay an employee for overtime at a wage rate of one and one-half times the employee’s regular rate in the manner and methods [as] provided in…the Fair Labor Standards Act of 1938, as amended….”  The Court further recognized that under the FLSA rules, although time clocks are not required, in those cases where time clocks are used, “employees who voluntarily come in before their regular starting time or remain after their closing time, do not have to be paid for such periods provided, of course, that they do not engage in any work.  Their early or late clock punching may be disregarded.  Minor differences between the clock records and actual hours worked cannot ordinarily be avoided, but major discrepancies should be discouraged since they raise a doubt as to the accuracy of the records of the hours actually worked.”

The Court said to establish liability on a claim for unpaid overtime, “the employee has the burden of proving that he or she performed work for which he or she was not properly compensated, and the employer had actual or constructive knowledge of that work,” and that “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’… and thus compensable under the FLSA even if performed before or after the regular shift.”  “Whether an activity is ‘integral and indispensable’ to an employee’s principal activities is a fact-dependent inquiry.”

“‘This regulation means that employees who clock in early do not have to be paid so long as they are not working.’  [A]n employee can clock in, grab a coffee, read the newspaper, and then start working once his scheduled shift begins — and an employer wouldn’t have to compensate him for that time.’  Stated another way, ‘time spent clocked in does not automatically equate to time spent working, and only time spent working is compensable.’”

The Court concluded that Kim “failed to submit an affidavit or other evidence indicating that he actually worked during the ‘gap’ periods; that is, the periods between punching-in and the start of a scheduled shift, or between the end of a scheduled shift and punching-out,” and denied the motion.

Landlord Granted Use & Occupancy Against Tenant For Subtenant’s Holdover


In 34 W. 75th St. LLC v. Hynes, an ex-landlord sued its ex-tenant Hynes in a plenary action for unpaid use and occupancy (U&O).  In that same action, Hynes sued her ex-subtenant Thompson for indemnification in a third-party action.  Hynes’ renewal lease was to expire August 31, 2018, but Thompson indicated she would not be vacating and landlord commenced a holdover proceeding against Thompson.  The landlord argued Hynes defaulted by subletting the premises without its consent which Hynes conceded, but argued that she was not liable for U&O after she surrendered the keys to the landlord’s superintendent.

Hynes had resided in the apartment pursuant to a lease with the landlord commencing August 8, 2016, and extended by renewal lease expiring August 31, 2018.  During the subject period, Hynes paid $2,695.00 per month.  On August 1, 2018, Hynes signed a sublease with Thompson, also expiring August 31, 2018.  On August 26, 2018, Thompson notified Hynes that she would not be vacating the Apartment on August 31, 2018.  On September 26, 2018, the landlord commenced a holdover proceeding against Thompson.  On October 1, 2018, Hynes returned the keys to the landlord’s superintendent’s office.  On January 8, 2019, Thompson was evicted, and the landlord regained vacant possession.  However, the landlord received no compensation for the apartment from September 2018 through January 2019, and commenced a plenary action against Hynes for that compensation, and moved for summary judgment.

Because Hynes conceded that Thompson subsequently held over after the lease expired, the landlord argued that Hynes is liable for all unpaid use and occupancy through the date the landlord regained vacant legal possession on January 8, 2019.  In addressing this argument, the Court recognized that “‘upon termination of a lease, the tenant is obligated to remove the subtenant.  A wrongful holdover by a subtenant is deemed the same as a wrongful holding over of the prime tenant/sublessor.’  ‘Having failed to discharge his leasehold obligation to remove his licensee at the expiration of the lease term, the tenant remained responsible to the landlord for the licensee’s continued occupancy through the pendency of the summary holdover proceeding.’”

As to Hynes’ argument that she was not liable for use and occupancy past September 2018 because she surrendered the keys to the landlord’s superintendent on or about October 1, 2018, the Court said that “even crediting this assertion, however, Tenant effectively concedes owing use and occupancy through the end of October because, where rent is due and payable on the first of the month, tenants who vacate during the month are generally liable, absent an agreement to the contrary, for the entire month’s rent.  Moreover, even accepting that Tenant’s delivery of the keys constituted an offer of surrender, there must also exist a ‘meeting of the minds on the terms of surrender.’  Here, Landlord submits email correspondence between Tenant and Landlord’s agent clearly demonstrating that Landlord rejected surrender unless the Apartment was vacant.  This reflects the Lease, which explicitly states that ‘You have not moved out until all persons, furniture, and other property of yours is also out of the apartment.  If your property [persons, or furniture] remains in the Apartment after the Lease ends, Owner may either treat You as still in occupancy and charge You for use….’”  In addition, the landlord’s prompt commencement of the summary holdover proceeding to evict Thompson, “contradicts any argument that Landlord acquiesced to Subtenant’s occupancy.”  Thus, the landlord’s motion for U&O was granted.

10-Day Notice Jurisdictionally Defective; 30-Day Notice Required For Tenancy-At-Will


In Laffey v. TCG Grp. LLC, the petitioners, including Emmett Laffey, moved to be restored to possession of a southwest corner office on the second floor of the subject premises, claiming respondents, including his brothers, Phillip and Mark, illegally locked them out.  According to the decision, Phillip and Mark, despite allegedly terminating Emmett in December 2015, waited until February 2019 to use “self-help” to evict him.  Emmett argued he was a one-third owner of the subject real estate with his brothers, and he never received a notice to vacate nor were summary proceedings brought before he sought to be restored.

Then, in a separate proceeding, the petitioners, TCG Group, LLC, Laffey Fine Homes of New York, LLC d/b/a Laffey Real Estate, U.S. 1 Laffey Real Estate Corp., Mark Laffey, and Philip Laffey, commenced a holdover summary proceeding against Emmett Laffey, Laffey Fine Homes International, LLC, and US 1 Laffey of Williston Park, Inc., by Petition dated March 12, 2019.  The Petition alleged that a 10-day notice was served upon Emmett Laffey to remove him as an alleged “licensee.”

The Court consolidated both matters for joint trial.  In its decision, the Court noted Emmett did not possess a specific right to exclusively occupy and control the southwest corner office – he had a one-third interest in a company that owned the building.

Nonetheless, the Court recognized that “a tenancy-at-will arises whenever a landlord permits another party to possess property without any agreement as to a termination date or rent payment terms,” and that a 30-day notice to terminate is necessary when a tenancy-at-will is created by an ex-employee holding over without the employer timely moving to evict the terminated employee.  “‘Also, if an employee remains in possession of a property for a considerable length of time after the relationship has been terminated, a tenancy at will may be implied by the courts, which tenancy may be terminated by a written notice of not less than 30 days given on behalf of the landlord, to the tenant, requiring the tenant to remove from the premises.  To create a tenancy at will, however, the post-employment occupancy must be sufficiently long to warrant an inference of consent to the holding different from that of an employee-licensee; how long an occupancy is required is a question to be determined from all the circumstances of the case.’”

Thus, the Court held that the 10-day notice required to terminate an alleged licensee that was served on Emmett Laffey was jurisdictionally defective.  “Emmett Laffey is a tenant-at-will and is entitled to a 30-day notice.  The self-help employed in the case at bar was illegal, and not done in a peaceful manner.”  The Court concluded that he was entitled to possession of the southwest corner office, and directed that he be given a key, “without prejudice to a proper holdover summary proceeding to evict Emmett Laffey as a tenant-at-will.”

This newsletter is provided by Hamburger, Maxson, Yaffe & McNally LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such

Yellowstone Injunction | Neighbors’ Cameras | Tithing

Yellowstone Injunction Denied When Tenant’s Breach Is Incapable Of Cure


In Booston LLC v. 36 W. Realty Co. LLC, a commercial tenant, Booston LLC, moved for a Yellowstone injunction to maintain the status quo to protect its interest in its leasehold and obtain a stay tolling the time for it to cure a default and avoid forfeiture.  The landlord alleged the tenant violated the lease rider by failing to furnish and continue sufficient insurance coverage on the premises.

Since the Court of Appeals’ decision in First Nat’l Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630, 290 N.Y.S.2d 721 (1968), tenants have developed a practice of obtaining a stay of the cure period before it expires to preserve a lease until the merits of a dispute over the default notice may be resolved in court (i.e., a “Yellowstone” injunction).  Effectively, tenants have learned from the mistake of the tenant in the case of Yellowstone who commenced an action for declaratory judgment on the last day of the cure period, but did not obtain a temporary restraining order.  The Court of Appeals ultimately held that in absence of the injunction, it was powerless to revive the expired lease.  Significantly, the courts have since granted such injunctive relief on less than the normal showing required for a preliminary injunction because of the threat of a forfeiture of the valuable leasehold interest.

Thirty years later, the Court of Appeals revisited its Yellowstone decision in the case of Grabuard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assocs., 93 N.Y.2d 508, 693 N.Y.S.2d 91 (1999).  In that case, the Court of Appeals analyzed what it recognized was the seminal decision to a “new era of commercial landlord-tenant law in New York State[,]” creating a “remedy for tenants when confronted with a tangible threat of lease termination.”

Importantly, in reaffirming the standards which a party requesting the Yellowstone injunction must demonstrate, the Court of Appeals re-enforced the restrictive nature of the common law remedy that has evolved out of its original decision in Yellowstone, concluding that “[t]hese standards reflect and re-enforce the limited purpose of a Yellowstone injunction: to stop the running of the applicable cure period.”

So it is a well-established tenet in Yellowstone applications that if the application is made after the expiration of the cure period, and even before the expiration of subsequent notice of termination of lease, a court is divested of any power to issue the injunction, regardless of the merits of the tenant’s position on the default, because the court cannot “stop” what has already run.

Several of our prior newsletters reported on decisions where Yellowstone injunctions were denied for the simple reason that a tenant cannot cure an incurable default.  Many of those decisions dealt with the tenant’s failure to obtain the required insurance coverage under a lease and make clear that a tenant obtaining a prospective insurance policy does not protect a landlord against unknown claims that might arise during the period in which no coverage existed.

That is what happened in this case:  the tenant did not keep in effect public liability coverage against claims for bodily injury or death in the amount of $2,000,000 in a single limit or under an original policy with an umbrella as the lease required, but instead furnished the landlord with an insurance certificate showing such coverage only in the amount of $1,000,000 in a single limit, and it failed to name the landlord as a named insured, in further violation of the insurance clause.  The tenant maintained that this breach was waived as it delivered to landlord copies of its insurance certificates for more than five years without objection, while accepting tenant’s rent payments.

The Court found this waiver argument “unavailing” because the lease contained a common provision entitled “No Waiver” that stated:

The failure of Owner to seek redress for violation of, or to insist upon the strict performance of any covenant or condition of this lease or any of the Rules or Regulations set forth or hereafter adopted by Owner, shall not prevent a subsequent act which would have originally constituted a violation from having all the force and effect of an original violation.  The receipt of owner of rent with knowledge of the breach of any covenant of this lease shall not be deemed a waiver of such breach and no provision of this lease shall be deemed to have been waived by Owner unless such waiver is signed by Owner….

The Court concluded that the tenant’s waiver argument “is, thus, clearly barred by the terms of the parties’ Lease.  In addition, putting aside the No Waiver clause that dictates the result herein, ‘[a] necessary lynchpin of a Yellowstone injunction is that the claimed default is capable of cure.’ If ‘the claimed default is not capable of cure, there is no basis for a Yellowstone injunction.’  The First Department has held that failure to procure insurance cannot be cured where the proposed cure does not involve ‘any retroactive change in coverage, which means that the alleged defaults raised by the landlord are not susceptible to cure’ and, therefore, there is no basis for a Yellowstone injunction.  The rationale for the First Department’s decisions is simple: a deficiency in past insurance coverage ‘does not protect the landlord against the unknown universe of any claims arising during the period of no insurance coverage.’  This rationale squarely applies here and as there is no means for the Tenant to obtain retroactive insurance coverage, the Yellowstone injunction must be denied.”

Homeowners Cannot Order Neighbors To Redirect Or Remove Cameras


In Ienopoli v. Lent, the petitioners homeowners sought an order directing the respondents neighbors to remove or redirect their cameras under Civil Rights Law § 52-a alleging they are aimed at petitioners’ property, without consent, believing it was done with the intent to annoy, harass or threaten petitioners.

New York Civil Rights Law § 52-a gives an owner of residential real property “a private right of action for damages” against anyone “who installs or affixes a video imaging device” on property adjoining their residential real property with “the purpose of videotaping or taking moving digital images of the recreational activities which occur in the backyard of the residential real property without the written consent thereto of such owner,” when such action is taken “with intent to harass, annoy or alarm another person, or with intent to threaten the person or property of another person.”

A “backyard” is defined as “that portion of the parcel on which residential real property is located which extends beyond the rear footprint of the residential dwelling situated thereon, and to the side and rear boundaries of such parcel extending beyond the rear footprint of such residential dwelling.”

According to the decision, petitioners and respondents are neighbors residing at 9 Jerry Lane and 7 Jerry Lane, Glen Cove, New York, respectively. The parties’ properties abut and their backyards share a common fence line.  Petitioners claimed that respondents installed numerous cameras on their property aimed at petitioners’ property, including their backyard and windows, without petitioners’ consent.  Petitioners believed that the cameras were installed with the intent to harass, annoy, and alarm them, or with the intent to threaten petitioners’ person or property.

In addressing the requested relief under the statute, the Court was presented with photographs of the cameras, but it found it “impossible to discern from the photographs alone where the cameras are focused and if they indeed are aimed at petitioners’ windows and backyard as petitioners allege.  And aside from what the Court referred to as petitioners’ “bare statement” made “upon information and belief,” that the cameras were installed “with the intent to harass, annoy or alarm…or with the intent to threaten the person or property…there is no evidence submitted to establish same.”

In opposition, the respondents submitted an affidavit stating that the cameras were installed after the petitioners allegedly threatened him stating in sum and substance “You are this close to me burning your house down,” while putting his fingers close together as he said “this close.”  Respondent further stated that he installed the cameras “solely for the purpose of protecting his family and his property.”  He claimed that “the cameras do not tape or image petitioners’ backyard and were not installed to annoy, harass, or threaten petitioners.”

The Court concluded that the injunctive relief petitioners sought was not provided for by the plain language of the statute that provides for “a private right of action for damages.” Here, the petitioners sought “equitable relief in the form of an order directing respondents to redirect or move their cameras.” Additionally, it concluded “petitioners fail to establish that respondents installed their cameras with the requisite intent prohibited by the statute.”  The Court concluded that “nothing in the statute or the Sponsors Memorandum suggests that Civil Rights Law § 52‑a was enacted in any part to curtail the rights of property owners to secure their property through the use of security cameras.  Thus, petitioners fail to establish their entitlement to an order directing the removal or redirection of respondents’ cameras.”

Action Over Proper Tithe Amount Is Non-Justiciable


In Wilson v. Christ Alive Christian Cntr., the defendant Church moved for summary judgment in an action by an ex-member, Wilson, who tithed $230,000 to the Church from a $2.3 million litigation award.

According to the decision, sometime in 2003, Wilson was involved in a motor vehicle accident that tragically took the lives of her husband and two children.  A lawsuit culminated in an award of $2,305,246.70 of which $1,900,000 was placed into a structured settlement and $405,247.70 was immediately paid to Wilson.  In 2007, Wilson voluntarily tithed $230,000 to the Church.  Five years after she made the tithing, she wanted the entire amount back, arguing that she was confused after being “counseled” by the Church’s pastor as to the proper tithe amount.  She testified that she intended to tithe 10 percent of her structured settlement monthly payments, not the 10 percent of the gross settlement recommended by the pastor.  She claimed “confusion” on her part — but she did not allege that the $230,000 was procured through fraud or duress.

In addressing the Church’s motion for summary judgment, the Court recognized that the “First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs.  Judicial involvement is permitted when the case can be decided solely upon the application of neutral principles of…law, without reference to any religious principle.”

The Church argued that the action should be dismissed because it presented “non-justiciable ecclesiastical issues as to the religious interpretation of church doctrine concerning biblical tithing.”  Wilson countered, arguing that the First Amendment could not operate to shield the Church from liability “for exploiting a cognitively impaired, emotionally vulnerable woman.”  The Court held that “unfortunately for plaintiff, no matter how the inquiry is framed, it requires the issue of what would have been a proper tithe under these circumstances to be litigated in this forum, which is constitutionally impermissible.”  The Court concluded that although this was a “seemingly ‘unjust’ result,” it was nevertheless “constitutionally constrained to dismiss this matter as nonjusticiable.”

This newsletter is provided by Hamburger, Maxson, Yaffe & McNally LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such

Defamation | Americans with Disabilities | Emotional Support Animal

Defamation Action Based on 2003 Posting Still Available on the Internet Is Time-Barred

Defamation Action Based on 2003 Posting Still Available on the Internet Is Time-Barred

In Huang v., et al., the plaintiff, Huang, sought in excess of $1.4 billion in damages alleging, among other things, defamation and invasion of privacy violations under New York law, based on the publishing of two articles appearing on in 2003, and in 2016.  The website reports Falun Gong-related news. As described in a 2018 article of The Economist, Falon Gong is a set of meditation exercises and texts that preach the virtues of truth, benevolence and forbearance, which was banned by China in 1999 as an “evil cult.”

The 2003 article was published 14 years before Huang filed his initial complaint on July 21, 2017, and lists Huang’s personal information including his name, the name on the passport, birth date, the passport number, his refugee ID, and his home address, and it provides a photo of Huang.

According to the decision, the article states:

In May 2003, Huang Renxiong came to Thailand from Mainland China and presented himself as a Dafa practitioner in order to deceive local practitioners.  In both Thailand and China, some practitioners who didn’t deeply understand the Fa were deceived.  His behavior has severely disturbed practitioners’ cultivation practice.  We hope those practitioners who were deluded by him will become clear minded as soon as possible, treat the Fa as teacher, eliminate attachments to fame, personal interest and sentimentality, and become righteous practitioners once again.

The second article, appearing in in 2016 did not identify plaintiff by name or photograph, whatsoever.  Rather, the author claimed that based on her reading of the 2003 article, she “realized” that the husband of her good friend “is the special agent from the Chinese Communist Party.”  Huang obviously believed that this article referred to him.

Addressing the defendant’s motion to dismiss the claim based on the 2003 posting, the Court first explained the law of defamation in New York as “the injury to one’s reputation either by written expression, which is libel, or by oral expression, which is slander.  To state a claim for defamation under New York law, a plaintiff must allege ‘(1) a false statement of fact, (2) about the plaintiff, (3) published to a third party without authorization or privilege, (4) through fault amounting to at least negligence, and (5) causing defamation per se or a special harm.’”

The Court further explained that a plaintiff “must identify ‘(1) the allegedly defamatory statements; (2) the person who made the statements; (3) the time when the statements were made; and (4) the third parties to whom the statements were published.’”

A defamatory statement “exposes an individual ‘to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or…induces an evil opinion of one in the minds of right-thinking persons, and…deprives one of…confidence and friendly intercourse in society.’” On a motion to dismiss a defamation claim, the court must decide whether the alleged statements are ‘reasonably susceptible’ to defamatory meaning.”

However, with respect to this 14 year old posting, the Court didn’t have to address these standards because it ruled the action time barred.

“The 2003 posting is time barred because in New York, defamation actions must be commenced within one year from the date the alleged defamatory statement is made. The 2003 article is time barred even if it remains accessible on the internet because under the ‘single publication rule,’ a libel claim accrues on the ‘earliest date’ it ‘became generally available to the public.’”

As to the 2016 article, the Court held that because it “neither names him nor makes him identifiable. Huang does not allege sufficient factual evidence that demonstrates that the 2016 article was published concerning him or that those who knew him would recognize it as concerning him. Because Huang failed to satisfy this burden, his defamation claim regarding the 2016 posting must be dismissed.”

ADA Reasonable Accommodation Suit Dismissed; Height Not Shown to Limit Major Life Activity

ADA Reasonable Accommodation Suit Dismissed; Height Not Shown to Limit Major Life Activity

In Morey v. Windsong Radiology Grp. P.C., Morey, four feet five inches tall, brought a federal action alleging violations of the Americans with Disabilities Act over her former employer’s failure to reasonably accommodate her alleged height disability.  She alleged that four feet five inches is “well outside of the normal range of height for adults” in the United States and in the area of New York where she worked.  She further alleged that her “height is a physiological, musculoskeletal condition which substantially limits one or more of her major life activities.”

It was alleged that in 2014 she began working on fluoroscope exams, using a step-stool affixed to a platform, provided by her employer Windsong Radiology Group PC (WRG).  Her inability to see the machine’s controls only became an issue when she began working on hysterosalpingogram exams.  In response to her 2015 accommodation request, WRG told Morey to leave those exams to others.  Shortly thereafter she claimed she was subjected to abuse and bullying by WRG technicians.  Her April 2015 termination notice accused her of refusing to perform hysterosalpingogram exams.

WRG moved to dismiss the complaint for failure to state a claim.  In addressing the motion the Court recognized that to survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,” but that “labels, conclusions, or ‘a formulaic recitation of the elements of a cause of action will not do.’” It said that “facial plausibility exists when the facts alleged allow for a reasonable inference that the defendant is liable for the misconduct charged,” but that the “plausibility standard” is not “a probability requirement: the pleading must show, not merely allege, that the pleader is entitled to relief.  Well-pleaded allegations in the complaint must nudge the claim ‘across the line from conceivable to plausible.’”

As for stating a claim under the ADA, the Court explained the ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of his employment” and that discrimination in violation of the ADA includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”  To be a qualified individual under the ADA a plaintiff must be “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”  The Court concluded that to “plead a prima facie claim of discrimination based on a disability, a Plaintiff must plausibly allege the following elements: (1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.”

The ADA defines a “disability” as: (a) a physical or mental impairment that substantially limits one or more major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment.  The Court said that in determining whether a plaintiff has a disability that is protected by the ADA, courts “consider: (1) ‘whether the plaintiff suffered from a physical or mental impairment,’ (2) whether the life activity upon which the plaintiff relied constitutes a major life activity under the ADA,’ and (3) whether ‘the plaintiff’s impairment substantially limited the major life activity identified.’”

The Court dismissed the complaint finding that she did not allege facts from which it could be inferred she had a physical or mental impairment substantially limiting a major life activity, or that WRG saw her as having such an impairment.  Even assuming Morey requested a reasonable accommodation, her complaint did not plausibly allege she suffered any adverse action because of that request.

In applying the ADA standards, the Court recognized that the “extent to which Morey alleges an actual disability in her Complaint is as follows: her “height” is “well outside of the normal range for adults”; is of a physiological, musculoskeletal condition which substantially limits one or more of her major life activities”; and that she “suffers from a disability within the meaning of the ADA” which “substantially limits [her] major life activities.  Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” “to state a claim to relief that is plausible on its face.”

The Court concluded that “nowhere in her Complaint does Morey identify which ‘major life activity’ is limited by her alleged disability.  To the extent Morey means to allege that her height limits her ability to work, that allegation also fails as a matter of law.  In determining whether a person is substantially limited in the major life activity of working, a plaintiff must show that she is “substantially limited in her ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.  Morey’s Complaint does not allege that she cannot “perform either a class of jobs or a broad range of jobs in various classes; rather, she alleges only that she could not ‘see or reach the controls or maneuver the equipment safely’ when ‘operating a fluoroscope’ when performing one particular type of exam, at one particular location of her employer — hysterosalpingogram exams, for women with fertility issues, at WRG’s Williamsville location.  “The Court said that this “single allegation” does not support “a plausible inference of a substantial work limitation, as it affects at most one function of one particular job.”

Tenant Failed To Establish His Dog As An Emotional Support Animal

Tenant Failed To Establish His Dog As An Emotional Support Animal

In Westchester Plaza Holdings v. Sherwood, the petitioner-landlord Westchester Plaza Holdings, LLC commenced a holdover summary proceeding seeking to evict the respondent-tenant, Gertrude Sherwood and her occupant son, Sheldon Sherwood on the ground that they had failed to cure their violation of the no-pet clause in the parties’ lease.  Specifically, Westchester Plaza claimed that the tenants had violated their lease by harboring a dog without landlord’s permission, and sought a final judgment of possession of the subject apartment, and a money judgment in the amount of $3,467.00 for use and occupancy through August 2019.  Gertrude did not appear in the proceeding but Sheldon did and argued that dog complained of is an emotional support animal entitling him to keep the pet in the subject premises.

Generally under federal laws, “service animals” are dogs (or miniature horses) specifically trained to perform a task or service related to a person’s disability, while an assistance animal is an animal that works, provides assistance, or performs task for the benefit of a person with a disability or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.  New York State has also adopted laws pertaining to such animals.

Here, the Court found that there was “no dispute that respondents’ lease prohibits keeping a dog in their apartment.”  Notwithstanding the no-pet clause, Sheldon admitted that he brought the dog to reside in the apartment without the written permission of Westchester Plaza.  According to the decision, he testified that he suffers from kidney problems and depression and based on his condition he should be allowed to keep the dog for his emotional support.  In support of his position, “he testified that he was advised by his therapist from the Westchester County Jewish Services . . . that he obtain a dog for emotional support.  Occupant further testified that after obtaining the Staffordshire Bull Terrier in February of 2019, he then applied to the U.S. Service Animal Registry, and received a Service Animal Registration certificate and photo ID for his dog as an Emotional Support Animal.”

In addressing Sheldon’s defense, the Court explained that the New York State “Human Rights Law provides that it is an unlawful discriminatory practice to ‘refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford said person with a disability equal opportunity to use and enjoy a dwelling.’  To establish a violation of the Human Rights Law for failure to provide a reasonable accommodation, the complainant must establish a disability, the accommodation may be necessary in order for the complainant to use and enjoy his or her apartment, and the building owner refuses to make such an accommodation.”

The Court further explained that to “establish that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made,” Sheldon had to “demonstrate that he is disabled and that because of his disability it is necessary for him to keep the dog in order for him to use and enjoy the apartment, and that reasonable accommodations could be made to allow him to keep the dog.  A reasonable accommodation may be required by the State’s Human Rights Law if respondent can establish a need.  The burden is on the party requesting the reasonable accommodation.”

After a non-jury trial the Court found that Sheldon “failed to submit evidence that the dog helped him with his symptoms of depression and kidney disease.  Additionally, he failed to present any medical or psychological evidence to demonstrate that the dog was actually necessary in order for him to enjoy the apartment.”  Sheldon “did not call any professional witness from Westchester County Jewish Services, or anywhere else, to testify on his behalf.”  The Court further found that there was “documentary evidence” that Sheldon registered his dog as an emotional support animal with an internet company, USAServiceDogRegistration, and that “the registration of a dog with this entity can be completed by anyone after paying a fee and there is no case law or statute requiring this Court to accept this entity’s determination that a dog is deemed to be an emotional support animal.”

As such, the Court found that Sheldon failed to carry the burden of establishing through either medical or psychological expert testimony that the dog is an emotional support animal necessary for him to enjoy the use of his apartment, and that during the pendency of the proceeding the tenants remained in possession of the premises and petitioner was, therefore, entitled to a money judgment in the amount of the outstanding rents and use and occupancy.  However, because the proceeding was based upon a claim that the tenants had breached a provision of the lease, based on a new law enacted in New York, the Court granted a 30-day stay of issuance of the warrant, during which time the tenants may correct the breach, pay the outstanding arrears and get to stay in the apartment under the lease terms.

This newsletter is provided by Hamburger, Maxson, Yaffe & McNally LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such

Child Victims Act | Child Sexual Abuse | CVA

New York Child Victims Act Revives Ability of Past Victims of Child Sexual Abuse To Sue Individual Perpetrators and Associated Institutions, But Their Time To File Such Claims Expires on August 14, 2020.

As we wrote in our March 11, 2019 Newsletter, the New York State Legislature has recently enacted the Child Victims Act, which was signed into law by Governor Cuomo on February 14, 2019. Under this law, among other things, all victims of child sexual abuse whose ability to sue was previously barred by prior-applicable statutes of limitation, have been granted a one-year reprieve to file a lawsuit against the perpetrator and any associated institution (e.g., church, temple, public school, parochial school, private school, workplace, day camp, etc.). The one-year time period runs from August 14, 2019 and expires on August 14, 2020.

Another feature of this new law is that it revives damage claims that had previously been dismissed by a court on the basis of the prior statute of limitations. In other words, if a victim had previously sued for relief, but the claims were dismissed as having been brought too late, the Child Victims Act revives those previously dismissed claims, and allows such person to sue again. In addition, the new law gives a trial priority to lawsuits alleging child sexual abuse over other types of litigations. Finally, the new law gives victims until their 28th birthday to seek felony criminal charges, and until their 25th birthday to seek misdemeanor criminal charges.

The Child Victims Act recognizes that victims of the heinous crime and trauma of child sexual abuse typically require many more years than previously allotted by governing law to come forward and seek justice against those responsible for their suffering. If you or a friend or loved one were a victim of child sexual abuse (i.e. abuse that occurred in New York prior to the victim reaching the age of 18), it is important to exercise all rights and options under the new law promptly, as the window of time for prior victims to do so will expire on August 14, 2020. Such claims may not only be brought against the perpetrator, but may also be brought against any party or institution whose intentional or negligent acts or omissions are alleged to have resulted in the commission of the abuse, including private, public and religious institutions.

Combined with compassion, keen legal knowledge and many decades of litigation experience, the attorneys at Hamburger, Maxson have successfully represented numerous victims of child sexual abuse in processing their claims against the Diocese of Rockville Centre and the Diocese of Brooklyn in connection with an Independent Reconciliation and Compensation Program previously established for survivors of child sexual abuse by Diocese clergy. We have the right team necessary to enable our clients to understand their rights, to assist them in telling their stories (often for the first time), all while vigorously prosecuting claims on their behalf. It is our ultimate goal in these delicate matters, above all, to hopefully assist our clients in not only achieving monetary recovery, but in getting on the path to emotional healing.

Individuals who wish to consider filing a claim for monetary relief are well advised to consult with a knowledgeable attorney.  Any individual victim who would like to discuss the Child Victims Act further and consider retaining our law firm to assist and represent them should promptly schedule a free consultation with David N. Yaffe, Esq. at our office.  Please call us at 631.694.2400 to schedule.

This newsletter is provided by Hamburger, Maxson, Yaffe & McNally LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such

Employment Discrimination | Sexual Harassment | Breach of Contract

Principal’s Negative Evaluation Did Not Constitute and Adverse Employment Action

Principal’s Negative Evaluation Did Not Constitute and Adverse Employment Action

In Atkins v. Rochester City School District, Defendant-Appellee, an African-American school principal filed a complaint alleging race and age discrimination by a school district in the calculation of his evaluation rating. The United States District Court for the Western District of New York granted the school district summary judgment, and the Principal appealed to the Second Circuit Court of Appeals. The Court of Appeals affirmed that the Principal’s negative employment evaluation did not constitute an “adverse employment action” within the meaning of Title VII of the Civil Rights Act (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”).

According to the Court it was undisputed that the plaintiff, an African-American woman in her mid-sixties, was assigned to be Principal of the Freddie Thomas High School (“Freddie Thomas”) for the 2012-13 school year. Freddie Thomas was one of ten schools in the District that had been targeted for phase-out and closure. During the 2012-13 school year, the District implemented a new evaluation process for principals: the Annual Professional Performance Review (“APPR”). Principals received a total score based on several categories, and that numerical score corresponded to one of four ratings: highly effective, effective, developing, and ineffective. In September 2013, the plaintiff received a rating of “developing” for the prior school year of 2012-13. She appealed the rating, but her appeal was denied by a unanimous appeals panel.

Although the plaintiff never saw the data used in calculating her APPR score, she contended that the District treated her differently from other employees by “deliberately” submitting to the State “inaccurate” data, which was then used in calculating her score.

The Court recognized that under Title VII and ADEA, “a plaintiff alleging employment discrimination on the basis of race and age bears the burden to establish a prima facie case of discrimination at the summary judgment stage. To establish a prima facie case of discrimination, a plaintiff must show that ‘(1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination.’ The burden of demonstrating these elements is ‘de minimis’ at the summary judgment stage, but ‘a jury cannot infer discrimination from thin air.’”

In determining if the plaintiff established a prima facie case of discrimination, the Court also recognized that an “adverse employment action is a ‘materially adverse change in the terms and conditions of employment.’ The action must be ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.’ Examples of adverse actions include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, and significantly diminished material responsibilities.’”

The plaintiff conceded that a negative employment evaluation, standing alone, does not constitute an adverse employment action, but argued that her low APPR rating resulted in her being assigned to schools that were failing and closing and being deprived of the resources she needed to perform her Principal job, and that these consequences constituted a material adverse change in her work conditions.

The Court responded to these arguments reasoning that, although the plaintiff’s work conditions may have been “suboptimal before and after her APPR rating,” the evidence did not show a material adverse change as a result of the APPR rating. “Her assignments to failing schools predate that rating, which she received in September 2013. Atkins was assigned to Freddie Thomas in 2012. From Freddie Thomas, she ‘was placed in another dying school’ in July 2013. The evidence does not show any similar assignments after that one.” Plaintiff also complained of a “lack of clerical and administrative support and the fact that she was not given a ‘clean professional private office space’ like other principals.” The Court stated that these “poor working conditions, the deprivation of resources, and the lack of staff support … pertain, in large part if not entirely, to the 2012-13 school year at Freddie Thomas. The conditions cannot have resulted from her later APPR evaluation,” and to the extent the plaintiff suggested that she faced similarly poor conditions and received similar treatment after leaving Freddie Thomas, the Court concluded “that merely shows a continuation of her situation prior to the APPR rating. Because Atkins fails to present evidence of any ‘negative ramifications’ flowing from her unfavorable APPR rating, she cannot establish an adverse employment action.”

Former Student Who Claimed Her Graduate School Retaliated Against Her After Complaining of Sexual Harassment, Stated a Claim for Breach of Contract

Former Student Who Claimed Her Graduate School Retaliated Against Her After Complaining of Sexual Harassment, Stated a Claim for Breach of Contract

In Novio v. The New York Academy of Art, a female former graduate student sued her former school for breach of contract claiming that the school retaliated against her after she complained about a professor’s sexual harassment of female students. The “contracts” she relied upon were statements made in the student handbook and on the school’s website which promised to provide career services to her, including strong job placement support, an educational environment free of sex discrimination and sexual harassment, and freedom from retaliation for those who reported sex discrimination or sexual harassment.

According to the complaint, the Plaintiff attended the graduate school from September 2013 until May 2015, when she graduated with a Masters of Fine Arts degree. She had taken courses from a professor, a Department Chairman, in 2014 and 2015, during which time she found his persistent sexual commentary in the classroom and inappropriate touching of female students created a hostile educational environment that interfered with her education.

She further alleged that she was consistently worried that she would run into the professor at NYAA’s facilities and be subjected to his sexist comments and inappropriate touching. She alleged that the professor’s “persistent sexual comments and touching distracted her and significantly interfered with her ability to engage in and enjoy her studies” and that the professor “allegedly showed favoritism to female students who reacted favorably to his sexual comments and advances,” believing this to be the professor “implicitly communicating a quid pro quo” to her and other female students, such that she worried that the professor could block her from important academic and career opportunities if she was not nice to him.”

Plaintiff alleged that the school retaliated against her once they learned that she had joined three other students in alleging sexual harassment claims against the professor by refusing to provide references or recommendations, discouraging her discouraging attending school events; the school alumni association stopped sending emails to the her even though she had previously been elected Secretary of that organization; and it stopped making her aware of school functions, art shows, and networking events that could help her find employment as an artist.

She also alleged that the school did not take adequate action to stop the sexual harassment or acts of retaliation against her when she complained further, and that this failure to take adequate corrective action only emboldened the professor and the other faculty members who were retaliating against her.

She alleged that in an email to another professor that professor rejected her request for a job recommendation, saying “I have never turned down a student I loved, as I did you, in 27 years of teaching. But the fact that you piled on to hurt Wade, makes it impossible for me to help you.”

Her complaint alleges that she and the school entered into a valid and binding contract, and that she substantially performed all of her duties and obligations under the contract, including by paying monetary consideration. In return for the monetary consideration paid by her, she alleged that the school made specific promises to her to “(a) to provide Plaintiff with an educational environment free of sex discrimination in all programs and activities, including academic programs and school-sponsored activities on an off campus; (b) to provide Plaintiff with an educational environment free of sexual harassment; (c) to respond promptly to complaints of sexual harassment, including unwelcome advances and sexist comments, whether they occurred in a single episode or were part of a recurring pattern of behavior; (d) to take immediate action to eliminate sexual harassment, prevent its recurrence, and address its effects; (e) to designate a Title IX coordinator who is trained and experienced to address complaints of sex discrimination, including helping victims navigate the process and seek remedies; (f) not to retaliate against anyone who participated in the process of reporting or attempting to remedy sexual harassment or discrimination; and (g) to provide career services to Plaintiff, including strong job placement support.”

First, the Court recognized that “‘New York State courts have permitted a student to bring a breach of implied contract action against an institution of higher education,’ but first, such ‘a student must identify specific language in the school’s bulletins, circulars, catalogues and handbooks which establishes the particular “contractual” right or obligation alleged by the student in order to make out an implied contract claim.’”

The Court found that here the plaintiff had listed “certain specific promises relating to the alleged rights and obligations of the parties, and has pointed to the documents where such promises can be found. Accordingly, Plaintiff has identified a contract with the school sufficient to satisfy the first element of this inquiry.”

Second, the Court reasoned that a student must identify promises made by the school “to provide for certain specified services.” Here, Plaintiff did identify promises made by the Academy that qualify as “certain specified services,” including to respond promptly to complaints of sexual harassment, including unwelcome advances and sexist comments, whether they occurred in a single episode or were part of a recurring pattern of behavior; to take immediate action to eliminate sexual harassment, prevent its recurrence, and address its effects; to designate a Title IX coordinator who is trained and experienced to address complaints of sex discrimination, including helping victims navigate the process and seek remedies; and to provide career services to plaintiff, including strong job placement support.

Lastly, the Court said that “‘to state a valid claim for a breach of contract, a plaintiff must state when and how the defendant breached the specific contractual promise.’ Here, Plaintiff has adequately alleged when and how Defendant Academy has breached each of the four specific promises noted above.

Thus, the school’s motion to dismiss was denied.

Student Entitled to Continuance to Let His Attorney Attend Disciplinary Proceeding

Student Entitled to Continuance to Let His Attorney Attend Disciplinary Proceeding

In the Matter of Bursch v. Purchase College of the State University of New York, a student brought an Article 78 proceeding to review a public college’s determination upholding a decision of its disciplinary hearing committee, finding that the student committed disciplinary violations including sexual assault of another student, and expelling him from the school. The Supreme Court, Appellate Division, confirmed the determination and dismissed the petition, and student appealed to the State’s highest Court.

An Article 78 proceeding refers to a special proceeding brought under Article 78 of New York’s Civil Practice Law and Rules and is used to appeal the decision of a New York State or a local agency to the New York courts.

The Court of Appeals held that “under the particular circumstances of this case” the public college’s disciplinary hearing committee members abused their discretion by failing to grant the student’s request for a three-hour adjournment so that his attorney could attend the proceeding.  There was no further elaboration. The Appellate Division’s ruling was reversed, with costs, and the petition insofar as it sought to annul the student’s disciplinary determination was granted and the matter was remitted to the Appellate Division, Second Department, with directions to remand the matter to the disciplinary hearing committee for a new disciplinary hearing.

This newsletter is provided by Hamburger, Maxson, Yaffe & McNally LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such

Corporate Rules | Student Dignity | Disability Discrimination

Majority Shareholders Failed To Treat Female Minority Shareholder With Dignity And Respect

majority shareholders failed to treat

In Straka v. Arcara Zucarelli Lenda & Associates CPAs, P.C., plaintiff, a female minority shareholder, and experienced accountant in a closely held professional corporation – an accounting firm – sought dissolution of the corporation, alleging corporate oppression. A Supreme Court in Erie County ruled that, among other things, by failing to treat the female minority shareholder with equal dignity and respect as male shareholders forming the majority, the majority male shareholders engaged in such oppressive actions as could provide a basis to dissolve the corporation.

In so ruling, the Court noted that the case raised the “question of whether disrespectful and unfairly disproportionate treatment of a female shareholder by the male majority in a closely held corporation constitutes corporate ‘oppression’” within the meaning of New York’s Business Corporation Law § 1104-a(a)(1).

The Court recognized that a “minority shareholder may petition the Court for dissolution of the corporation in which he or she owns at least 20% of the outstanding shares, and where the majority shareholders have engaged in illegal, fraudulent, or oppressive actions towards the petitioning shareholder (Business Corporation Law § 1104-a[a][1] ). The term “oppressive” has not been statutorily defined, but ‘disappointment alone should not necessarily be equated with oppression.’ Instead, the Court of Appeals has held that ‘oppression should be deemed to arise only when the majority’s conduct substantially defeats expectations that, objectively viewed, were both reasonable under the circumstances and were central to the petitioner’s decision to join the venture.’ ‘A court considering a petition alleging oppressive conduct must investigate what the majority shareholders knew, or should have known, to be the petitioner’s expectations in entering the particular enterprise.’”

The Court found that the accounting firm “and indeed, any shareholder of any corporation, should know that a female shareholder reasonably expects to be treated with equal dignity and respect as male shareholders forming the majority.” The Court concluded that the petitioner was not. “The shareholders’ slow and inadequate response to Urbanek’s demeaning behavior marginalized Straka, as did the lack of respect provided to her as the head of IT at the corporation.” Furthermore, two of the male shareholders promised but failed to foster collaboration by the former staff members” of their former corporation.

The Court went further and found that the petitioner’s “reasonable expectation for fair compensation was frustrated by the use of the earnings matrix,” that was used to allocate corporate profits as salaries to certain shareholders as opposed to dividends. “When the majority shareholders of a close corporation award de facto dividends to all shareholders except a class of minority shareholders, such a policy may constitute ‘oppressive actions’ and serve as a basis for an order made pursuant to section 1104-a of the Business Corporation Law dissolving the corporation.’”

While the Court concluded that the petitioner had “proven oppressive conduct and was entitled to relief under the Business Corporation Law, it noted New York’s highest Court has held that “once oppressive conduct is found, consideration must be given to the totality of circumstances surrounding the current state of corporate affairs and relations to determine whether some remedy short of or other than dissolution constitutes a feasible means of satisfying both the petitioner’s expectations and the rights and interests of any other substantial group of shareholders.”

The Court considered the “size and nature of the business of the corporation,” and found that a buyout of the petitioner’s shares, rather than dissolution, “would satisfy her expectations and the rights of the remaining shareholders.”

“Dignity for All Students Act” Does Not Provide Private Right of Action

dignity for all students act

In Eskenazi–Mcgibney v. Connetquot Central School District, a public school student brought an action against his School District, asserting causes of action for, among other things, a Dignity for All Students Act (“DASA”) violation based on alleged bullying and harassment by a fellow student. The Supreme Court, Suffolk County, denied the District’s motion to dismiss for failure to state cause of action. The District appealed and the Second Department of the Appellate Division held that DASA does not provide a “private right of action,” and dismissed that claim.

As the Appellate Court framed it, the appeal provided it with “an occasion to consider whether the Dignity for All Students Act creates a private right of action in favor of a student injured by a school’s failure to enforce its policies prohibiting discrimination and harassment.”

By way of background, the complaint alleged that the student was a learning-disabled high school student attending Connetquot High School and Eastern Suffolk BOCES, and was repeatedly bullied and harassed by a fellow student, including multiple physical assaults and death threats. The assaults and threats allegedly occurred at the high school, at BOCES, on the school bus, and on a school trip. The plaintiffs, the student and his parents, alleged that they repeatedly made complaints to the school district and BOCES teachers and officials, and that they received assurances that the matter would be dealt with, but the other student was not disciplined and the bullying and harassment continued.

In addressing the DASA issue, the Appellate Court said that “DASA prohibits discrimination, harassment, and bullying by public school employees or students on school property or at a school function. It requires school districts to create policies, procedures, and guidelines intended to create a school environment that is free from harassment, bullying, and discrimination, including guidelines ‘relating to the development of measured, balanced and age-appropriate responses to instances of harassment, bullying or discrimination by students.’”

It also stated that “DASA does not expressly provide for civil damages to a student who has been the victim of such harassment, bullying, or discrimination. Thus, an injured student can seek civil relief based on a violation of DASA only if a private right of action may be fairly implied in the statutory provisions and their legislative history. A private right of action ‘may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme.’ The third factor is generally the most critical because ‘the Legislature has both the right and the authority to select the methods to be used in effectuating its goals, as well as to choose the goals themselves. Thus, regardless of its consistency with the basic legislative goal, a private right of action should not be judicially sanctioned if it is incompatible with the enforcement mechanism chosen by the Legislature or with some other aspect of the over-all statutory scheme.’”

After reviewing DASA’s legislative history, the Appellate Court found “that finding a private right of action under the act would be inconsistent with the legislative scheme. As noted above, DASA requires school districts to create and implement certain policies, procedures, and guidelines aimed at creating an educational environment in which children can thrive free of discrimination and harassment. In a letter to the Governor, Senator Thomas Duane described DASA as focusing ‘on the education and prevention of harassment and discrimination before it begins rather than punishment after the fact.’ The letter stated that under the existing regime, school districts were paying ‘a high cost in civil damages for failure to prevent bullying,’ thereby suggesting that implementing DASA would alleviate such costs. Similarly, the Assembly sponsor of the bill also advised the Governor that ‘the Legislature intends DASA to be primarily a preventive, rather than punitive, measure; it should therefore be implemented accordingly, with the emphasis on proactive techniques such as training and early intervention to prevent discrimination and harassment.’”

Thus, the Court concluded that the “legislative history plainly demonstrates that the Legislature did not intend to provide for civil damages for a violation of DASA, and that recognizing one would be inconsistent with the legislative scheme. As recognized by one federal court, DASA does not prevent a student from bringing other statutory claims against a school district, and thus, holding that DASA does not provide a private right of action does not leave students without enforcement mechanisms and remedies. Because there is no private right of action under DASA, the Supreme Court should have granted those branches of the defendants’ respective motions which were pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of DASA insofar as asserted against each of them” by the student.

Employee Failed to Sufficiently Allege Disability Discrimination Claim

employee failed to sufficiently allege disability

In Laface v. Eastern Suffolk BOCES, an employee brought an action against the county Board of Cooperative Educational Services (“BOCES”), and the BOCES’ administrators, alleging that transfers of his assignment among BOCES’ facilities constituted discrimination in violation of, among other things, the Americans with Disabilities Act. Although the federal District Court held that the employee sufficiently alleged his health condition constituted an “impairment” within the meaning of the Americans With Disabilities Act (“ADA”), it held that the employee failed to sufficiently allege that his impairment limited a major life activity, as required to state an ADA claim.

At the time of the decision, plaintiff Laface was employed by BOCES as a Custodial Worker I. He had been assigned to the Gary D. Bixhorn Technical Center (“BTC”) at 350 Matra Avenue in Bellport, New York for 30 years. During his tenure at BTC, Laface worked from 7:00 a.m. to 3:00 p.m. during the workweek and was supervised by two others. At an unknown time, Laface developed a condition that causes stress and anxiety and prevented him from traveling further than 10 miles from his home. He had previously informed one of his supervisors as well as BOCES’ Human Resources Department of his traveling restriction prior to the events that led to his complaint.

Thereafter, on or about October 17, 2016, Laface was notified that he was reassigned to the H.B. Ward Campus (“HBW”) in Riverhead, New York, effective on October 28, 2016. The letter did not provide an explanation as to why BOCES was transferring Laface. HBW is located more than 10 miles from the Laface’s residence.

According to his complaint, Laface’s impending transfer caused him enormous anxiety and prevented him from being able to continue to work. Unable to drive to HBW without his condition flaring up, Laface began a period of sick leave beginning on October 28, 2016. On or about November 22, 2016, Laface received a letter from the School Personnel Officer, which directed him to report to BOCES Human Resources Department for a meeting on November 28, 2016. Laface’s last day of documented sick leave was November 27, 2016, the day before the meeting. He reported to the November 28, 2016 meeting and requested “a reasonable accommodation for his documented disability.” She “refused to engage in the required interactive process … to identify a reasonable accommodation for Plaintiff’s travel/driving restrictions and stated to Plaintiff that BOCES was not going to accommodate him.”

The HR Department again met with the Laface on December 23, 2016, along with his union representative. At that meeting, Laface was accused of being uncooperative in refusing to answer questions and he was informed that he was to report to HBW using public transportation rather than remain at BTC. Following the December 23, 2016 meeting, Laface was placed on paid administrative leave. Ultimately, Laface never reported to his assignment at HBW. On or about January 19, 2017, Laface received a letter ordering him to report to Jefferson Academic Center (“JAC”) for a temporary work assignment beginning on February 1, 2017. The letter further informed Laface that he was assigned to work from 10:00 a.m. to 6:00 p.m. at JAC during the regular workweek and indicated that JAC is less than 10 miles from Laface’s residence. Laface began working at JAC as instructed and continues to report to this temporary work assignment, which he contends involves different work and added responsibilities, including additional manual labor.

Throughout this time there were vacant custodial positions at BTC, including Laface’s original position.

To establish a case of discrimination under the ADA, a plaintiff first “must show: (1) his employer is subject to the ADA; (2) he is disabled within the meaning of the ADA; (3) he is otherwise qualified to perform the essential functions of his job; and (4) he suffered an adverse employment action because of his disability.”

The Court explained that to determine whether or not a plaintiff suffers from a disability, “the Supreme Court compels district courts to follow a three-step process to conclude: ‘(1) whether plaintiff had an impairment; (2) whether the impairment affected a ‘major life activity’ within the meaning of the ADA; and (3) whether that major life activity was substantially limited by the impairment.’ If he fails to satisfy any of these three prongs, the Plaintiff’s discrimination claim must be dismissed.”

As for Laface’s physical or mental impairment, that he suffers from stress and anxiety which precludes him from driving more than 10 miles from his home, the Court noted that “‘stress and depression are conditions that may or may not be considered impairments, depending on whether these conditions result from a documented physiological or mental disorder.’ The Defendants contend that he suffers from job-related stress or anxiety. However, Laface describes his condition as more than just anxiety or stress resulting from his job. The complaint states that the Plaintiff’s driving restriction is due to his psychological disorder. He does not argue that this restriction is limited to work-related driving. At the pleading stage, Laface has successfully alleged that he suffers from an impairment within the meaning of the ADA.”

As for whether Laface’s impairment “substantially limits a major life activity,” the Court noted that in “‘deciding whether a particular activity is a ‘major life activity,’ the Court asks whether that activity is a significant one within the contemplation of the ADA, rather than whether that activity is important to a particular plaintiff.’ ‘The touchstone for determining an activity’s inclusion under the statutory rubric is its significance.’ ‘Major life activities’” include ‘caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.’ This list is illustrative, not exhaustive. In this Circuit, courts have previously ruled that sitting, standing, sleeping, lifting and reaching are major life activities.”

Although Laface alleged that he is unable to drive or commute to a job that is further than 10 miles from his residence, the Court noted that “this Circuit has repeatedly held that driving is not a major life activity” within the meaning of the ADA, and that “being unable to use public transportation as an alternative to driving does not rise to the level of a major life activity. This restriction more closely resembles the limitations found in the regulations or the jurisprudence of this Circuit which are not considered major life activities rather than those which have been found to qualify as such.”

The Court dismissed the ADA claim.

This newsletter is provided by Hamburger, Maxson, Yaffe & McNally LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such

Claim Preclusion | Parent Not Guarantor | Restricting School Access

Small Claims Ruling Has Preclusive Effect

Small Claims Ruling Has Preclusive Effect

In Simmons v. Trans Express Inc., plaintiff brought a federal action against her former employer for violations of Fair Labor Standards Act and New York Minimum Wage Act. The employer moved to dismiss on grounds of “res judicata.”

Res judicata translates to “a matter judged.” Generally, res judicata is the principle that a cause of action may not be re-litigated once it has been judged on the merits. “Finality” is the term which refers to when a court renders a final judgment on the merits. Res judicata is also frequently referred to as “claim preclusion.” As a related principle, collateral estoppel, also known as issue preclusion, is a common law estoppel doctrine that prevents a person from re-litigating an issue – as opposed to the entire claim. Once a court has decided an issue of fact or law necessary to its judgment, that decision precludes re-litigation of the issue in a suit on a different cause of action involving a party to the first case. The rationale behind these preclusions is the prevention of legal harassment and the prevention of overuse or abuse of judicial resources.

Here, in August 2018, plaintiff filed suit in a New York small claims court seeking “monies arising out of nonpayment of wages.” Simmons was awarded $1,000 less than the $5,000 Small Claims statutory maximum. Then, Simmons commenced the instant federal action alleging that she is entitled to unpaid overtime wages, liquidated damages, and attorney’s fees stemming from the defendant Trans Express Inc.’s violations of the Fair Labor Standards Act, and the New York Minimum Wage Act. Trans Express moved to dismiss the complaint contending that the action was barred by the doctrine of res judicata because of the previous small claims proceeding. The motion was granted.

The federal Court recognized that the employer’s “motion rests entirely on the doctrine of res judicata. According to that doctrine, ‘a final judgment on the merits of an action precludes the parties or their privies from re-litigating issues that were or could have been raised in that action.’ Because the small claims action brought by Simmons was decided by a New York court, New York law determines the preclusive effect of the earlier judgment. The issues presented by the judgment awarded to Simmons are: (1) whether res judicata applies to judgments rendered in small claims court, (2) whether an exception to res judicata applies due to the limits on recovery in small claims court, and (3) whether plaintiff’s present claims arise from the same facts as the previous action and could have been raised in that action.”

In dismissing the action, the Court reasoned that as a “fundamental rule, res judicata applies to judgments of New York’s small claims courts. Arguing to the contrary, plaintiff relies in principal part on New York City Civil Court Act § 1808. This statute provides that judgments in small claims courts ‘shall not be deemed an adjudication of any fact at issue or found therein in any other action or court.’ However, the legislative history of this provision makes clear that it concerns only collateral estoppel, or issue, as opposed to claim, preclusion, and, therefore, not the preclusive effects of res judicata. The legislative bill jacket, completed at the bill’s signing, which compiles the pertinent legislative history, makes clear that the very purpose of the bill was to clarify that ‘the true intent of section 1808 is to make clear that a small claims judgment has no collateral estoppel or ‘issue preclusion’ effect in a subsequent proceeding.’”

The Court found that an “earlier version of the statute used the term ‘res judicata,’ but the legislative history of this 2005 amendment explains that ‘the use of the term ‘res judicata’ was … inapposite.’ The Legislature noted that ‘the courts have consistently held that a small claims judgment is res judicata when the same claim is filed in another court,’ and cited five examples with approval. Plainly, this history confirms that New York law gives claim preclusive effect to small claims court judgments. It is a conclusion that is reinforced by abundant case law. Therefore, the fact that Simmons’s prior suit was decided in small claims court will not rescue this action from the bar of res judicata, if the bar is otherwise applicable.”

As for the plaintiff’s argument that res judicata does not apply because the small claims court was only empowered to award $ 5,000.00 in damages, and the federal action seeks greater relief, the Court noted that a New York Appellate Division “rejected this precise argument … where it held that a small claims judgment operated as a bar to a future action, ‘even though, were plaintiff to have brought and proven his claims in state Supreme Court in the first instance, he could have sought a larger award.’ The court explained that ‘plaintiffs could have pursued all relief in a single action in the Supreme Court, but opted instead to pursue the claim in the Small Claims Part of the Civil Court,’ and it refused to allow plaintiffs to escape the consequences of that decision.”

The Court concluded that because the “plaintiff’s federal claims, like her claims in small claims court, arise from her employment at Trans Express and had accrued prior to the small claims proceeding, they could have been raised in the prior proceeding and are barred by res judicata. In other words, the present claims are ‘based upon the same harm and arise out of the same or related facts.’ The notice of judgment in the small claims proceeding clearly indicates that Simmons had raised a claim for ‘unpd. OT. Notice of Judgment, Simmons.’” It is hard to construe this to mean anything other than unpaid overtime.”

We note that the unsuccessful plaintiff in this action has filed a notice of appeal and, if overturned, we will update this article.

Parent Could Not Be Held Liable as Guarantor for Adult Child’s Unpaid Medical Bills

Parent Could Not Be Held Liable as Guarantor for Adult Child’s Unpaid Medical Bills

In Westchester County Health Care Corporation v. Ceus, a medical provider brought an action against the parent of an adult former patient, seeking to recover for unpaid hospital and medical services allegedly rendered to the patient.

The medical services that were the subject of the complaint were provided to the defendant’s daughter who was over the age of 21 at the time the services were provided.
The defendant parent moved for summary judgment, contending she cannot be held liable for services rendered to her adult daughter, for which she neither provided a guarantee nor signed a promise to pay.

The medical provider opposed the motion arguing that the insurance card allegedly provided by the daughter at the time of her visit, listed her as a “covered family member” on a plan on which the defendant parent was the named insured.

The Court noted that under the “common law, absent a statutory obligation, ‘a parent is not liable for the support and maintenance of an adult child.’ In addition, it has long been held that even where a parent affirmatively requested the medical services that were provided to an adult child by a physician or medical professional, the parent is not, without more, liable for the cost of those services.” Here, there was no allegation that the parent requested any services for the daughter.

Although the medical provider referred the Court to the requirement under the Patient Protection and Affordable Care Act mandating coverage for children up to age 26 on their parents’ insurance, the Court stated that “this mandated coverage does not include any mandate for parents’ continued liability for the non-covered medical expenses incurred by their children after they reach age 21.”

The Court further stated that there was no support for the medical provider’s “proposition that the primary insured person under a group insurance plan is personally liable as a guarantor for the cost of services provided to her adult children, based on their inclusion under her coverage. In order to claim that defendant may be held liable, in the absence of a common law obligation or a statutory obligation, plaintiff relies exclusively on the inclusion of [the daughter’s] name as an additional insured on a health insurance card on which defendant parent is the primary insured. In effect, plaintiff treats the inclusion of [the daughter’s] name on the insurance card as either a guarantee or a promise by the primary insured to pay for services rendered to any listed family member. However, there is no signed writing to this effect.”

“To be enforceable, either a guaranty or any form of promise ‘to answer for the debt … of another person,’ must be in writing and executed by the party to be charged” and the medical provider’s insertion of the parent’s name in its invoice as “Guarantor” had “no legal effect in the absence of any indication that plaintiff affirmatively undertook to stand in that capacity, let alone a signed writing. Plaintiff’s position amounts to, at best, a claim of an implicit promise. Such a claimed promise is unenforceable.”

The Court granted the parent’s motion and dismissed the complaint.

School’s Restriction on Convicted-Rapist-Father’s Access to Son’s School Upheld

School’s Restriction on Convicted-Rapist-Father’s Access to Son’s School Upheld

In Lujan v. Carranza, a father filed an Article 78 petition challenging the determination of the N.Y.C. Department of Education, which restricted his access to his son’s school, and the determination of Commissioner of New York State Education Department, which dismissed his administrative appeal. The Supreme Court in Albany County held that the middle school’s restrictions, limiting father’s access to school, were not made in violation of lawful procedure, affected by error of law, or arbitrary and capricious and dismissed the petition.

According to the Appellate Court, in 1988, the petitioner-father was convicted of Rape in the First Degree. Petitioner’s victim was a fourteen year old girl, and the rape was committed with a deadly weapon. Based on this conviction, the petitioner has been adjudicated a Level III sex offender. He was released from prison and discharged from parole supervision in 1998. He is also the father and sole caretaker for his son, “X.” During the 2015-2016 school year, “X” attended Yorkville Community School, PS 151 in New York City. On November 20, 2015, the Principal of that school sent a letter to the petitioner, informing him that the school was placing restrictions on his access to the school based on his Level III sex offender status and because his victim was under the age of 18. Those restrictions prevented him from coming within 1,000 feet of school grounds. If the petitioner needed to pick up his son on an emergency basis, he would have to contact the school to make arrangements. Similar restrictions continued as the son moved through the school system through Middle School.

The Court noted that the “petitioner is a Level III sex offender. As the Risk Assessment Guidelines and Commentary (see Board of Sex Examiners, Sex Offender Registration Act [SORA]: Risk Assessment Guidelines and Commentary [Jan. 1996]) makes clear, SORA was passed to protect society from the threat posed by a sex offender who is about to be released into the community. The magnitude of the threat depends upon two considerations: the defendant’s likelihood of re-offense, and the harm that would be inflicted if that defendant did re-offend. Risk Assessment Guidelines and Commentary, Commentary, op. cit., at 2. A defendant’s risk category is dictated by the number of points scored on the Risk Assessment Guidelines; 110 points or more results in a classification as a level three offender, that is, an offender with a high risk of recidivism who poses a threat to public safety.”

In upholding the determination, the Court said that the petitioner “has been adjudicated as a Level III sex offender which means he poses the highest possible risk to re-offend. His prior crime was committed against a girl of Middle School age. In light of these facts, the school’s determination to place supervisory restrictions on the petitioner has a sound basis in fact. Petitioner notes that he often attended his son’s elementary school without restriction and without incident, and that is to his credit. However, at oral argument, counsel for the petitioner conceded that a school has the right to take “precautionary measures” to address “particular concerns.” As noted above, schools stands in loco parentis to their students and have a duty to protect them. The precautionary measures and restrictions here address the particular concerns petitioner presents and are rationally related to the school’s in loco parentis duty.”

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