Doctor Defamed | Roof Accident | Hearing Impaired

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Court Enjoins Website that Compares a Doctor to Nazi Joseph Mengele

Court Enjoins Website that Compares a Doctor to Nazi Joseph Mengele

A website on which a man compared a doctor he is suing for malpractice to the notorious Nazi Doctor Joseph Mengele was found slanderous as a matter of law by a judge who issued a reliminary
injunction against continued operation of the site.

In Sachs v. Matano, Dr. Richard A. Matano and St. Francis Hospital, the defendants in a medical malpractice lawsuit, sought a preliminary injunction compelling and plaintiff Arye Sachs to take down the website, entitled “Matano – Kills?,” and enjoining Sachs from posting any further defamatory content concerning Dr. Matano and St. Francis.

According to the decision, Sachs commenced the medical malpractice action claiming that Dr. Matano was negligent in treating his diabetic foot ulcer during his admission to St. Francis from November 2, 2013 to December 24, 2013. He established a website on entitled “Matano Kills?” seeking other patients for a class action malpractice suit by comparing Dr. Matano to the notorious Nazi doctor, Joseph Mengele, and claiming that he is anti-Semitic. Sachs posted pictures of the doctor’s family on the website and stated: “Beware, he is stubborn, act [sic] like a mule, and will discriminate against you if you are not Italian with a Mercedes Benz.”

In addressing the preliminary injunction motion, the Court stated the defendants “must demonstrate that there is the danger of irreparable harm if the injunction is not granted, the likelihood of success on the merits and that the balance of the equities is in defendants’ favor. The existence of factual disputes will not preclude the granting of a preliminary injunction in order to maintain the status quo.”

The doctor and the hospital argued that the statements published by Sachs on GoDaddy are defamatory and designed to injure their reputations and businesses.

In addressing the likelihood of success on this claim, the Court recognized the elements of defamation as: “a false statement; published without privilege or authorization to a third party; constituting fault as judged by, at a minimum, a negligence standard; which causes special harm or constitutes defamation per se. A false i.e., defamatory statement, is libelous per se if it charges another with a serious crime or tends to injure another in his or her trade, business or profession.”

The Court further recognized that “whether particular words are reasonably susceptible of a defamatory meaning presents a question to be determined by the court in the first instance. The Court must look at the content of the entire communication, its tone and apparent purpose, to determine whether a reasonable person would consider it as conveying facts about the defendants. Merely because words are offensive or impute unlawful behavior does not render them slanderous in and of themselves i.e., slander per se. Words, however, which have a tendency to disparage an individual, inter alia, with respect to his office, trade or business are slanderous per se. As such, the law presumes that damages will result. They need not, therefore, be alleged
or proven.”

Although the Court said that many statements that might otherwise be considered defamatory may be protected by a qualified privilege — such as a good faith communications made by a party having an interest in the subject, or a moral or societal duty to speak — a “qualified privilege is conditioned on its proper exercise and cannot shelter statements published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity.”

Based on these legal principles, the Court held that “this is not a website whereby plaintiff seeks other individuals similarly situated that may have been injured by an alleged malpractice in order to establish a class action, but rather this website is couched in terms designed to irreparably damage the reputation and business of defendants. The comparison of Dr. Matano to the Nazi doctor, Josef Mengele, and bald conclusory claims of anti-Semitism and “Matano-Kills” is not a protected qualified privilege, but rather bald reckless assertions in disregard of the truth. Dr. Josef Mengele was a notorious Nazi doctor during WWII who selected Jews for the gas chambers, and performed deadly human experiments on prisoners. To compare anyone in the medical profession to such a criminal is beyond the pale. The tone of plaintiff’s statements, and the statements themselves, are nothing more than an attack on the defendants designed to injure their reputation and business. As such, plaintiff does not have a qualified privilege to make those statements.”

Accordingly, the Court ordered to take down the URL and enjoined Sachs from posting such defamatory and slanderous statements on any other website.

New York’s Scaffold Law Protects Worker Hired To Remove A Tree From A Roof During The Roof Repair

New York’s Scaffold Law Protects Worker Hired To Remove A Tree From A Roof During The Roof Repair

In Moreira v. Ponzo, a worker hired to remove a fallen tree from the roof of a house brought an action against the property owner, seeking recovery for personal injuries sustained when he fell from the roof. The property owner moved for summary judgment and the Supreme Court, Suffolk County, denied the motion. The property owner then appealed.

According to the decision, Efrain Moreira fell from the roof of a house — an investment property owned by Osvaldo Ponzo —while in the process of cutting and removing a 50 to 60 foot tall tree, with a 3 ½ to 4 foot diameter, that had fallen on the house during Hurricane Irene. Ponzo had hired Moreira and Moreira’s nephew to remove the tree, which had caused structural damage to the roof of the house. Following Moreira’s accident, the remainder of the tree was removed by a landscaping company, and the roof’s structural damage was then repaired by a different company.

Moreira commenced the action against the homeowner alleging, among other things, violations of Labor Law § 240(1) and Labor Law § 241(6). These sections of the law are commonly known as New York’s Scaffold Law, which imposes “absolute liability” for elevation-related injuries on contractors and property owners engaged in construction, repair, or demolition work.

The homeowner moved, inter alia, for summary judgment dismissing those causes of action on the ground that Moreira was not engaged in an activity covered by those statutes. The Court disagreed, reasoning that to successfully assert a cause of action under the Scaffold Law, a plaintiff must establish that he or she was injured during “the erection, demolition, repairing, altering or painting of a building or structure.” “The critical inquiry in determining coverage under the statute is what type of work the plaintiff was performing at the time of the injury.”

The Court noted that both Moreira and the homeowner acknowledged tree cutting and removal, in and of themselves, are not activities subject to the Scaffold Law. “Those activities are generally excluded from statutory protection because a tree is not a building or structure, as contemplated by the statute but, rather, ‘a product of nature.’ Here, however, the defendant conceded that the plaintiff fell from the roof of a building while in the process of removing a fallen tree that had come to rest at that location during a hurricane, that the tree removal was the first step in the process of undertaking structural repairs to the building, and that the repairs could only be commenced by removing the tree from the roof.” Furthermore, the Court reasoned, the intent of the Scaffold Law is to “protect workers employed in the enumerated acts, even while performing duties ancillary to those acts.” Because Moreira was working on the roof of the home, he was subjected “to the sort of risk” that the Labor Law “was intended to obviate.”

The Court concluded that “the protections of Labor Law § 240(1) are to be afforded to tree removal when undertaken during the repair of a structure. Labor Law § 241(6) protects only those workers engaged in duties connected to the inherently hazardous work of construction, excavation, or demolition. ‘[T]he courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23–1.4(b)(13), which defines construction work expansively.’ Specifically, under that regulation, construction work consists of ‘[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure.’ Since the plaintiff was engaged in activities ancillary to the repair of the building from which he fell, the provisions of Labor Law § 241(6) are also applicable to the facts of this case.”

An Officer’s Street Investigation Involving a Deaf Person Is Covered Under The Americans With Disabilities Act

An Officer’s Street Investigation Involving a Deaf Person Is Covered Under The Americans With Disabilities Act

In Williams v. City of New York, Diana Williams, a deaf arrestee, brought an against the City, asserting claims for, among other things, discrimination based on disability under the Americans with Disabilities Act (“ADA”), alleging that the NYPD failed to provide her with an American Sign Language (“ASL”) interpreter, and common law claims for false arrest and assault and battery.

Title II of the ADA applies to State and local government entities, and, in Subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in “services, programs, and activities” provided by State and local government entities. Title II also extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, to all activities of State and local governments regardless of whether these entities receive federal financial assistance.

When the City moved for summary judgment, the Court issued a decision with the following telltale preamble:

“This case arises from the arrest and overnight detention of a deaf woman by the New York City Police Department. New York City takes the extraordinary position that, even though the Americans with Disabilities Act (“ADA”) has been the law of the land for twenty-five years, it has no obligation to provide any accommodation to the hearing-impaired at the time of an arrest, even if doing so could easily be accomplished without endangering the officers or the public safety and without interfering in the lawful execution of the officers’ duties. For the reasons that follow, the Court disagrees that the City’s responsibilities to the hearing-impaired are so limited.”

According to the decision, on September 11, 2011, Diana Williams was arrested and detained overnight by the NYPD. At no time from the police officers’ initial on-the-street interaction with her, when they concluded that probable cause existed for her arrest, until her release from NYPD custody almost 24 hours later, did the NYPD provide plaintiff with an ASL interpreter or any auxiliary communication aid. Williams claims that she was arrested on assault charges lodged against her by her rogue tenants, because the arresting police officer only heard one side of the domestic drama from those who were not hearing impaired, despite her requests to get an interpreter to explain her side of the story. Neither her husband, who called the police via a video relay service device, nor Williams can hear or speak.

In denying the City’s motion for summary judgment, the Court noted that “to establish a violation of the ADA, the plaintiff must demonstrate (1) that she is a “qualified individual” with a disability; (2) that the defendants are subject to the ADA; and (3) that she was denied the opportunity to participate in or benefit from the defendant’s services, programs, or activities, or was otherwise discriminated against by the defendant by reason of her disability.”

Based on these elements, the Court reasoned that there is “no dispute that Plaintiff is a qualified individual with a disability or that the City is a public entity and is subject to the ADA.” Although the City conceded that the NYPD’s actions fall within the scope of the ADA generally, it argued that “on the street” interactions between police officers and “qualified individuals with a disability” are excluded from coverage until the crime scene has been secured and the arrestee has been transported to the station-house. As the Court put it: “In other words, the City argues that the NYPD bears no burden to provide any accommodation to disabled individuals until after the individual has been arrested and booked.”

The Court rejected this argument, concluding that the “only reasonable interpretation of Title II is that law enforcement officers who are acting in an investigative or custodial capacity are performing ‘services, programs, or activities’ within the scope of Title II. Whether a disabled individual succeeds in proving discrimination under Title II of the ADA will depend on whether the officers’ accommodations were reasonable under the circumstances. The City’s argument that exigent circumstances may excuse law enforcement officers from providing accommodations fits within this standard; its argument that on-the-street interactions are categorically excluded from Title II coverage does not.”

Thus, when the police fail to reasonably accommodate a person’s disability in the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees, an ADA claim of discrimination is sufficiently alleged. “Even assuming that a jury finds that there was probable cause to arrest Plaintiff, the City must establish that providing her an accommodation during the police officers’ ‘investigation’ would have been ‘unreasonable’ to rebut Plaintiff’s prima facie case that an accommodation was available. Given that numerous people were already on the scene who could have served as effective interpreters between the police and Plaintiff, the Court cannot conclude that, as a matter of law, it was reasonable for the police officers not to provide Plaintiff any accommodation before placing her under arrest.” This is a question of fact for the jury.

This decision apparently brought the parties to the negotiation table. The Court docket indicated the federal judge “so ordered” a $750,000 settlement.

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