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Facebook “Friend” Request Disqualifies Judge

Facebook “Friend” Request Disqualifies JudgeA recent decision by an appellate court in Florida highlighted the reality that in today’s world, even judges can get themselves into trouble on social media. Chace v. Loisel, 2014 WL 258620 (Dist. Ct. of Appeals of Fl. 2014).

During her divorce proceeding, the petitioner, Sandra Chace, received a “friend-request” on Facebook from none other than the judge presiding over her proceeding. At the recommendation of her attorney Ms. Chace ignored the request. However, upon receiving the judgment, Ms. Chace alleged that the judge improperly attributed most of the marital debt to Ms. Chace, and awarded her ex-husband a disproportionately excessive amount of alimony. Ms. Chace moved to reverse the judgment on the basis that the trial judge was impartial and should be disqualified. The trial judge denied Ms. Chace’s motion, but on appeal, the Court reversed, agreeing with Ms. Chace.

Under Florida law, “[i]f the grounds asserted in a motion for disqualification are legally sufficient to create a well-founded fear in the mind of a party that he or she will not receive a fair trial, it is incumbent upon a judge to disqualify herself.” Here, the Court held that a judge’s ex parte“ communication” with a party presents a legally sufficient claim for disqualification, “particularly in the case where the party’s failure to respond to a Facebook ‘friend’ request creates a reasonable fear of of fending the solicitor. The ‘friend’ request placed the litigant between the proverbial rock and a hard place: either engage in improper ex part communications with the judge presiding over the case or risk offending the judge by not accepting the ‘friend’ request.”

The same outcome would likely result under New York law which holds judges to the same standard; “where an appearance of improper judicial interest emerges, the integrity of the judiciary requires that a judge disqualify herself.” Murray v. Murray, 73 A.D.2d 1015 (4th Dept. 1980).

Full Annual Rent Due Even Upon Lease Cancellation

Full Annual Rent Due Even Upon Lease CancellationRecently the highest Court of the State of New York held that an explicit agreement in a lease to pay annual rent in advance on January 1, obligates the tenant to pay rent for the full year on that due date, notwithstanding the tenant’s exercise of a right to cancel the lease within a few weeks from the first of the year.

In Eujoy Realty Corp. v. VanWagner Commc’ns, LLC, the Court of Appeals was called upon to interpret a lease’s payment terms in light of the exercise of a right of cancellation. The lease involved a billboard in the New York City region and provided for annual basic rent paid in advance on January 1. Although the tenant had negotiated a right to terminate the lease if the billboard’s view was ever substantially obstructed by the erection of a new building between the location of the billboard and the Long Island Expressway, the lease also stated that the tenant shall not be entitled to the return of any basic rent paid in advance and covering a period beyond the date on which the lease is terminated.

In early January 2007, the tenant had forwarded a check to the landlord for the sum of $96,243.00, which was the annual basic rent for the year, by check dated January 2, 2007. However, the tenant quickly stopped payment claiming that “due to an internal oversight,” the check was “accidentally” and “erroneously” issued. Then on January 16, 2007, the tenant exercised its right of termination effective January 8, 2007. A second check for $2,109.43, representing rent for the period January 1 through January 8, 2007, was enclosed with the letter exercising the right of termination.

As for the tenant’s obligation to pay rent in advance, the Court of Appeals recognized that under the common law, “rent is consideration for the right of use and possession of the leased property that a landlord does not earn until the end of the rental period. This presumption may be altered, however, by the express terms of the parties’ lease such that rent is to be paid at the beginning of the rental period rather than the end. When a lease sets a due date for rent, that date is the date on which the tenant’s debt accrues. Rent paid “in advance” (i.e. at the beginning of the term) is unrecoverable if the lease is terminated before the completion of the term, unless the language of the lease directs otherwise.”

The Court further recognized that these “rules reflect a strong preference for freedom of contract in the creation of leases, and although it may seem harsh for tenants, the courts assume the parties have knowingly bargained for the provisions of their agreement. This is especially true in the case of arms-length commercial contracts negotiated by sophisticated and counseled entities. Courts will give effect to the contract’s language and the parties must live with the consequences of their agreement.” Quoting its own decade old decision, the Court admonished that if the parties were dissatisfied with the contract language “the time to say so is at the bargaining table.”

In light of the clear language as to when the rent became due, and that upon termination the tenant was not entitled to the return of any basic rent paid in advance covering the period beyond the date on which the lease is terminated, the Court of Appeals held that although the tenant invoked its right to terminate the lease it nevertheless “accrued a debt for the annual basic rent under the terms of the lease when it remained in possession of the billboard after January 1, 2007, and there is nothing in the law or the language of the agreement that relieves it of that debt.”

Secretary Did Not Defame Law Firm

Secretary Did Not Defame Law FirmRecently a Manhattan Court found a legal secretary’s critical remarks about a law firm to a newspaper reporter that were later published, were privileged and protected from a libel claim, even though she made the comments before filing a lawsuit against the firm.

In Benedict v. Tarnow & Juvelier, the legal secretary had filed a claim with the New York State Department of Human Rights prior to commencing the action against the law firm. She claimed wrongful termination, age discrimination, and disability discrimination when fired after being diagnosed with a rare tumor in her sinuses which required surgery. The plaintiff was a secretary at a family law firm in Midtown Manhattan when she was diagnosed with a cancerous tumor. Right after learning of her diagnosis, she alleged that she emailed her coworkers and superiors about the tumor and her future needs for surgery, hospitalization, and regular treatment of radiation and chemotherapy. Within hours of sharing the news, she alleged that she found a termination letter on her work seat. Within weeks after she filed a claim with the Division of Human Rights against the firm and its partners, the law firm offered her old position back to her. However, soon after being rehired, she learned that the law firm would be dissolving at the end of the year and all employees would lose their jobs. The law firm then formed a new corporate entity and, according to her complaint, “the entire office staff of the [dissolved firm] was rehired, with the exception of plaintiff who remained without a job at the new firm because of her disability and in retaliation for filing her original DHR complaint.”

After filing her discrimination complaint in Supreme Court, the law firm counterclaimed for libel alleging that certain statements made to the New York Post by plaintiff and her lawyer were defamatory. As it turns out, the New York Post published a story regarding plaintiff’s lawsuit and included statements by the plaintiff and plaintiff’s attorney that the purpose of the dissolution and re-formation of the firm was to hide the discriminatory firing. The New York Post quoted plaintiff’s attorney as saying “[i]t was clearly an egregious and willful attempt to avoid liability…. How could it not be?”

The plaintiff moved to dismiss the counterclaim. In addressing the merits of the motion, the Court set forth the four elements required to establish a cause of action for defamation: (1) a false statement on the part of the defendants concerning the plaintiff; (2) published without privilege or authorization to a third party; (3) with the requisite level of fault on the part of the defendants; and (4) causing damage to plaintiff’s reputation by special harm or defamation per se.” Focusing on the second element, the court dismissed the libel claim on the “fair report privilege.”

The fair report privilege was created by Civil Rights Law § 74. “With the enactment of Civil Rights Law § 74 in 1962, the Legislature created a statutory privilege that prohibits, in relevant part, the maintenance of a civil action including defamation and other related claims based on the publication of a fair and true report of any judicial proceeding. The apparent purpose of the privilege is to promote the dual public policy interest of ensuring the free flow of true information without fear of being sued, and public dissemination of judicial decisions and proceedings for proper administration of justice.” The Court summarized the statutory interpretation by the courts over the years, and concluded that “the courts must look for substantial and contextual accuracy of the news report as the standard for determining a fair report underCivil Rights Law § 74.”

Here the defendants argued that the statements made to the New York Post were not privileged under the statute because while the Post’s article appeared after the lawsuit was commenced, there was no lawsuit pending when the plaintiff made the alleged libelous statement to the reporter. In response the Court held that “it is true that plaintiff and her attorney made their statements to the New York Post reporter prior to the filing of the instant lawsuit and that allegedly defamatory statements which are made before the commencement of judicial proceeding does not qualify for the fair reporting privilege of Civil Rights Law § 74. However, in the instant case, plaintiff claims that the statements made by her and [her attorney] to the New York Post were privileged under the Civil Rights Law § 74, because they were a fair report of the prior proceeding filed with the State Department of Human Rights.” The Court recognized that statements made in proceedings before the Department of Human Rights are covered by the fair report privileged and, therefore, concluded that the statements, even if defamatory, were privileged because they were a substantially accurate report of the Human Rights proceeding.

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