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Private Facebook Page Not So Private

Private Facebook Page Not So PrivateA Long Island school district has used a former student’s Facebook page in an attempt to limit its damages in a lawsuit by a former student resulting from sexual contact between the student and a former teacher of the district. In Melissa G. v. N. Babylon Union Free Sch. Dist., the student’s complaint alleged a bevy of injuries resulting from the sexual contact, including “[r]epeated sexual injury and assault; nightmares and sleep deprivation, potential exposure to sexually transmitted diseases, missed time from school and school opportunities, emotional distress, mental distress, legal process trauma, alienation of affections, loss of enjoyment of life, post-traumatic stress disorder, loss of employment, loss/impairment of educational and employment opportunities, and educational expenses.” See, 2015 N.Y. Slip. Op. 25113 (Sup. Ct. Suff. Cnty. 2015). In addition, plaintiff testified in a deposition that she also suffers from “serious trust issues,” “anxiety attacks,” and struggles in her relationship with her boyfriend.

In an effort to mitigate its exposure, the school district demanded that plaintiff disclose the complete and unedited account data for all Facebook accounts maintained by plaintiff, including “all postings, status reports, e-mails, photographs and videos posted on her web page to date.” Plaintiff opposed the application.

Article 31 of the New York Civil Practice Law and Rules (“CPLR”) contains the “aggregate of devices, including among others, depositions, discovery and interrogatory, by which the trial lawyer, well in advance of the trial and in order to be completely prepared for it, probes into the other side’s case and into whatever data or material non-parties may have reflecting on the issues.” Siegel, N.Y. Prac. § 343 (5th ed.). The standard for what must be disclosed is very broad: “Full disclosure of all matter material and necessary in the prosecution or defense of an action.” CPLR 3101(a). With respect to social media accounts, such as Facebook, the burden on the party seeking disclosure is no different than in any other context — a showing that “the information sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the plaintiff’s claim.” Here, a small portion of plaintiff’s Facebook page was publicly available, and depicted plaintiff enjoyably engaging in a variety of recreational and social activities, including “activities with her boyfriend, . . . at work in a veterinary hospital; rock climbing; and out drinking with friends.” The District used that limited amount of publicly available information to support its motion to see the rest of plaintiff’s Facebook page.

The Court agreed with the District. It stated, “[a]s defendants have shown that plaintiff’s public Facebook pages contain photographs of Melissa engaged in a variety of recreational activities that are probative to her damage claims, it is reasonable to believe that other portions of her Facebook pages may contain further evidence relevant to the defense.” The Court fashioned an order that allowed the plaintiff to be the first judge of relevance, however. It held that “[w]ithin sixty (60) days from the date of this order, plaintiff’s counsel shall review the Facebook postings and shall disclose all postings that are relevant to plaintiff’s damage claims.”

Same Sex Marriage Plan Ends Up In Court

Same Sex Marriage Plan Ends Up In CourtIn Messina v. Mayer, Messina sued for a partition of property owned by the parties as “tenants in common.”

Tenants in common in New York is a type of property ownership that allows each owner to hold an individual interest. Owners typically use tenants in common for business and investment properties or tax purposes. The other two joint ownership types in New York − joint tenancies and tenancies by the entirety − have different rules and rights than tenants in common. Tenants in common in New York each hold an individual interest percentage in the property – which does not have to be equal. The creation of tenants in common happens in one of two ways: by the wording on the deed or by New York real estate law. Unlike joint tenants and tenants by the entirety − where the interest of a deceased owner passes to the surviving owner − a tenant in common’s interest passes to his or her heirs at death. A tenant in common can sell his or her interest to another party at any time and can force the sale of the property in court if the other owner(s) do not want to sell, referred to as a partition action. New York law does not allow tenants by the entirety − a legally married couple − to file a partition action.

In a partition action, the disgruntled owner is asking the Court to resolve the conflicts between the owners. There are several remedies which the Court may order. The first is the complete sale of the property by a Court appointed referee. The referee will then divide the profits between the owners, based upon their ownership interest. The referee will also allow the parties to submit their expenditures regarding the property, and will give each owner credit for the amounts they spent on property maintenance. Another option is that one of the owners agrees to buy the interest of the other owner(s). Yet another option is a partition “in kind” where if possible, there is a physical division (“subdivision”) of the property itself among the co-owners.

Here, Messina and Mayer purchased the property in anticipation of future marriage plans. A mortgage was taken in both names, but the note was in Messina’s. At trial, Messina testified the parties anticipated paying for all expenses equally, but he personally paid the mortgage without Mayer’s contribution. Testimony revealed renovation of a downstairs apartment was performed with Mayer contributing some work, while Messina paid for many expenses. The relationship deteriorated and Mayer alleged he was forced out. The Court found no evidence Messina prevented Mayer from entering the premises; rather, each obtained a court order of protection against the other, which the Court held did not relieve an ousted party from being liable for mortgage payments.

The Court held that “the only relief available in an action for partition is the actual physical partition of the property, or, if that be inequitable, sale of the entire parcel and division of the proceeds. However, absent showing of great prejudice or any inequity, sale of entire property was an improper alternative since [Real Property Actions and Proceedings Law § 915] permits such a sale only where property cannot be partitioned without great prejudice to owners. Although partition is a statutory creation, it is nevertheless equitable in nature and the court can compel parties in a partition action to do equity as between themselves.”

The Court found that the parties did not intend for the premises to be sold at auction, but was not persuaded that Mayer was entitled to “sweat equity” for work put into the premises as he did not rebut the presumption that the payments Messina made were not also for Mayer’s benefit. The Court ruled an actual partition could not be made without prejudice to the owners, but a sale would not be equitable as the equity due Mayer could be paid without delay. It ordered a payment of nearly $8,000 to Mayer as his equity, directing him to execute a deed in Messina’s favor.

Doctor Sues Lawyers Over Blog Posts

Doctor Sues Lawyers Over Blog PostsA recent lawsuit over blog posts was dismissed by the New York County Supreme Court, which found that the post was “privileged” pursuant to Civil Rights Law Section 74.

The blog posts reported on the testimony given by plaintiff, Dr. Michael Katz, an orthopedic surgeon who gave expert testimony in a judicial proceeding before Justice Duane Hart in Supreme Court, Queens County. Dr. Katz testified that he had conducted two independent medical exams (“IMEs”) of the plaintiff, and that, although he could not recall how long the second IME lasted, they typically take between 10 and 20 minutes.

After providing his testimony, plaintiff’s counsel presented the Court with a surreptitiously taken video of the second IME — not previously disclosed in discovery — which purported to show that the second IME lasted less than two minutes. It would be a significant understatement to say that Justice Hart was not happy about Dr. Katz’s testimony.

During the subsequent proceedings over the next four days, Justice Hart repeatedly accused Dr. Katz, both on and off the record, of lying and committing perjury. Justice Kern, of New York County’s Supreme Court characterized Justice Hart’s reaction as follows:

Justice Hart made a long series of eviscerating and critical comments about Dr. Katz, calling him a liar on numerous occasions, recommending that he retire from the medical profession as his career “doing IME’s is over,” and threatening to refer the matter to the District Attorney, The Office of Professional Medical Conduct and to the Administrative Justice on several occasions, which is all chronicled in plaintiff’s complaint. Indeed, according to plaintiff’s complaint, during just one day of hearings, Justice Hart called Dr. Katz a liar more than 25 times. Specifically, the interaction between Justice Hart and Dr. Katz over four days of hearings is summarized as follows:

On April 15, 2013, the parties in the Bermejo Action appeared in front of Justice Hart and Justice Hart proceeded to inform Dr. Katz that:

I would strongly suggest you do not do anything because you’re in more trouble than you think. It’s probably [sic] that your career doing IME’s is over. It’s possible, unless this case is settled, that I might be talking more-the attorneys have a duty basically not to do anything with regards to the district attorney. If I find out or if I even suspect something is going on I have a duty to get in touch with the district attorney and getting in touch with the district attorney is not a good thing for you in this case. Understood?

Thereafter, upon the arrival of Dr. Katz’s attorney, plaintiffs allege that Justice Hart announced, in open court, but off-the record, “Your client is a liar and a thief,” and continued to berate Dr. Katz off the record in the presence of his attorney.

Justice Hart was so irate, that he ultimately sanctioned defendant’s attorney $10,000 just for putting Dr. Katz on the witness stand, stating “I can only sanction a party or the attorneys. Since I can’t sanction Dr. Katz for lying and let the record reflect, I am . . . [sanctioning the law firm].” Although Justice Hart threatened to refer the case to the District Attorney’s Office several times, Dr. Katz was not ultimately prosecuted for perjury, nor was his medical license revoked.

All of this was reported on a series of blog posts by the two defendant law firms, Lester, Schwab, Katz & Dwyer LLP and the Turkewitz Law Firm. Dr. Katz found the posts and sued those firms, and the individual attorneys, for defamation. The defendants moved to dismiss the complaint, pursuant to Civil Rights Law Section 74, and the Court granted that motion. “Section 74 of the Civil Rights Law provides, in relevant part, that ‘[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.’ ‘For a report to be characterized as ‘fair and true’ within the meaning of the statute, thus immunizing its publisher from a civil suit sounding in libel, it is enough that the substance of the article be substantially accurate.’” Katz v. Lester Schwab Katz & Dwyer, LLP, 2014 WL 6972404 (Sup. Ct. N.Y. Cnty. *5). The Court compared the transcript of the underlying proceedings with the substance of the blog posts, and found that the posts were “substantially accurate.” Thus, the case was dismissed.

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