Articles Posted in Court Decisions

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July 6-10. 2009.

U.S. 1st Circuit Court of Appeals, July 08, 2009 McCullen v. Coakley , No. 08-2310
In an action challenging a statute creating a fixed buffer zone around reproductive health care facilities, district court judgment rejecting the facial challenge and refuseing to enjoin enforcement of the new law is affirmed where: 1) there is nothing in the text or the legislative history of the statute that deprives that statute of content-neutral status, and thus an intermediate scrutiny analysis applies; 2) the statute is a valid time-place-manner regulation that advances a significant governmental interest without burdening substantially more speech than necessary and leaves open adequate alternative channels of communication; 3) plaintiffs’ overbreadth argument is without merit as the increased degree of the expansion of the buffer zone in the statute is reasonable, and thus the expansion is not a matter of constitutional significance; and 4) plaintiffs’ vagueness argument fails as plaintiffs want to engage in the anti-abortion protests that are proscribed in the atto! rney general’s challenged guidance letter, and a party to whose conduct a statute clearly applies may not successfully challenge it for vagueness.

U.S. 2nd Circuit Court of Appeals, July 06, 2009 Pilgrim v. Luther, No. 07-1950 In a prisoner civil rights action, district court’s grant of summary judgment for defendant is affirmed where: 1) plaintiff’s First Amendment retaliation claim fails as a matter of law as entreaties to activity such as petitions protesting prison conditions are not entitled to First Amendment protection where other less disruptive means of airing grievances are available; and 2) plaintiff’s claims that defendant violated his due process rights are without merit as any error on the part of the corrections officer assigned to assisting plaintiff was harmless in light of defendant’s owns failures.

U.S. 5th Circuit Court of Appeals, July 10, 2009 Little v. KPMG LLP, No. 08-50100 In an action claiming that Plaintiff accounting firms lost business to Defendant when Defendant’s partner practiced without a Texas accounting license, the dismissal of the action is affirmed, where the alleged injury to Plaintiff was too speculative Continue reading

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July 8-13, 2009
ADMIRALTY, CORP. GOVERNANCE, CORPORATION & ENTERPRISE LAW, DEBT COLLECTION Transfield ER Cape Ltd. v. Industrial Carriers Inc., No. 09-1733 In a dispute involving a maritime attachment and garnishment against a corporate alter ego, district court order vacating the attachment is affirmed where, if a corporation is registered with the New York Department of State and therefore found within the district for the purposes of Rule B of the Supplemental Rules for Admiralty and Maritime Claims and Asset Forfeiture Actions, that corporation’s alter egos are also found within the district and the property of those alter egos is not subject to maritime attachment.

CIVIL RIGHTS, LABOR & EMPLOYMENT LAW Harris v. Mills, No. 07-2283 In an employment discrimination action brought under the Americans with Disabilities Act and the Rehabilitation act, district court judgment granting the defendants’ motion to dismiss the plaintiff’s pro se amended complaint is affirmed where: 1) the district court erred in concluding that claims under Title II of the ADA and the Rehabilitation Act cannot be asserted against individuals in their official capacity; 2) plaintiff’s amended complaint fails to state reasonable accommodation claims upon which relief can be granted, as both of his claims are legally insufficient; and 3) plaintiff’s due process rights were not violated, as he was given notice and an opportunity to be heard before his petition for reinstatement was denied, and a New York Civil Practice Law and Rules Article 78 post-deprivation hearing.

ERISA, LABOR & EMPLOYMENT LAW, PER CURIAM Burke v. PricewaterhouseCoopers LLP Long Term Disability Plan, No. 08-1611 In a dispute involving disability insurance benefits, district court judgment dismissing plaintiff’s ERISA claim is affirmed where the court was correct to enforce the limitations period of the benefits plan in its entirety, including its prescribed start date, and to dismiss plaintiff’s claim as time-barred as it was brought after the expiration of the limitations period
CRIMINAL LAW & PROCEDURE, SENTENCING US v. Daye, No. 08-1012 Sentence for being a felon in possession of a firearm is vacated and remanded where: 1) defendant’s prior state conviction for engaging in a sexual act with a minor satisfies the standard articulated in Begay and is therefore a violent felony under the residual clause of the Armed Career Criminal Act; and 2) the District Court must consider of remand whether Defendant’s escape conviction constitutes a conviction for a violent felony under Chambers, and whether his two prior state convictions stem from conduct committed on different occasions for purposes of the Act.
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Update from the Lexis Alert Service,

June 23, 2009:.

1. People v. Perez, 843, 5734/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4972; 2009 N.Y. App. Div. LEXIS 4899, June 18, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Charles Solomon, J.), …

2. People v. Pereyra, 850, 579/08, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4975; 2009 N.Y. App. Div. LEXIS 4891, June 18, 2009, Decided, June 18, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Renee A. White, …

3. People v. Fields, 852, 4782/02, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4977; 2009 N.Y. App. Div. LEXIS 4894, June 18, 2009, Decided, June 18, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (John Cataldo, J.
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June 15-19, 2009.

U.S. Supreme Court, June 15, 2009 Polar Tankers, Inc. v. Valdez, No. 08–310 In a Tonnage Clause challenge to an Alaska ordinance imposing a personal property tax on large oil tankers, judgment for Defendant is reversed, where the ordinance was unconstitutional because it was designed to impose “a charge for the privilege of entering, trading in, or lying in a port.””

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June 15-19, 2009.

U.S. Supreme Court, June 15, 2009 Nijhawan v. Holder, No. 08–495 Petitioner’s removal from the U.S. based on his commission of an “aggravated felony” is affirmed, where the $10,000 threshold in 8 U.S.C. section 1101(a)(43)(M)(i) refers to the particular circumstances in which an offender committed a fraud or deceit crime on a particular occasion, rather than to an element of the fraud or deceit crime.

U.S. Supreme Court, June 18, 2009 District Atty.’s Offc. v. Osborne, No. 08–6 In a 42 U.S.C. section 1983 action seeking the evidence used to convict Defendant of sexual assault for the purposes of DNA testing, summary judgment for Plaintiff is reversed where, assuming Plaintiff’s claims could be pursued using Section 1983, he had no constitutional right to obtain post-conviction access to the State’s evidence for DNA testing.

U.S. Supreme Court, June 18, 2009 Yeager v. US, No. 08–67 In an appeal from the District Court’s order denying Defendant’s motion to dismiss his wire fraud indictment on Double Jeopardy grounds, the order is reversed where an apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the acquittals’ preclusive force under the Double Jeopardy Clause.
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Uncertainty in Law Circles Over New Court Ruling for Judges

By JOHN SCHWARTZ Published: June 10, 2009 by the New York Times

“Lawyers across the country said that a Supreme Court ruling on conflicts of interest among elected judges could prompt a deluge of requests for judges to recuse themselves from cases.,,,”

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June 11, 2009.

COMMERCIAL LAW, CONSUMER PROTECTION LAW, GOVERNMENT LAW, HEALTH LAW New York v. Smokes-Spirits.com, Inc., No. 92 The Court of Appeals answered the following certified questions from the United States Court of Appeals for the Second Circuit in the negative: 1) Does New York City have standing to assert its claims under General Business Law section 349?; and 2) may the City assert a common law public nuisance claim that is predicated on N.Y. Public Health Law section 1399-ll? Read more…

CONSTITUTIONAL LAW, FAMILY LAW, GOVERNMENT LAW, JUVENILE LAW Anonymous v. Rochester, No. 81 In an action claiming that the juvenile nighttime curfew adopted by the City of Rochester is unconstitutional, the dismissal of the complaint is reversed, where the curfew violated the substantive due process rights of minors to enjoy freedom of movement and of parents to control the upbringing of their children.

CONSTRUCTION, INJURY AND TORT LAW Cunha v. New York, No. 91 In a personal injury action based on injuries sustained by Plaintiff while working at a roadway excavation, judgment for Plaintiff is reversed where, because New York City was only vicariously liable for violating the provisions of the Labor Law at issue, it was entitled to full common-law indemnification from its codefendant, the party actually responsible for the incident.

CRIMINAL LAW & PROCEDURE People v. Decker, No. 102 Defendant’s murder conviction is affirmed where: 1) although there had been a 15-year delay in re-indicting Defendant after the charges were initially dropped, the delay was justified by the witnesses’ fear of testifying against Defendant; and 2) Defendant was not prejudiced by the delay.

CRIMINAL LAW & PROCEDURE, SENTENCING People v. Mingo, No. 94 Defendant’s rape sentence is vacated where, with the proper foundation, internal documents generated by the District Attorney’s office may support a risk level adjudication, but the trial court failed to require such a foundation, and thus the sentencing enhancement applied by the trial court was in error. ..

INJURY AND TORT LAW, PROPERTY LAW & REAL ESTATE Petrone v. Fernandez, No. 100 In an action claiming that a dog at Defendant apartment complex owner’s property injured Plaintiff, summary judgment for Defendant is affirmed, where Defendant did not own the dog and had no reason to know of the dog’s vicious propensities.
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Second Circuit U.S. Court of Appeals
CONSTITUTIONAL LAW, GOVERNMENT LAW, SANCTIONS Gollomp v. Spitzer, No. 07-0847 District court judgment dismissing plaintiff’s second amended complaint against various state entities and imposing sanctions on his attorneys is affirmed where: 1) the New York State Unified Court System is an arm of the state, and thus the lawsuit against it is barred as it is entitled to Eleventh Amendment sovereign immunity; and 2) the court did not abuse its discretion in imposing sanctions as plaintiff’s counsel acted in bad faith, plaintiff’s claims were frivolous and there was nothing improper in recovering reasonable attorney’s fees from plaintiff’s counsel as a form of sanctions
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Update from the Lexis Alert Service,

June 8, 2009:.

1. People v. Stepteau, 712, 5394/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4351; 2009 N.Y. App. Div. LEXIS 4138, June 4, 2009, Decided, June 4, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Renee A. White, …

2. People v. Manuel, 709, 1319/08, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4293; 2009 N.Y. App. Div. LEXIS 4104, June 2, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, …

3. People v. Carter, 693, 4510/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4284; 2009 N.Y. App. Div. LEXIS 4114, June 2, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Arlene R. Silverman, …

4. People v. Santos, 688, 6472/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4279; 2009 N.Y. App. Div. LEXIS 4122, June 2, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Edward J. McLaughlin, …

5. People v. Coleman, 691, 4029/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4282; 2009 N.Y. App. Div. LEXIS 4106, June 2, 2009, Decided, June 2, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (John Cataldo, J. …

6. People v. Odom, 585, 3211/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4272; 2009 N.Y. App. Div. LEXIS 4107, June 2, 2009, Decided, June 2, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Gregory Carro, J.), …

7. People v. Bumbray, 686, 4051/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4277; 2009 N.Y. App. Div. LEXIS 4123, June 2, 2009, Decided, June 2, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, …
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June 3-4, 2009.

CIVIL PROCEDURE, EDUCATION LAW, INJURY AND TORT LAW O’Connor v. Pierson , No. 07-1758 In an action brought by a public school teacher against a school, alleging various state and federal tort claims, district court’s of defendant’s motion for summary judgment on grounds that plaintiff’s claim is barred by res judicata is affirmed where: 1) the state court decision against plaintiff on his intentional infliction claim was decided on the merits and bars his pursuit of the substantive due process claims in federal district court; 2) the parties in the state and federal actions are in privity for purposes of res judicata; and 3) plaintiff had a fair and adequate opportunity to litigate his claims, even if they may have eventually been separated from one another.

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