In Yakin v. Tyler Corp, a case reported in last week’s NY Law Journal, the US Court of Appeals upheld a contract provision which limited the litigation of any dispute between the parties to Nassau County, NY.
There is nothing particularly unique about this decision. It simply got me thinking of forum selection clauses. We here at Tolmage Peskin have increasingly come across these contract provisions in our commercial practice. Its now routine for me to ask a potential client in the first few minutes of the initial consultation if their contract has a forum selection clause.
People have to be very careful about the contracts they sign. The general principle in NY is that forum selection clauses are valid and enforceable. In short, if you sign a contract limiting your ability to bring a suit to California, you’re going to California in all likelihood.
For both litigants and lawyers, the implications of these clauses are profoundly felt. Practically speaking, the NY may not be able to take the case. The potential client has to have a lawyer who is licensed to practice in the forum designated by the contract. If the NY lawyer isn’t admitted to the contractual forum’s bar, the potential client is forced to look elsewhere.
In my opinion, forum selection clauses make it prohibitively difficult for individuals and consumers to bring suits; that is why these clauses can be so dangerous. If you’re a consumer signing a contact: 1) you probably don’t have any input on the contact’s drafting and 2) you don’t have the resources to travel and litigate. Indeed, very few individuals or consumers can travel for litigation, even if the chosen forum is only several states away from NY (you try driving back and forth to, say, Delaware and see how costly and problematic it becomes). We had a case where the forum designated was London, England. Our client was an elderly woman; she wasn’t going to London. She could not afford the travel costs, the food and lodging costs, plus the legal fees and strain of travel. Our challenge was to keep the case here in NY. The case was resolved without having to go to London. If the case was removed to London, the defendants would have for all intents and purposes, won.
Are forum selection clauses going to disappear? No; courts and corporations like them because they provide a bright line as to where disputes are to be litigated. As a consumer, you must protect yourself. Ask if there is a forum selection clause in the contract. Ask where that forum is. See if you can negotiate a more convenient forum for yourself. Or simply walk away from the contract. You may well be better off in the long run.
-Matthew Lombardi, Associate Attorney
Wednesday, May 20, 2009
Wednesday, May 13, 2009
Your Internet and the legal world
Social Networking sites such as Facebook, MySpace, and Twitter, as well as the proliferation of blogs have changed the way we communicate with each other and present ourselves to the world.
As a general matter, anything you place on the web is open for the public to see. If you have a public MySpace page or blog for example, that content is fair game for a lawyer. We had a case in which our client was a blogger. The defense Google'd our client's name, found his blog, downloaded exerpts and questioned him line by line from it during his deposition. As much as our firm was angered by such a tactic, the fact is our client's blog was discoverable.
We had a case where a minor, unfortunately, was one of the defendants. The minor defendant had a MySapce page on which he stated "booze" was among his favorite things. We found the page. Given the nature of the litigation, we questioned him thoroughly about underage drinking and what he meant on his MySpace page.
Many people make their social networking website pages private. I do not believe making a page "private" can prevent the content from being used in litigation. Federal courts outside of NY have upheld subpoenas to view and take information from litigants' private social networking site pages. I believe this precedent could also be expanded to content that users have taken off their sites, but is still stored in the social networking websites' archives and databases.
Twitter presents an interesting case. Twitter is much more fluid, with posts coming in the form of first person statements. You're talking via Twitter to your Internet audience about your day, you're feelings, etc in almost real time. I would argue that your Twitter posts could become admissible evidence via the "excited utterance", "present sense impressions," or even "statement against interest" exceptions to the NY hearsay rule.
Jurors' postings on the web are also fair game. There have been an increasing number of motions to set aside the verdict based upon what jurors have posted on the Internet. If you're on a jury, I would counsel you to be very circumspect about what you write concerning a case you participated in. And please, please, don't write about a case while its still going on.
What s the bottom line here? The bottom line is that courts are starting to recognize the information individuals post on the web. Lawyers are increasingly finding ways to utilize what you post about yourself and others. I wouldn't tell you to swear off social networking sites like Facebook or Twitter. I would just say: be aware and know that what you post can and will resurface.
-Matthew Lombardi, Associate Attorney
As a general matter, anything you place on the web is open for the public to see. If you have a public MySpace page or blog for example, that content is fair game for a lawyer. We had a case in which our client was a blogger. The defense Google'd our client's name, found his blog, downloaded exerpts and questioned him line by line from it during his deposition. As much as our firm was angered by such a tactic, the fact is our client's blog was discoverable.
We had a case where a minor, unfortunately, was one of the defendants. The minor defendant had a MySapce page on which he stated "booze" was among his favorite things. We found the page. Given the nature of the litigation, we questioned him thoroughly about underage drinking and what he meant on his MySpace page.
Many people make their social networking website pages private. I do not believe making a page "private" can prevent the content from being used in litigation. Federal courts outside of NY have upheld subpoenas to view and take information from litigants' private social networking site pages. I believe this precedent could also be expanded to content that users have taken off their sites, but is still stored in the social networking websites' archives and databases.
Twitter presents an interesting case. Twitter is much more fluid, with posts coming in the form of first person statements. You're talking via Twitter to your Internet audience about your day, you're feelings, etc in almost real time. I would argue that your Twitter posts could become admissible evidence via the "excited utterance", "present sense impressions," or even "statement against interest" exceptions to the NY hearsay rule.
Jurors' postings on the web are also fair game. There have been an increasing number of motions to set aside the verdict based upon what jurors have posted on the Internet. If you're on a jury, I would counsel you to be very circumspect about what you write concerning a case you participated in. And please, please, don't write about a case while its still going on.
What s the bottom line here? The bottom line is that courts are starting to recognize the information individuals post on the web. Lawyers are increasingly finding ways to utilize what you post about yourself and others. I wouldn't tell you to swear off social networking sites like Facebook or Twitter. I would just say: be aware and know that what you post can and will resurface.
-Matthew Lombardi, Associate Attorney
Tuesday, May 5, 2009
Advocating Outside the Courtroom
We here at Tolmage Peskin believe that advocating for our clients doesn't stop when you exit the four walls of the courtroom. We know that injured people are not only affected by the individual facts and circumstances of their cases, they are affected by the laws and policies set forth by New York State.
Because our clients are affected by elements outside their individual cases, we are members of the New York State Trial Lawyers Association. NYSTLA is a state-wide organization of attorneys who seek "to promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers."
On April 28, NYSTLA organized a group of over 170 lawyers to go to Albany and talk to lawmakers in the New York State Assembly and New York State Senate. I had the opportunity to be part of that group. We talked to these lawmakers about issues that affect injured New Yorkers. We tried to impress upon them that the hurt and injured are among the most vulnerable subsets of people. That injured people need to be assured access to the court house. That laws must be strengthened so that the rights of the injured are protected just as much as the rights of insurance companies and landlords are protected. Many of the issues we talked to lawmakers about can be found here.
I was encouraged by the NYSTLA trip to Albany. The lawmakers seemed very receptive to what NYSTLA attorneys had to share with them. I know the wheels of government turn slow; they are supposed to. But I believe that the advocacy we engaged in on behalf of the injured, coupled with a sustained campaign to educate people about our issues can bring about change. This sort of work is important; so that if you ever find yourself injured, you have the full protections afforded under law at your disposal.
Because our clients are affected by elements outside their individual cases, we are members of the New York State Trial Lawyers Association. NYSTLA is a state-wide organization of attorneys who seek "to promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers."
On April 28, NYSTLA organized a group of over 170 lawyers to go to Albany and talk to lawmakers in the New York State Assembly and New York State Senate. I had the opportunity to be part of that group. We talked to these lawmakers about issues that affect injured New Yorkers. We tried to impress upon them that the hurt and injured are among the most vulnerable subsets of people. That injured people need to be assured access to the court house. That laws must be strengthened so that the rights of the injured are protected just as much as the rights of insurance companies and landlords are protected. Many of the issues we talked to lawmakers about can be found here.
I was encouraged by the NYSTLA trip to Albany. The lawmakers seemed very receptive to what NYSTLA attorneys had to share with them. I know the wheels of government turn slow; they are supposed to. But I believe that the advocacy we engaged in on behalf of the injured, coupled with a sustained campaign to educate people about our issues can bring about change. This sort of work is important; so that if you ever find yourself injured, you have the full protections afforded under law at your disposal.
Monday, April 27, 2009
Exiting From a Height -Labor Law 240(1)
Construction is one of the most dangerous professions one can engage in. Accidents on construction sites happen with unfortunate frequency. The Occupational Safety and Health Administration (OSHA) estimates that some 65% of construction workers work on scaffolds or heights. Thus falling from a height represents one of the most common and dangerous accidents on a job site.
A recent NY Trial Courtt decision, Mrockowski v. City of New York, helps ensure workers’ safety when toiling from a height. In general, New York State has Labor Law 240, or the "scaffold law," which protects workers who fall from a height. Labor Law §240(1) states that all contractors and owners who erect or demolish a building have to erect scaffolds, ladders, ropes, among other devices, to provide for a worker’s safety.
Nothing in the wording of §240(1) addresses entrance or egress from a height. Does a contractor or building owner have to provide a safe way to get on or off of a scaffold? Mrockowski v. City says YES. The plaintiff was working from a scaffold 3 ½ stories off the ground. There was no ladder or other means of getting on or off the scaffold, so the plaintiff stepped from the scaffold onto the top of the brick wall that was being built. As he did so, the bricks gave way, causing the plaintiff to lose his balance and fall, causing injury.
The Court, quoting the NY Court of Appeals, recognized the core objective of §240(1) as "requiring protective devices for those working at heights...to allow them to complete their work safely and protect them from falling." Therefore, "a scaffold that does not provide a safe means of returning to the ground level does not provide the protection required by Labor Law section §240(1)."
This is a logical interpretation of the scaffold law to us here at Tolmage Peskin. It would make no sense to protect a worker when he is working at 20' in the air but not protect him when he’s trying to get down from that height. Deciding that the scaffold law includes entrance and egress, ensures that a worker must be protected throughout the whole process of working from a dangerous height; climbing to that height, working at the height and coming back down.
This decision is in line with what Tolmage Peskin believes, and therefore demands from contractors and land owners- namely safety for a worker throughout the construction process.
A recent NY Trial Courtt decision, Mrockowski v. City of New York, helps ensure workers’ safety when toiling from a height. In general, New York State has Labor Law 240, or the "scaffold law," which protects workers who fall from a height. Labor Law §240(1) states that all contractors and owners who erect or demolish a building have to erect scaffolds, ladders, ropes, among other devices, to provide for a worker’s safety.
Nothing in the wording of §240(1) addresses entrance or egress from a height. Does a contractor or building owner have to provide a safe way to get on or off of a scaffold? Mrockowski v. City says YES. The plaintiff was working from a scaffold 3 ½ stories off the ground. There was no ladder or other means of getting on or off the scaffold, so the plaintiff stepped from the scaffold onto the top of the brick wall that was being built. As he did so, the bricks gave way, causing the plaintiff to lose his balance and fall, causing injury.
The Court, quoting the NY Court of Appeals, recognized the core objective of §240(1) as "requiring protective devices for those working at heights...to allow them to complete their work safely and protect them from falling." Therefore, "a scaffold that does not provide a safe means of returning to the ground level does not provide the protection required by Labor Law section §240(1)."
This is a logical interpretation of the scaffold law to us here at Tolmage Peskin. It would make no sense to protect a worker when he is working at 20' in the air but not protect him when he’s trying to get down from that height. Deciding that the scaffold law includes entrance and egress, ensures that a worker must be protected throughout the whole process of working from a dangerous height; climbing to that height, working at the height and coming back down.
This decision is in line with what Tolmage Peskin believes, and therefore demands from contractors and land owners- namely safety for a worker throughout the construction process.
Thursday, April 23, 2009
Sueing a municipality: Gorman and Prior Written Notice
The NY Court of Appeals recently limited a plaintiff’s ability to recover from a municipality for a sidewalk accident. Generally, before you can sue a municipality for a defect, that municipality must have prior notice in writing that the defect exists.
Gorman v. Town of Huntington limited what it means to give prior written notice to a municipality.
In Gorman, the sidewalk defect was reported in writing several times to the Huntington Town Department of Engineering; the municipal department responsible for fixing sidewalks. However, town law require that all notices of a defect be reported to the Town Clerk or Highway Superintendent. No one told the reporting individuals that they were reporting the defect to the wrong statutory entities. Indeed, the Department of Engineering was the department that kept records of complaints and defects in the course of making repairs.
In ruling against the plaintiffs, the Court of Appeals resorted to its doctrine that "prior written notice provisions, enacted in derogation of common law are always strictly construed." Proirier v. City of Schenectady, 85 NY2d 310. In other words, since the Huntington law explicitly said prior written notice had to go to the Town Clerk or Highway Superintendent, notice to the Department of Engineering was insufficient. As such, the Town of Huntington can claim that it did not have prior written notice of the injury causing sidewalk defect.
The Court of Appeals looks like its elevating form over substance. As the Court itself observed, "The purpose of a prior written notice provision is to place a municipality on notice that there is a defect on publicly owned property which, if left unattended, could result in injury." Wasn’t that goal accomplished here? In reality, the town was notified of the defect. It was notified in writing on multiple occasions. What’s more, the town entity which would actually address the problem was informed. Why require a person to notify the Town Clerk or Highway Superintendent of a defective sidewalk when those officials would simply pass along the complaint to the Department of Engineering?
We at Tolmage, Peskin agree with the Court that a municipality cannot be expected to be "cognizant of every crack or defect within its borders" and that a municipality should not be held liable for a defect it did not have an opportunity to repair. However, when a municipality is for all intensive purposes notified, whether through the statutory channels or not, an injured party should be able to find recourse through the Courts.
The bottom line at this juncture is that unless a municipality’s prior written notice law is followed to the letter, a plaintiff will be unable to recover from said municipality for any injury, no matter how grievous.
Gorman v. Town of Huntington limited what it means to give prior written notice to a municipality.
In Gorman, the sidewalk defect was reported in writing several times to the Huntington Town Department of Engineering; the municipal department responsible for fixing sidewalks. However, town law require that all notices of a defect be reported to the Town Clerk or Highway Superintendent. No one told the reporting individuals that they were reporting the defect to the wrong statutory entities. Indeed, the Department of Engineering was the department that kept records of complaints and defects in the course of making repairs.
In ruling against the plaintiffs, the Court of Appeals resorted to its doctrine that "prior written notice provisions, enacted in derogation of common law are always strictly construed." Proirier v. City of Schenectady, 85 NY2d 310. In other words, since the Huntington law explicitly said prior written notice had to go to the Town Clerk or Highway Superintendent, notice to the Department of Engineering was insufficient. As such, the Town of Huntington can claim that it did not have prior written notice of the injury causing sidewalk defect.
The Court of Appeals looks like its elevating form over substance. As the Court itself observed, "The purpose of a prior written notice provision is to place a municipality on notice that there is a defect on publicly owned property which, if left unattended, could result in injury." Wasn’t that goal accomplished here? In reality, the town was notified of the defect. It was notified in writing on multiple occasions. What’s more, the town entity which would actually address the problem was informed. Why require a person to notify the Town Clerk or Highway Superintendent of a defective sidewalk when those officials would simply pass along the complaint to the Department of Engineering?
We at Tolmage, Peskin agree with the Court that a municipality cannot be expected to be "cognizant of every crack or defect within its borders" and that a municipality should not be held liable for a defect it did not have an opportunity to repair. However, when a municipality is for all intensive purposes notified, whether through the statutory channels or not, an injured party should be able to find recourse through the Courts.
The bottom line at this juncture is that unless a municipality’s prior written notice law is followed to the letter, a plaintiff will be unable to recover from said municipality for any injury, no matter how grievous.
Monday, April 6, 2009
In New York City, a sidewalk is the responsibility of the owner of the abutting property. It is the private landowner who is responsible for making sure the sidewalk is free from defects and safe for pedestrians to walk upon.
There is one very big exception to this law. This law does not apply to the owners of "one-, two- or three family residential real property real property that it (1) in whole or in part, owner occupied, and (2) used exclusively for residential purposes." If the private landowner falls into this exception, the City of New York is responsible for the sidewalk.
What does "exclusively for residential purposes" mean? Story v. City of New York, et al. (NY County 8022/07) helps clarify the phrase. In Story the plaintiff fell in front of a home owned and occupied by co defendants. The co defendants son placed a sign on the house declaring himself an attorney at that premises. The son also has the address listed with the Office of Court Administration as the site of his law practice. The question is, does the son's use of the address violate the "exclusively for residential purposes" requirement?
The Court said "no." The Court rested its decision the fact that the son does not actually practice law out of the home in question; there is no office in the home, the son does not bring clients to the home. The son simply uses the address as his official address. The property’s actual and only use was a residence. The son’s business use of the property was, as the Court put it, "a mail drop at most...."
Under this formulation, it seems that you have to ask yourself, what is the functional purpose of property someone fell in front of? Is this property really commercial? Do not take it for granted that a professional shingle hung outside or a listing in a directory makes a property commercial. New York City may still be liable and may still have to be brought into the case. At the beginning stages of a case, until a property’s status as commercial or exclusively residential is clearly ascertained, putting NYC on notice of the accident will ensure that the injured person’s rights are fully protected. An injured person does not want to be in a position where they sue only the property owner and later come to find out that NYC is really responsible for the sidewalk.
-Matthew Lombardi, Associate Attorney
There is one very big exception to this law. This law does not apply to the owners of "one-, two- or three family residential real property real property that it (1) in whole or in part, owner occupied, and (2) used exclusively for residential purposes." If the private landowner falls into this exception, the City of New York is responsible for the sidewalk.
What does "exclusively for residential purposes" mean? Story v. City of New York, et al. (NY County 8022/07) helps clarify the phrase. In Story the plaintiff fell in front of a home owned and occupied by co defendants. The co defendants son placed a sign on the house declaring himself an attorney at that premises. The son also has the address listed with the Office of Court Administration as the site of his law practice. The question is, does the son's use of the address violate the "exclusively for residential purposes" requirement?
The Court said "no." The Court rested its decision the fact that the son does not actually practice law out of the home in question; there is no office in the home, the son does not bring clients to the home. The son simply uses the address as his official address. The property’s actual and only use was a residence. The son’s business use of the property was, as the Court put it, "a mail drop at most...."
Under this formulation, it seems that you have to ask yourself, what is the functional purpose of property someone fell in front of? Is this property really commercial? Do not take it for granted that a professional shingle hung outside or a listing in a directory makes a property commercial. New York City may still be liable and may still have to be brought into the case. At the beginning stages of a case, until a property’s status as commercial or exclusively residential is clearly ascertained, putting NYC on notice of the accident will ensure that the injured person’s rights are fully protected. An injured person does not want to be in a position where they sue only the property owner and later come to find out that NYC is really responsible for the sidewalk.
-Matthew Lombardi, Associate Attorney
Wednesday, March 25, 2009
WELCOME
Welcome to Tolmage, Peskin Harris and Falick's blog. We are a civil litigation firm based in lower Manhattan, New York City.
The goal of our web log is to inform both layman and lawyers alike about current law as we see it. Don't worry, this blog isn't going to be a forum for us to brag about our successes. We're going to talk about a mix of cases- some ours, some not- in the goal of providing a forum where everyone can gain a greater appreciation and understanding of New York law.
We hope you enjoy the journey as much as we will.
-Matthew Lombardi, associate attorney at TPHF
The goal of our web log is to inform both layman and lawyers alike about current law as we see it. Don't worry, this blog isn't going to be a forum for us to brag about our successes. We're going to talk about a mix of cases- some ours, some not- in the goal of providing a forum where everyone can gain a greater appreciation and understanding of New York law.
We hope you enjoy the journey as much as we will.
-Matthew Lombardi, associate attorney at TPHF
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