Author: mjpospis

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In the recent decision of Newsome v. County of Suffolk, the Appellate Division, Second Department, considered the “professional judgment rule” in the context of a negligence claim arising from a police dog bite. Plaintiff, a custodian, was bitten by a “dog employed by the canine unit of the Suffolk County Police Department” while at a…

Read More Police Dog Bite Case Continues
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In Bock v. LouMarita Realty Corp., 2013 NY Slip Op 51396(U) (decided August 26, 2013), a slip-and-fall case, the trial court granted defendants’ summary judgment motion. Plaintiff alleged that he fell on the sidewalk outside defendant Pasticceria Bruno’s bakery in Greenwich Village after stepping on “an extremely slippery piece of rock or concrete off a very…

Read More Slippery When Wet: Court Dismisses Sidewalk Slip/Fall Case
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This week, in Hart v. Rick’s Cabaret, the Southern District (per Judge Engelmayer) held that exotic dancers (or “strippers”) are employees, and not independent contractors, under both the federal Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). The distinction between an “employee” and an “independent contractor” is significant. Employees are entitled…

Read More Strippers are “Employees” and Not “Independent Contractors” Under Federal and State Wage Laws
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In O’Neill v. Mermaid Touring Inc. (SDNY 11-9128 Sept. 10, 2013), the court granted defendants’ motion for summary judgment in part, and denied it in part. The decision is instructive on various issues in the wage/hour context, including the geographic limitations of the Labor Law, the extent to which “on call” time is compensable, and…

Read More Lady Gaga Wage Saga Continues
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The Appellate Division, First Department recently upheld an arbitrator’s decision to terminate the respondent, a tenured teacher, for making death threats towards an arbitrator. The decision is In re Smith v. NYC Dept. of Education, 2013 NY Slip Op 05765 (Sept. 3, 2013). Initially, the court held that the arbitrator’s decision to terminate the petitioner…

Read More Death Threats Justified Teacher’s Firing; No First Amendment Protection for “True Threats”
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The Southern District of New York recently decided Nelson v. City of New York, which it characterized as an atypical disability discrimination case that “raises several questions about the outer limits of federal disability law.” The court denied defendants’ motion for summary judgment (in part) with respect to plaintiff’s claims under (among other laws) the…

Read More NYPD Officer Can Continue Disability Discrimination Claims Against Defendants; No Showing That She Was a “Direct Threat” And Hence Unqualified
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In a recent court filing, petitioner Peter Maddocks seeks an order directing McFadden’s Restaurant & Saloon to keep from destroying, and to allow petitioner to inspect, surveillance videos, photographs, and or recordings from August 9, 2013. Mr. Maddocks claims that these materials must be preserved for potential litigation arising from serious injuries he sustained after he…

Read More Man Injured by “Fire Shots” Seeks to Preserve Videos and Photos
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The words “technicality” and “loophole” are frequently used to describe certain legal developments or results that, for one reason or another, don’t “seem” right. Unfortunately, they are often used irresponsibly and in a way that perpetuates both ignorance of the law and unfair stereotypes of lawyers as sleazy manipulators. Take, for example, the New York…

Read More On “Technicalities” and “Loopholes”
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In Northeast Research LLC v. One Shipwrecked Vessel, 729 F.3d 197 (2nd Cir. Sept. 5, 2013), the Second Circuit held that the State of New York was the legal owner of the “Dunkirk Schooner” shipwreck – discovered in the “chill depths of Lake Erie” – under the Abandoned Shipwreck Act, 43 U.S.C. § 2101 et seq (ASA).…

Read More Second Circuit Holds That New York Owns Title to “Dunkirk Schooner” Shipwreck
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In Clindinin v. New York City Housing Authority, NY Supreme Ct. # 109954/2010, the New York Supreme Court recently denied defendant New York City Housing Authority’s motion for summary judgment. In his complaint plaintiff alleged that while taking a shower the water changed erratically “from cold and cool to scalding hot” and that the building’s “defective and unsafe”…

Read More Plaintiff Overcomes Summary Judgment in Shower Burn Case
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