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The Supreme Court, Appellate Division, First Department recently held, in Hutchings v. Yuter, 2013 NY Slip Op 04988 (July 2, 2013), that the doctrine of res ipsa loquitur was appropriately invoked.  There, plaintiff alleged that “a garage door suddenly fell and struck him on the head”, causing injury. “Res ipsa loquitur” is Latin for “the thing itself…

Read More Res Ipsa Loquitur Does Not Require “Sole Physical Access” to the Injury-Causing Instrumentality

In Najjar v. Mirecki, 11-cv-5138 (SDNY July 2, 2013), the Southern District of New York held that a pro se plaintiff raised a triable issue of fact as to various claims of discrimination. This case illustrates the difference between the heightened “but for” and lessened “mixed motive” causation standards, as well as the differences between the…

Read More Age/Disability Discrimination Case Illustrates Difference Between “But For” and “Mixed Motive” Causation Standards

Most people are (or at least think they are) familiar with the amendments comprising the Bill of Rights, namely those involving (obviously paraphrasing and simplifying here) “free speech” (First), gun issues (Second), illegal searches and seizures (Fourth), the “right to remain silent” (Fifth), the right to counsel (Sixth), the right to a jury trial (Seventh),…

Read More There’s a THIRD Amendment Now?

… like a rich ex-beauty queen whose views, according to a recent court filing, conflict with federal and state law. Below (and copy here) is the federal court complaint filed by workers last week against fashion designer and former Miss Ecuador Gabriela Cadena, her company, and other defendants for violations of the federal Fair Labor Standards…

Read More Hell Hath No Fury…

In Cadet v. Deutsche Bank Securities, 11-cv-7964, 2013 WL 3090690 (SDNY June 18, 2013), decided on June 18, 2013, the Southern District of New York (McMahon, J.) denied defendants’ motion for summary judgment as to plaintiff’s race discrimination claims brought under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. 1981, but dismissed his…

Read More Plaintiff’s Title VII and Section 1981 Race Discrimination Claims Survive in Part

The Second Circuit recently held, in Stansbury v. Wertman, that when evaluating the existence of probable cause in the context of false arrest and malicious prosecution claims, the evidence must be evaluated as a whole, and not item-by-item. In Stansbury, the plaintiff sued under 42 U.S.C. 1983, alleging false arrest and malicious prosecution following her acquittal of shoplifting charges. Defendant…

Read More Second Circuit: When Evaluating Probable Cause in the Context of New York False Arrest and Malicious Prosecution Claims, All Circumstances Must Be Considered

The New York Supreme Court (New York County) addressed, in OTG Management, LLC v. Konstantinidis, the propriety of injunctive relief in the restrictive covenant context. The court upheld an employment agreement’s non-solicitation, but not non-competition, provisions. In this case, plaintiff OTG hired Mr. Konstantinidis to be an operations manager for its food and beverage services in…

Read More Court Enforces Non-Solicitation, But Not Non-Competition, Employment Contract Provisions

Yesterday in Barenboim v. Starbucks, the New York Court of Appeals (responding to the Second Circuit’s certified questions) interpreted New York Labor Law § 196-d. That statute provides: No employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities,…

Read More NY Court of Appeals Interprets New York Tip Statute as it Applies to Starbucks Employees