In Malinowski v. Wall Street Source, Inc., 09 Civ. 9592 (PAE) (SDNY Dec. 2, 2011), NYLJ 1202534751470, the Southern District of New York held that evidence of plaintiff’s post-termination wages was inadmissible in light of the severance clause in plaintiff’s contract (which provided that plaintiff could only be fired for cause). Plaintiff sought unpaid wages,…
Read More Severance Clause Nullifies Mitigation DutySalazar v. Novalex Contracting Corp., et al., 2011 NY Slip Op 08446 (Nov. 21, 2011) illustrates the “common sense approach” that must be employed when analyzing Labor Law 240(1) and 241(6) claims. P and his fellow workmen were directed to pour and spread concrete over the floor of a basement which contained trenches into which…
Read More NY Court of Appeals Holds No Labor Law 240(1) or 241(6) Liability Where Protective Measure Would Have Been Inconsistent With WorkIn Zutrau v. Ice Systems, Inc., the Supreme Court, Suffolk County dismissed plaintiff’s “quid pro quo” sexual harassment claim. Plaintiff – the entity defendant’s executive vice president – asserted numerous claims, both individually and derivatively, against the entity defendant and Jansing, its president and majority shareholder. The court explained the law as follows: To make out…
Read More Court Rejects “Quid Pro Quo” Sexual Harassment Claim Where Plaintiff was Fired After Rebuffing Ex-Lover’s Attempt to Rekindle RelationshipIn Wilinski v. 334 East 92nd Housing Development Fund Corp., 2011 NY Slip Op 07477 (Oct. 25, 2011), the New York Court of Appeals vitiated the so-called “same level” rule that had embedded itself in New York Labor Law § 240(1) jurisprudence, and construed a Labor Law § 241(6)-triggering regulation. P, who was engaged in the demolition of…
Read More Court of Appeals Repudiates Labor Law § 240(1) “Same Level” Precedent and Construes a Labor Law § 241(6)-Triggering RegulationOn November 14, 2011, two railroad enthusiasts/photographers – Ernest Steve Barry and Michael Burkhart – filed a lawsuit (Barry v. City of New York, 11-cv-5533 (EDNY filed 11/14/11)) in Brooklyn federal court alleging that in August 2010 they were detained and issued summonses for violating MTA Rules regarding the production of identification upon demand (21 NYCRR 1050.6(d)(3))…
Read More Subway photographers file federal suit following summonses for taking subway pictures and failing to produce identificationNY Supreme Court Judge Michael Stallman today issued an order denying a petition for a temporary restraining order prohibiting the city from, inter alia, evicting the OWS protesters from Zuccotti Park and enforcing the park’s owners’ rules. The court found that the rules – which prohibited, inter alia, “camping and/or the erection of tents or other structures” and…
Read More Judge denies Occupy Wall Street application for TRO to prevent NYC from evicting protesters from Zuccotti ParkOn November 8, 2011, the United States sued law firm Larkin, Axelrod, Ingrassia & Tetenbaum LLP and partner John Ingrassia under Title III of the Americans with Disabilities Act. Plaintiff alleged that on at least three occasions, the law firm prevented its ADA-disabled client, Lauren Klejmont, from entering the law firm’s premises with her service animal,…
Read More U.S. sues law firm for prohibiting disabled client from entering premises with service dogOn October 29, 2011, a Bronx building collapsed, resulting in the death of 51 year-old construction worker Muhamed Kebbeh. It is believed that the two-story commercial building’s collapse was due to the failure of about a dozen pillars in the basement. The workers there were apparently engaged in an “active demolition” of the building when…
Read More Construction Worker Killed in Building CollapseIn Rowe v. Olthof Funeral Home et al., a Western District judge held on summary judgment that the plaintiff, a funeral director, was an exempt “learned professional” not entitled to overtime compensation under the FLSA. Defendants satisfied, by clear and convincing evidence, the “salary test” and the “duties test” for application of the exemption. “Salary…
Read More Funeral director is an FLSA-exempt “learned professional” not entitled to overtimeIn Whitehurst v. 230 Fifth, Inc. et al, 11-cv-0767, Southern District Judge McMahon allowed plaintiffs (all African American) to continue some, but not all, of their race-based claims against popular restaurant/lounge 230 Fifth (located at 230 Fifth Avenue in Manhattan). Plaintiffs alleged that, after arriving to celebrate a friend’s birthday, they were subjected to discriminatory…
Read More African American Partygoers Can Continue Race Discrimination Suit Against 230 Fifth