September 30, 2009
(See minute marker 1:20-2:40 for the incident.)
At the U.S. Open, on September 14th, at the Arthur Ashe Stadium in Queens, NY, Serena Williams may have committed the tort of “assault” against one of the line judges at the tournament. In her semi-final match against Kim Clijsters, a line judge called a “foot foul” against Ms. Williams. Incensed, Ms. Williams approached the line judge with her racquet out and screamed, “If I could, I would take this … ball and shove it down your … throat.” The line judge also stated that Ms. Williams threatened to kill her, which she denied.
Notwithstanding the alleged “death threat,” Serena’s threat of physical violence did take place in New York. So whether the line judge would have a civil tort case against Ms. Williams would be governed by New York law. “Assault,” in New York, consists of:
- an intentional attempt,
- displayed by violence or threatening gesture
- to do injury to, or commit a battery upon,
- the person of another.
Clayton v. Keeler, 42 N.Y.S. 1051, 1053 (N.Y. Sup. Ct. 1896) (stating that “assault” is “to offer with force and violence to do hurt to another… holding up a fist in a threatening attitude, sufficiently near to be able to strike; advancing with a hand uplifted in a threatening manner, with intent to strike, although the person is stopped before he gets near enough to carry the intention into effect.”). Pope v. State, 79 N.Y.S.2d 466, 471 (N.Y. Ct. Cl. 1948), aff’d, 99 N.Y.S.2d 1019 (4th Dep’t 1950).
Contrary to the common use of the word “assault,” as a civil tort, assault is merely the visual or auditory threat by one person to do something violent to another person. But assault is not merely an idle threat. It must be some threatening physical act or words done by one person, who is actually capable of doing the threatened physical harm, to another person. For instance, before one commits the tort of assault by actually punching someone in the face, the act of drawing back one’s fist before the punch is thrown, constitutes “assault.” Whereas the actual contact of the fist with the victim’s nose is the tort of “battery.” 6A N.Y. Jur. 2d Assault § 4 .
Furthermore, the fact that assault must be an “intentional attempt” means that the person doing the threatening must actually intend to make physical contactwith the one who is threatened. 6A N.Y. Jur. 2d Assault § 5.
While Ms. Williams “displayed by violence or threatening gesture” a threat “to do injury to, or commit a battery upon, the person of another,” that is not enough. For the line judge to have a civil case against Ms. Williams for the civil tort of “assault,” the threat must indicate “an intentional attempt.” In other words, it must have been reasonable in the circumstances for the line judge to have felt that Ms. Williams actually would have carried out her threat had it not been for the involvement of the other officials who intervened (see minute marker 1:20-2:40 in the video above).
There are probably arguments that could legitimately be made on both sides of this issue. The fact that she approached the line judge aggressively, verbally threatened her with violent acts, and that her approach caused the line judge to run away from her in fear all indicate that her threats were serious enough that she would have actually carried them out had the line judge not fled and the two other officials not approached. This would not be the first case of a frustrated athlete carrying out some violent act.
On the other hand, it could have appeared that Ms. Williams’ threats were merely her way of expressing her frustration at the call, but that she had no intention of actually carrying them out, even momentarily. The issue could be rationally argued either way and would likely be the primary focus of an “assault” litigation were the line judge to decide to sue Ms. Williams.
If you need help with any sort of personal injury matter, whether it be for assault and battery or any other tort, please do not hesitate to contact our office by either e-mailing us or calling 800-344-6431.
September 29, 2009
Many employers in New York employ those with a relatively low salary. Both the employer and the employee may be concerned that the employee remain eligible for the Child Health Plus health plan, WIC, free and reduced cost lunch programs, and food stamps. Thus, they both have an interest in making sure that the employer does not erroneously report too much income for the employee on pay stubs and W-2 forms, which may negatively affect the employee’s eligibility for these programs.
For example, does the employer have to report health insurance contributions made on behalf of the employee as part of the employee’s gross pay?
An employer must give the employee, with every paycheck, a statement (pay stub) indicating (1) the employee’s gross wages, (2) deductions from salary for taxes, benefit contributions, etc., and (3) net pay. NY Labor Law § 195(3).
In order to understand which wages and non-cash benefits an employer must report as gross income to the employee, we must first understand whether § 195(3)‘s requirement to specify the employee’s “gross wages” means that the employer must report the health plan contributions it made on the employee’s behalf.
The NY Labor Law Definitions do not define either “wages” or “gross wages.” Therefore, we turn to how the Internal Revenue Code defines “wages.” 26 USC § 3401(a)(21) says that “wages” means all remuneration an employer gives to an employee, including the cash value of non-cash benefits except for, among other things, payments made for the benefit of an employee if the non-cash benefit would not be included in the employee’s gross income under 26 USC § 106(b).
§ 106 says that generally, “gross income of an employee does not include employer-provided coverage under an accident or health plan.” U.S. Tax Court judges have interpreted this section to mean that payments by an employer to reimburse an employee for medical expenses or pay the employee’s health insurance premiums are not included in the employee’s gross income. Schmidt v. Comm’r, 2003 WL 22790862, *6 (T.C. Nov. 25, 2003). An earlier Tax Court clarified that “[s]ection 106 provides that an employee’s gross income does not include employer-provided coverage (e.g., accident and health insurance premiums) under an accident and health plan.” Rugby Productions Ltd. v. Comm’r, 100 T.C. 531, 535 (T.C. 1993).
Oddly, payments made directly to an employee for “personal injury or sickness” by a health plan which are attributable to an employer provided health insurance plan are included in the employee’s gross income. 26 USC § 105(a). But if the employee laid out the money directly and is being reimbursed for those payments by the health plan, then the reimbursements are not included in the employee’s gross income. 26 USC § 105(b).
Thus, because health insurance premium payments by an employer are not counted towards the employee’s “gross income,” they should not need to be listed as part of the employee’s “gross wages” under the NY Labor Law pay stub requirement mentioned above.
Standard disclaimer applies. But as always, if you need assistance with any kind of legal issue, whether it be Matrioninal/Family Law, Bankruptcy, Personal Injury, Wills, Trusts, & Estates, Real Estate, or Criminal/DWI, you can always contact us by e-mail or calling 800-344-6431.
Picture courtesy of About.com.
Commenting on the recent blog traffic attracting recent incident when Kanye West famously interrupted Taylor Swift while she was receiving an award at the MTV Music Awards, President Barack Obama called Mr. West a “jackass.” (audio)
As part of a series of posts using celebrity exploits as case studies to inform readers about various legal issues in New York, we will discuss whether Kanye West has a cause of action in New York against the President for defamation.
Defamation in New York is generally characterized as “the making of a false statement which tends to ‘expose the plaintiff to “public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.’” Dillon v. City of New York, 704 N.Y.S.2d 1, 5 (1st Dept. 1999). The elements of a claim for defamation in New York, generally, are:
- the statement is of a defamatory nature,
- it must refer to the plaintiff
- it must be published (communicated in any way) to someone other than the plaintiff.
- the statement must be a fact (as opposed to an opinion) that is false
- it must be published without privilege or authorization to a third party
- It must have been published negligently or worse (i.e. recklessly or intentionally); and
- the statement must either cause special damages or constitutes defamation per se.
Id.In terms of the specific elements of defamation, how would they apply with regard to Mr. Obama’s statement about Kanye West?
The President’s statement was probably not of a “defamatory nature” because it did not subject Mr. West to any more “public contempt, ridicule, aversion or disgrace” than he would have otherwise experienced due to his very public and embarrasing conduct.
The statement did indeed refer to Mr. West.
Mr. Obama’s statement was “published” (communicated) to the country through the CNBC tweet that published the insulting soundbite.
Whether the statement that Mr. West is indeed a “jackass” is probably a matter of opinion, rather than fact. Defamatory statements are only labeled as such when they make a factual allegation, and the plaintiff has the burden of proving that the statement is factually false. 600 West 115th Street Corp. v. Von Gutfeld, 603 N.E.2d 930, 934 (1992). Although some may consider Mr. Obama’s characterization of Mr. West as a “jackass” factual, most consider that evaluation an opinion, rather than a fact. Thus, this element of defamation is probably not met.
The allegedly defamatory statement was communicated to a third party (several million of them, actually), so that element of defamation is there.
The “publication” of Obama’s statement was probably at least negligent. This president was not the first to be embarrassed when things they said in front of microphones they thought were off turned out not to be. This happened to Ronald Regan in 1984, George W. Bush in 2006 and 2008, and Bill Clinton last year. The long history of microphone gaffes probably indicates that Mr. Obama was on notice that one cannot rely on the assumption that microphones that one thinks are off, really are. So I think Mr. West would probably be able to show that Obama consciously relayed his comments to a third party, by at least a negligence standard. Not only that, but the audience was present and he knew he was talking to them, so the “publication to a third party” element is probably met.
“Words that expressly or implicitly tend to injure one’s personal or professional reputation are considered defamatory per se.” 43A N.Y. Jur. 2d Defamation and Privacy § 7. I doubt that Mr. Obama’s characterization of Mr. West would tend to harm his personal or professional reputation any more than his initial behavior already has.
But even if Mr. West did have a legitimate claim of defamation, he would not have a cause of action if Mr. Obama could assert a “privilege,” as mentioned in #5 above. One of the privileges that an alleged defamer can assert is “absolute immunity” if he or she is a government official. Could Mr. Obama assert the privilege of “absolute immunity” as a government official to deflect the claim?
Probably not. A governmental official may only use the defense of absolute immunity when he is speaking in his official capacity at the time of the allegedly defamatory statement. Id. at 932. Statements that a governmental official makes to the media are not considered part of his official capacity. Goodyear Aluminum Products, Inc. v. State, 203 N.Y.S.2d 256, 260 (N.Y.Ct.Cl. 1960), rev’d on other grounds, 207 N.Y.S.2d 904 (3d Dept. 1960).
It would seem that even had Mr. West wanted to sue the President for defamation in New York, his efforts would probably not be successful. One who wants to sue for defamation his a high burden to overcome and should seek experienced legal counsel to see if he or she has a case.
And as always, if you are considering an attorney to sue for defamation or any other type of “personal injury,” your office has over thirty years experience in these matters. So please do not hesitate to contact our office by either e-mail or by calling 800-344-6431.
September 21, 2009
In an effort to bring in blog traffic discuss the laws relating to having a marriage annulled in New York, it is worthwhile to bring up Britney Spears’ petition to annul her marriage signed just hours after her Las Vegas marriage. The couple tied the knot in a Las Vegas chapel Saturday morning, January 3, 2004 at 5 AM. She signed a petition to have the marriage annulled that same day, it was filed Monday morning, and a judge granted the annulment on Tuesday, January 6th. The marriage lasted about 55 hours. Las Vegas Review Journal.
The manager of Nevada Divorce and Paralegal Services said that an annulment makes it “like [the marriage] never happened in the first place.” This is not the case in New York. Here, under NY Domestic Relations Law § 7, the marriage is only void “from the time its nullity is declared by a court of competent jurisdiction,” meaning that the marriage was legally valid from the time it began until the court declares it null and void.
If a party is under age 18, then the judge may annul the marriage at his/her discretion, taking into account all of the facts and circumstances.
If either party is mentally incapable of consenting to a marriage because he or she is unable to understand the consequences and significance of a marriage.
If either party is physically and permanently incapable of entering into a marriage (i.e. having sexual relations). Sterility does not count.
The marriage occurred through force, duress, or fraud. Fraud may be shown where one party conceals or misrepresents some fact so material to the essence of the marriage that the other party would not have entered the marriage had it known about that fact.
One party has been mentally ill for five years or more before the marriage.
Britney Spears declared that the basis for her application for annulment was NRS 125.330, which allows annulment “for want of understanding.” This statute is worded very similar to New York’s, which allows annulment when “either of the parties to a marriage for want of understanding shall be incapable of assenting thereto.” New York’s law is almost the same allowing annulment when a party is “incapable of consenting to a marriage for want of understanding.” But Britney Spears said she was “incapable” of agreeing to the marriage because she and her new husband “did not know each others likes and dislikes, each others desires to have or not have children, and each others desires as to State of residency.”
I don’t think this would work in New York. Incapacity does not mean that one simply doesn’t yet know certain information about the person she is marrying. It means she is actually incapable, due to “mental illness or retardation,” of knowing what marriage really is, its significance and its consequences. Levine v. Dumbra, 604 N.Y.S.2d 207, 208 (2nd Dept. 1993). While some might claim, tongue in cheek, that Ms. Spears does suffer from some mental defect, it is doubtful that a court would find that she suffers from any actual mental illness that deprives her of the capacity to understand what marriage is. She may not have known her new husband’s favorite color, but this hardly rises to the level of incapacity to understand the nature of marriage itself.
If you need assistance with any matrimonial or family law matter, whether it be divorce, separation, child custody, annulment, adoption, or anything else, our office has over 30 years experience in these areas. So please contact our office by e-mail or call 800-344-6431 for help.
Picture courtesy of blog.canoe.ca.
September 18, 2009
According to an Associated Press report, an 18 year old freshman at Hofstra University came to police on Sunday (9/13/09) claiming that she had been tied up and gang-raped by five men in a men’s dormitory. After her statement to the police, they arrested four of the five young men. On Wednesday night, word that one of the young men had a cell phone video of their encounter with the young woman, showing that everything that occured between her and the five men had been consensual. This prompted her to recant her story and the police released the four men. The Nassau County District Attorney’s office is considering charges against the young woman, who’s name has not been released, for filing a false report with the police.
- Swears falsely
- Does so in a document for which an oath or affirmation to tell the truth is required (like an affidavit)
- The person intends “to mislead a public servant (like a police officer) in the performance of his official
- The matter the person lied about is “material” to the proceeding/action about which she is lying.
If this woman’s false statement was not only made in an oral statement to police, but sworn to in an affidavit, then the public reports would seem to indicate that the other elements of felony perjury are there. If she is convicted of a Class E felony, the class of felonies with the shortest jail term, it is still possible for her to be sentenced for upwards of a year.
If the young men sue their accusor in a civil court for “false imprisonment,” they must be able to show that she had the intent to cause them to be confined, and that the young men had no “reasonable means of escape.” Parvi v. City of Kingston. Even if she only caused them indirectly (e.g. by using the police to do the imprisoning on her behalf) to become imprisoned, as opposed to physically imprisoning them herself, she can still be liable. 14 N.Y.Prac., New York Law of Torts § 1:24. And where one instigates the police to arrest someone may also be liable for the tort of false imprisonment. Celnick v. Freitag, 662 N.Y.S.2d 37 (1st Dept.1997).
In sum, if the public reports are based on admissible facts, then the Hofstra rape case accusor may not only be arrested and imprisoned for perjuring herself by falsely accusing these men of rape, they may also have a cause of action against her for monetary damages for causing them to be falsely imprisoned.
As always, if you need a criminal defense lawyer in NY because you are charged with making a false statement to police, perjury, rape, or any other crime for that matter, you can always call our office, which has about thirty years of experience in criminal defense. On the other hand, if you need a personal injury attorney to sue someone for physically confining you if you need someone to defend you against such a claim, or you need to sue someone for any other type of injury, our office has significant experience in personal injury law as well. And you can contact our office at 800-344-6431 anytime 24/7.
Picture of three of the accused men, Kevin Tavares, second from left, Stalin Felipe, center, and Rondell Bedward, right, courtesy of Frank Eltman.
September 16, 2009
Stephen M. Kramarsky, in yesterday’s New York Law Journal (subscription only), reported on the Second Circuit Court of Appeals recent decision in Arista Records, LLC et al. v. Launch Media Inc., which held that customized internet “radio” services were free to pay a legally established royalty, rather than having to negotiate with each individual copyright holder.
The issue there was online services that let users create “customized” internet radio stations like Pandora Radio, Slacker, and Last.fm. These services allow users to create an internet radio channel that features the specific artists and styles that they designate. They also generally allow users to indicate which songs and artists they want to hear more or less of.
Generally, if a customized internet radio station is considered to be an “interactive service” (as defined in 17 USC § 114(j)), the service provider will have to negotiate royalties with each individual copyright holder, which entails more work, and probably higher royalties. It goes without saying that internet radio stations would prefer not to be in this category. If, on the other hand, a service is found to be “non-interactive,” they they are entitled to pay a standard statutory royalty, which service providers generally prefer.
The Second Circuit held held that § 114 of the copyright law should be interpreted in light of the reason Congress enacted it, which was to “prevent the diminution in record sales through outright piracy of music or new digital media.” Using that measuring stick, it held that “because the webcasting service does not provide sufficient control to users such that playlists are so predictable that users will choose to listen to the webcast in lieu of purchasing music, thereby- in the aggregate – diminishing record sales,” it does not qualify as an “interactive service,” which would require individualized royalty negotiations with copyright holders.
As customized internet radio websites and their users breathe a collective sigh of relief, it is notable that, as Mr. Kramarsky pointed out, this is the first case of a federal appeals court defining what “interactive” means in the context of the copyright law. It will be interesting to see whether other Circuits follow the Second Circuit’s example, or whether they will handle the issue differently, possibly setting up a split that would make the issue ripe for eventual Supreme Court treatment.
Picture courtesy of Watts Up With That.
September 10, 2009
Many people inquire at our office regarding Alternative Dispute Resolution (“ADR”) options like mediation and arbitration. These have certain advantages over traditional litigation, although they have certain disadvantages as well which should be considered. Mediation and arbitration are also very different from one another, and parties should consider those differences before deciding whether to pursue arbitration, mediation, or regular litigation.
Mediation: First, mediation is a process whereby a third party works with disputing parties to assist them in reaching an agreement. The mediator does not represent either party and nothing that happens in a mediation is binding on either party until they both sign some kind of settlement agreement that memorializes the argreement that they reached with the help of the mediator. The advantage of mediation is that it avoids the excessive attoreys feels and costs of a litigation and helps the parties come to an agreement in a more amicable manner that may not be as acrimonious as an all-out litigation. The disadvantage is that it will only work if both parties are willing and able to come to a mutual agreement because the mediator cannot force any resolution on the parties.
Arbitration: An arbitration is a quasi-judicial process whereby the parties agree in advance to have their dispute resolved by a third-party arbitrator. The arbitrator will conduct some form of judicial proceeding and then issue a ruling which will be binding on the parties and which the courts will enforce. Parties often have attorneys and even “trials” in arbitration proceedings so the cost savings are not as significant as they are in mediation, but where the parties are unable to come to a resolution on their own and need someone else to settle the dispute without the full cost of a regular litigation, artbitration may be the best choice.
There are many independant organizations that provide independent, third-party arbitration services like the American Arbitration Association (“AAA”) or National Arbitration and Mediation (“NAM”). Some people prefer to have their cases decided by arbitrators who use religious law in deciding cases like the Jewish Beth Din of America and the Institute of Christian Conciliation. One of the difficulties in arbitration is that althought U.S. and state courts will generally enforce arbitration decisions, they do not always do so.
Congress has made it clear that it strongly supports a policy of enforcing arbitration decisions. The Federal Arbitration Act (“FAA”) provides that when an arbiter issues a decision pursuant to a binding arbitration agreement between parties, “any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order.” 9 U.S.C. § 9 . (It should be noted that these federal rules are binding only on federal courts. State law disputes are arbitrated according to each states’ arbitration laws.)
Furthermore, Congress also supports the enforcement of contractual agreements to arbitrate future disputes. “A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.
However, there are federal and state law exceptions to the general enforcability of arbitration agreements. We wrote earlier about the nullification of an arbitration award by a rabbinical tribunal back in January by a Brooklyn court in the context of an employment dispute, Brisman v. HAFTR. There, a teacher was let go, the parties went to binding arbitration with a rabbinic tribunal, the tribunal awarded the teacher his job back as well as back pay, and then a Brooklyn judge vacated the arbitration award. The teacher’s appeal of that case is now pending before the New York State Appellate Division. UPDATE 2/19/10: The teacher won the appeal.
On the other end of the spectrum, Prof. Howard Friedman of the Religion Clause blog recently reported that an Indiana Federal court recently upheld an agreement to engage in “biblically based” Christian arbitration pursuant to an employment agreement. Easterly v. Heritage Christian Schools, Inc., 2009 U.S. Dist. LEXIS 76269 (S.D.IN. Aug. 26, 2009. This case also involved a teacher who was let go from a religious school. One difference between this case and the rabbinic tribunal case is that this teacher, Dorothy Easterly, made federal law claims against her former employer, so her challege to the Christian biblically based arbitration agreement was heard in federal court, rather than state court.
The bottom line is that mediation or arbitration can be a great way to settle a dispute without the cost of a full-blown litigation, but one should make sure to take all of the benefits and potential pitfalls into account before making a decision.
Picture courtesy of Civil Negotiation and Mediation
September 9, 2009
Have you ever failed to pay all or part of a ticket, and then unknowingly had your license suspended, and then continued to drive using that suspended license? Have you ever hung out in a club or bar where people were using drugs? Do you know anyone who has failed to keep their property clean? If so, it is possible for the police to arrest you and, until recently in New York City, strip search you!
The law in New York states that a police officer may arrest you if he sees you commit a misdemeanor. The three crimes listed above (and many others) qualify as misdemeanors, and so if the police observe you committing one of them, they are permitted to, but are not obligated to, arrest you.
The New York City Department of Corrections made it a practice to strip searchall misdemeanants charged with drug or weapons crimes who were detained upon arrest as well. The City claimed that “like felony detainees, [these misdemeanants] could never legitimately claim that they had a ‘right’ not to be strip searched.”
Unfortunately, there are major problems with the City’s logic. The 4th Amendment to the U.S. Constitution, as applied against the States by the 14th Amendment, prohibits the government from conducting “unreasonable” searches and seizures. Claiming that the Dept. of Corrections violated this Constitutional provision, a group of arrestees who had been strip searched at Riker’s Island without any individualized inquiry as to whether they were likely to be hiding weapons or contraband, sued the City of New York for violation their Constitutional right not to be searched “unreasonably.”
Mark Hamblett, in the New York Law Journal, pointed out Southern District Judge Gerard Lynch’s recent finding in this case that the city is liable for violating the Constitutional right of those arrestees.He pointed out that the Second Circuit Court of Appeals recently held that “it is ‘long-standing precedent’ that before a misdemeanant may be lawfully strip-searched on intake, the Fourth Amendment requires an individualized ‘reasonable suspicion that [he] is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.’”
Judge Lynch reaffirmed the notion that the Constitutional default setting of the police should be “Do Not Search” mode. Deviations from that require some specific, individualized justification. The police must have some specific reasons to justify a “reasonable suspicion” that a detainee may be in possession of either contraband or a weapon that poses a danger to the police.
The bottom line is that it is better not to commit any misdemeanors to begin with. But if you are arrested for one, the police need some specific facts on which to base a suspicion that you in particular have contraband or weapons (that would be revealed by a strip search) in order to conduct a strip search. If the police find anything illegal during a strip search, and the search was conducted without “reasonable suspicion,” you may be able to have that evidence suppressed. So be sure to hire a good criminal defense attorney to help you with this or any other criminal defense matter.
NY Veh. & Traf. § 511(1) (West 2009)
 NY Penal § 240.36 (West 2008)
 NY Penal § 240.45 (West 2008)
McBean v. City of New York City, 2009 WL 2524617 (S.D.N.Y. Aug. 14, 2009)
NY Crim. Proc. § 140.50 (West 2004)
McBean at *6.
McBean at *1-2.
McBean at *6.
Kelsey v. County of Schoharie, 567 F.3d 54, 62 (2d Cir.2009)