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New York state

Don’t take my word for it, take New York Democratic Gov. Andrew Cuomo’s:

Mr. Cuomo conceded that the scaffold law was among the “infuriating” things about doing business in New York, but couldn’t be changed because of the strength of its supporters, particularly the state trial lawyers association.

“The trial lawyers are the single most powerful political force in Albany,” he said. “That’s the short answer. It’s also the long answer.”

As Andrew Hawkins explains at Crain’s New York Business, which interviewed Cuomo, the scaffold law is New York’s alone-in-the-country legal regime ascribing 100% liability for gravity-related workplace injuries to businesses found to have contributed any fault, even if the predominant cause was a worker’s drunkenness or decision to violate safety rules. Because awards are high, some estimate that the law will contribute $200 million to construction costs at the Tappan Zee Bridge rebuilding project alone compared with a law more typical of what is found in other states. The law has been under vigorous attack for some time by a New York business coalition, to no avail.

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Attorneys for the state, which has a record of zealously guarding its “I [Heart] NY” promotional logo, have sent a threat to a model train company over a discontinued replica model of a real-life train that used the logo [Joe Patrice, Above the Law] [Corrected: state, not city]

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Last year New York Assembly Speaker Sheldon Silver’s income from prominent personal injury firm Weitz & Luxenberg, where he is of counsel, was between $350,000 and $450,000, a disclosure eagerly awaited by some Gotham reporters since details about Silver’s financial arrangement with the firm have previously been kept under wraps. Silver also has a relationship with Counsel Financial, which lends money for the furtherance of lawsuits. “Critics have suggested that the two-year gap between the old and new reporting requirements gave Silver enough time to front-load his salary from Weitz & Luxenberg before the new rules went into effect, thus making it appear he has a smaller salary when he had to finally publicly disclose it. Those close to Silver have dismissed such speculation.” Silver’s Assembly salary is $122,500. [New York Daily News; Ira Stoll]

A bill passed by the New York Senate would make it a felony to “subject” any police officer to “physical contact” with the intent to “harass, annoy, threaten or alarm” such officer. Under current law, only contact that results in injury rises to the status of a felony. Sen. Joe Griffo (R-Rome), sponsor of the bill, cites “shocking incidents” of “disrespect.” [Gothamist, Scott Greenfield; Gannett LoHud (Sen. Griffo complains his intent was misunderstood, says bill is doomed in Assembly)]

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Environmental roundup

by Walter Olson on August 22, 2012

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“Localities in the state spend at least $1 billion a year on judgments and other costs of lawsuits, according to preliminary data from Rockefeller College.” [Albany Times-Union]

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The uproar continues, and quite properly so (earlier here and here), over the threats of Boston Mayor Thomas Menino and Chicago alderman Proco (“Joe”) Moreno to exclude the Chick-Fil-A fast-food chain because they disagree (as do I) with some of the views of its owner. Among the latest commentary, the impeccably liberal Boston Globe has sided with the company in an editorial (“which part of the First Amendment does Menino not understand?…A city in which business owners must pass a political litmus test is the antithesis of what the Freedom Trail represents”), as has my libertarian colleague Tom Palmer at Cato (“Mayor Menino is no friend of human rights.”)

The spectacle of a national business being threatened with denial of local licenses because of its views on a national controversy is bad enough. But “don’t offend well-organized groups” is only Rule #2 for a business that regularly needs licenses, approvals and permissions. Rule #1 is “don’t criticize the officials in charge of granting the permissions.” Can you imagine if Mr. Dan Cathy had been quoted in an interview as saying “Boston has a mediocre if not incompetent Mayor, and the Chicago Board of Aldermen is an ethics scandal in continuous session.” How long do you think it would take for his construction permits to get approved then?

Thus it is that relatively few businesses are willing to criticize the agencies that regulate them in any outspoken way (see, e.g.: FDA and pharmaceutical industry, the), or to side with pro-business groups that seriously antagonize many wielders of political power (see, e.g., the recent exodus of corporate members from the American Legislative Exchange Council).

A few weeks ago I noted the case of Maryland’s South Mountain Creamery, which contends through an attorney (though the U.S. Attorney for Maryland denies it) that it was offered less favorable terms in a plea deal because it had talked to the press in statements that wound up garnering bad publicity for the prosecutors. After that item, reader Robert V. wrote in as follows:

Your recent article about the [U.S. Attorney for Maryland] going after the dairy farmers reminded me a case in New York state where the Health Department closed down a nursing home in Rochester. They claim is was because of poor care, the owner claims it was because he spoke out against the DOH.

The state just lost a lawsuit where the jury found the DOH targeted the nursing home operator because he spoke out against them.

According to Democrat and Chronicle reporters Gary Craig and Steve Orr, the jury found state health officials had engaged in a “vendetta” against the nursing home owner:

Beechwood attorneys maintained that an email and document trail showed that Department of Health officials singled out Chambery for retribution because he had sparred with them in the past over regulatory issues. The lawsuit hinged on a Constitutional argument — namely that the state violated Chambery’s First Amendment rights by targeting him for his challenges to their operation.

The Second Circuit panel opinion in 2006 permitting Chambery/ Beechwood’s retaliation claim to go forward is here. It took an extremely long time for the nursing home operators to get their case to a jury; the state closed them down in 1999 and the facility was sold at public auction in 2002.

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More than two dozen members of the New York state assembly, including nearly half its GOP members, have signed on to a flagrantly unconstitutional bill that would empower complainants to force the takedown of anonymous online speech by claiming to have been victimized by it. To avoid takedown, the website sponsor would have to disclose information about the authorship of the supposedly offensive post including the writer’s name and home address. Eugene Volokh:

Nor would this be limited to comments that allegedly libel someone, or even insult someone (though that would be bad enough), despite all the talk of preventing cyber-bullying by the bill’s backers. Rather, the law would apply any time anyone makes a “request” that a comment be removed, even if the comment doesn’t mention anyone by name but is simply religiously or politically offensive to the “request[er].” The same would apply to anonymous material added to Wikipedia, if Wikipedia were found to be subject to New York jurisdiction, anonymous videos posted to YouTube, and so on.

The sponsors of the bill claim that it is part of a legislative effort against “cyber-bullying.” Scott Greenfield’s post has the best headline: “New York to Publius: You’re Done, Bully-Boy.” Related on “cyber-bullying” here (& welcome Above the Law readers).

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“In non-Western countries, demons and witchcraft are still sometimes blamed for outbreaks of fainting and fits [PDF]. Pollution, poisoning, chemical weapons, and other environmental concerns are dominant in the West (a fact that makes Brockovich something of a mass hysteria machine). Some bloggers are now claiming that the upstate New York girls fell ill because of the HPV vaccine or fracking.” [Ruth Graham, Slate]

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A distinctively unfair bit of favoritism toward public sector unions, it legally locks in benefits after a contract expires, thus encouraging and rewarding union intransigence in negotiating the next. [Michael Allegretti, Public Sector Inc.; Empire Center for New York State Policy]

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A New York Times story criticizing natural gas fracking raises controversy. [Ira Stoll, more, Diana Furchtgott-Roth]

“Over the past five years, New York State has awarded more than $7.4 billion in contracts to clients of law firms that employ state legislators, according to a review of court filings and other records.” [New York Times]

Following national publicity, the state of New York has backed off regulations that defined games like wiffle ball and freeze tag as risky enough that day camps might be obliged to consider medical contingency plans. [Coyote, MSNBC]

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On Super Bowl Sunday, E-Trade ran one of their annoying talking-baby commercials; this one featured a blond baby named “Lindsay” (the 380th most popular baby-girl name in 2008) that another baby calls a “milk-aholic.” This, says 23-year-old Lindsay Lohan, was a violation of the rights to her “name and characterization”; she’s sued in Nassau County, New York state court, and is asking for $100 million. The advertising agency says Baby Lindsay was named after someone on the ad team. [lawsuit via TMZ; NY Post; Reuters]

Commenter Richard Nieporent reminds us of the similar Spike Lee vs. Spike TV silliness.

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The miscreant skipper has already pleaded guilty to manslaughter and intoxicated boating, but the family of a slain passenger is now suing the feds for not lighting the pier more brightly. [Jessica Spies, Greece (N.Y.) Post]

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New at Point of Law

by Walter Olson on November 30, 2009

Stories you may be missing if you’re not following our sister site:

Two sisters were repeatedly raped and sexually abused by their older half-brother. This is, a federal jury decided, the fault of their pediatrician, Dr. Patricia Monroe, who failed to report the abuse–though there was no evidence she was aware of the scope of it. Monroe’s attorney “says that’s because the girl refused to speak to Monroe and because the incident wasn’t reportable to Child Protective Services.” The decision will be appealed. (Chris Knight, “Monroe to appeal $11M verdict”, Adirondack Daily Enterprise, Sep. 3).

A message has been sent: make defensive reports to Child Protective Services, and parents will all be worse off when CPS overreacts.

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February 18 roundup

by Walter Olson on February 18, 2009

  • Golfer’s ball bounces off yardage marker and hits him in eye, and he sues; not the Florida case we blogged last month, this one took place in New Hampshire [Manchester Union-Leader]
  • Who needs democracy, much easier just to let the Litigation Lobby run things: elected Illinois lawmakers keep enacting limits on med-mal awards, but trial-lawyer-friendly Illinois Supreme Court keeps striking them down, third round pending at the moment [Peoria Journal-Star, Alton Telegraph, Illinois Times, Reality Medicine (ISMS)]
  • “A sword-wielding, parent-killing psychopath can be such a help around the house.” [we have funny commenters]
  • Brooklyn lawyer Steven Rondos, charged with particularly horrendous looting of incapacitated clients’ estates [earlier], said to have served the New York State Bar Association “as vice president of its guardianship committee” [NYPost]
  • Updated annals of public employee tenure: Connecticut state lawyer who assumed bogus identity to write letter that got her boss fired drew a $1000 fine as well as a reprimand — and then got a raise [Jon Lender/Hartford Courant and more, earlier here and here]
  • Judge Bobby DeLaughter indicted and arraigned as new chapter of Dickie Scruggs judicial-corruption story gets under way in Mississippi; Tim Balducci and Steve Patterson, central figures in Scruggs I, each draw 2-year sentences [NMC/Folo and more, more, YallPolitics, more, earlier on Balducci, DeLaughter]
  • Disney “Tower of Terror” ride not therapeutic for all patrons: British woman sues saying she suffered heart attack and stroke after riding it several times [AP]
  • Convicted of torching his farm, Manitoba man sues his insurance company for not making good on policy [five years ago on Overlawyered]

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