29 February 2012

If there is no hot pursuit, police must obtain warrant before they cuff 'em and stuff 'em*

People v Hunter, 2012 NY Slip Op 01298 [4th Dept 2012] [available here]

Back in 2006, Shawn Hunter was convicted of felony drug possession based on a undercover buy-and-bust operation in the city of Rochester. An undercover officer "purchased narcotics from defendant in front of a small apartment building," and then radioed a description of the defendant to his fellow officers. Mr. Hunter ran into the apartment building "where the pursuing officers lost sight of him." The officers set up a perimeter around the building, and "were unable to find defendant upon a search of all but one of the apartments in the building."

Instead of watching the apartment, maintaining the perimeter, and sending an officer to the courthouse for a warrant, the officers kicked in the door to Mr. Hunter's apartment and arrested him. Unfortunately for Mr. Hunter, "the buy money was recovered from defendant after he was placed in custody."

Mr. Hunter moved to suppress the buy money, arguing that the officers needed a warrant before entering his apartment.* The People argued (and the trial court agreed) that the warrantless entry was justified under the "hot pursuit" exception to the warrant requirement, or failing that, that exigent circumstances justified the intrusion.

On appeal, the Fourth Department held that, while it was true that a defendant could not thwart an arrest set in motion on the street simply by successfully fleeing to a private residence, the pursuit must actually be "hot" for the exception to apply. Since there "was no immediate or continuous pursuit of [defendant] from the scene of the crime," the "hot pursuit" exception did not apply.

Likewise, the Fourth Department found that the entry could not be justified under the "exigent circumstances" exception. That exception allows the police to proceed without a warrant if the suspect presents a grave risk of harm to others, or where the suspect will likely escape if not apprehended immediately. Mr. Hunter was suspected (strongly) of selling drugs, but nothing about the crime gave the police any reason to believe that he was armed, or violent. Once the perimeter was established, there was almost no chance he could flee. The buy-and-bust happened on a "weekday afternoon," and it would have been an easy thing to obtain a warrant from a judge before entering the building. Given those facts, there was simply no emergency situation to justify foregoing the warrant and busting the door in.

The upshot of all this is that, after more than six years (all of it spent in prison, presumably), Mr. Hunter's case is sent back to County Court for further proceedings, this time with the buy money suppressed.

* Youtube failed me. This is the best I could do.
** A "warrantless intrusion" into a private residence is "presumptively unreasonable and unconstitutional unless it [is] justified by one of the 'carefully delineated' exceptions to the Fourth Amendment Warrant Clause." I guess it did not stop the police in this case from entering every other apartment in the building before narrowing the search down to defendant's apartment, but hey. Omelettes and eggs, you know?

23 February 2012

91-year old on fixed income loses his house because he can't read

Matter of City of Rochester (Duvall), 2012 NY Slip Op 01315 [4th Dept 2012]

When 91-year old Michael Duvall failed to pay his city taxes, the City of Rochester decided to foreclose on the house Mr. Duvall had lived in since 1964 and sell the house at auction. The amount of taxes owed was a "very small percentage" of the market value of the house.

The City was required to give notice to Mr. Duvall of its intent to take his home. The City sent the required notice by regular mail to Mr. Duvall's address.

One problem: Mr. Duvall is illiterate. One other problem: the City knew that Mr. Duvall was illiterate, and therefore would not be able to read the notices that the City sent.*

Mr. Duvall did not respond to the notice of foreclosure, and the house was sold. To the City.

Unaware that his house had been sold out from under him, Mr. Duvall continued to live at the residence until a process server showed up at his door with a notice to quit.** Mr. Duvall had the process server read the notice to him, and for the first time learned that his house had been sold based on unpaid taxes. Mr. Duvall had his attorney contact the City and offer to pay the back taxes to stay in the home, but was told it was too late to undo the foreclosure.

Mr. Duvall appealed to the Fourth Department, arguing that because the City knew Mr. Duvall was illiterate, simply sending a notice to his home by regular mail was not reasonably likely to give him notice of the impending loss of his house, and therefore violated his due process rights. The Fourth Department upheld the foreclosure, finding that it "was reasonable for [the City] to believe that petitioner had someone read his mail to him" and that requiring a municipality to "provide notice other than by ordinary mail to persons it knows to be illiterate, or who it knows cannot read English, would place an unreasonable burden on the municipality."

Justices Fahey and Sconiers dissented, noting that the City could not have possibly believed that a simple letter would be enough to inform the "elderly, illiterate petitioner that his house was in foreclosure," and that the lower court should have exercised its wide discretion and allowed Mr. Duvall to stay in his house. The dissenters concluded, "it is not our responsibility to prescribe the form of notice to be provided to petitioner, [but] we are confident that there were reasonable steps respondent could have taken to inform petitioner of his tax delinquency."***

* This whole situation could have been avoided if the City of Rochester would just use Howlers for all official notices.
**A notice to get out, basically.
***I think we all know what "reasonable steps" the Justices would recommend. See asterick 1, supra.

21 February 2012

Why people hate lawyers (OM NOM NOM)*

Matter of Manufacturers & Traders Trust Co., 2012 NY Slip Op 01297 [4th Dept 2012] [available here]

If the principal beneficiary** of a trust dies, the trustee will petition the Surrogates Court to wind up the trust and distribute whatever money is left to the remainder beneficiaries*** of the trust. In this case, one of the remainder beneficiaries (apparently) was unable, by reason of age or incapacity, to advocate for himself. So the Surrogates Court appointed a law guardian (or guardian ad litem if you want to be all fancy and Latin about it) to make sure the interests of the remainder beneficiary were well represented before the Court.

At the end of the day, the remainder beneficiary was awarded $3,179. Not too shabby. The Law Guardian then asked the Court to pay his legal fee for services rendered to secure his client the $3,000 pay day. The fee? A cool $12,000, or almost four times what his client received as a result of his efforts.

The Fourth Department vacated the attorney's fees award, noting that a law guardian is only entitled to a "reasonable fee," and the reasonableness of the fee must be determined by the time spent on the matter, the complexity of the issues involved, and "the results obtained." The Law Guardian's application for fees simply alleged that he spent "42 hours on the matter," without specifying his hourly rate or otherwise justifying his fee.

Only a lawyer would think a $12,000 fee was reasonable when the client walks away with $3,000.****

*The sound the Cookie Monster makes when demolishing cookies. Used here to denote unchecked avarice in a context not involving baked goods and puppets.
** The principal beneficiary is the person the trust is set up to benefit. This person usually draws an income from the trust while he or she is alive.
*** There is typically money left in trust when the principal beneficiary dies. The person who set up the trust in the first place usually designates a person or persons (or a cat shelter, or whatever) to receive what is left when the trust ceases to fulfill its purpose and is dissolved.
**** I know, a bad result does not necessarily reflect on the effort expended. But. Come on.

10 February 2012

Why people hate lawyers (I'm suing the Internets!)

Paul Schimmel & Port Salem Pharmacy Corp. v YouTube, Inc. & YouTube, LLC, 2012 NY Slip Op 50133[U] [NY Sup Ct Nassau County 2012] [available here]

The anonymity conferred by the internet can bring out the worst in people, providing cover for sharp-tongued trolls to slander and defame at will. So what do you do if an anonymous video is posted on Youtube that unfairly slanders you and your business? Do you contact Youtube and ask that the video be removed? (Not a bad start.) Do you subpoena Youtube and get the information for the person that posted the offending video? (Maybe.)

Or do you do you find an attorney willing to sue Youtube for $5,000,000?

Paul Schimmel, a pharmacist, chose the latter course. The video in question was titled "CHEATING PHARMACIST," and identified "Plaintiff, Paul Schimmel, and [...] PORT SALEM PHARMACY CORP., in large print thereby implying that both Plaintiffs are 'cheaters' and therefore are dishonest, disreputable and should not be trusted." (Paul Schimmel & Port Salem Pharmacy Corp. v YouTube, Inc. & YouTube, LLC, 2012 NY Slip Op 50133[U].) Sadly, the video has been taken down from Youtube. But it must have been bad, as the plaintiffs alleged they "lost business and suffered damages of not less than $5,000,000" as a result of the video.

The video in question was posted in October, 2008. The statute of limitations for defamation (at least in New York) is one year. The plaintiff sued Youtube on December 15, 2010.

Perhaps realizing that, you know, you can't really sue Youtube for defamation based on the contents of a video hosted on Youtube, Plaintiffs never actually served Youtube with the lawsuit*, and eventually asked the Court "to voluntarily discontinue the action" against Youtube. Instead, the Court dismissed the lawsuit outright, noting (quite sensibly) that you cannot discontinue that which was never properly commenced in the first place.

The plaintiffs also asked the Court for permission to "amend the caption to add Defendants, JOHN DOE and JANE DOE," presumably to act as placeholder names while plaintiffs tracked down the person or persons responsible for posting the "Cheating Pharmacists" video in the first place. The Court (again quite reasonably) held that an amendment is not appropriate where the plaintiffs made no effort to identify the person who posted the video before suing Youtube, and that in any event any action sounding in defamation, against any person or entity, would be time-barred under the applicable statute of limitations.

It is understandable that the pharmacist was pissed off, and wanted to sue Youtube, the Internets, John and Jane Doe, and anybody else who had anything to do with the "Cheating Pharmacist" video. What I don't understand is how the pharmacist actually found an attorney willing to file the lawsuit in the first place.

* In New York, a lawsuit is commenced by filing the summons and complaint with the County Clerk, and then serving a copy on the person or entity you are suing. Both steps must be completed to properly commence an action.

08 February 2012

More fine print (the Man wins one)

Creditone, LLC v Feldman, 2012 NY Slip Op 50136[U] [NY Sup Ct NY County 2012][available here]

Following my prior post on small print in consumer credit contracts, comes a decision out of New York County, dealing with the same CPLR section but coming to a different conclusion. The defendant in Creditone obtained and used a business credit card, ran up about $20,000 in charges, and then failed to pay the bill. The credit card company sued, and asked the Court for summary judgment.

At issue was whether the defendant was personally liable for the credit card debt, or whether the credit card company was limited to suing the (now defunct) corporation. There was no dispute that the defendant applied for credit in the name of the business, but the credit card agreement itself expressly stated that, in addition to the business, the "person who applied for the account" was also personally liable for charges made on the card.

The defendant argued that the language in the contract was not admissible against her, because (you guessed it) the type was smaller than the 8-point font required by CPLR 4544. While acknowledging the CPLR provision requiring the text of consumer credit contracts to be at least 8-point type size, the trial court noted that "it is the burden of the party objecting to the credit card agreement to prove that the credit card agreement violates the type-size requirements of CPLR 4544," and the defendant "failed to satisfy her burden on this defense as she has not provide a copy of said Agreement, with the alleged defective font size, or specify the size of the font used in the Agreement."

Compare to the facts of Glick (here), where at least the Court had a copy of the agreement at issue and could eye-ball that the font was too small.

06 February 2012

Court stops access to red light camera video

In re Travelers Prop. Cas. Co. of Am. v Nassau County Traffic & Parking Violations Agency, 2011 NY Slip Op 21470 [Sup Ct Nassau County 2012] [available here]

I hate red light cameras. Not for the usual big-brother, privacy-type concerns (although there is that), and not because I have been known to stretch a yellow light a bit further than nature intended ('though there is that, too). No, my problem is that the cameras are a naked money grab on the part of cash-strapped municipalities, masquerading as a public safety measure. If the goal were to actually reduce the number of people running red lights (and thereby make intersections safer), then every intersection equipped with a red-light camera would also have a big sign that said, "THIS INTERSECTION MONITORED BY A VIDEO CAMERA: MOTORISTS FAILING TO STOP AT A RED LIGHT WILL BE TICKETED." I guarantee the number of drivers running a red light would drop dramatically if signs went with the cameras.

But that is not the way the red light cameras are set up. If you are not looking for the camera, you would never even know it was there, mounted discretely just above the traffic signal (at least here in Rochester). The point is to catch as many people as possible running the red light and collect the fines. The more unsafe the intersection, the more money the muncipality makes. That seems wrong somehow.

Also, the owner of the vehicle gets the ticket, not the driver. Again: what?

I digress.

Given the ubiquity of red-light cameras in metropolitan areas, it was inevitable that the video that those cameras capture would, at some point, be relevant in a personal injury action. The question confronting the Court in Travelers was whether a municipal traffic violations agency was required to turn over the footage from red-light cameras to private litigants, under FOIL* or otherwise.

In Travelers, an insurance company brought an order to show cause against the traffic violations bureau responsible for maintaining and operating the red-light cameras in Nassau County, asking the agency to turn over the footage from its red light camera from the date and time of an accident at that intersection involving the company's insured, so that the insurance company could "properly investigate the accident."

The traffic agency opposed the request, noting the "Red Light Camera Program was enacted to aid law enforcement and to protect public safety"** and the agency would be crushed under requests for camera footage from insurance companies and private litigants if the insurance company's request was granted.

Ordinarily, a private entity seeking public information need only file a FOIL request. However, the state legislature, in a rare bit of foresight, included a provision in the statute authorizing red-light cameras that specifically exempted the red-light camera footage from FOIL. The Court denied the insurance company's request for the footage, holding "the legislature intended that the information contained on the photographs, microphotographs***, videotape or other recorded images obtained from a traffic-control signal photo violation-monitoring system should be excluded from the information generally made available to the public."

* Freedom of Information Law
** I call B.S., for the reasons stated at the top of the post, but whatever.
*** Any reader who can define a "microphotograph" is welcome to drop a comment.

03 February 2012

State bar backs bill to seal criminal records

As reported here in the New York Times (and elsewhere), the New York State Bar Association is proposing legislation that would seal criminal records for misdemeanor and certain nonviolent felonies in New York. The law would imposed a waiting period of five years for misdemeanor convictions and eight years for a felony before the records were sealed. Subsequent arrests and convictions would result in the un-sealing of the records.

It is unclear whether this bill will go anywhere, but it deserves support. A surprising number of people have a minor run-in with the law at some point in their lives. As it stands, convictions stemming from youthful lapse of judgment--including for minor drug possession or DWI--stay with a person for life. Employers are increasingly using criminal background checks, to say nothing of the long (ridiculous?) list of professions that are licensed in New York, where a conviction will disqualify applicants from obtaining a license (including, as the article notes, licenses for barbers and boxers).

The only relief currently available to a person convicted of a crime is to obtain a Certificate of Relief from Civil Disabilities from a judge. The Certificate is basically a piece of paper that prevents the automatic forfeiture of a right or denial of a license based on the fact of conviction. Note well the word "automatic." A licensing agency or employer is still free to exercise its discretion to take the conviction into consideration when deciding whether to issue the license or hire a person convicted of a crime. The Certificate creates a presumption that the person has been rehabilitated, but it does not guarantee that a licensing agency or employer will ignore the fact of conviction.

Note, too, that the new legislation would not provide a procedure for a defendant to expunge* a criminal conviction. Despite rumors to the contrary circulating in most of the correctional facilities that make up New York's fine prison system, there is no way for a person convicted of a crime to expunge his criminal record in New York.

* "Expunge" means the record of conviction is obliterated from the system, as opposed to simply restricting access to a record that is sealed.

01 February 2012

The fine print bites Toyota in the bumper

Toyota Motor Credit Corp. v Glick, 2012 NY Slip Op 50121 [Suff Cty 2012] [available here]

Usually the fine print in a consumer credit document works against the average, everyday schmo who signs the contract. You are bound by the words of the contracts you sign, and even if you never actually read all the tiny words printed in big block swaths of dense text on the back of a contract, you will still be treated by a court as if you read and understood every word.

Maybe it was karma at work, but the fine print actually saved the consumer in Toyota Motor Credit Corp. v Glick. The defendant in Glick--Glick himself, presumably--leased a Toyota and then stopped making his payments. Toyota sued Glick for breach of contract, based on his failure to pay as required by the lease, and asked the Court for summary judgment*.

Glick asked the Court to deny the motion for summary judgment, not because he had proof that he actually made his payments, but because the size of the print on the lease was too small. Provisions of the CPLR and Personal Property Law separately require the print in "retail lease agreements" to be "at least eight point type in ink that contrasts with the paper used." If a smaller font size is used, any part of the contract that is printed in smaller than 8-point font is inadmissible against the consumer at trial.

Glick argued that his lease with Toyota could not be admitted as evidence against him on the motion, because the type-face used was smaller than an 8-point font. The court agreed and denied Toyota's motion, noting that the "record presented is devoid of evidence establishing the actual type set of the original contract, other than the plaintiff's affixation to its motion papers of Exhibit C (copy of the subject auto lease), which appears to the naked eye to be violative of" the CPLR and Personal Property Law provision governing font size . . . Whether a contract's print size violates Sec. 4544 [of the CPLR] is inherently a triable issue of fact that precludes the grant of summary judgment."

So, Toyota is left to prove a breach of contract at trial, when the contract itself is (probably) inadmissible because it was printed in little, tiny letters. Well played, Toyota attorney responsible for drafting boilerplate leases. Well played.

* Summary Judgment means the Court decides that there is no issue of fact to actually put in front of a jury. The proof is so one-sided that, as a matter of law, one side should win outright, and the Court can make that determination at an early stage and avoid an unnecessary trial.