The Second Circuit, deferring to the NLRB's factual findings, holds that an employee's offensive and derogatory Facebook post about his boss and his boss's mother were still protected under the NLRA because it contained union advocacy. This is the post. The Court, therefore, held that the employer violated the NLRA by terminating his employment for …
First Department Affirms Trial Court Decision to Set Aside Personal Injury Verdict for Egregious Conduct of Defendant’s Counsel
In Smith v Rudolph, the First Department affirms a trial court decision to set aside a personal injury verdict in the plaintiff's favor because defense counsel's conduct was so egregious that it deprived the plaintiff of fair trial. The Court held: Here are some examples of what defense counsel did to justify the new trial in the interest of justice: …
Second Circuit Again Constrained to Dismiss Title VII Sexual Orientation Discrimination Claim
A panel of the Second Circuit again holds that it is constrained to dismiss Title VII sexual orientation discrimination claim by court's prior Simonton holding. The Court's recent Christiansen and Zarda holdings set the stage for en banc reconsideration of seemingly outdated Circuit precedent that Title VII does not protect against sexual orientation discrimination. The …
First Department Declines to Require Sex Offender Registration Where Underlying Crime Had No Sexual Motivation or Conduct
In People v Diaz, the First Department holds that Correction Law § 168-a(2)(d)(ii), which required the defendant to register as a sex offender in New York for the out-of-state murder of a minor, violated the defendant's substantive due process rights as applied. Particularly, under that section, an individual is required to register as a sex offender …
ZBA Tie Vote is Not a Default Denial When Exercising Original Jurisdiction, Holds Third Department
In Matter of Alper Restaurant Inc. v Town of Copake Zoning Board of Appeals, the Third Department holds that a Town ZBA's tie vote does not result in a default denial when it is exercising original jurisdiction to consider a special use permit. The default denial provisions only apply when a ZBA is exercising appellate jurisdiction. …
Passing of New York Court of Appeals Judge Shelia Abdus-Salaam is a Tragic Loss for New York
As has been reported by numerous outlets, including the New York Law Journal, New York Times, and New York Daily News, among others, the Court of Appeals family lost Associate Judge Shelia Abdus-Salaam on Wednesday when her body was discovered on the banks of the Hudson River. Judge Abdus-Salaam was the first African-American and Muslim …
Court of Appeals Holds That the Denial of a Motion to Quash Stored Communications Act Warrants to Facebook is Not Appealable
This is a case that warms the heart of appellate geeks like me, those who get unduly excited over complicated issues of appellate jurisdiction. In Matter of 381 Search Warrants Directed to Facebook, Inc. (New York County District Attorney’s Office) (No. 16), previewed here, the Court of Appeals held that two orders denying Facebook’s motion …
Third Department Surprisingly Vacates Expulsion of SUNY Student for Sexual Assault
In a surprising reversal in Matter of Haug v State Univ. of N.Y. at Potsdam, the Third Department annulled SUNY's determination to expel a student who sexually assaulted another student as unsupported by substantial evidence in the record. The SUNY Student Code required affirmative consent to sex, which it was undisputed that the student never received, …
Court of Appeals Sidesteps Issue Whether School Districts Can Pursue Article 78 Review of IDEA Violation Determinations
In Matter of East Ramapo Cent. Sch. Dist. v King (No. 21), previewed here, the Court of Appeals sidestepped the issue of whether school districts have the right to judicial review under CPLR Article 78 of New York State Department of Education determinations enforcing the federal Individuals with Disabilities Education Act (IDEA). In East Ramapo …
Second Circuit Clarifies Fair Debt Collection Practices Act Issues
In Carlin v Davidson Fink LLP, the Second Circuit clarifies a number of issues concerning initial communications under the Fair Debt Collection Practices Act, including the required statement of the total amount due. First, a foreclosure complaint is not an "initial communication" under FDCPA, nor is a communication started by the debtor. Second, the inclusion …
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