May a judge face a $1,000 penalty to be personally paid if the judge erroneously declines to issue a writ of habeas corpus? CPLR 7003(c) provides explicitly for that relief. The Appellate Division, Second Department, however, in a case of first impression, has held that penalty unconstitutional, as running afoul of the Compensation Clause of …
The First Amendment and Section 230 of the Communications Decency Act Protect Social Media Companies From Liability for Their Algorithms Feeding Users Racist Content That Influences Them to Commit Crimes (NYSBA CasePrepPlus)
Following the racist mass murder of 10 black individuals at a grocery store in Buffalo by a teenager motivated by the Great Replacement Theory, which has circulated on social media and the Internet and “posits that white populations in Western countries are being deliberately replaced by non-white immigrants and people of color,” survivors of the …
Third Department Holds that the Individuals with Disabilities Education Act Requires IEP Services to be Provided Until an Individual’s 22nd Birthday (NYSBA CasePrepPlus)
Must New York’s public schools provide a free and appropriate public education under the Individuals with Disabilities Education Act to individuals with disabilities until the day before they turn 22 years old, or just until the end of the school year in which they turn 21, as the Education Law provides? The Third Department tackled …
Does State Law Preempt New York City From Adopting Rental Assistance Laws? (NYSBA CasePrepPlus)
Is New York City preempted by state law from providing additional rental assistance? The First Department said it isn’t, and compelled the Mayor to take action to implement the City Council’s rental assistance amendments that he had previously refused to enforce. Let’s take a look at that opinion and what else has been happening in …
Fourth Department Holds That Police Compelling Defendant to Open His Cell Phone for Investigation Violates the Fifth Amendment Right Against Self-Incrimination (NYSBA CasePrepPlus)
Can a search warrant compel a criminal defendant to open his phone to let the police investigate its contents? The Fourth Department addressed that question recently, holding that the compelled opening of defendant’s cell phone violated his Fifth Amendment right against self-incrimination. Let’s take a look at that opinion and what else has been happening …
Is a Decedent’s Administrator Bound by the Decedent’s Arbitration Agreement in a Subsequent Wrongful Death Suit? (NYSBA CasePrepPlus)
Is a decedent’s administrator bound by the decedent’s arbitration agreement in a subsequent wrongful death suit? The Second Department addressed that question of first impression recently and held that it is not. Let’s take a look at that opinion and what else has been happening in New York’s appellate courts over the past week. Appellate …
New York Daily Fantasy Sports Suit: Appellate Division, Third Department Holds the Entire Interactive Fantasy Sports Law Unconstitutional
Daily fantasy sports may not be long for New York. Article I, § 9 of the New York Constitution bans gambling, plain and simple. That includes, lotteries, pool selling, book making, and "any other form of gambling." Now, the Appellate Division, Third Department has added DFS to that list of banned games, affirming a trial court …
New York Daily Fantasy Sports Suit: State’s Opening Brief Makes a Strong Pitch that the Legislature Rationally Determined that DFS is Not “Gambling” Under the NY Constitution
The game for the fate of daily fantasy sports in New York is on, and the State has scored first. Ok, ok. In appellate litigation, the losing party below always gets the ball first. And the State certainly lost below in this one. Judge Connolly of Supreme Court, Albany County held that daily fantasy sports …
NY DFS Suit Update: State Appeals Order Declaring Daily Fantasy Sports Unconstitutional, Plaintiffs Seek Reargument
After Judge Gerald Connolly of Supreme Court, Albany County (the trial level in New York) recently declared that New York's Interactive Fantasy Sports Law violated the New York Constitution's outright ban on gambling, the case was bound to head on appeal. To me, the only question was to which court. Would the State appeal to …
Second Department Joins the Third Department in Applying the Child of the Marriage Presumption to Same Sex Spouses
It was only a few weeks ago that the Third Department held, for the first time in New York, that a married same sex couple is entitled to the presumption that a child born during their marriage is a child of the marriage. Now, the Second Department has agreed. In Matter of Joseph O. v …
New York Appeals 