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. …
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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The Supreme Court Holds that NY Credit Card Surcharge Law Regulates Speech
In Expressions Hair Design v Schneiderman, the Supreme Court today held that New York General Business Law § 518, which bans the imposition of credit card surcharges on customers, though permits retailers to offer a discount to those who pay in cash, regulates retailers' speech, and remanded the case to the Second Circuit to decide whether …
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A Panel of the Second Circuit Holds It is Constrained by Precedent to Dismiss Title VII Sexual Orientation Discrimination Claim
In Christiansen v Omnicom Group, Inc., a panel of the Second Circuit holds that it is contrained to dismiss the plaintiff's Title VII sexual orientation discrimination claims under the Court's precedent in Simonton v Runyon, but revives the plaintiff's gender stereotyping discrimination claim as stating a separate claim from the barred Title VII claims. Chief Judge Katzmann …
Second Circuit Rejects Law Firm Challenge to NY Rules Barring Non-Lawyer Investment in Law Firms
In Jacoby & Myers, LLP v Presiding Justices of the First, Second, Third and Fourth Departments, the Second Circuit rejected a law firm's challenge to NY's rules barring non-lawyer investment in law firms. The Court held that lawyers do not have First Amendment rights to associate and petition by accepting non-lawyer investment, and even if they …
First Department Questions Propriety of Rule Limiting Liability for Domestic Animals to Viscious Propensities
In Scavetta v Wechsler, the First Department affirms the dismissal of negligence claims against the owner of a dog that, when leashed to a bicycle rack, dragged the rack into the street injuring the plaintiff. Although the Court noted that it was constrained to dismiss the case by the Court of Appeals' vicious propensities rule in …
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