Court of Appeals Gets “Cleaned Up,” and Also Decides an Identity Theft Case

When a thief, or these days a hacker, steals your credit card and uses it, most people call that identity theft.  The New York criminal statutes, however, haven't been so clear about whether the use another's personal identifying information, such as their name, bank account, or credit card number, is enough to show that the …

Sharply Divided Court of Appeals Rejects Per Se Rule that a Gap in Treatment Longer than 2 1/2-Year Statute of Limitations Should Bar Application of Continuous Treatment Doctrine

Imagine you hurt your shoulder and it's just not getting better. You go to the doctor after trying rehab and he says it's time for surgery. You schedule the date, head in to the hospital, and the doctor fixes your shoulder, or at least he says he did. He tells you to follow up with …

Zarda is Out: En Banc Second Circuit Holds Sexual Orientation Discrimination is Protected by Title VII

This is the decision that so many have been waiting for. In a historic ruling in Zarda v Altitude Express, the Second Circuit today overruled its' prior precedent in Simonton v. Runyon, and held that sexual orientation discrimination is discrimination because of sex that finds protection under Title VII. The comprehensive opinion the majority of the Second …

Court of Appeals: Indenture Trustee Can Bring Third Party Actions to Recover for Fraudulent Redemption of Assets Rendering Debtor Insolvent

Financial fraud is complex. The schemes cooked up by fraudsters are intricate, and the financial maneuvers used are often difficult to follow. The fraud alleged in Cortlandt Street Recovery Corp. v Bonderman (No. 14) is no different. Breaking it down to the extent I can, a number of private equity investors were interested in acquiring …

Plurality of Court of Appeals Holds Party Barred from Asserting a Federal Compulsory Counterclaim in a Subsequent State Court Suit

A case about movie investments is the latest that has closely divided the Court of Appeals. Actually, the issue before the Court had absolutely nothing to do with the movie or the lost investment. Instead, it’s the kind of issue that sparks interest in the community of appellate lawyers who look at how the courts …

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 …

Court of Appeals: Private Facebook Posts are Discoverable Under Normal Discovery Rules

Like privacy wonks have always said, everything you do online will live on forever. In metadata, back up tapes, and the cloud. The same is true for what you say on Facebook, Twitter, or any other social media platform. And although privacy settings can protect your content from the general public, limiting it to sharing …

New York DFS Lawsuit Update: Plaintiffs Seek Summary Judgment that DFS Law Violates New York’s Constitutional Ban on Gambling

Gambling is gambling is gambling, the plaintiffs argue. Whether it's wagering on horse racing at Saratoga, playing poker or roulette in one of New York's 4 new casinos, or playing daily fantasy sports at DraftKings or FanDuel, it's all prohibited by the New York Constitution's ban on gambling. The only difference is that the Legislature …

Third Department Extends Child of the Marriage Presumption to Same Sex Spouses for the First Time

A child is born to a married woman. Under New York law, the child is presumed to be a product of the woman's marriage. The presumption can be rebutted, of course, but in the beginning, the law assumes that the children of married spouses are legitimate. That makes sense. New York's policy is to keep …

Court of Appeals: Sorry, Judges. The State’s Contribution to Your Health Insurance is Not Part of Your Compensation

New York employees have pretty great health insurance options. Having left the State's employ and its health insurance to move to the private sector and non-collectively bargained health insurance, believe me, I know. Premiums are low. Coverage is high. And the State covers a substantial part of the cost. So too for New York's judges. …