In Zarda v Altitude Express, Inc., the Second Circuit, sitting en banc, is faced with the question of whether to overrule its prior precedent and hold that Title VII protects against sexual orientation discrimination. One month ago, the EEOC filed an amicus brief urging the Court to overrule its prior precedent in Simonton v Runyan, and …
Chevron Strikes Again: Second Circuit Holds FMLA Retaliation Plaintiffs Need Only Show Exercise of Rights was Motivating Factor, Not But For Cause
The Family Medical Leave Act provides job protection for workers who need time off for a serious health condition or to care for family members who are suffering from a qualifying condition. Because of its broad protections, the FMLA has also engendered a substantial amount of litigation. The claims can take two different shapes: FMLA …
Expressions Hair Design Update: State Asks Second Circuit to Certify Interpretation of General Business Law § 518 to the Court of Appeals
Seven weeks ago, the Second Circuit asked the parties in Expressions Hair Design v Schneiderman to submit further briefing on whether it should certify to the Court of Appeals the question of how General Business Law § 518, New York's credit card surcharge law, should be interpreted, whether section 518 is a valid commercial disclosure, and whether …
Court of Appeals Holds Promissory Estoppel and Unconscionability May Foreclose Reliance on the Statute of Frauds
For years, you work with your grandfather to manage his rental apartments. When he retires from the business, you take over the rentals and upkeep of the building. You find tenants. You pay the mortgage and taxes. You do everything. In exchange for your years of work, he orally promises to give you the building …
Court of Appeals Holds Bail Bondsmen Can’t Keep Bond Premium if Defendant Not Released
Arthur Bogoraz is a bad dude. For more than three years, he ran a multi-million dollar no-fault insurance fraud scheme by convincing radiologists to review MRIs and submit fake insurance claims for payment. He paid the radiologists kickbacks and then not only pocketed the cash, but used the radiologists' information to set up fake medical …
Second Department Grants Leave to Appeal to Court of Appeals Sua Sponte. Can It Do That?
People v Flores is an important case. In Flores, four criminal defendants were tried together on gang assault charges. The County Court where they were being tried, however, decided that it was going to empanel an anonymous jury, with the jurors identified only by number, not by name. The defendants' objected, arguing multiple times that …
Court of Appeals Holds Education Funding Cases Must be Pled on District-by-District Basis
Under the Education Article of the New York Constitution, students are guaranteed a free, sound basic education that should prepare them for participation in society. For the last 20 years, parents, education groups, and the State have fought over exactly what that requires. Beginning in 1995 with a series of cases called Campaign for …
EEOC Argues Sexual Orientation Discrimination is Protected by Title VII, Second Circuit Should Overrule Simonton En Banc
In Zarda v Altitude Express, Inc., the Second Circuit, sitting en banc, is faced with the question of whether to overrule its prior precedent and hold that Title VII protects against sexual orientation discrimination. In Simonton v Runyan, the Court previously held that sexual orientation discrimination is not protected under Title VII's protection against discrimination "because …
You Can Be Ticketed for Using Handheld GPS While Driving, Third Department Says
Over the last number of years, the State has made clear that it won't tolerating talking on the phone or texting while driving because of the serious dangers of distracted driving. The particular language of the Vehicle and Traffic Law prohibits the use of a “portable electronic device,” which is defined as a “hand-held device …
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Creating Conflict with First Department, Fourth Department Holds that Service of Notice of Voluntary Discontinance After Motion to Dismss is Timely
This is one of those questions that only the truest of procedural nerds can love. Say you commenced a case. You think it's a really good case. But you decide that you want to move on and pursue other matters, even though it is a good case. The CPLR says you can discontinue your case …
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