Tuesday, January 31, 2006

New Justice

Earlier today, Samuel Alito was sworn in as the newest Justice of the United States Supreme Court. Although there was heavy rhetoric about the nominee, I had a hard time getting fired up. Perhaps I was too busy with the mundane business of practicing law to concern myself with big thoughts. Mostly, though...he seems like an educated lawyer who follows his Constitutional philosophy in deciding cases. Whether or not I agree with that philosophy, I much prefer that sort of thoughtfulness to kneejerk partisan reactions from either side of the political spectrum.

Monday, January 30, 2006

Wind Power

It's been topical here in Chautauqua, where I haven't heard much lately about the one local proposal, but "wind farms" are growing in popularity in some of the other rural areas of New York. Today's Albany Times-Union has a front page story on the topic.

How to get sued in one easy step...

If you're ever planning a huge development, billed as the largest in regional history, hold an "information session" where you provide a forum for advocates of the idea to speak. Keep any critics as outsiders to the process and make sure to paint critics as solely anti-development/anti-local community. It's guaranteed to generate a SEQR lawsuit or two.

Thursday, January 26, 2006

Ethics: That former career

A recent story in the Buffalo News concerned a face familiar to those of us who watch too much television, attorney Brian Goldstein of The Barnes Firm. Mr. Goldstein possesses an MD from a Dominican medical school, which in itself isn't all that unusual. Why this is even a story is that Mr. Goldstein appeared in TBF commercials seeking Vioxx cases, commenting on his medical experience. The catch is that his medical license was revoked before he ever went to law school.

I'm posting not because it's good salacious gossip, but because many of us come to law with a background in some other field. Each of us have had to deal with incorporating that training and experience with our legal practice, whether or not we are pursuing legal work related to the previous career and/or training. I think, personally, that it is allowable for Mr. Goldstein to list his earned degrees on the letterhead, but I also think that anyone listing credentials needs to be prepared for some scrutiny and the standard misreading by the public.

By way of personal example, before law school, I earned a Master of Science in Environmental Science at the SUNY College of Environmental Science and Forestry. After that, I worked in the environmental field for two years as an organizer/researcher for an advocacy group. It was a good job and I gained some great experience. Yet, despite a mention on my firm website, I don't advertise or publicize that part of my background or my interest in environmental law. In grad school, I focused on a fairly narrow area of environmental policy (Adirondack) and took a series of classes heavier on research design and political science than on the technical side of forestry and environmental biology. I wouldn't want a mention of my background to be mistaken as billing myself as a forestry or conservation expert, as frankly I can't tell a timber cruise from Tom Cruise.

Wednesday, January 25, 2006

Landlord/tenant myth-information

A few posts back, I presented the idea of a column on some of the biggest myths in landlord/tenant law. The feedback on the idea was less than overwhelming, as I had expected. However, since it’s an area of law I really have an interest in and feel that many people don’t understand, I wanted to post anyway. Two caveats (lawyerspeak for “warnings”) before we begin: first, I can speak only to upstate New York, as NYC and other states have separate laws, and two, a lease between the parties can often create/transfer powers and duties in a different way that what I’m writing below. And, as always: the commentary below is intended to be of a general educational nature on New York law and is not offered as nor should it be taken as legal advice.

1. Landlord: “It’s my house, so I can do what I want.”
Not true. If you lease a car, Billy Fuccillo can’t come use it whenever he needs a ride around town. If you’re staying in a hotel for the night, the management can’t put another couple in the same room if they are overbooked. Those are only examples by analogy, but the main point holds up. When you rent a unit to a tenant, you are giving that person a right to use the premises as if they owned it. Obviously the tenant doesn’t own the property, and the owner still has rights and obligations related to the underlying title to the land, including the ability to enter for inspections, repairs, etc. The catch is that entry needs to be on reasonable notice as the tenant has the right to sole use and possession of the property. Entering without permission, even if you own the property, can still make you a trespasser in the eyes of the law.

2. Tenant: “I can’t be evicted, I have small children.”
Not true. The Real Property Actions and Proceedings Law contains no mention of family composition. If you are a tenant who has done something to breach the obligations you have to the landlord, then he or she can have you evicted regardless of your family size or composition.

3. Tenant: “I didn’t get thirty days notice.”
Not required in every situation. In a nonpayment situation, the entire eviction process can be over in eleven days. The first step is a three day notice, to “pay or quit.” Once you get this notice as a tenant, you have three days to pay up or get out. At the end of those three days, if you haven’t, then the landlord can have you served with court papers (a Petition and Notice of Petition are the court documents in an eviction). Court is then five to twelve days after service of the papers. If you go to court and lose, for whatever reason, the court will issue a warrant of eviction. Once this document is served on you, you then have 72 hours (three days) to get out or you will be put out by the sheriff/marshal/constable. Minimum time from the first “pay up” to the final “you’re out”: less than two weeks.

Just to confuse things, there is a “thirty day notice.” If the landlord or tenant wishes to terminate a month-to-month tenancy, either party can give the other this sort of notice. What is confusing is that, in upstate New York, it isn’t literally “30 days” but “until the end of the next full rental period.” The point I wish to make here, though, is that this isn’t required in every situation.

4. Landlord: “I’m changing the locks if you don’t pay up.”
Above in paragraph 3, I mentioned a process for eviction in a nonpayment situation. This is the procedure a landlord should follow. New York has outlawed self-help eviction. That means changing the locks, turning off the utilities, taking off the doors, putting possessions on the curb, etc. Any of those sorts of behaviors can be cause for the tenant to sue for treble (triple) damages for any costs and expenses associated with the illegal eviction. Eviction in New York can only be accomplished by court order, requiring the filing of a petition with the court leading to a hearing before the court.

5. Tenant: “She can’t raise my rent that much/that often.”
Not true. In upstate New York, there are no rent-control or rent-stabilization laws. The landlord is free to charge whatever the market will support. However, if there is a lease, both parties are bound to the amounts agreed upon in the lease (except, of course, if there is language allowing rent changes.) Even an oral agreement, though, is a contract under the law, and one party can’t change it singlehandedly. If the landlord wants to raise the rent, he/she has to give you notice. If you agree, then a revised contract is formed. If you don’t, and you pay the original amount, the landlord can’t evict you for not paying the difference. He or she can give you a 30 day notice that your tenancy is terminated, however. The landlord also can’t raise the rent as a retaliatory action. For example, if you called the Health Department because of a roach problem and the landlord now says your rent will go up $200 a month, you should consult a lawyer. Changing the conditions of tenancy as a result of a tenant exercising rights to insure a safe/healthy premises is illegal. However, there are a great many valid reasons why a landlord might increase the rent, and generally there are no restrictions on this action.

There, in brief, is a spin through five landlord/tenant questions I see in my daily practice. As I said, this is not meant to be legal advice—if you have questions, find a local lawyer who can tell you how things operate in your neck of the woods.

Friday, January 20, 2006


Yeah, about those regular, thoughtful posts...oops.
It's been a zoo this week. I had a big court appearance Thursday on a criminal case, and that sort of dominated my life for a while. Meanwhile, the civil side of my practice is even busier with landlord/tenant issues, so I came out of my probation violation hearing haze to find a stack of eviction defense work sitting on my desk. Plus, classes started this week at JCC, where I am teaching two classes. In other, less whiny, words, it has just been a very busy week and that's cut down on any posting.

A random comment in passing, to the hypothetical readers out there: no, a lawyer cannot answer your "one question." That's because, to lawyers, there is never a single question. I get frequent calls along the lines of "can my landlord do that?" and my answer is quite often further questions. Have you paid the rent? Do you have a lease? Have you informed him/her of this ongoing problem? Have you called the Housing Inspector? What a lawyer does, if he/she is competent, is to apply facts to the law and reach a reasoned conclusion. There are no "one size fits all" or, most often, not even "one size fits most" legal answers.

Which isn't to sound like I'm zealously guarding the secrets of lawyering, trying to steer everyone into lengthy office visits billed at an hourly rate, and won't chat with you about something if it comes up in a social situation, to personalize this commentary. But if you bump into your doctor at the bar and say "Hey Doc, my knee is killing me. What's wrong?" most people wouldn't expect a complete and thorough answer without further questions and an examination (hopefully after you've left the bar, but hey, to each her own...)

It's a similar situation with lawyers. I know what most people want, which is for me to say that clearly they are in the right, the law is on their side, and the opposing party will get laughed out of court. Even if that's the case, I couldn't tell you that from a thirty second exchange and I would be highly suspicious of anyone offering such pat advice without at least asking a few probing questions.

Tuesday, January 17, 2006

Supreme Court: Assisted Suicide Decision

Breaking news in the legal world that the Supreme Court, in a 6-3 decision, upheld Oregon's physician-assisted suicide law. The State of Oregon, basing their position on an earlier Rehnquist opinion which had said there was no Constitutional "right to die" but States might individually create such a right by law, passed the law in 1997. The Bush Administration, during the days of Attorney General Ashcroft, sought to have the law invalidated on the grounds that doctors who prescribed lethal overdoses were violating Federal drug laws.

When I took Constitutional Law at Buffalo, from Professor Gardner, he often commented that (1) Scalia was a terrible Contracts professor and (2) that State constitutions would be at the forefront of developing civil rights issues, given the more literalist reading preferred by recent Courts. That CJ Roberts sided with J's Scalia and Thomas on the dissenting side may indicate further tightening of how the document is interpreted once J. SD O'Connor steps down.

Bartenders charged in snowmobile fatality

A story that might be of interest to some practicing criminal law in the snowier regions of the state from today's Utica Observer-Dispatch. Not that there are snowier regions at the moment, I suppose.

Bartenders are two local haunts were charged with illegally serving a minor after 20 year old Joshua Allen died in a snowmobiling accident, in which speed and alcohol allegedly played a part. Of interest is the comment of one bartender that the young man and companions allegedly offered false ID.

Winter recreation can be fun for the family, but I think this article disregards that a very common use of sleds is for riders to hop bar to bar over the course of a winter day, stopping for heat and a drink or two. I grew up in the North Country and am familiar with the demographic. The whole thing seems like a morass of legal liability for the business operator.

Monday, January 16, 2006

More Sex Offenders

This is an interesting topic to me, for the Con Law overtones, but a recent story in the Buffalo news has an administrative law flair to it as well:

Sex offenders sue Wal-Mart over firings
By MATT GRYTA News Staff Reporter1/15/2006
Three convicted sex
offenders who went to work for Wal-Mart - including one who played a Santa Claus at the Thruway Plaza store - have complained to a state agency that they were later unfairly fired because of their convictions.
Although the state Division of Human Rights is investigating the former workers' complaints, Wal-Mart has now asked a state Supreme Court justice to stop the probe. The three are Richard Ritchie, who worked as a stocker at the Thruway Plaza Wal-Mart; Phillip Root, who worked as a stocker at the Springville store; and
Richard Gibson, who worked as a maintenance associate at the Watertown store. All three disclosed their criminal histories before being hired.
Ritchie even worked two holiday season as a Santa Claus at the Thruway store.
"I played Santa Claus for them," he said, adding: "and I have the pictures."
The three filed complaints with the state agency alleging their dismissals
violated state Human Rights Law dealing with ex-convicts.
Wal-Mart has asked State Supreme Court Justice Frank A. Sedita Jr. to quash
the Human Rights Division probe, saying it is beyond the state agency's legal
jurisdiction. Wal-Mart contends the agency lacks jurisdiction to consider the three complaints because the Human Rights Law "does not prohibit discrimination against current employees on the basis of a record of a criminal conviction," according to court papers.
The Division of Human Rights, according to court documents, contends it has made "preliminary findings of jurisdiction and probable cause" to consider sanctions against Wal-Mart and adds that the company's attempt to stop the probe is premature...

I think this story hints at some of the hard decisions that need to be made now that sex offenses have been branded a semi-"status" crime with no presumption of rehabilitation for violators. Once we've decided, perhaps entirely correctly, that John Smith is liable to repeat his crimes and hurt others, what do we do when he's no longer able to get decent work due to the status? Is perpetual civil confinement the answer? Is this a disability that should be recognized, and therefore Social Security or SSI should be provided? In no way do I condone the crimes, but I continue to be worried that the labelling system will have unintended (and expensive) results if Equal Protection rights are found to have been violated.

Sunday, January 15, 2006

Sex Offender Stuff

Chautauquaathome.com posts some tidbits on local news, and recently posted the blurb below:
Assembly Republicans push for extending Megan's Law

Area Assemblyman Joe Giglio has joined Assembly Republicans in pushing for a five point plan that cracks down on criminals who target women and children. The Gowanda Republican says the plan includes a ten year registration mandate for certain Level 1 and Level 2 sex offenders on the state Sex Offender Registry. The measure, part of Megan’s Law is set to expire on January 21st if action is not taken.

As a lawyer, I've been fortunate to not have to deal with the hard questions that this law and these offenses create in my head, especially in the part of me that is a Con Law instructor and wannabe scholar.

Monday, January 09, 2006

Ignorance of the law...

There's a cliche, or perhaps a truism, that states "Ignorance of the law is no excuse." The point behind it is that we're all assumed to know and live within the laws of the land, whether or not we know the specifics.

In the world of landlord/tenant law, where I spend a lot of time, I am routinely amazed by how little actual law is known. An official in an unnamed town recently told one of my acquaintances that a tenant in New York never has the right to withhold rent. This is patently untrue, even thought few tenants ever do it properly pro se. The same gentleman also recently said he thought, if a tenant had not paid the rent, the landlord could put out the tenant's belongings without going to court. Also untrue. A separate official, in a human services agency, routinely tells clients that the landlord has the right to enter the premises at his or her whim, since "it's his building."

This isn't to say it is only the "other side" are the ones who are in the wrong. It's common for tenants I speak with to think that they have 30, 60, or even 90 days to vacate, even after an eviction (the correct answer is 72 hours). Others hear some mishmash of upstate and downstate law through the grapevine and invent their own supposed (and incorrect) laws about how many times a year the landlord can raise the rent. There's also the nearly ubiquitous assumption, ubiquitously incorrect, that a person/family with small children can't be evicted.

Perhaps an additional post, soon, will cover the top ten ll/t myths, with a reference to the case or statute that provides the accurate answer. Any suggestions from the audience would be welcome, of course. In general, though...Real Property Actions and Proceedings Law, Article 7, contains the meat of the eviction law. Practitioners should take a look at it, as the procedures and timelines may be similar to the CPLR, but one can make a jurisdictional error by following CPLR instead of RPAPL rules. High on the list of things to avoid would be going back to your client and telling them you need to start all over again as the action was dismissed as process was served more than 12 days before court or because the three day notice did not correctly itemize alleged arrearages.*

*Of course, while there are numerous cases backing both of those examples, it all depends on if the court is open to such arguments. Recently, in two unnamed courts, I saw one petition served 22 days in advance dismissed for improper service and another served 31 days in advance allowed to proceed. As the internet wags say, "your mileage may vary."

Saturday, January 07, 2006

The New Guy

Title also references a D.J. Qualls movie that was...well, those sort of teen movies are never "good", but I certainly amused me. It's also the theme of this morning's post, where Chautuauqua Co. has a new County Executive for the first time in the better part of a decade.

County Executive's trip to Albany caps a busy week 1/5/2006
County Executive Greg Edwards trip to Albany caps a busy first week for the Jamestown Republican.
Edwards took the oath of office on Sunday, and has been busy handling his new
duties. Edwards tells WDOE News he is pleased with the progress he is making
since being elected in November, but admits there is still a lot of work ahead.
Edwards expects to hold his first cabinet meeting tomorrow morning after
returning from Albany.

Under NY law, counties can choose various ways to structure local government. Some still use a traditional Board of Supervisors, wherein the Town Supervisors also sit as County government. Others elect a separate body of legislators. In either case, the county could also choose to hire a County Administrator, a non-elected professional position who runs the day-to-day operations. A final option, in counties where there is a separate legislature elected, is that the executive functions can be pooled into the office of an elected County Executive. This person then runs the day-to-day and acts, for analogy's sake, as the Governor of the County. The exception to this would be Erie County and troubled County Executive Joel Giambra, who is pushing to have a County Administrator hired in addition to his office.

The point of the post, other than exercising some Municipal Law knowledge I rarely get to use, actually was going to be my curiousity about the administrative effects of the new County Executive. The local Department of Social Services is not exactly efficient or responsive, and I'm wondering if Mr. Edwards, as a practicing attorney for nearly 20 years, has experienced any of this. Coming from the private sector, I expect (and fervently hope) his "outsider" perspective will generate some much needed changes in all agencies of the local bureaucracy, which should streamline the practice of administrative law within the county. Fingers crossed, anyway...

Thursday, January 05, 2006

Lack of posts

Apologies to my hypothetical and probably fictional readers for the lack of posts of late. I've been too busy being a lawyer to post regularly about the law. Ah, irony. I'm not sure how other lawyers (check out the panel to the right for some links) can keep such great blogs running.

This week has primarily been criminal court, with one detour into Family Court in Mayville for a case that just won't settle. I never planned to do criminal law at all, which is in part due to the fact that my Crim Law professor in law school was such an arrogant little pri...well, let's just say he wasn't a very good teacher. First day of class, he scolded us for not doing the reading when, in fact, he hadn't assigned the correct chapter, but when someone (me) pointed that out, his take was that we should have known to read further. Reasons to do away with tenure, I present Professor Binder. It was sort of funny, though, to watch the distribution of students in the class. In the beginning, people were spread around the room. By the end, those few that still showed up had joined me and my friends in the back of the room, hoping to avoid any contact with the professor.

Later on, I took "Federal Criminal Procedure" from John Humann, a long-time litigator and current Federal PD, and that class was possibly the best I had taken in law school. Unfortunately, I spent a large part of it wishing I had enough crim law/crim pro knowledge to truly get a grasp on the material. Not only because he was a good teacher, but he loved his job, and that's infectious. And in my practice, at least, crim pro is easily 150 times more valuable than crim law. For all the talk of actus reus and mens rea, when they have your client on videotape setting up a crack sale while pimping three hookers and a there's a visible body in the trunk, there's not a lot to lean on except procedure.

Tuesday, January 03, 2006

Poll: "Youth Flight"

Today's Post-Journal poll deals with an issue that isn't directly legal in nature, but is of interest to me personally and academically (in my other role as a policy wonk and occasional college instructor): why do young people leave upstate NY?

There has already been considerable blogspace devoted to this topic, including an excellent discussion hosted by York Staters with numerous points of view. My comment, related mostly to the P-J poll, is that when I was 18, 22, or 25, I was looking for a general quality of life and it was more about where I would be able to have a life (friends/family/activities) than the overarching economic trends.

"Youth flight" (sidenote: I despise the term "brain drain", catchy as it may be, because numerous people with "brains" do remain in these depressed regions, for whatever reason) is a fact of life. I can remember reading literature about the same phenomena in rural towns and small cities in Scotland and Russia when writing my thesis in grad school. It isn't an upstate NY-only situation. Younger people tend to seek a more cosmopolitan and exciting experience, or at least an experience where parents, grandparents, aunts and uncles aren't next door, watching over their every action. A better climate for business may reduce some of the flight, but there needs to be an understanding that it isn't solely an economic issue.

But that's roughly my two cents, and regular law-related postings will resume soon.

Phones in Court

The Office of Court Administration recently changed their policies, and now camera phones will be allowed into courtrooms in NY. The reasoning, to paraphrase the article, is that now most phones have cameras. As someone in the market to upgrade his phone, who has been trying to avoid a camera phone for court-related reasons, I can certainly see the logic behind the decision. On a practical level, I'm also heartened to see OCA responsive to the realities on the ground--it's a speedy response somewhat foreign to the executive bureaucracy.