LAWYERS AND MENTAL ILLNESS

Yesterday I read a decision from the Appellate Division, First Department regarding an attorney's disbarment - basically neglect of work due to depression and mental illness but the Appellate Division noted in dicta that it would only have suspended the attorney if the attorney responded to the charges (but the attorney could not due to the attorney's mental illness). Matter of Blank, 2013 NY Slip Op 05724 (AD 1st Dept August 27, 2013)

Note this editorial from the New York Times earlier this month:

NYT - Lawyers of Sound Mind?

A NOTE TO SMALL BUSINESSES - WORKER'S COMPENSATION

From the NYS WC Board website:

"The law requires employers operating in New York State to have workers' compensation coverage for their employees, with limited exceptions. Employers are required to obtain and keep in effect workers' compensation coverage for all employees, even part-time employees and family members that are employed by the company. The following is a brief summary of the liability and penalties for violations of mandatory workers' compensation insurance coverage requirements.

Ascertaining Violations of the Law

The Workers' Compensation Board may require an employer to furnish proof that the employer:

• Has a valid workers' compensation insurance policy;
• Is self-insured for workers' compensation; or
• Is legally exempt from having to obtain workers' compensation coverage, and/or
• Is keeping proper, accurate business records.

If an employer fails to provide this information within 10 days following the Board's request, under the WCL the Board is required to assume that the employer is violating the WCL. (WCL §52 [3])

Personal Accountability

The sole proprietor, partners or the president, secretary and treasurer of a corporation are personally liable for a business' failure to secure workers' compensation insurance.

Liability for Claims Incurred by an Uninsured Employer

Section 26-a says an employer is liable for a penalty of $2,000 per 10-day period of noncompliance, plus the actual award (including both compensation and medical costs), plus any other penalties the Board assesses for noncompliance. In cases involving severely injured employees, the medical costs alone could be in the hundreds of thousands of dollars per injury."

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NEW YORK STATE CAPITOL BUILDING TOURS

A suggestion for every New York attorney: to see the Assembly and Senate, visit the Hall of Governors and see where New York laws are made. I just visited yesterday, the tours are free and here is the link:

http://www.ogs.ny.gov/esp/CT/Tours/Capitol.asp

A THANK YOU....

....to my over 320 connections on Google Plus:

Jon Michael Probstein - Google+

And the firm page on Google Plus:

Law Offices of Jon Michael Probstein - Google+

'

NEW FORECLOSURE LAW FOR ACTION STARTED AUGUST 30

Earlier this month, Governor Cuomo signed into law an amendment to the CPLR, CPLR 3012-b ("Certificate of Merit" Law), which will require any lender intending to file a foreclosure complaint in New York to provide a certificate of merit at the start of the proceedings.

For more information, go to page 3 of the Nassau Suffolk Law Services newsletter for this month:

http://nslawservices.org/wp/wp-content/uploads/2013/08/august-2013-newsletter.pdf

"THE BULLDOG ATTORNEY"

Here is a link to a post from New York Divorce Report:

7 Divorce Mistakes to Avoid: How to Not Have A Disastrous Divorce

Of course, a lot of these suggestions apply to any commercial litigation as well but I found the Number 1 suggestion most interesting when it states:

"Hiring the bullldog attorney- the super aggressive lawyer who promises to leave no stone unturned so that you will “win” the case and who promises to punish your spouse- is a recipe for disaster. The bulldog attorney will needlessly litigate everything.

The only one who will definitely benefit from this hire is the attorney. He will bill you aggressively and end up with the lion’s share of the marital assets."

I just note that I have seen this in matrimonial and non-matrimonial cases - the "bulldog client/litigant" who, notwithstanding any type of attorney hired and who may even proceed pro se, will "needlessly litigate everything".

THE USE OF CORPORATE OFFICER TITLES

I recently came across this article in the New York Times:

NYT - Real Estate Professionals Lose Some Curb Appeal

BCL Article 7, and Section 715 in particular, defines some of the duties and responsibilities of corporate officers. It would thus certainly appear, at least under the BCL, the use of corporate honorifics without any actual corporate duties is improper.

RE-REGISTER FOR STAR

As noted on the NYS Dept. Taxation & Finance website:

 

"Two types of STAR exemptions:

 

Basic STAR

• available for owner-occupied, primary residences where the resident owners' and their spouses income is less than $500,000
• exempts the first $30,000 of the full value of a home from school taxes

Enhanced STAR

• provides an increased benefit for the primary residences of senior citizens (age 65 and older) with qualifying incomes
• exempts the first $63,300 of the full value of a home from school taxes as of 2013-14 school tax bills (up from $62,200 in 2012-13)"

"New legislation requires all homeowners receiving a Basic STAR exemption to register with the New York State Tax Department in order to receive the exemption in 2014 and subsequent years.

• Homeowners will not have to register in order to receive their 2013 STAR exemptions.
• Homeowners will not have to re-register every year. Based on the information provided in the registration process, the Tax Department will monitor homeowners' eligibility in future years."

For more information, see this link:

http://www.tax.ny.gov/pit/property/star13/default.htm

MORE RE: EMPLOYMENT AND CRIMINAL BACKGROUND

My research found an excellent pamphlet by the NYC Bar Association on this issue and so here is the link:

http://www2.nycbar.org/pdf/report/Labor_reentry_pamphlet_employees09.pdf

Other recent articles of interest with respect to the EEOC on this issue:

http://blog.nolo.com/employment/2013/08/15/controversy-over-criminal-background-checks/

http://www.jdsupra.com/legalnews/eeoc-cracking-down-on-use-of-criminal-ba-74227/

http://www.mondaq.com/unitedstates/x/258274/Discrimination+Disability+Sexual+Harassment/EEOC+Position+On+Criminal+Background+Checks+Rejected+Again

MORE RE: EMPLOYMENT AND CRIMINAL BACKGROUND

As noted in the last blog, New York State Executive Law Section 296 (15), the New York State Human Rights Law, refers to New York State Correction Law Article 23-A. Section 751 of the Correction Law relates to applicability and the inclusions and exclusions should be noted:

 "§  751.  Applicability.  The provisions of this article shall apply to
  any application by any person for a license or employment at any  public
  or  private  employer,  who has previously been convicted of one or more
  criminal offenses in this state or in any other jurisdiction, and to any
  license or employment held by any person whose conviction of one or more
  criminal offenses in this state or in any  other  jurisdiction  preceded
  such  employment  or  granting  of  a  license, except where a mandatory
  forfeiture, disability or bar to employment is imposed by law,  and  has
  not  been  removed  by  an  executive pardon, certificate of relief from
  disabilities or certificate of good conduct.  Nothing  in  this  article
  shall be construed to affect any right an employer may have with respect
  to  an  intentional  misrepresentation in connection with an application
  for employment made by a prospective employee or previously  made  by  a
  current employee."

MORE RE: EMPLOYMENT AND CRIMINAL BACKGROUND

New York State Executive Law Section 296 (15) first refers to New York State Correction Law Article 23-A. Let us examine that statute.

There are six sections - Section 750 to 755. The first, Section 750, deals with definitions and note the definition of employment and the exclusion of law enforcement from that definition:

§  750.  Definitions.  For the purposes of this article, the following
  terms shall have the following meanings:

    (1) "Public agency" means the state or any local subdivision  thereof,
  or any state or local department, agency, board or commission.

    (2)  "Private  employer" means any person, company, corporation, labor
  organization or association which employs ten or more persons.

    (3) "Direct relationship" means that the nature  of  criminal  conduct
  for  which  the person was convicted has a direct bearing on his fitness
  or ability to perform one or more  of  the  duties  or  responsibilities
  necessarily related to the license, opportunity, or job in question.

    (4)  "License"  means  any  certificate,  license,  permit or grant of
  permission  required  by  the  laws  of  this   state,   its   political
  subdivisions or instrumentalities as a condition for the lawful practice
  of any occupation, employment, trade, vocation, business, or profession.
  Provided,  however,  that  "license" shall not, for the purposes of this
  article, include any license or permit to own, possess, carry,  or  fire
  any explosive, pistol, handgun, rifle, shotgun, or other firearm.

    (5)  "Employment" means any occupation, vocation or employment, or any
  form of vocational or  educational  training.  Provided,  however,  that
  "employment"  shall  not,  for  the  purposes  of  this article, include
  membership in any law enforcement agency."

MORE RE: EMPLOYMENT AND CRIMINAL BACKGROUND

New York's Human Rights Law should be examined in exploring this issue - N.Y. EXEC. LAW § 296 (15):

"15.  It  shall  be an unlawful discriminatory practice for any person,
  agency, bureau, corporation or association, including the state and  any
  political  subdivision thereof, to deny any license or employment to any
  individual by reason of his or her having been convicted of one or  more
  criminal  offenses,  or  by reason of a finding of a lack of "good moral
  character" which is based upon his or her having been convicted  of  one
  or  more  criminal  offenses,  when  such  denial is in violation of the
  provisions of article twenty-three-A of  the  correction  law.  Further,
  there  shall  be  a  rebuttable  presumption  in favor of excluding from
  evidence the prior incarceration or conviction of any person, in a  case
  alleging  that the employer has been negligent in hiring or retaining an
  applicant or  employee,  or  supervising  a  hiring  manager,  if  after
  learning  about  an  applicant  or  employee's  past criminal conviction
  history, such employer has evaluated the factors set  forth  in  section
  seven  hundred  fifty-two  of the correction law, and made a reasonable,
  good faith determination that such factors militate in favor of hire  or
  retention of that applicant or employee."

HELP! I HAVE JUST BEEN ARRESTED AND I CAN'T GET A JOB

Catchy title but this is all about employment discrimination - especially since I have seen this problem arise in the context of unemployment insurance denial where a claimant is found to be in "misconduct" for a false job application (and of course, the claimant believed claimant would never have obtained the job unless the "false statement" was made).

What is "puffing" and what is deliberate falsification? Recently, I have been reviewing this issue in the context of job applicants who have had some contact with criminal matters.

Let us first look at the federal rules. This is from the EEOC website http://www.eeoc.gov/laws/practices/inquiries_arrest_conviction.cfm:

"There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.

Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.

Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when

• considering the nature of the job,
• the nature and seriousness of the offense,
• and the length of time since it occurred.

This is also true for a conviction.

Several state laws limit the use of arrest and conviction records by prospective employers. These range from laws and rules prohibiting the employer from asking the applicant any questions about arrest records to those restricting the employer's use of conviction data in making an employment decision.
.........

In some states, while there is no restriction placed on the employer, there are protections provided to the applicant with regard to what information they are required to report.

The Fair Credit Reporting Act (FCRA) imposes a number of requirements on employers who wish to investigate applicants for employment through the use of consumer credit report or criminal records check. This law requires the employer to advise the applicant in writing that a background check will be conducted, obtain the applicant's written authorization to obtain the records, and notify the applicant that a poor credit history or conviction will not automatically result in disqualification from employment.

Certain other disclosures are required upon the employee's request and prior to taking any adverse action based on the reports obtained."

NEW YORK TIMES LINK TO DECISION STOP & FRISK FLOYD V. NYC

http://www.nytimes.com/interactive/2013/08/12/nyregion/stop-and-frisk-decision.html?_r=0

CHILD CUSTODY - RELOCATION

This issue comes up many times in divorce and/or separation (and can even come up during marriage): parent has new job, is transferred, remarries, etc. and wants or needs to move but the move may cause some issues between the child and the other parent remaining behind.

While researching this issue, I came across the website of The McCarthy Fingar firm who had a list of appellate cases dealing with relocation and I pass it on here:

http://www.mccarthyfingar.com/practice-areas/matrimonial-and-family-law/child-relocation.aspx

One case cited was a dispute over a 12 mile relocation.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS

At a hearing this morning - the third day of hearings since June. This is just to point out that this type of litigation can be a lengthy process.

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT

The question of whether to have arbitration as per union contract first or unemployment insurance hearing has been recently addressed by the Appellate Division, Third Department:

IN THE MATTER OF THE CLAIM OF CHOHAN v. COMMISSIONER OF LABOR, 515899 (3d Dept 7-11-2013)

2013 NY Slip Op 05280

In the Matter of the Claim of ADIL J. CHOHAN, Appellant v. COMMISSIONER OF
LABOR, Respondent.

515899

Appellate Division of the Supreme Court of New York, Third Department.

Calendar Date: June 6, 2013 Decided and Entered: July 11, 2013

Appeal from a decision of the Unemployment Insurance Appeal Board, filed
March 8, 2012, which ruled that claimant was disqualified from receiving
unemployment insurance benefits because his employment was terminated due to
misconduct.

Adil J. Chohan, Coram, Appellant Pro Se.

Before: PETERS, P.J., LAHTINEN, McCARTHY and EGAN JR., JJ.

  MEMORANDUM AND ORDER

  Claimant, a mail carrier, lost his employment following an incident
whereby he was found to have left the employer's vehicle unattended with the
engine running in violation of the employer's known policy. Claimant
contested his discharge and, following an evidentiary hearing, an arbitrator
concluded that there was just cause for his termination. The Unemployment
Insurance Appeal Board subsequently ruled that claimant was disqualified
from receiving unemployment insurance benefits on the basis that he lost his
employment due to misconduct. This appeal ensued.

  We affirm. Significantly, "as there was a full and fair opportunity to
litigate the issue in the prior proceeding, collateral estoppel effect must
be given to the arbitrator's factual findings regarding claimant's
misconduct" (Matter of Redd [Commissioner of Labor, 98 AD3d 791, 791 [2012],
lv denied20 NY3d 857 [2013] [internal quotation marks and citation omitted];
see Matter of Mordukhayev [Commissioner of Labor], 104 AD3d 1005, 1006
[2013]). Here, inasmuch as the Board appropriately took into account the
arbitrator's factual findings and made "an independent evaluation as to
whether that conduct constitutes `misconduct' for the purposes of
unemployment insurance" (Matter of Nwaozor [City of New York — Commissioner
of Labor], 82 AD3d 1475, 1475 [2011]), we find no basis to disturb the
Board's ruling. While claimant maintains that, at worst, the alleged conduct
constituted an excusable error in judgment, the Board disagreed, noting that
claimant had been counseled by the employer prior to this incident "for
various safety violations." Notably, "[a] claimant's disregard of an
employer's established procedures and policies, particularly where it is
potentially detrimental to the employer's best
Page 2
interest" (Matter of Song [Commissioner of Labor], 105 AD3d 1241, 1241
[2013]), may, as in this instance, be sufficient to constitute disqualifying
misconduct (see Matter of Cedrone [Warren County Head Start ACC Childcare
Ctr. — Commissioner of Labor], 69 AD3d 1251, 1252 [2010]).

  Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur.

  ORDERED that the decision is affirmed, without costs.

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MENTAL HEALTH AND BECOMING A LAWYER

See this article from August 5 New York Times:

NY TIMES - LAWYERS OF SOUND MIND?

REFUSAL BY CO-OP BOARDS

Two articles which highlight the issues faced by both Sellers and Buyers of co-op apartments - particularly in the higher price market:

http://www.nytimes.com/2012/10/14/realestate/co-op-boards-to-buyers-nah-not-at-that-price.html?pagewanted=all

http://nypress.com/mixed-support-for-co-op-bills/

Basically, although they are not allowed to illegally discriminate, co-op boards aren’t required to disclose the reasons they reject applications.

THE USE OF PRIVATE INVESTIGATORS

Whether it is a commercial or a matrimonial matter, there can be a need for an investigator (costly but effective) as noted in this recent landlord/tenant case:

NY POST - Nolita landlords say tenant earned $500K over 4 years by illegally renting out apartment as a NYC ‘hotel room’ - used private eye posing as tourist to out sublet

JAY-J'S LAW

Several days ago, Governor Andrew M. Cuomo  signed legislation enacting Jay-J’s Law, which allows for tougher penalties against offenders who have been convicted of repeatedly abusing a child.

Here is a link to the press release:

http://www.governor.ny.gov/press/07292013-jay-js-law

NEW YORK DIVORCE - JUDICIAL MISCONDUCT?

Here is a link to a news story I got the other day:

NBC - I-Team: Judge Made Rulings on Divorce Case, Husband Was Lawyer