New York Court of Appeals Finds State Thruway Authority not Responsible in Slip-and-Fall Outside Precinct

—by Adam Kuhn

Sherman v. N.Y. State Thruway Auth., No. 56, 2016 N.Y. LEXIS 1061 (May 5, 2016).


The New York Court of Appeals granted summary judgment for the defendant in a personal injury claim for a slip-and-fall. Applying the “storm in progress” doctrine, the Court concluded that the storm had not ended at the time of plaintiff’s fall, and therefore the defendant was not responsible.


Rodney Sherman, a New York State Trooper, brought a personal injury claim against the New York State Thruway Authority after falling on an icy sidewalk outside the precinct. Sherman argued that the Authority was negligent for failing to keep the sidewalk clear of ice. The Authority argued that it was entitled to summary judgment on the “storm in progress” doctrine. The Appellate Division, Second Department, granted summary judgment for the Authority, and Sherman appealed. The New York Court of Appeals affirmed the appellate division.

The storm in progress doctrine says that a landowner is not responsible for injuries occurring on his or her property if the injuries result from an icy condition “during an ongoing storm or for a reasonable time thereafter.” The Authority established that there was an ongoing storm at the time of Sherman’s fall. An ice storm occurred the night before the fall, and a weather report showed it was raining at near freezing temperatures when Sherman fell. Since the storm was still ongoing, the Authority’s responsibility of reducing the icy condition did not yet arise. Sherman was unable to raise a triable issue of fact.

In a dissenting opinion, Judge Rivera argued there were issues of fact about whether the storm had ended, and if it did, whether a reasonable time had passed for the Authority to manage the icy sidewalk.

Sodium Wars: New York City’s Effort to Warn

— by Forrest Young

ABSTRACT:   In 2015, New York City’s Board of Health announced new regulations requiring chain restaurants to provide warnings about the sodium in their menu options.  In February, a trial judge rejected the National Restaurant Association’s challenge. The First Department issued a temporary stay while the case is on appeal.


On February 26, 2016, New York Supreme Court Judge Eileen Rakower issued an order denying the National Restaurant Association’s petition to prevent implementation of New York City’s new health code regulation requiring select restaurants to label foods with high sodium content. Nat’l Restaurant Ass’n v. N.Y.C. Dep’t of Health and Mental Hygiene, No. 654024/15, 2016 WL 751881 (Sup. Ct. New York Cty. 2016).

The new regulation, enacted as Section 81.49 of the New York City Health Code, would require chain restaurants (those with 15 or more locations under the same name) to post a saltshaker symbol next to standard menu items with 2,300 milligrams of sodium or more. The regulation also mandates the menu to include a warning that reads “Warning: [this salt symbol] indicates that the sodium (salt) content of this item is higher than the total daily recommended limit (2300 mg). High sodium intake can increase blood pressure and risk of heart disease and stroke.” Restaurants found in violation of the section would be required to pay a 200 dollar fine.

In New York, an administrative regulation will be upheld if it has a “rational basis, and is not unreasonable, arbitrary or capricious.” Nat’l Restaurant Ass’n, 2016 WL 751881 at *1.  To receive a preliminary injunction, the petitioner must show by clear and convincing evidence that must show (1) a likelihood of success on the merits, (2) a danger of irreparable harm without such relief, and (3) a balancing of equities in its favor. Id.   The National Restaurant Association argued that Section 81.49 was invalid because (1) it violated separation of powers; (2) it is arbitrary and capricious; (2) it violates members’ First Amendment rights; and (4) it was preempted by the federal Nutrition Labeling and Education Act (NLEA). Id.

The court took these issues in turn, first holding that the sodium warnings do not violate separation of powers because the Board of Health relied on its public health expertise in regulating restaurants and the rules are not outside the bounds of its authority. The court held that the Board did not overstep into legislative-policy making because it “relied on its expertise in weighing the scientific evidence concerning the risks associated with excess sodium consumption.” The court distinguished these regulations from previous regulations limiting proportions of sugary drinks because “in contrast to the Soda Ban, by adopting Section 81.49, the Board did not devise a new rule that “significantly changes” the manner in which menu items containing sodium are provided to customers at eating establishments. It is within the Board’s regulatory authority to require the posting of information and warning labels concerning health risks.” Id. at *3.

Next, the court rejected the Association’s claim that the regulations were arbitrary and capricious finding that the agency’s determination was predicated on rational concerns regarding known health risks caused by high sodium intake. Nat’l Restaurant Ass’n, 2016 WL 751881 at *3.   Judge Rakower accepted the City’s contention that the regulations were a reasonable approach to the problem because the average New Yorker consumes nearly 1,000 milligrams more than the daily recommendation, and the average chain restaurant meal contains 3512 milligrams of sodium,. Id. The court held that the regulations were not unduly burdensome on chain restaurants because of their uniformity of menus options and preparation techniques.   Id.

The First Amendment challenge was dismissed on the basis that the warnings empower consumers with necessary information. Although the court recognized that commercial speech is protected, it found that the regulation simply provides consumers with “factual and uncontroversial” information. Id. at *4. Judge Rakower reasoned that “[p]ersonal autonomy is not hindered, but rather encouraged by providing information so that consumers can make informed decisions about health; said differently, information promotes autonomy, giving a consumer the opportunity to make choices appropriate to himself or herself individually.” Id. at *2.

Finally, the court directly rejected the Association’s preemption claim using a plain language interpretation. The NLEA “provides that express preemption provision ‘shall not be construed to apply to any requirement respecting a statement in the labeling of food that provides for a warning concerning the safety of the food or component of the food.’” Id. at *4. The court held that this language clearly allows states and localities to require their own food safety warnings, and that Section 81.49 falls squarely within those confines. Id.

For those reasons, the court ultimately rejected both the Association’s petition for declaration judgment, and preliminary injunction.   On February 29, 2016, the First Department granted an interim stay on enforcing the new rule, which would have gone into full-effect on March 1, 2016.

To Challenge Governmental Action in Land Use Matters, No Need for Unique Injury

— by Moira Ferguson

Source: In re Sierra Club v. Village of Painted Post, No. 151 (N.Y. Nov. 19, 2015)

Abstract: To have standing to challenge governmental action in land use matters, a party must show it would suffer a “special injury.” An injury is special where it is direct and in some way different from that of the public at large. However, the possibility that more than one person may be harmed by the governmental action does not defeat standing.


The Village of Painted Post is situated at the intersection of the Cohocton, Tioga and Chemung Rivers. Below these rivers sits the Corning aquifer. In February of 2012, the Village entered into a sales agreement with a subsidiary of Shell Oil Co. The sales agreement provided for the sale of 314 million gallons of water from the Corning aquifer, to the Shell Oil Co. subsidiary. The Village also entered into a lease agreement with Wellsboro & Corning Railroad. This lease agreement allowed for the construction of a water transloading facility in the Village. Water from the aquifer would be withdrawn, loaded, and transported via train at this facility.

Following the formation of these two agreements, petitioners commenced a proceeding against the Village. Petitioners included The Sierra Club, People for a Healthy Environment, Inc., Coalition to Protect New York, and individual residents of the Village. Petitioners claimed by failing to take into consideration adverse environmental impacts of the agreements, the Village failed to comply with the State Environmental Quality Review Act (SEQRA). Due to this neglect, petitioners asked the court to preliminarily enjoin any effects of the agreements until the Village complied with SEQRA. In response, the Village moved to dismiss, insisting petitioners lacked standing to bring a claim.

In Society of Plastics Indus. v. Cty of Suffolk, the Court set forth a framework for deciding when parties have standing to challenge governmental action in land use matters generally, and under SEQRA specifically. The Court decided that for standing purposes, the plaintiff must have a “special injury.” To be special, the injury must be direct, and different from that of the injury suffered by the public at large.1

The Supreme Court applied this rationale to each of the petitioners in the present case. The court found the organizations only alleged indirect, generalized environmental injuries that the public at large would suffer. These did not equate to the special injuries needed to confer standing. However, the Supreme Court found one individual petitioner, John Marvin, did suffer direct harm, distinct from that suffered by the general public. This harm equated to the special injury required to confer standing to challenge a governmental action in land use matters.

Marvin was a longtime resident of the Village, and lived less than a block for the transloading facility. He stated that when the water trains began running, the noises were so loud that they kept him and his wife awake at night. Marvin worried the noises would degrade not only the value of his home, but the quality of his life.

The Appellate Division also applied the standing framework set out in Society of Plastics, but rendered an opposite holding. The Appellate Division focused on the fact that Marvin complained about the noise from the trains, but did not address the noise from the transloading facility. The court acknowledged that many other Village residents lived along the train tracks, were subject to the injurious noise of the trains, and therefore suffered the same injury as Marvin. For the Appellate Division, because many residents of the Village suffered the same injury as Marvin, Marvin’s injury was not direct or different from that of the public at large. Therefore, he did not establish the special injury required to confer standing.

The Court of Appeals found the Appellate Division applied an overly restrictive analysis of the requirement to show standing. The Court reiterated that to have standing to challenge a governmental action in land use matters generally, the petitioner must suffer a special injury, meaning the injury is direct and is different from that of the public at large. However, to be special, the injury need not be unique.

Here, Marvin did not assert the increased train noise would cause him an indirect, collateral harm, congruent to the burden felt by the public at large. Instead, Marvin alleged a particularized harm that may also be inflicted upon other residents of the Village who live near the train tracts. Standing is not to be denied simply because many people suffer the same injuries.

The Court found the Appellate Division’s restrictive analysis of standing has detrimental effects on the judiciary system. Specifically, to deny standing to persons who are injured, simply because others suffer the same injury, insulates the most injurious and widespread government action from judicial review.

Although other Village citizens residing along the tracks could hear the trains, for Marvin, the injurious noise was still direct and different from that of the public at large. Accordingly, the noise equated to a special injury, sufficient to confer standing to challenge the Village’s two agreements, the governmental action that lead to Marvin’s injuries.

Second Amendment Precedence Developing Through SAFE Act Litigation

— by William Woodworth

Recently, two courts considered the constitutionality of New York’s SAFE Act. Both courts assessed whether the regulation burdens a second amendment right, and whether the regulation survives appropriate scrutiny. Here, the courts found the second amendment’s protections applied, and both applied intermediate scrutiny. However, the courts diverged on the application.


In the midst of the public debate about the extent that citizens should have a right to keep and bear arms, courts are faced with the problem of determining the scope of the constitutional right to keep and bear arms.  In late October, a state and federal court reached opposite conclusions on the constitutionality of the New York Secure Ammunition and Firearms Enforcement (SAFE) Act’s prohibition on loading more than seven rounds in the magazine of a firearm.  The New York court upheld the provision in Schulz v. State of New York Executive,[1] and the Second Circuit Court of Appeals invalidated it in N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo.[2]

Despite the different outcomes in the cases, both applied the same general framework for analyzing the second amendment claims.  The courts first determined whether the restrictions were protected by the second amendment, and then determined which level of scrutiny to apply.  The Schulz court merely assumed that the SAFE Act imposed burdens on the rights protected by the Second Amendmet.  The Second Circuit applied a two-prong test.  Applying an objective, statistics-based standard, the court found magazines loadable with seven rounds were in common use.  Applying a subjective standard, the court then found that there was not strong evidence that possession of such rounds were for lawful purposes.  Thus, it concluded that although the protections were within the scope of the second amendment, the right to possess seven or more rounds in a magazine were not subject to the strongest second amendment rights.

Both the state and federal appellate courts applied intermediate scrutiny to the SAFE Act.  The New York appellate court was bound by the prior Court of Appeals decision in People v. Hughes.[3]  There, the Court of Appeals argued that the U.S. Supreme Court’s decision in District of Columbia v. Heller[4] expressly rejected rational basis review, yet implicitly rejected strict scrutiny by claiming Heller would not invalidate many traditional restrictions on firearm ownership.  The Second Circuit reached the same conclusion by applying the test from United States v. Carolene Products Co.  Finding (1) the second amendment’s core right is self-defense in a person’s home, and (2) alternative magazines remained available, the Second Circuit applied intermediate scrutiny.

Applying intermediate scrutiny, both courts found public safety and crime prevention were substantial government interests.  However, the courts diverged on whether the magazine regulations were substantially related to the important governmental interest.  In Schulz, the court held Schulz did not offer evidence showing reducing access to weapons id not substantially further public safety.  However, the Second Circuit found New York had not established that only loading seven rounds in a ten round clip would reduce crime.  Thus, that provision of the SAFE Act was invalidated on constitutional grounds.

Despite the rulings, both courts left open the possibility of reversing their holdings when new facts are presented.  The Schultz court presented a relatively brief constitutional analysis because of a lack of data opposing New York’s conclusions about the relationship between access to magazines and crime.  The Second Circuit was concerned about the compromise New York had created.  Because ten-round clips are more commercially available than seven-round clips are, the state legislature reached the compromising of allowing ten-round clips while only loading seven rounds in the magazine.  It seems the court may have been more favorable upholding a requirement where the number of rounds loaded in the magazine is equal to the magazine capacity.  Perhaps limiting magazines to a five-round capacity would meet the court’s concerns.

The application of constitutional analysis to firearm regulations remains unclear.  The recent challenges to the SAFE Act have been decided on an absence of evidence basis where the courts were not required to distinguish competing facts in the record to determine whether the state had the proper level of interest or a sufficient nexus between the interests and goals of the regulation.  This will provide uncertainty to states and litigants as new legislation regulating firearm rights is considered.


[1]               Case No. 520540, slip op. 07728 (N.Y. App. Div. 3d  Oct. 22, 2015).  The court broadly considered all provisions of the SAFE Act, including the seven round maximum for loading rounds in a magazine.

[2]               Nos. 14-36-cv, 14-319-cv (2d Cir. Oct. 19, 2015).  The court did uphold many other provisions of the SAFE Act.

[3]               1 N.E.3d 298 (2013).

[4]               554 U.S. 570 (2008).

Injured? You May be Covered: Court Of Appeals Extends the Duty of Care Owed by Medical Providers to Members of the General Public

— By Andrew Stewart

Davis v. South Nassau Communities Hosp., 2015 NY Slip Op 09229 (December 16, 2015).

Abstract: The Court of Appeals recognized a legal duty owed by medical providers to a non-patient, third party even in the absence of a special relationship. In doing so, the Court has joined the trend of other States, expanding the duty of care jurisprudence to include members of the general public.


In 2009, Lorraine Walsh drove herself to the Hospital and was checked into the emergency room. At 11:00 AM, two medical professionals (collectively with the Hospital referred to as “Defendants”) intravenously administered Dilaudid, an opioid narcotic painkiller and Ativan, a benzodiazepine drug. Examination of the warning labels supplied with the drugs, in addition with testimony elicited by an expert, established that the common side effects of Ativan include “sedation, dizziness, and disorientation”, which can create a “sedative/hypnotic” state. Additionally, Dilaudid can be up to eight times as powerful as morphine, with effects lasting between two to four hours. Dilaudid’s warning labels explicitly warn against the dangers of “driving a car or operating machinery.” Nevertheless, the two medical professionals at the Hospital failed to warn Walsh about the dangers of driving after receiving the medications. At 12:30 PM, only 90 minutes after administration of both drugs, Walsh was released from the hospital. Nineteen minutes later, she crossed the double centerline and crashed into another vehicle, seriously injuring the driver, Edwin Davis.

Davis filed suit alleging medical malpractice because Defendants failed to warn Walsh of the effects of the medication. His wife also alleged a derivative action for loss of consortium. Defendants moved to dismiss for failure to state a cause of action, which was granted by the trial court. The Appellate Division affirmed, stating that the Defendants did not owe a duty of care to the plaintiff because of the lack of a physician-patient relationship (that relationship existed between Walsh and Defendants, not Davis).

The Court of Appeals disagreed. It concluded that the duty of care extended to Davis: “the defendants owed to plaintiffs a duty to warn Walsh that the medication administered to her either impaired or could have impaired her ability to safely operate an automobile.”

Before reaching its conclusion, the Court of Appeals reviewed New York’s history of evaluating duty questions in the context of the medical profession. It noted the court’s precedent had been reluctant to impose a duty of care to “the general public” because it consists of “indeterminate, faceless, and ultimately prohibitively large class of plaintiffs, as opposed to a

‘known and identifiable group.’” The Court had only recognized a small exception for “special relationships.” Special relationships were limited to “members of a patient’s immediate family or household who may suffer harm as a result of the medical care a physician renders to that patient” because those plaintiffs are of a definable class. Importantly, the Court noted it had expanded the duty in such cases because the third party’s injury resulted from the physician’s performance of the duty of care owed to the patient [emphasis added]. The Court, therefore, concluded it had left the door open to expand the duty of care between a treating physician who takes the affirmative step of administering medication, but fails to warn the patient of the dangers of operating a motor vehicle, to a member of the general public who is affected by that omission [emphasis added].

In the instant case, the Court imposed a duty of care extending from the Defendants to Davis. In parting from previous decisions, the court identified several others factors that are used to calculate whether a duty should exist. Those include capacity of the parties to bear the loss, a policy of preventing future injuries, and the moral blame attached to the wrongdoer. Further, the Court quoted Prosser and Keaton; “no better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.” Torts § 54 at 359 {5th Ed. 1984).

Here, the Defendants took affirmative step to administer medication, but had failed to warn the patient about the risks to driving. Their failure to warn created a peril affecting every driver in Walsh’s vicinity. A duty of care must be imposed on medical professionals in this scenario, said the Court, because the “cost” of imposing the duty is small: he or she must simply warn the patient of the dangers. Physicians often advise patients of the risks of certain medications; requiring them to do so imposes no additional, significant obligations. Just as a pharmacist administers warnings to a patient that prescribed medication could impair the ability to drive when the patient picks up his or her prescription, a medical provider should be required to take a similar, simple prophylactic measure [emphasis added]. Furthermore, the Court recognized that other States extend the duty of care from the physician to members of the general public to warn the patient about adverse side effects of medications when the physician has administered the medication, or in other ways has treated the patient.

“This is an instance in which defendants’ ‘relationship with. . .the tortfeasor. . .placed them in the best position against the risk of harm.’” Therefore, the Court concluded that the Defendants owed a duty of care to Davis as a third party member of the general public.

The NFL’s New Application of the Rooney Rule

— by Ben Cranston


If the statistical evidence of success of the NFL’s “Rooney Rule” is any indicator of future increased diversity, we will be seeing significantly more female executives working for NFL franchises in the coming years. The NFL has recently decided to apply the Rooney Rule to open executive-staff positions, requiring teams to interview at least one female candidate for the position. While this new implementation of the rule will likely draw criticism from various sources, challenges to the rule will likely fail in an increasingly open and diverse sports industry.

Articles used:

Brian W. Collins, Note, Tackling Unconscious Bias in Hiring Practices: The Plight of the Rooney Rule, 82 N.Y.U. L. Rev. 870 (2007).

Jane McManus, Rodger Goodell: Women Will Interview for Open Executive Jobs, ESPN (Feb. 4, 2016),



On Thursday, February 4, the NFL announced that they will be applying the “Rooney Rule” to female candidates for open executive-staff positions. The NFL’s Rooney Rule was first applied in 2002 to require NFL teams to interview at least one minority candidate for any open coaching position in response to the small percentage of minority head coaches in the NFL. In the wake of the Arizona Cardinals’ hiring of Jen Welter as an assistant coach, making her the first woman to hold a coaching position in the NFL, and the Bills’ hiring of Kathryn Smith as the first full-time female coach, the NFL intends to further the goal of making coaching and executive staffs not only racially diverse, but diverse across gender lines with the new application of the Rooney Rule.

Many authors have explored the nature of the Rooney Rule and why its implementation has been a great success in the NFL, even though it has faced many forms of criticism in its early stages. Brian Collins of NYU, in his article Tackling Unconscious Bias in Hiring Practices: The Plight of the Rooney Rule, argues that the Rooney rule “travers[es] the line between ‘soft’ and ‘hard’ variants of affirmative action.” He argues that the Rooney Rule is an effective policy to avoid the unconscious bias involved in the hiring practices of the NFL. His article explores the legality of the Rooney Rule and how it may be susceptible to attack on the grounds of reverse racism. The article has particular relevance now, as the Rooney Rule could possibly be attacked again in the wake of its new application to female executive candidates.

In the wake of the Griggs v. Duke Power Company Supreme Court decision, many private employers began implementing affirmative action hiring programs as to avoid liability under Title VII. However, many professional sports leagues implemented “soft” affirmative action techniques, like recruiting and outreach practices, rather than “hard” affirmative action techniques, like quotas and numerical requirements. While leagues like the NBA have been significantly more successful in creating diverse coaching staffs throughout the league by using “soft” techniques, the NFL trailed other professional sports leagues before the implementation of the “hard” Rooney Rule.

While Collins does argue that the Rooney Rule is susceptible to attack under title VII in a reverse discrimination claim by a Caucasian coach who is denied a job, he argues that with some slight changes to the rule, it would be very difficult for that challenger to succeed. The worries about the rule’s applicability and ability to survive a challenge are now even more topical with the application of the Rooney Rule to female candidates. The NFL should be, and is likely, aware of criticism and a possible challenge to the rule now that it has a broader scope. However, the NFL can easily point to the statistics that show a significant increase in minority coaches since 2002 as an indication of the success of the Rooney Rule.

The new application of the Rooney Rule in the NFL will likely draw criticism from many critics of affirmative action practices. However, if the post-Rooney statistical data involving racial diversity in the NFL coaching staffs is any indicator of future gender diversity in executive positions, it will be hard for critics to argue that this rule does not work and does not create more diversity. While the NFL should be prepared for potential attacks on the rule, it is unlikely that such an attack will be successful, nor will an attack find much support in an increasingly open and diverse industry.


All Bets Are Off – Daily Fantasy Sports Embroiled in Legal Battle in New York

— by Wes Gerrie


Case: People v. FanDuel Inc., DraftKings Inc., et al., No. 453056/15, 2015 N.Y. Misc. Lexis 4521 (S.D.N.Y. Dec. 11, 2015).



The popular, yet controversial, activity of Daily Fantasy Sports faced its first legal test for illegal gambling operations in New York. The Supreme Court of New York heard both sides and deferred its ultimate decision. However, in the meantime the companies were enjoined from conducting business in the state.




            FanDuel and DraftKings are online Daily Fantasy Sports (“DFS”) companies that operate wagering websites. On these sites the customer selects a set number of professional athletes for their DFS team staying under a salary cap based on an athlete’s perceived value by the companies. The success of their wager is tallied by FanDuel and DraftKings who rely on individual real game performances of the athletes selected. DFS has two types of games: head-to-head (betting selected lineup will perform better than others), or guaranteed prize pools (contest where payout is based on standing).

In this case the People (plaintiff) allege this structure of is a contest of chance. On the contrary, FanDuel and DraftKings (defendants) argue the customer combinations, creation of user algorithms, and analysis of statistics make DFS a game of skill.


Procedural History


To begin, the complex history of this case began on October 6, 2015 when New York (“NY”) Attorney General (“A.G.”) Eric T. Schneiderman (“Schneiderman”) started an initial probe into DFS in NY, after complaints of insider information benefiting employees winning on the competing site. On November 10, as a result of the investigation Schniederman served a cease and desist letter to both parties, finding these sites are illegal gambling operations.

On November 13 both sites commenced an action for temporary restraining orders against Schniederman in the hopes of pre-emptively stopping action against them. In this action they cited full compliance with NY law as a game of skill, an arbitrary and capricious investigation, violation of Due Process, and tortious interference with their business; this action was denied. On November 17 Schniederman filed for an injunction to prevent FanDuel and DraftKings from operating in NY due to fraudulent conduct and illegal gambling practices.

Court Analysis and Rationale


Judge Manuel Mendez ordered an injunction restraining FanDuel and DraftKings from doing business in the State of New York and from accepting entry fees, wagers, or bets from New York consumers for any contest on their websites. The court held for A.G. Schneiderman on the basis of three key rationale.

First, Executive Law §63 permits the NY A.G. to bring action for injunctive relief to remedy a repeated fraud or illegality upon the finding of a prima facie case where the act complained of has the tendency to deceive or creates an atmosphere conducive to fraud. Under General Business Law §349 a prima facie case is established by the showing of injury resulting from defendant engaging in an act or practice materially misleading or deceptive. Additionally, General Business Law §350 permits a prima facie case when the defendant engages in false advertising with a showing of reliance on said advertisement. Here, the court found A.G. Schniederman established a likelihood of success warranting an injunction under the authority of §63 due to violations of both §349 and §350.

Second, New York State Constitution Article 1 §9 states “no lottery or sale of lottery tickets, pool-selling, book making or any other kind of gambling…shall hereafter be authorized or allowed within [New York]”. In NY, Penal Law §225 defines gambling as when a person stakes or risks anything of value upon the outcome of a contest of chance not under their control. Here, Judge Mendez specifically mentioned A.G. Schniederman has a greater likelihood of success on the merits of this illegal gambling and contest of chance allegation. In finding this Judge Mendez interpreted §225 broadly and determined DFS involves illegal gambling in some capacity. The court differentiated the case at hand from Humphrey v. Viacom by stating DFS is not a one-time fee, not seasonal, and has a percentage of every fee being paid directly to these companies who control almost every aspect of the wager. Judge Mendez wrote this reflects NY State’s policy against commercial gambling.

Lastly, the final rationale involved refuting FanDuel and DraftKing’s claims made in their November 16th action. Judge Mendez pointed out Due Process only requires notice and an opportunity to be heard which was properly complied with during A.G. Schniederman’s month long investigation. Additionally, the court found no showing of an arbitrary and capricious enforcement of illegal gambling laws because both FanDuel and DraftKings were named defendants and no “similarly situated” DFS websites were exempted from A.G. Schneiderman’s probe.




However, later in the day, after this decision was handed down, the Appellate Court of NY granted a temporary stay of the injunction.[1] Part of this stay led to the announcement a New York State Appellate Division five-judge panel will hear the case in full on January 4th, 2016. The appeals and memorandum[2] for this hearing have been filed in this landmark case, so place your bets!




[1]           Chris Grove, Daily Fantasy Sites Get Reprieve After Initial Loss in New York Court Battle; FanDuel Reenters NY, Legal Sports Report, December 11, 2015,


[2]           Recently, A.G. Schneiderman wrote an addendum to the case seeking a return of all profits earned by the sites to it’s fans.

Obama’s Executive Action for Gun Control

— by Hannah Lewis


Source: Press Release, Office of the Press Secretary, The White House, Fact Sheet: New Executive Actions to Reduce Gun Violence and Make Our Communities Safer (Jan. 4, 2016).


Abstract: President Barack Obama recently announced that taking executive action to increase gun control regulation and make the process of obtaining a gun more thorough. Obama is aiming to classify more gun sellers as gun dealers, which will require them to conduct background checks on potential buyers.


In light of all the incidents, fatalities, and mass shootings occurring around the country that involve guns, President Barack Obama announced at the beginning of January that he is pushing for more regulation with gun control. Previous action by President Obama to pass gun control legislation has been unsuccessful and he has been unable to get Congress on board with his previous gun control plans. This new regulation is aimed at decreasing gun violence and illegal possession of guns. President Obama is taking executive action to achieve these ends.


This executive action consists of ten provisions. First, ATF states that if you are in the business of selling firearms, you must have a license and conduct background checks. Second, if a potential buyer is trying to purchase a weapon that is considered one of the most dangerous, through a trust, corporation, or other legal entity, then a background check is required. Third, the FBI is making the background system more effective and efficient, with improvements such as 24/7 processing and notifying authorities when a prohibited individual attempts to purchase a weapon. Fourth, in an attempt to make the communities safer, the 2017 federal budget will include funding for 200 new ATF agents to enforce gun laws. Fifth, the Internet Investigation Center has been established that will be responsible for tracking illegal online gun trafficking.


The six provision entails a requirement that gun dealers notify law enforcement if the guns are lost of stolen in the process of their sale. The seventh provision proposes an increase in access to mental health care through a $500 million investment. The eighth provision entails a requirement for the background checking system that requires information about beneficiaries who are prohibited from possessing a firearm due to their mental health. The ninth provision includes eliminating unnecessary legal barriers that prevent States from reporting information relating to people that are prohibited from possessing a gun due to their mental health. The final provision directs the sectors of the federal government, including the Department of Defense, Department of Justice, and the Department of Homeland Security, to conduct research on gun safety technology.


As with any new laws, these provisions have come with both high praise and scrutiny. Opponents argue that this is executive overreach and bypasses the legislative branch. Arguments that this these provisions are a violation of the Second Amendment have also been made. Additionally, they question whether these new laws will actually achieve the end of reducing gun violence because criminals are not going to follow the laws anyways. GOP presidential candidates have also spoken out against President Obama’s executive action. If elected, they vow to reverse the executive order once they are in office.

Women Only Liable for Intentional Injuries to Unborn Fetuses, Court of Appeals Says

–by Chris Powers

Abstract: The New York Court of Appeals ruled that a mother cannot be held liable for the death of a newborn baby when the baby’s injury was caused by the mother’s prenatal negligence because criminalizing negligence in this context gave too much discretion to prosecutors.


The New York Court of Appeals ruled last month in People v. Jorgensen[1] that a mother cannot be held liable for the death of a newborn baby when the baby’s injury was caused by the mother’s prenatal negligence.


Jorgensen was 34 weeks pregnant when the car she was driving entered the oncoming lane of traffic and struck a vehicle head on, killing both occupants of that vehicle. Jorgensen was taken to a hospital, where tests revealed probable fetal injuries. She consented to an emergency C-section, and the baby was delivered. The baby died six days later and an autopsy confirmed that the cause of death was injuries sustained the automobile accident.


Jorgensen was subsequently indicted on three counts of manslaughter in the second degree, one for each occupant of the other vehicle and one for the baby. At trial, the prosecution’s theory was that defendant was speeding and under the influence of prescription drugs when she struck the vehicle. Upon impact, the fetus was injured when the defendant, who was not wearing a seat belt, hit the steering wheel. The first jury was unable to reach a verdict, but a second jury acquitted her of two counts but convicted her for the death of her child. The Appellate Division affirmed the trial court.


The Court of Appeals reversed by a 5-1 vote, holding that “it is evident from the statutory scheme that the legislature . . . did not intend to hold pregnant women criminally responsible for conduct with respect to themselves and their unborn fetuses unless such conduct is done intentionally.” The majority analyzed multiple provisions in the New York Penal Law to reach the conclusion that the legislative intent in making the relevant laws was to require intentional behavior, not mere recklessness, by a pregnant woman to hold her criminally responsible for harm to themselves and their unborn children. Specifically, the majority found that the legislature had explicitly included criminal liability for harm to unborn fetuses in circumstances relating to self-abortions, so the legislature clearly had contemplated prenatal acts in devising the statute. The fact that reckless and negligence were not included, the majority contended, was not an inadvertent omission; the legislature must have meant to exclude it.


Next, the majority gave a policy reason for reaching its result, saying, “The imposition of criminal liability . . . [should] not be left to the whim of the prosecutor.” As the majority argued, a pregnant woman’s reckless behavior could be stretched by an ambitious prosecutor to include “disregard[ing] her obstetrician’s specific orders concerning bed rest; tak[ing] prescription and/or illicit drugs; shovel[ing] a walkway; engag[ing] in a contact sport; carry[ing] groceries; or disregard[ing] dietary restrictions.” If mere recklessness could result in criminal liability, a mother could conceivably be charged with a crime for such conduct if it resulted in premature birth and subsequent death of the child. The same conduct, however, would not be criminalized if the fetus died in utero. In essence, the majority was worried about creating a perverse incentive for a woman to refuse to deliver the baby if she feared criminal prosecution should the baby not survive after birth.


One judge dissented, saying, “I cannot join in a result that analyzes our statutes to determine that a six-day-old child is not a person.” The dissenting judge conducted a statutory interpretation of his own, citing many of the same statutes, to reach an opposite conclusion. He reasoned that the “pertinent parts of the Penal Law speak to victims as they are, not as they were at the time the acts giving rise to the crime were committed. There is no pregnant mother exception from criminal liability for reckless acts that result in the death of a mother’s baby postpartum.”


In its opinion, the majority directly appealed to the legislature to make its intent clear for such a situation as the facts presented here. (“The imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in utero should be clearly defined by the legislature, not the courts.”)


Time will tell if the state lawmakers respond.


[1]           People v. Jorgensen, 2015 NY Slip Op 07699, (N.Y. Oct. 22, 2015),


Second Circuit Holds that the Discharge Injunction Provisions of the Bankruptcy Code do not Repeal Post Discharge Claims Under the Fair Debt Collection Practices Act

— by Matthew Schutte

Case: Garfield v. Ocwen Loan Servicing, LLC, 2016 U.S.  App. LEXIS 3 (2d Cir. 2016)

Abstract: Plaintiff borrower appealed from District Court’s dismissal of her post discharge Fair Debt Collection Practices Act claims against Defendant loan servicer. The Second Circuit held that the discharge injunction provision of the Bankruptcy Code does not broadly or impliedly repeal FDCPA claims in the post discharge context.


Plaintiff borrower was a former Chapter 13 debtor. Plaintiff sued Defendant loan servicer, alleging that Defendant violated various provisions of the Fair Debt Collection Practices Act (FDCPA) when it tried to collect a debt on her mortgage that had previously been discharged in bankruptcy proceedings. The United States District Court for the Western District of New York granted Defendant’s motion to dismiss for failure to state a claim on the ground that the exclusive remedy for Defendant’s alleged conduct was under the discharge injunction provision in §524(a) of the Bankruptcy Code.

In reviewing the District Court’s dismissal of Plaintiff’s claim, the Second Circuit had to address four issues of first impression: (1) whether § 524(a) of the Bankruptcy Code broadly repeals the FDCPA in the context of FDCPA claims based on conduct that would constitute a violation of the Bankruptcy Code’s discharge injunction; (2) whether § 524(a) of the Bankruptcy Code impliedly repealed Plaintiff’s claim that Defendant’s attempt to collect the discharged debt constituted a violation of §1692e(11) of the FDCPA, requiring a debt collector to provide a mini Miranda warning in its initial communication with a debtor; (3) whether § 524(a) of the Bankruptcy Code impliedly repealed Plaintiff’s claims under § 1692e(11) and § 1692g(a)(3) of the FDCPA, regarding the way in which Defendant tried to collect Plaintiff’s post bankruptcy monthly payments; and (4) whether § 524(a) of the Bankruptcy Code impliedly repealed Plaintiff’s claim that Defendant’s attempt to collect her discharged debt constituted a violation of §§ 1692e, 1692e(2), 1692(e)(5), and 1692e(8) of the FDCPA, which regulate debt collection.

The Court began its analysis by discussing the general rules regarding implied repeal. If a party claims that a later enacted statute creates an irreconcilable conflict with an earlier statute, then the court must decide whether the later statute has impliedly repealed all or part of the earlier statute. National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662-63 (2007). The Court noted that courts generally disfavor implied repeal. If there is no affirmative showing of an intent to repeal, then implied repeal is only justified if the earlier and later statutes are irreconcilable. Morton v. Mancari, 417 U.S. 535, 550 (1974).

The Court then went on to apply these rules to the bankruptcy context. If a party claims that a later enacted Bankruptcy Code statute creates an irreconcilable conflict with an earlier statute, then the court must differentiate between claims brought under the earlier statute while bankruptcy proceedings are pending and claims brought after discharge. The Second Circuit had previously decided that the FDCPA does not allow lawsuits on claims that are based on acts that allegedly violated the Bankruptcy Code if they are brought while bankruptcy proceedings are pending. Simmons v. Roundup Funding, LLC, 662 F.3d 93, 96 (2d Cir. 2010).

The Court held first that the § 524(a) of the Bankruptcy Code does not broadly repeal in the FDCPA in the context of FDCPA claims based on conduct that would violate the discharge injunction under § 524(a) of the Bankruptcy Code. The Court found no irreconcilable conflict between post discharge remedies under the Bankruptcy Code and the FDCPA, reasoning, “[t]here is no reason to assume that Congress did not expect these two statutes to coexist in the post discharge context.” In the post discharge context, the bankruptcy court no longer protects the former debtor. This factor was central to the Court’s reasoning in Simmons in holding that the Bankruptcy Code precludes FDCPA claims where they are brought during the pendency of bankruptcy proceedings. Additionally, the Court noted that § 524(a) of the Bankruptcy Code does not provide a clear cause of action for violations of the discharge injunction.

For the second issue, the Court held that the Bankruptcy Code did not impliedly repeal Plaintiff’s claim that Defendant’s attempt to collect her discharged debt violated §1692e(11) of the FDCPA. This statute requires debt collectors to provide mini-Miranda warnings in initial communications with debtors. The Court reasoned that Defendant’s communication constituted an attempt to collect a discharged debt, in violation of the Bankruptcy Code’s discharge injunction, as well as the FDCPA’s mini-Miranda requirement.

In addressing the third issue, the Court held that the Bankruptcy Code did not impliedly repeal Plaintiff’s claims that Defendant’s attempt to collect her delinquent post bankruptcy monthly payments constituted a violation of  § 1692e(11) and § 1692g(a)(3) of the FDCPA. The latter of these provisions requires debt collectors to provide debtors with timely notice of the opportunity to dispute a debt. The Court again found that Defendant’s alleged violations of these provisions did not conflict with any provisions of the Bankruptcy Code.

Finally, the Court held that the Bankruptcy Code did not impliedly repeal Plaintiff’s claim that Defendant’s attempt to collect her discharged debt violated §§ 1692e, 1692e(2), 1692(e)(5), and 1692e(8) of the FDCPA. These provisions regulate the collection of debt. The Court reasoned that a loan servicer could avoid violating the FDCPA provisions as well as the Bankruptcy Code by simply refraining from attempting to collect discharged debt. Thus, when Defendant tried to collect the discharged debt, it risked violating the FDCPA as well as the Bankruptcy Code, and there was no conflict between the statutes.

The Court reversed and remanded the District Court’s dismissal of Plaintiff’s claims and instructed the District Court to reinstate all of Plaintiff’s claims.