Alum of the Month: Aaron Tidman (’07)

Most kids don’t dream of becoming a lawyer, but Aaron Tidman wasn’t most kids.  Having grown up in the suburbs of Washington, D.C., Aaron was involved in politics, government, and law as far back as he can remember. In high school, he spent summers interning on Capitol Hill. In college, he interned with the White House. Finally, after studying history and political science at the University of Pennsylvania, Aaron moved to New York City to work as a paralegal, getting some professional experience in before law school.

Aaron Tidman                              Anti-Corruption Counsel for Gilead Sciences

After working as a Trial Preparation Assistant for the Rackets Bureau of the Manhattan District Attorney’s Office, Aaron was smitten with the idea of becoming a prosecutor.  In part, this was why Aaron chose to attend Syracuse Law – for the top-notch trial advocacy program.  Shortly after starting law school, however, he found himself in a class that would forever shape his future as an attorney . . .

“It was my 2L year, and I had Professor Harding for Securities Regulation,” he said. “She was an amazing professor. That class was a major turning point for me, and it just goes to demonstrate how much of a role professors and teachers can have in your career trajectory.”

Before he knew it, Aaron was writing his Law Review Note on securities law enforcement (with the supervision of Professor Harding), accepting a summer internship with the U.S. Securities and Exchange Commission’s Enforcement Division, and working his way forward into a career in securities law that he now loves.

During his tenure at the College of Law, Aaron served as Lead Articles Editor for Syracuse Law Review. In this position, Aaron recruited a number of prominent academics to write articles for publication, including Erwin Chemerinsky, Akhil Amar, Ronald Rotunda, and Andrew Koppelman.

In addition, Aaron created and organized a symposium entitled, “A Nuclear Iran: The Legal Implication of a Preemptive National Security Strategy.” This was the first live symposium hosted by Syracuse Law Review in many years. The 2006 symposium included some of the biggest names in national security law, with panelists such as James Timbie, Steven Miller, Mitchel Wallerstein, David S. Jonas, and Col. Samuel Gardiner, as well as renowned journalist Seymour Hersh serving as the keynote speaker.

Outside of Syracuse Law Review, Aaron competed in the Irving R. Kaufman Memorial Securities Law Moot Court Competition and served as a Research Assistant for Professor Kathleen O’Connor’s Legal Communication and Research class.

Upon graduation in 2007, Aaron began working for Debevoise & Plimpton LLP as a litigation associate, handling matters mostly focused on securities litigation, regulatory enforcement, and white-collar criminal defense. Then, in 2012, Aaron decided to leave the firm and work full-time as Regional Voter Protection Director for the Obama campaign in Virginia. In that role, he recruited and trained hundreds of volunteer attorneys to serve as poll observers, and on Election Day, he managed a team of 15 attorneys handling any voting-related issues in his region.

Following the campaign, Aaron returned to private practice at Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C. (“Mintz”) in Washington, D.C., where he primarily focused on the U.S. Foreign Corrupt Practices Act and white-collar defense matters, including insider trading and securities fraud investigations.  At Mintz, Aaron found a mentor and friend in Paul Pelletier, a former career prosecutor with the Department of Justice, who was invaluable in helping to guide and shape Aaron’s career.

Today, Aaron serves as Anti-Corruption Counsel for Gilead Sciences, a research-based biopharmaceutical company, headquartered in Foster City, California. There, he is responsible for a broad portfolio of legal and compliance matters related to the company’s anti-corruption and Office of Foreign Assets Control programs.  Aaron said that the international travel, exciting challenges of serving in his new role as in-house counsel, and trials and thrills of moving across the country – from Washington D.C. to Foster City – are never what he initially dreamed up for his future, yet are all welcome life experiences and learning opportunities.

Over the course of his career, Aaron has been awarded City Year’s Idealist of the Year, the LGBT Bar Association’s 40 Best LGBT Lawyers Under 40, as well as Super Lawyers’ Rising Star for White Collar Defense. So, what advice does this decorated and well-accomplished attorney have for the next generation of Syracuse Law graduates?

“There’s a multitude of ways to achieve success,” he said. “Don’t feel like you need to take the traditional big law firm path.  Your first job out of law school will definitely not be your last, and it’s okay to switch jobs and practice areas. This is a profession where you learn on the job; so, you might discover that you’d prefer to focus on a different area of the law a few years down the road. Regardless, look for a mentor and champion right away – someone to guide you and help you navigate your professional choices. Having an advocate and sounding board is invaluable.”

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This story was written by Legal Pulse Editor Samantha Pallini and is the second installment of Syracuse Law Review’s new monthly feature, “Alum of the Month.” Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus.

Case Study: Roy Cockrum, et al. v. Donald J. Trump for President, Inc. and Roger Stone

Written By Nicole Macris

 

BACKGROUND

During the 2016 Presidential Election, an unidentified hacker broke into the Democratic National Convention’s database and stole more than one 100 accounts of donors, staffers, and supporters alike. WikiLeaks later received that information, making it public via its website on July 25, 2016. The hack left of individuals vulnerable and exposed. Three of the affected individuals–Roy Cockrum, Scott Comer, and Eric Schoenberg–have now brought suit to recover for their invasion of privacy.

DISCUSSION

The plaintiffs–two donors and one former DNC staffer– allege that the WikiLeaks disclosures have chilled participation in vital parts of the democratic process, campaign financing, and advocacy. Private identifying information–including social security numbers, dates of birth, addresses, and phone numbers–were made public, and they allege that this now subjects them to a potential lifetime of identity theft and subsequent credit complications.

Moreover, Cockrum’s donations to specific candidates running for public office, state Democratic parties, and the DNC were publicized, which, the Complaint alleges, resulted in a chilling effect with respect to future political contributions. Comer’s emails, discussing his conflicts with colleagues, health issues, and details of his sexual orientation, were also published. The dissemination of their private information and emails, the plaintiffs further allege, resulted in intimidation and fear of using normal technological means of communication for advocacy and financial purposes.

Consequently, on July 12, 2017, the plaintiffs filed suit in the U.S. District Court for the District of Columbia. The allegations set forth in the Complaint assert that the defendants violated the plaintiffs’ privacy rights by disseminating private information about them, in a conspiracy with Russian agents, by way of WikiLeaks, DCLeaks, and Guccifer 2.0, all in violation of 42 U.S.C. § 1985(3). Named as defendants are Donald J. Trump for President, Inc. and Roger Stone, an advisor to the 2016 Trump Campaign.

The Complaint further alleges that the defendants are liable for the public disclosure of private facts, pursuant to D.C. law. In order to prevail on this claim, the plaintiffs must prove “(1) publicity, (2) absent waiver or privilege, (3) given to private facts, (4) in which the public has no legitimate concern (5) and which would be highly offensive to a reasonable person of ordinary sensibilities[.]”

Case law dictates that the dissemination of personal information, such as Social Security numbers and identification information, falls within the “highly offensive” category of private information that should not be made public without waiver. The crux, however, is determining whether disseminating the private information falls within one of the three exceptions, namely, whether it is (1) “crucial to the vitality of democracy,” (2) of public concern regarding current events, public affairs, or (3) information that could protect others or is already of public record. The plaintiffs claim that the information published fails to fall within one of the aforementioned exceptions.

Nevertheless, one crucial question remains: are the defendants culpable for disseminating the plaintiffs’ information and emails? This is where the conspiracy claim comes into play; for without a connection to the third parties, the defendants may not be liable for the published information. Thus, 42 U.S.C. § 1985(3) applies in order to establish the causation of the alleged injuries. The plaintiffs specifically rely on the harm caused by intimidation and injury resulting from supporting one candidate over another, as set forth in the statute:

. . . conspir[acy] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy . . . .

Despite all of this, the Complaint turns on the connection between the defendants and third parties for the purposes of holding the defendants culpable for the entirety of the lawsuit. Without a finding of the alleged conspiracy, the entire cause of action could fail. Thus, this action depends on plaintiffs establishing their burden of proof with regard to the defendants’ alleged conspired with Russian agents, Gufficer 2.0, DCLeaks, and WikiLeaks.

Several points set forth in the complaint either state or add to the assertion that there was a connection between Trump for President, Inc., Roger Stone, and the aforementioned third parties. While many of the factual allegations set forth in the Complaint have been extensively covered and discussed in the media, the Complaint works to bridge the gap and form the conspiracy relationship by way of logical assertions.

• Paragraphs 9–10, 178, 180: United States government reports conclude that Russia is the culprit of the DNC hacking, and the defendants, thereafter, reaped the benefits;

• Paragraph 11: Trump for President campaign officials had/have ties to Russia, and use these ties to use the information hacked by Russia to their benefit;

• Paragraph 13: The campaign officials entered into agreements with Russia;

• Paragraphs 142–155: Defendants called attention to the hacked, and subsequently published, emails and information, and did so prior to the actual publication by WikiLeaks; and

• Paragraph 182: Defendants (1) denied Russia’s involvement, (2) undermined accountability efforts, and (3) concealed Russian contacts in order to further conceal involvement in the alleged conspiracy.

While this case is in its infancy, it is possible that the discovery, motions, and potential trial may lead to political and constitutional issues overwhelmingly more controversial than the DNC hack or alleged injuries at issue here.

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Sources Cited

Andy Wright, DNC Hack Victims Sue Trump Campaign and Roger Stone, Just Security (July 12, 2017).

Budik v. Howard Univ. Hosp., 986 F. Supp.2d 1 (D.D.C. 2013).

Cockrum, et al. v. Donald J. Trump for President and Stone, Complaint, Case No. 1:17-cv-01370, Dkt. No. 1 (July 12, 2017).

Eric Lichtblau and Eric Schmitt, Hack of Democrats’ Accounts Was Wider Than Believed, Officials Say, N.Y. Times, (Aug. 10, 2016).

Foretich v. Lifetime Cable, 777 F. Supp. 47 (D.D.C. 1991).

Grunseth V. Marriot Corp., 872 F. Supp. 1069 (D.D.C. 1995).

Susan Hennessey and Helen Klein Murillo, Is It A Crime?: Russian Election Meddling and Accomplice Liability Under the Computer Fraud and Abuse Act, Lawfare (July 13, 2017).

Wolf v. Regardie, 553 A.2d 1213, 1220 (D.C. 1989).

Alum of the Month: Marguerette N. Hosbach (’80)

The word “resurrect” comes from the Latin word resurger, meaning “to rise again.” To resurrect is to both acknowledge defeat and to declare hope. And while resurrecting what has fallen is no simple task, Syracuse Law alumnus Marguerette N. Hosbach (’80) has dedicated her legal career to just that.

           Marguerette N. Hosbach
Executive Director and Associate General Counsel at Ernst & Young 

Twenty-five years ago, Marg started at Ernst & Young in New York City.  She was a young litigation associate and a graduate of the College of Law, where she served as a Syracuse Law Review Notes & Comments Editor.  But her path to EY was certainly not a straight line . . .

Marg graduated from Vassar College in Poughkeepsie, New York, in 1973, where she majored in literature.  At the time, she said there were two options for women with that major.  “Back then, you either worked in advertising or publishing, or you went right to graduate school.”

Marg wanted the practical experience first, so she ventured out into the Big Apple and landed a media research analyst position in a large advertising agency.  Much of her time revolved around supporting the media buyers.  And, while Marg enjoyed the work, she wanted to broaden her knowledge of business, in general, and marketing, in particular.  So, in 1974, she entered Columbia’s MBA program, where she paired academic rigor with participation in internships at cultural and business institutions.

Upon graduating from the MBA program, Marg returned to the advertising agency to take on a new role as an assistant account executive.  In that capacity, Marg assisted in developing and implementing television and print advertising campaigns for large consumer companies such as Procter & Gamble (i.e., Crest toothpaste).  Throughout this time, Marg also became familiar with “the law” as it applied to advertising.  Specifically, Marg worked closely with the legal departments at the major networks, vetting advertising copies.  The more Marg dealt with the legal departments, the more interested she became in the “legal side” of advertising and marketing.  So, after a few years with the agency, Marg decided to take on a new challenge:  law school.

She entered Syracuse University College of Law in the fall of 1977, finding herself among a wonderful group of peers.  “The common denominators I saw in all of those people who wanted to become attorneys were their competence, their varied interests, and their drive.”

Beyond the students, however, were the professors who positively impacted her – an impact, she says, they likely do not know.  One professor she recalls was Professor Gary Kelder, a criminal law expert who still teaches at the College of Law today.  “He was so excited about teaching that he’d be jumping up and down!  That enthusiasm is contagious.  His class really impacted me in terms of deciding to take the position I did upon graduation.”

And what was that position?  Assistant District Attorney for the Manhattan District Attorney’s Office – the job where she would not only develop her skillset and foundation for a legal career to come, but also where she would meet her husband, Gerry Conroy.

When she arrived at the DA’s Office, Marg was placed in the Appeals Bureau. There, she had the opportunity to participate in the preparation of senior attorneys in connection with two United States Supreme Court cases. She credits this assignment to her time on Syracuse Law Review.  “Certainly, Law Review helped me get a job right out of law school.  I think that that is underscored by the fact that my first assignment out of law school was to the Appeals Bureau of the Manhattan DA’s Office.”

After two and a half years in the Appeals Bureau, Marg joined one of the Trial Bureaus to develop her litigation skills.  She tried about 17 cases, until her next exciting opportunity came along just a few years later: the private sector.

“I started working at Cahill Gordon & Reindel LLP in 1985.  Having been on Law Review is one of, I think, the very important reasons why they hired me, especially since they told me that they had never hired anyone out of the public sector before.”  At Cahill, Marg was involved with litigation on behalf of investment banks and large accounting firms.  There, she got exposure to litigation in both civil and regulatory areas.  And after nearly five years of practice at Cahill, a new venture presented itself in the form of Ernst & Young—and Marg grabbed at the opportunity.

During Marg’s first years at EY, she handled accounting malpractice litigation.  However, after a few years with EY, the Enron scandal hit, and there was a surge in the number of large companies filing bankruptcy and hoping to emerge as healthier companies.  Some of those large companies were clients of EY.

Marg started hearing from the restructuring professionals at EY—you have an MBA, you are a litigator—and before she knew it, Marg was asked to develop a practice whereby she could support EY professionals who were providing services to distressed clients.  “I’ve now been advising EY partners who provide services to distressed companies for the past 20 years, and throughout, I’ve seen many waves of industry sectors using bankruptcy to rebuild and emerge with healthier financial structures.  For me, it began with a few questions re the Maidenform bankruptcy and questions over the next few years in connection with numerous retail clients. Enron filed in 2001, then a few years later the bursting of the tech bubble, more recently coal, oil, and energy, and now a new wave of retail filings.”  From industry to industry, Marg has played a role in helping companies restructure and emerge, and she’s done it all through the power of the law.

One of her favorite cases of all?  The City of Detroit.  EY was a financial restructuring advisor to the City of Detroit during its Chapter 9 proceeding (municipalities file Chapter 9, rather than Chapter 11), and Marg helped support the EY team in the provision of EY services.  “I only made a tiny contribution, but Detroit’s restructuring was—without question—crucial to the City thriving.  It was so great stepping back and seeing attorneys making this kind of positive difference for a great American city.  I still have a cover from the NY Times re Detroit posted to my office bulletin board.”

She said the sort of work where a company goes into bankruptcy—broken and defeated—and then can emerge healthy and ready to contribute positively to the American economy is the kind of work that makes her proud.  “That kind of work saves jobs, helps industries thrive, and adds positively to the economy, and I’m proud to be a part of that team.”

Marg’s resume runs the gamut of legal practice, and she wouldn’t have had it any other way.  “My parents used to tell me, ‘You really want to make certain you enjoy what you do because you’ll spend so much time doing it.’ I searched for what was interesting to me at the time, what would be of interest to me in the future, and what would also allow me the opportunity to feel like I was doing something substantive and meaningful.”

I think we all can agree that, from criminal prosecution to corporate insolvency, Marg has done just that.


This story was written by Legal Pulse Editor Samantha Pallini and is the first installment of Syracuse Law Review’s new monthly feature, “Alum of the Month.” Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus.

Trump’s Travel Ban: What comes next?

Written by: Conor Tallet

On January 27, 2017, President Donald J. Trump issued Executive Order No. 13769, commonly known as the “travel ban.” When the Ninth Circuit blocked it, President Trump issued a “revised travel ban”on March 6, 2017 via Executive Order No. 13780. The Department of Justice has appealed the blocking of the orders to the Supreme Court, and the question as to whether or not the Court will act remains.

The revised order reworked provisions of the first travel ban that were at issue in the Ninth Circuit. Specifically, Section 2(c) of the order temporarily suspends new visas for citizens of six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. The ban’s stated purpose was to decrease the risk of terrorist organizations from entering into the United States. Consequently, the order explained that the six listed countries had been “significantly compromised by terrorist organizations, or contain active conflict zones.” While such a purpose may appear clear on its face, a key question in evaluating this ban has been whether it violates the Establishment Clause of the First Amendment of the Constitution.

The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” Essentially, this means that the government cannot establish an official religion of the United States or pass any laws that favor or inhibit a particular religion.

The primary Establishment Clause test utilized by courts today is derived from Lemon v. Kurtzman, and the rest requires that courts analyze a government action’s purpose, effect, and entanglement with religion. If a court finds the government acted with a primary religious purpose, had the effect of advancing or inhibiting religion, or was sufficiently entangled with religion, it will strike the law down as unconstitutional in violation of the Establishment Clause. Under this Lemon test, a challenger needs to show only one of the three prongs to succeed.

Here, six Muslim individuals, and three organizations that represented Muslim clients, asserted that they would be harmed by the implementation of the revised travel ban. In turn, they filed a lawsuit in the United States District Court of Maryland seeking a preliminary injunction. The District Court granted the injunction and determined that the plaintiffs were likely to succeed on the merits of an Establishment Clause claim.

After the ruling was appealed, the Fourth Circuit upheld the Maryland District Court’s decision to block the revised travel ban on May 25, 2017, finding the ban to be in violation of the Establishment Clause. In its analysis, the Fourth Circuit employed the Lemon test and viewed extrinsic evidence on the record from the viewpoint of a reasonable observer to determine that the revised travel ban had a primary religious purpose.

One question that arose revolved around whether or not courts should be permitted to consider extrinsic evidence when assessing the purpose. In the Lemon test analysis, a court determines not only the government’s stated purpose, but also the purpose from a reasonable observer’s standpoint. Thus, in analyzing the purpose from the standpoint of a reasonable observer, it is proper for a court to take extrinsic evidence surrounding the implementation of a government action into account, just as the Fourth Circuit did in this case. However, in an age where society is constantly bombarded with information through countless avenues of communication, it is worth asking how much extrinsic evidence a court should take into consideration when attempting to determine the primary purpose of a governmental action.

In this case, the District Court of Maryland looked to President Trump’s campaign statements, rallies, interviews, and tweets in order to assess the various discussions surrounding the travel ban. More specifically, the court assessed the choice of language such as banning “Muslims” as opposed to banning “terrorists.” Thus, the Fourth Circuit determined that the abundance of extrinsic evidence on the record, “viewed from the standpoint of the reasonable observer, creates a compelling case that [the revised travel ban’s] primary purpose is religious.”

Furthermore, in this case, the Fourth Circuit held that the District Court’s use of such extrinsic evidence, in holding that the order was a violation, was proper to show a primary religious purpose disguised in terms of national security to circumvent Establishment Clause scrutiny. Accordingly, the Fourth Circuit concluded that President Trump’s statements revealed his “desire to exclude Muslims from the United States” in violation of the Establishment Clause.

On June 1, 2017, the Department of Justice filed a petition with the Supreme Court, seeking review of the Fourth Circuit’s decision.

Whether or not the Supreme Court will hear the case remains to be seen. Some experts argue that the court will likely grant certiorari and hear the appeal, saying that “[w]hen a major presidential initiative is ruled unconstitutional by a federal appeals court, a review by the Supreme Court almost always follows.” On the other hand, rulings in the Hawaii District Court, Maryland District Court, Washington District Court, Fourth Circuit, and Ninth Circuit have remained consistent, blocking both the travel ban and the revised travel ban. With consistent interpretation and no circuit splits, some experts argue that there is no reason for the Supreme Court to hear the case. Only time will tell.

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Sources Cited      

Adam Liptak, The Supreme Court’s Options in the Travel Ban Case, NY Times (Jun. 2, 2017).

Int’l Refugee Assistance Project v. Trump, 2017 WL 2273306 (4th Cir. 2017).

Ryan Lovelace, Will the Supreme Court Take up Trump’s Travel Ban?, Washington Examiner (Jun. 3, 2017).

Int’l Refugee Assistance Project v. Trump, 2017 WL 1018235 (D. Md. 2017).

Federal Rule of Civil Procedure 26(b)(1)

As it currently stands, the text of FRCP 26(b)(1) states the following: “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identify and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.”

The proposed amendment would limit the broad scope of the current rule by requiring that discovery be “proportional to the needs of the case.” The text of the proposed rule is as follows: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefits.” The proposal would eliminate the option to have discovery “relevant to the action” and instead limits discovery to the claims and defenses in the action.

The Advisory Committee has decided to enact this more tailored version of the previous rule due to the fact that the old rule allowed discovery of any information so long as it was reasonably calculated to lead to the discovery of admissible evidence. Despite a revision of the rule in 2000, many lawyers and judges reading that language have concluded that, since almost any information could potentially lead to relevant and admissible evidence, almost anything is discoverable. Given the growth in electronically stored information (“ESI”) and advances in storage capability, such an interpretation has rendered the discovery process unduly burdensome and expensive. The new rule will become effective on December 1, 2015.

Rigano v. Vibar Const., Inc.

The issue decided in the case is whether a notice of mechanic’s lien can be amended nunc pro tunc to reflect the name of the true owner of the property or whether the misnomer invalidates the lien.

George Vigogna (sole shareholder of Vibar Constructions Corp.) and Nick Rigano (sole shareholder of Fawn Builders, Inc.) were business partners for over 35 years up until the dispute at question arose in 2007. Both parties often worked together, split their profits and rarely put their business agreements in writing.

During the project at issue, Vigogna’s company constructed a driveway to access a property and claims that Rigano’s company failed to compensate them for the construction of the road. Vigogna’s company filed a notice of a mechanic’s lien on the property in order to recover costs for construction of the road. Rigano sought to have the lien discharged on the grounds that he, and not his company owned the property, and that the lien was invalid. Vigogna sought to amend the lien. The Supreme Court granted Rigano’s petition and discharged the lien and the Appellate Division affirmed holding that “a misidentification of the true owner is a jurisdictional defect which cannot be cured by an amendment nunc pro tunc.”

The Court of Appeals reversed the Appellate Division’s holding. They referenced Matter of Niagara Venture v. Sicoli & Massaro, where they stated in that case that, “Substantial compliance . . . shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same . . .  and a failure to state the name of the true owner . . . or a misdescription of the true owner, shall not affect the validity of the lien.” The Court also referenced Article 2 of the Lien Law which says they are to be construed liberally.

Combining these principles, the Court said in these particular circumstances, that the amendment sought was authorized and the defect in the lien was a misdescription, which allowed the amendment, and not a misidentification.

998 N.Y.S. 2d 748 (N.Y. 2014)

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Farruggia v. Town of Penfield

This appeal addresses an order by the New York Supreme Court denying summary judgment, granting summary judgment, denying partial summary judgment, and granting a motion for leave to amend. The Plaintiff, Gaetano Farruggia, was a construction worker and backhoe operator. The Defendant, Town of Penfield, hired the Plaintiff’s employer to complete a project (Project) on the Co-Defendant’s, Kenneth and Suzanne Hershey, property. The Project involved performing paving work on the sidewalk and driveway. While the Project was located on the co-defendant’s property, it was also located within the Defendant’s right-of-way through Co-Defendant’s property. It appears that an area of land (Landing Area) outside of Defendant’s right-of-way, but inside and wholly located on the Co-Defendant’s property was being used to park construction vehicles and equipment. At the end of a workday the Plaintiff parked a backhoe in the Landing Area which rolled into a ravine, injuring him. Plaintiff commenced an action against the Defendant and Co-Defendant under Labor Law and common-law negligence.

The Supreme Court denied Defendant’s motion for summary judgment in dismissing the Labor Law cause of action and granted Co-Defendant’s motion summary judgment. It also denied part of Plaintiff’s motion for partial summary judgment granted part of Plaintiff’s motion for leave to amend their bill of particulars. Defendant appealed and Plaintiff cross-appealed.

The Appellate Division agreed with Defendant that the lower court erred in denying Defendant’s motion for summary judgment in dismissing the Labor Law causes of action because the Defendant was not considered an “owner” for purposes of the statutes. The accident occurred well outside the Defendant’s right-of-way, and the Defendant had no interest or legal control over the Landing Area. Further, the Landing Area was completely on the Co-Defendant’s private property, the Co-Defendant had given Plaintiff permission to park the backhoe there and directed Plaintiff on exactly where to park. The Defendant had no power to do the same and there were other options available for Plaintiff to park. Further, the Appellate Division determined Plaintiff’s accident did not have “an elevation-related risk,” as protected against in Labor Law § 240(1). The Appellate Division also agreed with Defendant in denying the common-law negligence causes of action. The Appellate Division found that since Defendant established it did not occupy, own, or have control over the area of the accident (the Landing Area), and did not employ this area for a special use, it did not owe Plaintiff a duty of care.

The Appellate Division therefore modified the Supreme Court’s order by granting the Defendant’s summary judgment and dismissing the cross claim against it. The court also modified the lower courts order by totally denying Plaintiff’s motion for leave to amend, since there is no longer a basis against the town to do so.

The Appellate Division also agreed with Plaintiff in saying the lower court erred in dismissing the Labor Law and common-law negligence causes of action against the Co-Defendant. The Co-Defendants owned and controlled the accident area and did not establish that they did not have actual or constructive notice of the dangerous condition. The court modified the lower court’s order by denying Co-Defendant’s motion for summary judgment.

989 N.Y.S.2d 715 (4th Dep’t. 2014)

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Gristwood v. State

This appeal addresses an action for damages for wrongful conviction and imprisonment.  Claimant appeals from a Court of Claims judgment that awarded him $5,485.394 in damages. In 1996, Claimant was convicted of murder in the second degree and criminal possession of a weapon in the fourth degree for the death of his wife. The only evidence tying Claimant to the crime was an inculpatory statement made to police after a fifteen hour interrogation. In 2003, an individual confessed to the assault and murder of Claimant’s wife, providing details that accurately described the attack. Claimant moved to vacate the judgment of conviction on the grounds that those statements were “newly discovered evidence.” In 2006 County Court granted the motion and dismissed the indictment and Claimant was released after serving more than nine years in prison. Claimant thereafter brought a successful suit against the State.

In this appeal, the court held that the lower court did not abuse its discretion when it excluded the transcripts of Claimant’s criminal trial. Further, a determination of the Court of Claims will not be set aside unless their conclusions could not have been reached upon any fair interpretation of the evidence. The Court of Claims properly determined that the “new” 2003 confession established that Claimant did not commit the acts for which he was imprisoned.

The court found that Claimant had otherwise maintained his innocence and that his inculpatory statement was coerced. The voluntariness of a confession can be determined through “examination of the totality of the circumstances,” including duration, detention conditions, polygraph use or misuse, police attitude, threat existence and the age, and physical and mental state of the detainee. The court concluded that Claimant’s inculpatory statement was the product of police misconduct, including threats and harsh tactics. Claimant made the inculpatory statement after being awake and emotionally traumatized for thirty-four hours. He was interrogated in a six-by-eight-foot windowless room for fifteen hours and was devoid of food, drink and cigarettes. He was promised release if he passed a polygraph exam, which was determined to be “questionably reliable” due to his mental and physical state. The totality of the circumstances showed that Claimant’s statement was not voluntarily made, nor did he actually trigger his own conviction.

Finally, the court concluded that the nonpecuniary damages awarded did not materially deviate from reasonable compensation. The damages must “fairly and reasonably” compensate claimant under N.Y. Court of Claims Act § 8-b(6). “Traditional” tort, common-law and case law should guide the amount of present or future awards. “Proximately resulted” damages can be included after the period spanning conviction to the imprisonment term. Accordingly, the court determined that Claimant’s conviction and incarceration was detrimental to his personal and family life. The court ruled that Claimant correctly received damages for loss of liberty and pain and suffering, which included post-imprisonment psychological injuries.

990 N.Y.S.2d 386, 2014 N.Y Slip Op. 05259 (4th Dep’t. 2014)

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Koch v. Sheehan

This appeal considered a decision of the Office of Medicaid Inspector General (“OMIG”) to exclude Petitioner from participating in New York’s Medicaid program. Petitioner Eric J. Koch, D.O., was investigated by the Office of Professional Medical Conduct (“OPMC”) for his treatment of two patients, both of whom died shortly after receiving treatment in 2006. The Board for Professional Medical Conduct (“BPMC”), the state agency responsible for adjudicating professional misconduct complaints against physicians, found that Petitioner had negligently practiced medicine with respect to these two patients, and it entered into a consent agreement with Petitioner and OPMC. Pursuant to the consent agreement, Petitioner pleaded “no contest” to these charges and accepted a sanction of 36 months probation. OMIG, an independent state agency responsible for, inter alia, assuring that Medicaid funds are expended on quality medical care, was notified of the BPMC finding and removed Petitioner from the Medicaid program pursuant to 18 N.Y.C.R.R. §§ 515.7(e), 515.3(a)(1), which permit OMIG to take immediate action against a person found guilty of professional misconduct.

Petitioner challenged the OMIG decision, and the Supreme Court, Erie County, vacated OMIG’s decision and reinstated Petitioner. OMIG appealed, and the Appellate Division, Fourth Department, affirmed, holding that it was arbitrary and capricious to remove Petitioner from the program when BPMC had permitted him to continue to practice. It held further that OMIG was required to conduct an independent investigation before excluding a physician from Medicaid on the basis of a BPMC consent order.

The Court of Appeals affirmed on different grounds. The Court rejected the idea that OMIG was required to conduct an independent investigation and that it was required to give any deference to BPMC’s findings. It held that there was no statutory or regulatory basis for such a requirement and noted that OMIG may adopt the findings of BPMC and may choose not to levy further sanctions. However, it is ultimately within OMIG’s discretion to determine what sanctions, if any, are to be imposed.

Thus, the Court reasoned that OMIG may remove a physician based solely on the findings of a BPMC consent order in an exercise of its inherent discretionary authority. But, such a discretionary action requires an explanation. The Court held that, in cases such as this, where OMIG seeks to impose sanctions more severe than those imposed by BPMC, it must explicitly explain why exclusion from the program is warranted. The record in this case did not provide any such explanation. Rather, the recommendation for exclusion merely reiterated that Petitioner had two charges of negligence and was placed on probation for 36 months. The Court held that this was insufficient and that OMIG’s decision was arbitrary and capricious and an abuse of discretion.

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2013 WL 5707874, 2013 N.Y. Slip Op. 06804