Tuesday, April 27, 2010


NYLJ 6-8-07


4. You may have seen it a thousand times and leafing through the Yellow Pages it would seem as innocuous as all those subway ads for Fitzpatrick & Fitzgerald or Fitzwilly or Fitzwhatever, you know?—the one with the fightin’ leprechaun? Or that guy with the 1970’s mustache? It probably won’t work for the blind lady or scales: too generic.

But the doodle of a guy wrapped in bandages in a hospital traction bed has been Newmark & Newmark’s trade advert since 1988, and registered since 1990. Howeer, the Berne Convention Implementation Act, which eased copyright notice requirements, was also 1988, which meant that their usage/image pre-dated it, briefly.

And that was where Ronai & Ronai, another personal injury firm felt they had enough wiggle room to put out their own version of the hapless patient. As the image had been published without copyright notice, it appears possible for them to get by without trademark infringement. An N&N are based in Rockland and R&R in White Plains, it ended up in the lap of SDNY, where the R&R SJ was summarily denied. N&N’s 1990 registration and steps taken in the intervening years cured the earlier distribution. SDNY approved as it was within the allowance of pre-Berne, that steps were taken within 5 years of initial publication. And as he had the discretion to reduce damages to $200 if he found the infringement were unwitting, it was his urging that the parties all settle as amicably as possible.

After all, they wouldn’t want to injure each other’s reputation, would they?

Wednesday, April 21, 2010


NYLJ 6-8-07


3. The First Amendment once again clashes with Intellectual Property law, entering through the nebulous portals of Internet “Fair Use” provisions. However, it isn’t the law that is in dispute as much as everybody’s lack of form-filling.

The US-based website that published pictures of a French fashion show did so in full belief that a public event holds no particular rights to their images, especially when the suit against them included an unfair competition charge as well. While there is no mention made of Process of Service outside of the Hague Convention on the Service of Extra-judicial Documents in Civil or Commercial Matters, one assumes it must be good to have passed through to the present state of affair. That, in 1/01, the combined suit was filed against the website, and, having failed to respond to the complaint, the defendant’s had a default judgment found against them on 5/2/01. is four months too long or too short was never mentioned either, but it certainly was enough for the Court of Appeals for the 2nd Circuit to hang their first objection upon. “They had their opportunity to respond, but chose not to at their peril.”

When 12/04 rolled around and the Frenchies finally got down to filing in SDNY, a consolidation of the actions ended up in the usual attachment request. Now the Webbers responded fast and furious: motion to dismiss, motion for SJ and to vacate—all in one. It was the Fed judge who gave them their early victory, ruling the 1st leave no doubt about the issue of the plaintiff’s control of the way information is disseminated in the mass media, in regards public events. That, along with “fair use” rule, seemed to be all she wrote.

And that was the problem for the CoA; the Fed justice just didn’t write enough. Or “did not conduct the full analysis necessary…because the record before us [CoA] does not permit us to determine whether enforcement of the foreign judgments is repugnant to the public policy of New York.” Which may sound like: “Ugh! French justice is as ripe as their cheese! Icky!” But it was Ackerman v. Levine, 788 F.2d 830, 840 (2nd Cir. 1986), which was cited “by defaulting in a foreign adjudication, a defendant ensures that a judgment will be entered against it and assumes the risk that an irrevocable mistake of law or fact may underlie the judgment, and, while the 1st Amendment does provide categorical protection, Intellectual Property laws co-exist with it… The fact that an entity is a news publication engaging in speech activity does not, standing alone, relieve such entities of their obligation to obey the IP laws.”

In vacating the judgment and remanding it back to the Fed judge, it was, at very least, to do a more thorough analysis of whether fair use was in play and establish a clearer record as to “the manner of protection afforded plaintiff’s fashion shows by French law, as well as infringement.”

So—go upstairs and do your homework, SDNY!

Tuesday, April 13, 2010


NYLJ 06-06-2007


4. The toll of the bell is the metaphor most oft employed in lawsuits and criminal acts, best known for the Statute of Limitations. In reality, the more apt phrase that pays is “the clock is running” or “the clock stopped”. In medical malpractice, you have 2 ½ years to start your action with the filing of a complaint. If you miss that, forget it. When that airport metal detector finds the forceps in your peritoneum, its too late.

When you get into other situations, the “he said/she said” or, as in this case, “he said he did”, the whole circumstance begins to become nebulous. And when the supporting evidence is just as amorphous, it gets downright murky. Add in children’s testimony and it quickly becomes a “whaaa?”

Perhaps Mr. Sodom should not be as civic-spirited as he is, being the upright pillar of the community you’d expect from a funeral director and a scoutmaster, even taking foster children and runaways, bringing them into the bosom of his family, his wife and own spawn joining together to create a home for the weak and innocent. As it was, the boy who boarded with him, wife and kids from 12/02 to 7/03 was 16, then 17, but it was 5/04 2when the 18-yr-old reported the touching incidents to the police. In response to the information brief and charge, the Scoutmaster argued that the time frame was so long that building an adequate defense would be unfairly difficult.

This seemed to have no impact on the jury which convicted him and sentenced him to one year in jail. However, the Record On Appeal was enough for a stay. The CoA justice found no reasonable, distinct length of time when prosecutors are alleging a non-continuous act in an accusatory instrument. Which means less “What did he know and when did he know it” and more “What could be proven about when and where”. Even the victim could not offer a specific date. Mr. Sodom tried to reconstruct events during the time frame and came up with communications, witnesses, even video tapes, as the teen had claimed an occurrence during a play-wrestling bout. As one would suspect, the ambiguity of viewing such material is paramount to prove that an activity took place is not the same thing as having a smoking gun. What may appear as innocent horseplay to one side, can be said to be a cunning ruse to be stimulated by physical conduct, by the other.

In any event, whatever persuaded the jury to a guilty verdict was not an influence upon the robes at the top. After looking at two cases—one where a conviction was overturned at a nine-month gap, and at another where the verdict was sustained at a five-month gap—the opinion was that the evidence, and first-person testimony, was not enough to sustain the decision of the jury, given the time factor as well. But, in reversal, it was also the point at which they refused to draw a “bright line”—meaning to delineate a standard by which a precedent could be set for all such cases to follow.

Which doesn’t mean that they won’t fry the next guy either.

Thursday, April 8, 2010

the daily trifecta [an omnibus verdiction]

NYLJ 8-01-07


1. & 3. & 4.

Naw, naw, sure sure—everybody knows about the Louima case. Volpe and Schwartz got the can and Bruder and Wiese got canned. For the cover up. Yeah, yeah, they had fine records up to then but, hey!—HEY!—when you get caught in a shitstorm, nobody comes out smellin’ like a rose, y’know?

What do you mean what do I mean? Huh? Huh? Conspiracy to obstruct the Grand Jury--am I right or am I right? Sure, sure, reversed by the 2nd circuit. There was no—I repeat—no evidence Bruder ever testified before the Grand Jury or had been put on notice that his statements might be put before the Grand Jury. So the conviction couldn’t stand, couldn’t stand the weather. Same-o, same-o for Wiese—charges were based on a conspiracy theory so it was just as faulty. See, see, they may have fixed up their stories and that’s a safe bet, you bet. But it only wins on appeal, draw the moral point and loses on anything in the public sector. Like, like—they agreed to mislead, and that’s the deed that did impede investigators, sooner or later.

And the-th-the-th-that’s all folks! “Technically exonerated is hardly vindicated,” that’s what the judge put in her opinion. “Tainted for the purposes of regaining their positions,” no sale, no way.

Now them, now here’s the flipside of that, almost an ‘inspired by the events of’ or ‘taken from the true story’ or ‘ripped from today’s headlines’ type’a deal. Like Albany saw the writing off the wall , on the city’s dicta, and got with the program. The Appellate Division’s 3rd Dept. said that State, mind you, State troopers do not have a right to be represented by counsel during preliminary investigation interviews, even if that were to lead to subsequent disciplinary proceedings.

Yah, yah, pretty rough, pretty rough! But the presiding justice said that there are enough safeguards built into the critical incident inquiry that troopers are protected. From what, you say, form what? Self-incrimination—the root word of that being “crime”. When the protocols changed in 2005 to isolate the intake interview from being shared with other investigations makes it almost blood kin to attorney-client privilege.

The governor just signed legislation which the trooper’s union thinks would tip the scales back again. Takes it back to basic black and white, prohibiting a public employer from denying union or legal rep to any employee if “it reasonably appears they may be the subject of a disciplinary action.” But that’s the other side, the other side of Albany.

And right, right. It isn’t the same Gubenator who has to have the ethics commission look into whether key aides were tracking the state senate majority leader to see what kind of dirt they could dish on him? Using the same radar gun as the boys behind the billboards to clock his limo and jet hours instead of those guys in the Porsche rockets on the Parkway? And if that don’t put the irony in the nail, the nail in the coffin, here’s the capper: they wanted to use the state AG as a special prosecutor on the deal, even after he’d said no laws were broken, no broker will call. Bent? Ask the commission on Public Integrity, ok? It came on line September 22nd and its set to be helmed by the dean of Fordham Law so it don’t squeak, being oiled by character, and not because its dirty, see? Same guy who was responsible for getting the Ethics Commission together in 1987. The balliwick here is going to be Public Officers Law Section SS 73 (on a gift acceptance and after-civil job placement) SS 73(a) on financial disclosure and SS74, the code of Ethics, everybody’s favorite.

Get the picture, get the picture?

Monday, April 5, 2010


NYLJ 06-06-2007


[This is one I never seem to get tired of (see entry for February 13, 2010). Perhaps it may strike some as schadefreude, but is actually the sweetness of Justice relaized in the material world. It happens not often, and is rarely poetic, but is still a marvel to witness.]

1. The ongoing saga of corruption in Brooklyn’s court system is sordid, tawdry and a prime example of how machine politics still works; an eternal weed rooted in the soil of man’s nature, festering and spreading underground, only know when it raises its scandal as a flower of evil, one that no amount of pesticides of regulation will ever…

Yeah, a day at the vegetable patch turns into an election-year stump speech.

When Justice Garson was sentenced to 3-to-10 for bribery, receiving rewards and official misconduct, it was at the end of a classic “Law & Order” episode which swung between the detectives and the ADAs like some tennis volley in Hell. It began with an investigation into alleged sales of Democratic nominations for local office. That led to Clarence Norman, then Dem Party leader and assemblyman. In the four years since, one of the odd fruits of their labors was uncovering a link between Norman and a divorce attorney who was turned, wired, and eventually burned Garson, getting him to offer ex parte advice on how to frame his brief, guaranteeing him a win in the case before him.

What was revealed was the rather banal and meager nature of the Judge’s slide. He was convicted of providing the aforementioned advice for accepting free meals and drinks, giving court assignments and even “free range of the judge’s robbing room.” Exactly how plum that is may be open to question, but not without substantial value to the 100+ protesters and women’s groups who showed up at sentencing. They were there to express their outrage over this as an expression of the “old boy’s club” still being in full force and to offer support to the woman whose rigged trial proved to be Garson’s Waterloo.

How dearly were these favors were sold? The most money that changed hands was $1,000, for two referral fees. In this light, the fall from grace appears to be worse for being so cheap. Perhaps this is what galled the Judge’s Judge so much. It must have been obvious that Garson’s drinking problem was a factor; the defense offering a major mitigation, the State a minor one. In any case, the plea also considered his bladder cancer and heart problems…but not very much. While the Court felt these circumstances would have made him a “slam dunk” for probation, for any other defendant, this one couldn’t go there.

“A judge must be the Lone Ranger, “ and, “as pure as snow,” said the sentencing judge. However, whatever sympathy Garson might’ve had evaporated as he’d already spurned a plea deal that would’ve capped his prison time at 16 months. After that, the test of the empathy goes out from this Bench to the other robes, “and especially the Judges of Brooklyn.”

Friday, April 2, 2010


NYLJ 06-06-2007


3. Sometimes the Good Guys win…even when their opposition is also the Good Guys. In these cases, it never really fits into such simplistic dimensions. “God does not write cheap melodramas with quick fixes” (to paraphrase Einstein beyond all recognition)—everything is complicated by pain and suffering and even victory is sad and the losers seem all the worse for doing their jobs to the best of their abilities.

The parents who regained custody of their 6-yr-old daughter had been fighting for three years. The Saratoga County Dept. of Social Services successfully petitioned her removal to foster care when evidence began to, in their eyes, prove insurmountable that she was the victim of horrible abuse. It was in December of 2003 when her repeated hospital trips were reported to the social workers, the last resulting in a skeletal survey and CT scan showing fractures of ribs, skull, forearms and tibia, when they asked the Family Court judge to intervene. The Court declined the county’s request citing the obvious fact that the parents were doing all they could, conceding nothing, or at the very least, evidencing no suspicious behaviors, in their quest to find a solution to this mysterious malady.

In March 2004, when EMT’s said she’d coughed up a mucous plug, the county examiner, Dr. Suez, concluded that she had been intentionally smothered. The next day she was declared an abused child and ordered taken from her parents. The County didn’t ignore the other two children, still at home, either, subjecting the family to monitoring as well as unannounced visits.

The original doctor was soon joined by a second, Slather, who has at first been sympathetic to the parents, but later went into full war against them, even soliciting opinions of other physicians as additional ammunition, in both of the Doctor’s views it was a process of elimination: for Suez, there could be no other explanation because there was too much evidence of the standard issue; for Slather, it was a mounting crusade which blinded him to other possibilities. “Once they fell under the eye of SS workers, it was a no-win situation,” concluded the defense argument. “No matter what they did or didn’t do, it wasn’t the right thing. If they were at the hospital every day, they were with their child too much. If they missed a day, it was a bad thing.” Very much the same thing as when the police decide you are a “person of interest”. At that point, if you don’t get a lawyer, you are a fool.

What was missing in all this was any competent professional who knew about OI—Osteogenesis Imperfeda, a/k/a “brittle bone disease.” That it took an orthopedic surgeon and a pediatric rheumatologist to see the syndrome as the probable cause underscores the trauma in italics “In 10 to 15% of OI cases, neither collagen or genetic testing will indicate the presence of the condition.”

And, like the elusive syndrome itself, the court found absolutely no evidence whatsoever that the other two children were neglected or abused in any way. But what the judge was most critical of was the two “experts” of social services. “Simply put, Suez’ lack of expertise with OI, deductive analysis (or lack of) and quest to divine a single solution to the complex host of maladies, coupled with Slather’s transition” (from parent’s advocate to Inspector Javert), “all but eviscerates the value of their medical testimony.”

What makes matters even worse is that the Saratoga County Attorney want to ride it again, flogging the dead horse up to the Court of Appeals.

Words cannot express…the wheel turns round again…

Thursday, April 1, 2010


NYLJ 06-06-2007


2. Coincidence or not, Coolidge v. New Hampshire, 403 U.S. 443 (1971) came out the same year as “The French Connection.” That the Nazgul deal with the same issue as Popeye & Co. may only have to do with the zeitgeist, but is as valid an association as any: both concern the same suspicions in the instant case.

“That car is dirty,” Doyle tells his partner, meaning: he knows there is dope in it. He just has to get a warrant, and then have it searched, stripped and re-assembled before…the owner blows his cork de vin. They’d tailed a low-level wiseguy, making his first bow as a go-between, and that led to a wire-tap and hence… If the Northern District Judge hadn’t had Coolidge to cite, he probably would have added the movie into his list of precedents. As it was, his finding that the State Police and Feds had ample time to get straight-up warrants and didn’t have to resort to shabby tricks that neither Wm. Friedkin’s scripter, nor the REAL NYPD, would have us believe, in their wildest imaginations, in the audience.

It was two separate cases the NDNY Justice ruled on. One was where the troopers and DEA watched these clowns making a pickup in the parking lot at Woodbury Commons. If that isn’t an indication of low wattage, the ruse used was even lower; the troopers claimed to be investigating a case of road rage. The second one stopped a guy as a potential gas station drive-away-w/o-pay. Lame-O. If these were not officers of the law, this could be called “false imprisonment” or “improper detention” or even—without too far a stretch—“kidnapping”. As for acting? Let the Academy be the judge.

“Was this necessary?” Any drama desk stringer could put that in his critique and not be faulted. According to the Judge who heard the matter, what sounded like entrapment was due to the fact that “the normal exigencies that would justify auto searches were not present because neither the drivers nor passengers were close enough to their vehicles to obtain a weapon or destroy evidence found in the trunk.” As well, “the defendants were in no position to offer chase.” When added together, the capper was none of the defendants were able to challenge the search on any grounds as they were not even aware they were happening.

Not that this was any different from “The French Connection,” except that they had warrants! However, that wasn’t the main reason for the reversal on appeal. The CoA used the logic that the Nazgul had clearly justified warrantless automobile searches under two theories: one, a lower expectation of privacy in a vehicle, and two, because a vehicle is “readily moveable”, exigent searches are dictated. The opinion states that the lower court had erred in determining that they were not “readily moveable” simply because the drivers and passengers were in police barracks, not sitting behind the wheel. This was seen as a gloss over the potential of the vehicle being moved to another jurisdiction, thereby precluding search, and the lower court’s reading of “ready mobility” had long ago been rejected by US v. Vassilion, 820 F.2d 28 (2nd Cir 1987). (Here, one suspects, Vassilion must’ve been one hell of a brain teaser to apply in the instant case.) It was also the opinion of the CoA that, if this lower ruling were adopted, it would impermissibly graft onto the automobile exception a requirement of some additional exigency beyond the inherent mobility clause. Perhaps even that a driver be present.

But, as well, the district court seemed to have ignored the fact of the diminished expectation of privacy. Which stands to reason, as a house has windows and sides, air-conditioning, luxury sound system, DVD screen, reclinable furniture and is always advertised as “a man’s castle,” as opposed to his “home on the road”. So, of course, one should never think you have the same feeling of security in one as you do in the other.

Which begs the other question: if this were an RV or mobile home, would this still apply? And just what does it take to affect the “inherent mobility clause”? A flat tire?