The Court of Appeals has reinstated a racial discrimination lawsuit filed by an Asian-American organization that challenges the admission policies of the specialized high schools in New York City. The plaintiff claims the policies discriminate against Asian-Americans. The Court of Appeals holds the plaintiff asserts enough allegations to allow this case to proceed to discovery. The case is Chinese American Citizens Alliance of Greater New York v. Adams, issued on September 24. The specialized high schools in New York City are well-known, and admission to them can be the start of a produc ..read more

The first thing a civil defense lawyer does when their client is served with a lawsuit is to find a way to have the case dismissed prior to discovery. We call that a Rule 12 motion to dismiss. If that motion fails, since the federal system disallows appeals prior to final judgment, the parties proceed to depositions, document review, interrogatories, electronically-stored information, etc. Except that in Section 1983 cases, an unsuccessful motion to dismiss on qualified immunity grounds may be appealed immediately. The case is Pal v. Canepari, a summary order issued on September 30. This is a ..read more

Employment discrimination cases are always winding through the state courts under the New York City Human Rights Law, which is more expansive than the federal anti-discrimination statute. The Appellate Division finds that Plaintiff has a case against her employer, Bloomberg, L.P., and that it will go to trial. The case is Friedman v. Bloomberg, L.P., issued by the First Department on September 26. While plaintiff told management that her dyslexia made writing social media copy difficult for her and that she needed an accommodation for her disability, the jury may find that defendant considered ..read more

This is a wild case. The police investigated a woman's disappearance and her husband was a key suspect, but for the longest time, they could not really find evidence linking to her disappearance and possible murder, so the investigation lasted several years before the husband was convicted of murder in part based on blood-spatter evidence. The husband was granted a second trial when evidence surfaced implicated someone else in the murder, but the husband was again found guilty. That conviction was later thrown out, and a third trial yielded a hung jury. At the fourth trial, the husband was acq ..read more

This claim went to trial in the Northern District of New York. The plaintiff-inmate claimed that a correction officer applied excessive force in violation of the Constitution, among other claims. The jury ruled for the CO, and the plaintiff appeals. The Court of Appeals (Walker, Newman and Lohier) declines to change the verdict, and the case is over. The case is Ash v. Johnston, a summary order issued on September 16. It is quite difficult to appeal from an adverse jury verdict. The Court of Appeals will defer to the jury's credibility assessment, and let's face it, these cases usually turn on ..read more

In this case, the Fourth Amendment meets the Second Amendment. The Court of Appeals holds that a motorist who was searched by the police following a routine traffic stop can sue the police over the unlawful search, prompted by the officer's discovery during the stop that the driver had a legal firearm. The case is Soukaneh v. Andrzejewski, issued on August 12, nearly two years after the Court of Appeals heard oral argument. The officer approached plaintiff's car, which was parked with the engine running as plaintiff tried to fix his GPS. The Court says this was a high-crime area in Connecticut ..read more

This case is enough to give any litigator a heart attack. The Court of Appeals examines whether the plaintiff blew a deadline to proceed with the appeal after he filed the notice of appeal following the trial court's resolution of a motion for reconsideration. The case is Malek v. Feigenbaum, issued on September 11. After the district court dismissed the case, plaintiff filed a motion for reconsideration. Under the rules, a timely notice for reconsideration tolls the deadline to file a notice of appeal until the motion for reconsideration is denied. The motion is timely when the plaintiff offi ..read more

The Court of Appeals has placed a new gloss on the Family and Medical Leave Act, holding for the first time that an employer violates the FMLA if it discourages employees from seeking family or medical leave. Despite that holding, the plaintiff loses the appeal on statute of limitations grounds. The case is Kemp v. Regeneron Pharmaceuticals, Inc., issued on September 9. I briefed and argued the appeal. Plaintiff needed leave to care for her disabled daughter. Her supervisor voiced concern about the amount of time that plaintiff had been away on a prior medical leave and said plaintiff needed t ..read more

Under the New York Labor Law, management must issue their employees a wage notice that describes the rate of pay for regular and overtime hours, makes reference to health care benefits, and discusses tips and meals allowance. The Labor Law provides for damages up to $10,000 if the employer does not provide the wage notice. When can the plaintiff sue over the employer's failure to provide the wage notice? The case is Guthrie v. Rainbow Fencing Inc., issued on August 30. The State Legislature adopted the wage notice requirement in 2010, and since that time, the district courts have grappled with ..read more

In this case, the plaintiff-inmate alleges that, while in federal custody, the guards did not protect him from another inmate, who assaulted him. Plaintiff alleges that, when he arrived at this federal facility, he told authorities that he had been assaulted at other federal correctional facilities, and that several inmates had threatened to assault him because he was a convicted sex offender. The case is dismissed on appeal because there is no such claim available to plaintiff, at least not in court. The case is Ballard v. Dutton, a summary order issued on September 4. Had all this happened i ..read more