November 22nd, 2022

NY’s Adult Survivors Act Gets Started

The Adult Survivors Act was signed by Gov. Hochul six months ago, and is modeled on the New York’s Child Victim’s Act. The law’s premise is simple: The statute of limitations on sexual assaults is suspended for a year. Old claims that had been stale are now open. As of Thursday, Thanksgiving Day.

The fundamental logic behind it is straightforward: People (likely to be mostly women) who had been sexually assaulted years ago and afraid to come forward may now do so. The #MeToo movement has given courage to many to do that which they had previously been afraid to do.

It wouldn’t be the first time, nor the last, where people just tried to bury in their minds that bad thing that happened to them. Now they can unbury them.

Some cases will be easier to demonstrate than others. Columbia University last month agreed to pay a $165 million settlement with 147 patients of a former gynecologist Robert A. Hadden. And that settlement followed a $71.5 million deal on 2021 for 79 of other patients. The law wasn’t in effect yet, but it had already been passed.

Perhaps, if enough come forward, a pattern of conduct may be evidence. If, that is, it is admissible.

Such cases may happen with alleged victims of Jeffrey Epstein and Ghislaine Maxwell. Or Donald Trump. Or Andrew Cuomo. Or movie stars. Or corporate titans. Or people you’ve never heard of. Or you.

You. Did I say you? How does one defend against claims that may be decades old? Witnesses, diaries or other documentary evidence may be lost or gone. How does a defendant show that he was in the Bronx at the time the assault was alleged to have happened in Brooklyn? Or that they even knew the person? Where were you on the night of February 28, 1992?

And how does the Estate of John Doe defend against an accusation that John Doe sexually assaulted someone?

Will jurors simply accept the word of one person against the other in a classic “he said / she said” argument?

All of these cases will be traumatic. Few will be easy.


November 15th, 2022

Dolan’s War Against Lawyers

The deeply unpopular James Dolan.

James Dolan, the CEO of the Knicks, Rangers, Madison Square Garden and other venues, hates lawyers. Or, more particularly, he hates lawyers that have the audacity to sue him or his companies.

So he banned them from his venues. Brought a routine trip and fall case against MSG due to a broken step? Banned. Brought a dram shop case because one of its bars over served a patron? Banned. Here’s a sample of those letters, courtesy of Richard Jaffe:

Had season tickets to the Knicks for almost 50 years? Banned. Wait. What? Almost 50 years of loyalty and you get banned?

Attorney Larry Hutcher had sued Dolan’s business, the Madison Square Garden Entertainment, Corp., representing resellers of tickets. Dolan, it seems, didn’t like it that others may make a buck off the resale of tickets and tried to stop the practice. If there were excess profits floating around, he wanted them.

But he didn’t just ban the lawyer, he also banned all 60 lawyers at his firm, most of whom likely have nothing whatsoever to do with the lawsuit. And they were banned from all venues, regardless of whether it was a sporting event or a concert at the Beacon Theatre or Radio City Music Hall.

What does Radio City have to do with a personal injury case at the Garden? Nothing, except one James Dolan, its infamously hypersensitive owner.

So Hutcher sued MSG over the ban, and gained a partial victory this week. While generally an owner can ban whoever the hell they want from their private property — except based on protected classes such as race, religion, sex, etc. But lawyers are not a protected class.

An additional exception to the common law rule that you stop people you don’t like from coming onto your land, however, is NY Civil Rights Law 40-B. An owner can’t prohibit people coming onto the land for public performances of “legitimate theatres, burlesque theatres, music halls, opera houses, concert halls and circuses.”

(And no, this post isn’t about the concept of what is a “legitimate” theatre, which is obviously a First Amendment issue.)

What was the rationale for stopping lawyers from coming in? And by the rationale, I mean the excuse that they gave, not the real reason. The excuse was that coming into the venue might somehow be deemed discovery “outside proper litigation discovery channels.” Please stop laughing.

New York State Supreme Court Justice Lyle E. Frank handed a partial victory this week to Hutcher. While MSG/Dolan can’t be forced to sell him a ticket, he can still attend if he has one. And this also doesn’t pertain to sporting events, because even though I would call much of that theater, it isn’t in the definition of excluded venues.

And as to the excuse offered by MSG? Justice Frank succinctly wrote:

“[T]here appears to be no rational basis for the policy instituted by the defendants except to dissuade attorneys from bringing suit against them. The concern that the defendants could be prejudiced by allowing attorneys who are representing those who have brought action against the defendant to attend events with thousands of other people is unavailing to this Court.”

So what will happen next? More litigation you can be sure! Because somehow, someway, the Dolan family will likely do whatever it can to keep the resale or gifting of tickets who have had the audacity to sue them, out of their hands.

The decision in Hutcher v. MSG Entertainment is here:


November 9th, 2022

Once Again, It’s a “Toll” not a “Suspension”

When the pandemic hit, everything ground to a halt. And this affected not only lawsuits that stalled due to no juries being picked, but far more importantly, it affected cases that had yet to be brought that had the statute of limitations running. It was hard, for example to acquire records, documents and other evidence when the recipients of the requests weren’t in the office. And it was hard for sure to serve a defendant personally with lawsuit filings to start suit.

So Gov. Andrew Cuomo used his emergency powers to issue a series of executive orders that tolled the statute of limitations for 30 days at a time. Except that every so often they were referred to as a suspension.

And there was a big difference between the words “toll” and “suspension.” For a toll stopped the clock — if you had 150 days left on your statute of limitations for example, it would start to run again when the toll expired. You would still have 150 days, as the the period of the toll is excluded from the calculation of time.

But If it was a suspension, then it merely stopped the statute of limitations from expiring during the course of the suspension. So if the suspension lasted 155 days, you would find that the statute of limitations expired as soon as the suspension ended.

This issue came to a head last year in the Appellate Division, Second Department in Brash v. Richards, which I discussed that the Court found it to be a toll, not a suspension.

Then the Third Department held in Matter of Roach v. Cornell that it was also a toll.

And now the First Department has done likewise, holding last week in Murphy v. Harris that it was also a toll. So, the Appellate Divisions are now 3 for 3 in holding the same way, that this is a toll, and without any dissenting opinions. This makes any potential reversal in the Court of Appeals unlikely.


November 7th, 2022

Why Run the NYC Marathon?

Beer at mile 7 in Brooklyn, after I figured out I probably wasn’t going to win.

OK, I did it again yesterday, running the 26.2 through the streets of NYC.

But the question is why: Why would anyone do that? Hopefully, this brief blog post answers that.

Life is a series of adventures and experiences. You hope for good ones but some will suck.

In the process we do our best, sometimes, to make memories. It was the reason I got sworn in to practice before the United States Supreme Court, despite my expectancy of actually appearing there being someplace barely above nil.

When we are young, we fantasize about experiences to come: Standing on the pitchers mound in the World Series; Soaring toward the hoop in a pro basketball game; And similar for soccer, football, tennis, hockey, the Olympics, and any sport played in an arena with tens of thousands of screaming fans.

Odds are, you will never ever have that fantasy turn into reality. Ever.

Except for one place. There are only a very small handful of major foot races that both attract the best in the word and are also open to the public to compete against them. And the first Sunday in November is the largest one of them all. Not figuratively the biggest, but literally. Same race, same field, same day, same screaming fans.

A million fans — again not figuratively but literally — will line the course and, if you have your name on your shirt, scream for you. Absolute and complete total strangers. Yelling. For you. For you of average athletic ability who trained to run long. You can compete against the best and compare yourself.

Is there any other sport where you can compare yourself to the best in the same event — quantitatively? At the end of the day, you can say you are 50% as good as the best in the world. Or 65%. Or 40%. You know exactly where you stand, for better or worse.

The event is, for those competing for time, a race. But most of the runners, and 100% of the fans, it is the world’s largest piece of urban theatre.

It’s a day when New York City turns in the biggest small town in the world. Strangers chat with strangers. Randos congratulate you on the street afterward. They talk. Not in pixels.

And make no mistake about it, it is an adventure. You don’t really know what will happen. Will it be thrilling or anguishing? Will your mug appear on a bus? Who knows? But if you don’t try to have those experiences, then you certainly never will.

Doing this particular one may be hard, but then, if it was easy everyone would do it.

So go forth and have adventures. If not this, then another. Make it something you can think about in the old folks home years from now. Get out of your comfort zone. Do something new. Because talking about that one viral tweet you had decades ago won’t cut it.


August 5th, 2022

The Alex Jones Bar Exam Trial

Alex Jones on trial
Alex Jones on trial.

Some trials have simple legal questions. Some have complex ones. And then there’s the Alex Jones defamation trial winding up in Austin, TX, regarding his claims that the Sandy Hook massacre was a hoax. He’s been sued by parents of the kids.

Bar exams are an exercise in issue spotting. Issue determination is nice, but you can’t determine an issue unless you first recognize it is one. And Alex Jones, it seems, is a one-man bar exam with the explosion of issues surrounding this lawsuit. Some of the questions below may be easy; some not.

Were his statements about the massacre protected opinions or assertions of fact? If fact, were they reliably sourced? If defamatory, what standard would be used? Were the parents public figures?

Does the statute of limitations preclude suing on the statements? If some statements were made before after a statutory deadline lapsed, and related ones that are within the statute of limitations, can all of them be used in the suit or only the recent ones?

Was the judge correct in granting a default judgment in favor of the plaintiffs due to the failure by Jones to turn over discovery?

If there is a default judgment against Jones, to what extent can he still claim his statements were reliably sourced? If the plaintiff uses the poor sourcing of statements against Jones in pursuit of punitive damages, can Jones use the same statements in defense?

When Jones’ counsel inadvertently turned over the entire contents of Jones’ cell phone two weeks ago, was there an obligation by plaintiff’s counsel to alert Jones that there was privileged information on it? Did defense counsel properly object that the “oops discovery” should not be viewed when he emailed “please disregard”?

Did defense counsel commit legal malpractice in turning over the data? All of it or some of it? Does it depend on when he obtained it? Did he commit malpractice in failing to “snap-back” the privileged information within 10 days under TX procedural law? Can he snap back the non-privileged, yet irrelevant, parts? Did he commit malpractice in failing to object when some of it was used at trial? Could any of this be a proximate cause of injury to Alex Jones?

What happens to material on the phone that is not protected by a privilege, but is also wholly irrelevant to this case? Can the January 6th Committee obtain copies of inadvertently released “intimate messages” between Jones and Roger Stone?

Was any of Jones’ testimony perjury? Will the judge refer the matter to the DA? Will she level a contempt citation? If so, would it be redundant of any civil penalty that may come in the form of punitive damages?

When some of the information was used during trial, and Jones’ counsel failed to object, did Jones lose his right to appeal that particular issue?

When the judge found that plaintiff’s counsel acted properly by waiting 10 days under TX procedural law before using it, did that mean unrestricted use? Can he share any of it with others?

If some of the contents of the phone should have been previously disclosed, but weren’t, is there any additional sanction to levy against Jones on top of the default judgment against him?

When did defense counsel obtain the contents of the phone and what representation did he make to opposing counsel and the court about it? Could that subject counsel to a sanction on top of the default judgment sanction against the client? If so, will it come from the judge or a disciplinary committee?

Since some of the inadvertently disclosed material contained medical records for other Sandy Hook parents that are not involved in this suit, was there an ethical violation in defense counsel turning them over and then not properly retrieving them? Is it an ethical violation if the attorney was simply negligent in following procedure?

If the records were subject to a patient-doctor privilege, how did Jones’ counsel get them? Who sent them to Jones’s counsel? Was a confidentiality provision in another lawsuit violated? Or if the release came from a medical provider, a HIPAA violation?

What are the ramifications for the person that sent them? Is there a private right of action for the release of the privileged information? If so, would it fall under Texas law or Connecticut law, or the law of some other state where the records may have been conveyed from? Does HIPAA have a private right of action if errantly sent from a health provider?

What effect will the filing for bankruptcy by a Jones entity play in any verdict?

If the jury reaches a punitive damages verdict, what are the limits to it? Will it be state law or federal law that will be used to determine the limits? If federal law, how will the court apply the confusing determination in State Farm v. Campbell? Will the court use a ratio of 4:1 punitive:compensatory? A ratio of 9:1? The “no rigid benchmarks” standard? A ratio of 100:1?

How many other issues are there? And how many more are to come?