January 31st, 2023

Hochul Chooses Profits Over People; Vetos Grieving Families Act

The bill had sailed through New York’s Assembly for three decades. Then in June 2022, it finally passed the state Senate 57-6.

Late last night, seven months after it finally passed, Gov. Kathy Hochul vetoed the bill. There wasn’t enough time to study it, she said.

Seriously. That was an excuse.

That bill is the Grieving Families Act, an update to New York’s first-in-the-nation wrongful death law, in 1847.

The law, as it currently stands — and has stood since the time that southern states still allowed people to own other humans and work them to death — gave the immediate families of those killed by negligence the right for recompense for pecuniary loss. Essentially, the lost wages of the family breadwinner.

The bill Hochul vetoed, which I wrote about in 2017 and again in July 2022 after it finally passed, is an update to bring New York into line with 48 other states, including the deep red south. It would permit recompense for grief to close family members in addition to the lost wages.

Now no one would ever pretend that money is a perfect solution to the lost life of a loved one, as nothing in this world would be. But we use money as a yardstick to measure accountability as it is the best tool we have. And I know from firsthand experience that the overwhelming majority of New Yorkers agree with this as I, and every other personal injury attorney, ask this as a standard question during jury selection. Rare is the person that says no, even though they know that this would be the ticket to getting bounced from the jury panel.

In addition, the Grieving Families Act extends the statute of limitations from its current dismal two years to three and one-half years.

Why is two years dismal? Aside from trying to recover from the grief, a family must also petition the Surrogate’s Court for letters of administration. Because without letters, you don’t have a proper party under our Estates Powers and Trusts law to bring suit. No standing.

Think that’s easy? The two years is not measured from the time letters are issued by the Surrogate, but from death. I currently have a petition pending in one county for 16 months. 16 months! Do the math.

Hochul tried to claim that she wanted a reasonable bill. She said so in an op-ed in yesterday’s Daily News. The Governor, and it dismays me to use this language as I voted for her, is full of shit.

Allow me to deconstruct the lousy excuses — bearing in mind that when one makes bad arguments it means that they don’t have good ones:

First, she claimed, as I opened in this piece, that there wasn’t enough time:

This bill passed at the very end of the legislative session; the bill was approved in committee and voted on by both the Assembly and Senate, in full, on the very same day. What was missing was a serious evaluation of the impact of these massive changes on the economy, small businesses, individuals, and the state’s complex health care system.

Assemblywoman Helene Weinstein carried this bill for 29 years. Then there was another seven months after Senate approval. So this was not an honest excuse. As we say in other contexts, res ipsa loquitur. The thing speaks for itself. Or in this case, the calendar.

Hochul pretended to offer a compromise, which wasn’t a compromise at all, but completely eviscerated the bill. She said it should only apply to those under 18.

So who does this exclude? Well, everyone that is retired. Because families don’t feel grief over the negligent death of a retired parent?

It excludes the families of those that are unemployed or underemployed, which affects minority and immigrant communities more than white ones. Do they not feel grief over loss due to negligence?

It excludes stay at home, child rearing parents. Does the child of such a victim not feel grief? The spouse and the parents?

It excludes — get this — victims of medical malpractice. Do these families not feel grief when someone dies from medical negligence? Gosh, I wonder how that snuck into her “compromise?”

Hochul was not tinkering around the edges of the bill. She was completely neutering it.

So who was left? Kids killed in auto accidents? Is that about it? And the vast majority of those won’t have sufficient insurance anyway, with insurance policies ranging from an unconscionable 25K to 100K?

And more excuses: She claims that she needs ” time to look at data and grapple with complex issues, such as our state’s unique constitutional prohibition against limits on damages.“

Well, Governor, we don’t have a “unique prohibition against limits on damages.” That is utter nonsense. New York has had limits on damages since at least 1812: See: How New York Caps Personal Injury Damages. It’s kinda on point.

But this excuse may be the one that really takes the cake: “It is reasonable to think that the legislation as drafted will drive up already-high health insurance premiums;

Well, there’s no easy way to say this, so here goes: Dead people don’t drive up healthcare costs. Sick people do. The insurance industry benefits when sick people die as healthcare payments stop. The insurance industry, oddly enough, doesn’t like to talk about that.

So yeah, I call bullshit on the Governor. Her attempts to claim she cares about the issue are empty, and she will embarrass herself by further repeating it.

It can never be said enough times: When people make bad arguments it means they don’t have good ones.

January 26th, 2023

James Dolan’s War Against Lawyers Is Costing Him

Two months ago I wrote about James Dolan — the CEO of the Knicks, Rangers, Madison Square Garden and other venues — and his war against lawyers. He was banning the employees of any firm that sued his company from any venue he could control. It didn’t matter if you were the lawyer working on the case.

Some of that was plainly a violation of the Civil Rights Law, as I covered at that time, insofar as it pertained to events other than sports. Because one could not, under NY Civil Rights Law 40-B, prohibit people coming onto the land for public performances of “legitimate theatres, burlesque theatres, music halls, opera houses, concert halls and circuses.”

This would include Radio City Music Hall, the Beacon, and Madison Square Garden itself for non-sporting activities.

Since that time, the heat has gone up. Dolan was caught using facial recognition technology to find lawyers as they entered the Garden. Even for non-sporting activities. Violating the Civil Rights Law was something he apparently doesn’t care about.

As per the New York Times:

The company says “litigation creates an inherently adversarial environment” and so it is enforcing the list with the help of computer software that can identify hundreds of lawyers via profile photos on their firms’ own websites, using an algorithm to instantaneously pore over images and suggest matches.

I’m sure fans will think this was money well spent, as opposed to spending money on winning championships. The Rangers last won in 1994. And the Knicks last won in 1973.

OK, I digressed, but that was worth it, no?

The bizzarro theory that Dolan gave is that letting lawyers into the sporting arena would allow them unsupervised discovery outside the litigation arena. Right. As I’ve long said, when people make bad arguments it means they don’t have good ones.

Then legislators got in on this, with Senator Brad Hoylman sponsoring legislation to amend the Civil Rights law to include sporting venues.

Then New York Attorney General Letitia James got into the act, contacting Dolan because the use of facial recognition technology “may be plagued with biases and false positives” against people of color and women.

And now, as Dolan desperately tries to defend himself from accusations that he is an [insert favorite bad word], he’s decided to shoot himself in the foot. Claiming that the New York State Liquor Authority is threatening to take action against his liquor license, he’s deciding to take it out on the fans.

In a blowup during a television interview, he threatened to deprive fans of the high margin booze that he profits from selling. Really, you can’t make this stuff up. He hates lawyers so much — OK, not all lawyers, just the ones on the other side — that he is willing to lose money for no greater reason than pissing off people that are already paying him big bucks to go to games and events:

In a rambling and defiant interview on Fox 5 on Thursday, Dolan lashed out at his myriad critics, railed against bail reform, and threatened to withhold booze at a future sporting event if state regulators don’t drop their opposition to his surveillance practice.

This quote is a classic, as he seems to think that the championship-deprived fans that already despise him will take it out on someone other than him:

“So I have a little surprise for ‘em. They’re basically doing this for publicity, so we’re gonna give ‘em some publicity. What we’re gonna do, right, is we’re gonna pick a night, maybe a Rangers game, and we’re gonna shut down all the liquor and alcohol in the building. This isn’t gonna bother me because I’ve been sober 29 years. I don’t need the liquor.”

You can almost hear the “Dolan Sucks” chanting pouring down from the Garden’s rafters as Dolan competes for the title of Most Hated Man in New York.

December 2nd, 2022

My “Hate Speech” Policy

Prof. Eugene Volokh, challenging the new law. Photo courtesy of Tritton Productions.

Back in June, I wrote about New York’s attempt to force blogs and other social media websites to have a reporting mechanism for “hate speech.”

Since the new law goes into effect December 3rd, and there is a lawsuit challenging its constitutionality, I write again.

First off, I used quotes around “hate speech” because there is no legal definition that comports with the First Amendment. (“I know it when I see it” is not a definition.)

There’s no real definition because it’s impossible to define words that “vilify” or “humiliate” others. But that does’t stop New York from trying:

"HATEFUL CONDUCT" MEANS THE USE OF A SOCIAL MEDIA NETWORK TO VILIFY, HUMILIATE, OR INCITE VIOLENCE AGAINST A GROUP OR A CLASS OF  PERSONS
ON THE BASIS OF RACE, COLOR, RELIGION, ETHNICITY, NATIONAL ORIGIN, DISABILITY, SEX, SEXUAL ORIENTATION, GENDER IDENTITY OR GENDER EXPRESSION.

Most standup comics would have trouble under this law if they presented their material on a blog without a complaint mechanism — or if you wrote about their material on a blog. Basically, you couldn’t write much of anything about the social commentary from Lenny Bruce, George Carlin or Dave Chappelle.

When I previously discussed this, I wrote:

“Vilify? Humiliate? According to who? Such vague language is the hallmark of legislation struck down on First Amendment grounds.

Most anyone can claim they are humiliated by most anything someone writes about them, unless I guess, the words came off their own keyboard.

Did someone use the wrong pronoun? “How humiliating! Where to do I report this hateful ‘conduct’?”

Interestingly the bill does not say that if a “hate speech” comment is made by someone that it must be reported to any government authority. It simply requires that a website have a reporting mechanism to it, and that it must have a policy in place.

In other words, it’s a fundamentally toothless piece of performative legislation, except for the fact that it compels speech — it compels websites to come up with a reporting mechanism and policy.

Scott Greenfield thinks it doesn’t apply to him, and he may be right. His rationale is that Simple Justice doesn’t exist for “profit-making” purposes. He writes, as I do, whenever he wants, and about whatever he wants, and if you don’t like it you don’t have to read it. There is no fee to read. Go suck an egg. End of story, etc.

But what is the definition of a profit-making blog? The text of the bill doesn’t actually say:

(B)  "SOCIAL  MEDIA  NETWORK"  MEANS  SERVICE  PROVIDERS,  WHICH,  FOR PROFIT-MAKING PURPOSES, OPERATE INTERNET PLATFORMS THAT ARE DESIGNED TO ENABLE  USERS TO SHARE ANY CONTENT WITH OTHER USERS OR TO MAKE SUCH CONTENT AVAILABLE TO THE PUBLIC.

If I ran crappy Google ads on this site, the Attorney General could claim it qualifies as a direct revenue source as soon as one person clicked an ad and I made a dime. Would a tip jar on the side bar qualify?

Could a creative Attorney General claim that a law blog is used for indirect profit-making purposes? “Look, Mr. Blogger, every time you write you elevate your profile, and that leads to more business!”

In other words, pretty much the same argument if a lawyer wrote an op-ed, a law review article, gave CLE lectures or made television appearances. It doesn’t take a genius to argue that this is done as an indirect means of making profit, regardless of the attorney’s actual motivation in writing.

Yes, it’s a crappy argument, but would an Attorney General that already championed a bill that violates the First Amendment care?

This is what the law demands of a “profit-making” social media network. Rather than fight over whether I qualify, I prefer to come up with a policy.

First the language:

A SOCIAL MEDIA NETWORK THAT CONDUCTS BUSINESS IN THE  STATE, SHALL PROVIDE  AND  MAINTAIN A CLEAR AND EASILY ACCESSIBLE MECHANISM FOR INDIVIDUAL USERS TO REPORT INCIDENTS  OF  HATEFUL  CONDUCT.  SUCH  MECHANISM SHALL BE CLEARLY ACCESSIBLE TO USERS OF SUCH NETWORK AND EASILY ACCESSED FROM  BOTH  A SOCIAL MEDIA NETWORKS' APPLICATION AND WEBSITE, AND SHALL ALLOW THE SOCIAL MEDIA NETWORK TO PROVIDE A DIRECT RESPONSE TO ANY INDIVIDUAL REPORTING HATEFUL CONDUCT INFORMING THEM OF  HOW  THE  MATTER  IS BEING HANDLED.

And now my policy:

Reporting mechanism: My contact information is on my website, and the comments on the blog are currently open.

Policy: It’s my blog and I will accept or reject such comments as I so choose. I do not seek your approval, or that of any governmental official, to make my decisions. I might take action from a complaint, or I might not. I might tell you I took action, or I might not. I answer to no one. That is my policy.

Do you think my policy looks like a great, big middle finger to the New York government? Well, you might not be wrong. But the state doesn’t tell me what my policy must be, only that I must have one. And now I have one.

Currently, Eugene Volokh is refusing to put a policy in place and challenging this idiotic law on First Amendment grounds with the assistance of the Foundation for Individual Rights and Expression (FIRE): LAWSUIT: New York can’t target protected online speech by calling it ‘hateful conduct’

FIRE/Volokh point out that merely calling the words on a digital page conduct doesn’t make it so. It is speech:

The law is titled “Social media networks; hateful conduct prohibited,” but it actually targets speech the state doesn’t like — even if that speech is fully protected by the First Amendment.

Performative legislating sucks, be it from the right or the left.

Update: On February 14, 2023, this law was blocked by a Judge Andrew L. Carter, Jr. (S.D.N.Y.), as violative of the First Amendment. Eugene Volokh has the decision at the Volokh Conspiracy at Reason.

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

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:

MSG-Letter-to-Attorneys Download

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:

Hutcher-v.-MSG Download