November 2nd, 2012

Legal Implications for Cancelling NYC Marathon? (Updated)

I assume that my readers know already, as this is the type of news that flies quickly around the web, that the NYC Marathon was cancelled. And that this cancellation came just hours after Mayor Michael Bloomberg had reiterated his position that the marathon would go forward. Will there be legal fallout (a/k/a lawsuits) over that decision?

When the decision was first made about the race going forward, there was one key point in my mind: Would any resources be diverted from those hit hard by the tsunami of water that was Hurricane Sandy? If the answer is yes, then you don’t run the race. You just don’t let people struggle any longer than necessary to put on the event. An emergency had been declared, the race would be cancelled and that would be that. Those that paid money for airlines, hotels and whatnot would have to fend for themselves with any trip insurance that they might have had, if any, but that is life for things we lawyers like to call Acts of God. This certainly qualifies.

But if the answer was no, that the city had sufficient resources to cover the race logistics and handle the areas most badly affected, then you can consider putting on the event. Reasonable minds may differ over whether it should go forward, but logistically it could take place.

Mayor Bloomberg, however, has now done something odd. He said New York City had enough resources to put the race on, and said repeatedly that it would go on, and then reversed course.

But he didn’t reverse course because the city needed those extra cops, according to this statement. He cancelled because it was politically unpopular. His statement was released jointly with the New York Road Runners Club, but whether there are sufficient police to staff the marathon and handle the disaster is obviously a city decision, not a Road Runners decision. The joint statement read (and note my highlights in the middle):

“The Marathon has been an integral part of New York City’s life for 40 years and is an event tens of thousands of New Yorkers participate in and millions more watch. While holding the race would not require diverting resources from the recovery effort, it is clear that it has become the source of controversy and division. The marathon has always brought our city together and inspired us with stories of courage and determination. We would not want a cloud to hang over the race or its participants, and so we have decided to cancel it. We cannot allow a controversy over an athletic event — even one as meaningful as this — to distract attention away from all the critically important work that is being done to recover from the storm and get our city back on track.

So what of those that relied on his comments to come to the city from overseas, of which they anticipated about 20,000? And those that traveled here from distant states?

If he canceled because he underestimated the needs of the police, that would be one thing. Things can change in a state of emergency as officials try hard to gain as much information as possible from broken information systems. If there was an understaffing possibility, he could have, and should have, hedged. He should have ‘fessed up that he messed up when it came to resources.

It’s also worth noting that the ability to staff the race may not be as certain as the mayor said. Patrick J. Lynch, president of the police officers’ union said staffing was too low, with many members of the department suffering the effects of Hurricane Sandy, to hold the marathon. “We are spread far too thin fighting crime, terrorism and the effects of this disaster,” Mr. Lynch said in a statement.

I’ve never heard of such a circumstance before, and the lack of precedent opens the door to the inevitable: Those that spent money relying on assurances the event would go forward only to have it canceled because it was a politically unpopular decision, may be angry.

Finish line, 2010, with my kids

Long time readers know, of course, that this is one of my favorite races, I currently appear in ads for one of the sponsors, once did a Blawg Review based on it and had a letter published in the New York Times regarding it. If you have an interest in suing, in other words, don’t call me. I’m not your man and that isn’t what I use this blog for.

But I have to think that, due to the way Bloomberg fumbled this situation and people lost money relying on his assurances, that someone may try to hold him (or the New York Road Runners, of which I’m a member) accountable.

Donations to those in need can be made here:

Red Cross, Greater New York Region

New York Road Runners

Updated 11/7/12 – Two articles worth mentioning: The first is from Runner’s World discussing the potential legal implications of canceling the event, whether this represents a breach of contract, and whether the “no refund” policy was prominent and clear:

While runners wait to hear what the New York Road Runners will do regarding entry fees for this year’s canceled marathon, some have wondered how a court of law would view the matter.

(In that same vein, I just created a page on the no refund policy for my own race on the Paine to Pain site that will be linked to the home page for next year’s event.)

The second article comes from the New York Times, discussing the hostility that exists for some runners over the late cancellation of the race. It should be noted, of course, that while some are hostile, many others agreed with the decision to cancel. And some who had planned to run with mixed feelings were actually relieved at the decision.

November 1st, 2012

New York Suspends Statutes of Limitations in Wake of Hurricane Sandy (Updated)

Gov. Andrew Cuomo visiting the Brooklyn Battery Tunnel

I was wondering when this would happen, but it finally has. Gov. Andrew Cuomo has issued an Executive Order suspending the statute of limitations in a wide variety of cases, both civil and criminal. The term of the suspension is indefinite. This affects the time to bring a suit, the time to file an appeal, and the time to bring criminal prosecutions. The Second Circuit Court of Appeals has acted also, extending the time to file a notice of appeal to some litigants.

The reasons should be obvious, but if you don’t live in New York, you might not appreciate what is going on. The courts in the city have fluctuated between closed and dysfunctional. Lawyers, staff and court personnel can’t reach offices as subway tunnels between the boroughs are still underwater, and buses and bridges are packed to the rafters. Many remain without power, or have become homeless as a result of the devastation.

A similar order was issued by Gov. George Pataki after the September 11 attack, for a period of 58 days.

New York, and our cousins in New Jersey, will get through the mess, though the damage to some families will be sadly permanent.

In the interim, the Governor has done the right thing to insure that artificially created time periods don’t unnecessarily injury the legal rights of others.

Pending cases are expected to be in disarray for awhile as the city gets back on its feet and gets its systems up and running, so that trials can be rescheduled.

Update 11/2/12 – The New York Law Journal has a story out today on the court disruptions, and lawyer groups mobilizing to assist victims. It also notes, among other things, that the Office of Court Administration, which is downtown, is closed due to flooding.

And there is this quote from New York Chief Judge Jonathan Lippman that I thought was worth repeating, given the comparison to September 11:

“You don’t have the tremendous loss of life that you had on 9/11, but in some ways the affected area is much larger,” Lippman said. “In 9/11, the immediate ‘frozen zone’ was identifiable. But here you have it all across the metropolitan area. You have this total failure of transportation, in electricity, in so many different areas that it is traumatic in a different way. The loss of life was so overwhelming on 9/11 and the act was so heinous that it is very different than an act of nature. But I think both are traumatic in their own ways.”

October 27th, 2012

Hurricanes, Adjournments and Experts

There is one thing every trial lawyer can agree on: Scheduling physician experts for trial is a bitch. It is, without question, the most difficult and stressful of trial practices. Doctors, unless they are retired, need a lot of advance notice so that patients and surgeries can be rescheduled.

Both the looming of Hurricane Sandy, and a decision from the Appellate Division (Second Department) three days ago come together to highlight the issue.

First, civil practice as it exists in New York, to set the framework: Cases in New York City, when they are ready for trial, get sent to a trial scheduling part, where you sit with a jillion other lawyers with cases that are trial ready. But your case may get adjourned, even when marked “Final” for a multitude of reasons. There are older cases on the calendar ahead of you. A witness is on vacation. One of the lawyers is actually engaged in trial elsewhere. One of the lawyers begs for more time because the dog ate his cross-exam outline.

Some judges easily (or begrudgingly, depending on how old the case is) grant the application; others scream (or laugh) at you and say Dismissed! Or if the doctor isn’t available, “Subpoena him and we’ll bring him here in chains.” And these judges have broad discretion on how to organize and maintain those trial calendars.

Then the judge that schedules the trial — again, not the judge that will actually try the case — finally sends you to the jury clerk. And you may be told to come back another day because there are no jurors. You may pick a jury, and then be told there are no judges available. Or, you can be assigned to a judge and told to start right away.

You simply cannot control the situation, and the old metaphor of herding cats springs easily to mind. Trying a case is like that.

All the while the lawyers are busy giving updates to clients and witnesses, popping antacids, trying mightily to keep everyone in the loop and praying they can all make it to the courthouse.

Now toss in the concept of a hurricane and the possibility of the courts closing and all (tentative) schedules go kablooie. The Yiddish expression “Oy vey!” will likely now spring to mind.

Enter, stage right, the Appellate Division, in Vera v. Soohoo. On the day the trial was scheduled, the plaintiff’s lawyer informed the court that the indispensable expert was out of town. He had conferred with his adversary, and they agreed to a trial date one month later if the court would agree. But the court would not agree.

The court insisted on a new date, 10 days later, and one day after the expert returned. But the lawyer had another (older) case that was ready to go just a few days later. Too bad, said the court, and the action was dismissed.

Such are the uncertainties of the court system that keep trial lawyers up and night. It is one thing to try a case, but a whole different thing to actually line all the ducks up in a row to get there.

Was this dismissal unfair to the injured plaintiff? You bet it was, said the appellate court, and reinstated the action. While it is true that “a court may dismiss an action when a plaintiff is unprepared to proceed to trial at the call of the calendar,” it was a perfectly reasonable excuse that the plaintiff’s attorney was simply trying to avoid the “overbooking of cases.”

Given that the defendants would not be prejudiced by the short adjournment — they had agreed to a new date the following month — the appellate court said that “The plaintiff should not be deprived of her day in court because of some difficulty in rescheduling a trial date that was convenient for all the parties. We recognize that the Supreme Court has broad discretion in controlling its trial calendar, but that discretion must be exercised in a judicious manner, particularly when an improvident exercise of that discretion will result in the dismissal of a potentially meritorious cause of action.”

Vera v. Soohoo is a pretty good case to keep in your trial bag for when the unexpected pops up and messes with your schedule and you have an unsympathetic judge.

And if you know people who say they never want to try another case, you will understand why.

October 17th, 2012

Larger than Life (Updated x3)

The pictures in this blog are real. They are not Photoshopped. It is not part of an Internet meme. It is not April Fool’s Day.

Yes, that is my face on a billboard to your right. It is in Columbus Circle, in the Time Warner Center.

The first indication that my mug was staring out at others came Friday night, when my niece stumbled across it and texted me:

Am I crazy, or is this you?!

I assured her that the face — an ASICS ad produced in conjunction with the NYC Marathon — was in fact mine.

The first time that picture was used was on this blog, two years back, when I did an off-topic post on the race. ASICS then stumbled across it and asked for rights to the photograph.

It is the best picture ever taken of me, which I know because pics of me usually suck so my choices are limited. But this one was different. I was in the family reunion area after I had just run the race of my life at age 50. My eight-year-old son had borrowed a camera from my brother (the same one with the Antonin “There is no right to secede” Scalia letter). The lighting was overcast, which means perfect. The equipment was top notch, with great resolution. And I was looking down at a cute kid holding that big camera. He’s the little kid in the orange and black jacket in this picture. I felt good. Click.

In late August an email came that I almost deleted as spam from Vitro Agency:

We are working on a project for the 2012 NYC Marathon on behalf of our client ASICS. We are looking for inspirational photos of runners who have completed the marathon to use in some of our marketing materials for this year’s race. We found the attached photo on your blog and think it would work well with the other images we are using.

I thought it a joke but responded, and a deal was very quickly struck after a few minor edits to the contract. My son, who was the photographer, would get the money. Vitro was a lot easier to work with, I might add, than Oprah Winfrey. When Harpo Productions tried to license some x-rays that I have for an Oprah show, the negotiations were a comical disaster. Oprah, it seemed clear, suceeded despite the staff she’d hired.

I assumed my picture would be one out of a hundred that Vitro would kick around and ultimately reject in favor of others. Boy, was I wrong. And I knew I was wrong when my brother called me Saturday night, just 12 hours before a trail race that I created was set to go, to tell me my face was on the side of a bus. A bus. He snapped the photo you see here. I was larger than life. My wife told me she had never seen me turn beet red before, as I looked at the picture my brother had emailed us. She and the kids were hysterical with laughter. As was I.

Further sightings have now occurred, another bus in Brooklyn and this much larger display in the Time Warner Center. Even if you wanted to draw a mustache on me, you would need a ladder to get there.

Mrs. NYPILB (she loves that acronym!) is now looking up in the air for blimps. She feels like she’s in the middle of a Seinfeld episode.

The only remaining question is, how the hell we’re going to get my swelled head out the door.

Update: OK, things just got a wee bit freakier. It seems my picture is now on the back cover of the New York Road Runner’s marathon edition of their magazine. I’ve received word from several runner friends that it started landing in mailboxes today. Can you imagine if I used Foursquare to “check in” at my locations? I’m on 45th Street. I’m on 46th. I’m on 47th. I’m in your freakin’ mailbox.

Andy Warhol once famously said that everyone would be famous for 15 minutes. But it’s starting to look like I might get 16.

Back cover of the 2012 NYC Marathon Official Program

Update #2: I finally solved the perennial October question my kids have for me; what kind of Halloween costume will I wear to take them trick or treating? Easy. I’m going as that guy on the side of the bus.

Update #3: I finally got a copy of the magazine. Frankly, this is a photo I never would have guessed I would be taking.

October 5th, 2012

App Court: You Ain’t Gettin’ Those Facebook Files

Another defendant attempts to get access to a personal injury plaintiff’s Facebook and other social media accounts, and another defendant is shot down by an appellate court.

This one comes out of New York’s Appellate Division (4th Department). Kregg v. Maldonado, decided a few days ago, deals with a motorcycle accident and a suit against Suzuki. As per the court:

The Suzuki defendants moved, inter alia, to compel the disclosure of the “entire contents” of those and any other social media accounts maintained by or on behalf of the injured party. Plaintiff objected to such disclosure on the grounds of relevance and burden, contending that the demand for disclosure was a “fishing expedition.” Supreme Court agreed with the Suzuki defendants that they were entitled to such disclosure. That was error.

The authority the appellate court cited to was McAnn v. Harleysville, also a 4th Department case, which I discussed two years ago. Missing from the defendant’s demand, and the heart of the McAnn ruling, was that there had to be some “factual predicate with respect to the relevancy of the evidence.” But there wasn’t.

The defendants were, in essence, on a simple fishing expedition (or, perhaps, a billing expedition) hoping that something would come up that might contradict the plaintiff’s testimony in some way. But that is not a sufficient reason under the law to demand access to private materials.

The court ruled that:

As in McCann, the proper means by which to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident.

Expect to see continued attempts by defendants to pry into social medial accounts marked private, and attempts to create “factual predicates” upon which to make such demands.