Volume 6, Number 10 Our 17th Year of Service October, 1998

"When you put lawyers in charge of a moral crusade, you risk that they’ll handle it without any sense of proportionality, largely because it is not part of their makeup." - William Simon of Stanford Law School

"I never ask a client whether he did it or not. I don’t want the client to feel that he has to start his relationship with me by lying." - Alan Dershowitz of Harvard Law School

Matters in Progress

California - Landlord/tenant notice requirement and effect of foreclosure.

Statute of limitations and damages as to loss of foot of minor, parental and charitable immunity in Massachusetts.

New York slip-and-fall - Issue as to notice and constructive notice of wet floor in commercial building.

Effect of revocation of physician’s license in New York and notification requirement of New Jersey and Florida.

Brief in support of motion for class action status.

Oppose Massachusetts Summary Judgment negligence issue.

Oppose New York motion to discuss slander complaint and issue as to publication.

Bankruptcy exemptions - Federal, New York and New Jersey.

PUBLICATIONS OF INTEREST

Newman, Henry Seiji. The University’s Liability for Professor-Student Sexual Harassment Under Title IX. Fordham Law Review: May 1998, Vol. 66, No. 6, pgs. 2559-2612.

Notes, Patients’ Rights to Access Their Medical Records. Fordham International Law Journal: April 1998, Vol. 21, No. 4, pgs. 1500-1557.

Brookins, Robert. A Rose by Any Other Name....The Gender Basis of Same-Sex Sexual Harassment. Drake Law Review: 1998, Vol. 46, No. 3, pgs. 441-538.

McDevitt, William J. Defining the Term "Disability" Under the Americans with Disabilities Act. St. Thomas Law Review: Winter 1998, Vol. 10, No. 2, pgs. 281-298.

Mannino, Laura Lee. Breaking the Taxing Bonds of Marriage: Partial Relief for the Innocent Spouse. Hofstra Law Review: Winter 1997, Vol. 26, No. 2, pgs. 477-502.

MATTERS OF INTEREST

LII Backgrounder on Impeachment.

Tort claims against title insurers will likely fail. Most state courts limit awards to contract damages, not those arising from negligent search. (NLJ - 10/12/98)

Police Procedure -- Border Check-Point Search - Using the First Circuit as its guide, the court agrees that drilling into a closed, metal cylinder is not a routine search because force is used to effect the search, thus drilling into the body of a vehicle at a border checkpoint does not amount to a routine search. October 2, 1998. United States v. Rivas & Ibarra, 5th U.S. Circuit Court of Appeals.

Federal law makes it a crime for lawyers to counsel an individual to dispose of assets in order for the individual to become eligible for Medicaid benefits if disposing of such assets would result in the imposition of a period of ineligibility. Citing the First Amendment, the New York State Bar Association challenged the measure as overboard. Finding the case justiciable, the U.S. District Court for the Northern District of New York declared the provision unconstitutional and permanently enjoined its enforcement. September 14, 1998. N.Y.S. Bar Association v. Reno, Northern District of New York.

Judgments - Summary Judgment - To be entitled to summary judgment, a defendant bears the burden to negate the plaintiff’s claim. However, a court may not rely on a plaintiff’s own interrogatory answers to defeat the defendant’s motion for summary judgment. September 24, 1998. Yates v. Fisher, Texas Supreme Court.

Lemon Laws - Florida’s law passes constitutional test - Court held that a decision of the Florida New Motor Vehicle Arbitration Board is to be admitted into evidence in the trial de novo appeal proceeding but that the decision is not to be afforded a presumption of correctness. September 17, 1998. Chrysler Corp. v. Pitsirelos, Supreme Court of Florida.

Every divorce case will be affected by IRS law. If spouses file a joint return but then divorce, legally separated or live apart for a year, they can elect separate liability. If they can prove that a tax deficiency is "allocable" to their spouse, they do not have to pay it unless the IRS can show that at the time they signed the return they had "actual knowledge" of the "item giving rise to the deficiency." The new law is Sec. 3201 of H.R. 2676, signed by President Clinton on July 22, 1998. It will be codified as 26 U.S.C. 6015.

Even though a father didn’t see his son get hit by a bus but arrived at the scene 10 minutes later, he can still sue for "negligent infliction of emotional distress." The Court cited similar rulings from Alaska, Connecticut, Massachusetts and Wyoming. August 20, 1998. Marzolf v. Stone, No. 651051, Washington Supreme Court.

Where an attorney obtained an opposing party’s credit report to determine if he was judgment-proof or had transferred assets, she can be sued under the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq., upholding an award including $15,000.00 in punitive damages. August 21, 1998. Bakker v. McKinnon, No. 973267, Court of Appeals, 8th Circuit.