LegalTech Trade Shows

On February 1st through the 3rd, a LegalTech trade show will be held at the Hilton New York Hotel, 1335 Avenue of the Americas, New York City, NY 10019.  LegalTech promotes the show as "the largest and most important legal technology event of the year."  The show is one of two such events, the other being held in Los Angeles. 

LegalTech promises to provide an in-depth look at what the technological world offers to make life in the legal professional more efficient and lucrative.  According to ALM media company, in addition to learning about the newest advances in law firm technology, by attendting a LegalTech event one can earn CLE credits as well as network with industry leaders.  Unfortunaely, the attorney time spent at the event is not "billable."   

Harm to Plaintiff Caused By Gravity Upon Object Invokes Labor Law 240(1)

In response to certified questions from the U.S. Court of Appeals for the Second Circuit, the New York Court of Appeals, held in Runner v. New York Stock Exchange, Inc., No. 197, that § 240 of the New York Labor (the so-called “Scaffolding Law”) applies where a worker’s injuries were caused directly from “the application of the force of gravity to an object.” The facts of Runner are relatively simple and did not invlove plaintiff falling from an elevated work surface nor did it invlove him being struck by hoisted materials.  Rather, plaintiff, an electrician, and his co-workers, were endeavoring to lower an 800 pound reel of wire down a set of four steps in the course of the work.  To prevent the reel from rolling freely down the flight and causing damage, the workers were instructed to tie one end of a ten-foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jamb on the same level as the reel. The loose end of the rope was then held by plaintiff and two co-workers while two other co-workers began to push the reel down the stairs. As the reel descended, it pulled plaintiff and his fellow workers, who were essentially acting as counterweights, toward the metal bar. The expedient of wrapping the rope around the bar proved ineffective to regulate the rate of the reel's descent and plaintiff was drawn horizontally into the bar, seriously injuring his hands.  Expert testimony was proffered at trial that a pulley or hoist should have been used to move the reel safely down the stairs and that the jerry-rigged device actually employed had not been adequate to that task. 

The jury, having been instructed that liability pursuant to Labor Law § 240 (1) could not be assigned unless plaintiff’s injuries had been attributable to a gravity-related risk, and having found that no such risk had been implicated, returned a verdict for defendants. A motion by plaintiff to set side the verdict ensued. In granting the motion and directing judgment for the plaintiff upon his Labor Law § 240 claim, the District Court found, as a matter of law, that the movement of the reel down the stairs presented a gravity-related risk; that an adequate safety device had not been used to manage the risk; and that that failure had been a substantial factor in causing plaintiff’s injury.

On appeal, the Court rejected defendant's argument that section 240 was inapplicable and instead held that the injury was the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential.  Accordingly, the case represents the Court’s expansion of coverage under the Scaffolding Law and most certainly will be the source of much debate as plaintiffs will endeavor to further invoke the extraordinary protections of 240.

CPLR 2221 "Cheat Sheet"

The Smart Rules Blog has a brief "Motion to Reargue Cheat Sheet" that I want to share.  Find the blog here.  

NYPD Drug Testing Methodology and Testing Triggers Within Police Commissioner's Disciplinary Authority

In furtherance of it's zero tolerance policy for the use of illegal drugs by uniformed members of the service, the New York City Police Department Patrol Guide Procedures (PGPs), effective January 1, 2000, directed the testing of either urine or hair samples.  Specifically, PGP No. 205-30 specified testing either the urine or hair of members reasonably suspected of illegal drug use; and PGP No. 205-35, which allowed members subject to unsubstantiated allegations of illegal drug use to request voluntary testing, provided for testing of either hair or urine samples.  In addition, all probationary NYPD officers (PPOs) received an end-of-probation medical examination, which included drug testing of hair samples.  RIAH was the methodology used for hair testing. 

Patrol Guide Procedure No. 205-29 addressed random drug testing, whereby an automated database was used to select uniformed members who were directed to appear at a specified time and date for testing.  While this PGP did not identify urine analysis as the testing methodology, it incorporated a number of steps specific to urine testing.  Three other PGPs similarly did not actually identify the method of drug testing, but referred only to the collection of urine samples: PGP No. 205-32 (covering members applying for and assigned to the Organized Crime Control Bureau); PGP Nos. 205-31 and 205-33 (covering members applying for assignment to designated specialized units); and PGP No. 205-34 (covering members applying for discretionary promotions).

Several unions, including the Patrolmen’s Benevolent Association, had argued that expanding the use of hair strands for such testing was subject to collective bargaining.  It was a position that union leaders had expressed in similar disputes concerning the department’s move to add steroids to the list of substances that MOS are tested for and to administer sobriety tests to those who discharge their firearm, either on or off duty.  The dispute over the applicability of collective bargaining was taken up to the Court of Appeals in The Matter of The City of New York, et al., v. The Patrolmen's Benevolent Association of the City of New York and The Sergeants' Benevolent Association of the City of New York, et al.

In an eighteen page opinion dated December 18, 2009, the Court unanimously held that the method of drug testing and the triggers for such testing are excluded from collective bargaining as a matter of policy.  The Court explained its rationale in that the detection and deterrence of wrongdoing within the NYPD -- particularly crimes, such as illegal drug use -- is a crucial component of the Police Commissioner's responsibility to maintain discipline within the force.  Both the Board and the unions conceded that the Commissioner may unilaterally institute drug testing of uniformed officers. They would, however, check his discretion to select the investigatory measures that he deems most effective to discover and deter illegal drug use by requiring collective bargaining over testing methodology and testing triggers. In the Court's view, however, these subjects are inextricably intertwined with the Commissioner's authority to conduct drug testing in the first place.  

Nonetheless, the Court emphasized that they are not holding that that every step that the Commissioner takes or every decision that he makes to implement drug testing is excluded from bargaining.  To the contrary, the full extent or the limits of the Commissioner's unilateral disciplinary authority in the context of drug testing were simply not presented on the record before the Court. 

Judges' Part Rules

The New York Law Journal staff compiles and maintains a comprehensive listing of the Rules for the Judges in both State and Federal Courts. Counties included are New York, Bronx, Kings, Queens, Richmond, Suffolk, Nassau, Westchester, Dutchess, Orange, Putnam and Rockland.  In addition, the rules for both Southern and Eastern District Judges as well as the Second Circuit Court of Appeals are provided.  According to the Law Journal, the Judges' Part Rules online resource is updated daily to provide the most current information available.  A link to the site is provided on the left side bar under the caption "Resources."  A free registration is required prior to aceess. 

New Jersey Adopts MCLE Effective January 1, 2010

In satisfaction of the continuing legal education requirement, attorneys shall participate in twenty-four hours of qualifying continuing legal education over a two-year period. Four of the twenty-four hours of credit shall be concentrated in the areas of ethics and/or professionalism.  See the notice to the bar here.  

Don't Tase Me - Bro!

Law enforcement professionals undertake a very dangerous and oftentimes violent job.  They are often confronted with situations involving non-compliant subjects who must be controlled through the use of physical force.  Since 1993, the TASER Corporation has provided devices that use proprietary technology to incapacitate dangerous, combative, or high-risk subjects who pose a risk to law enforcement officers, corrections officers, civilian members of the public or themselves.  According to the manufacturer, the state-of-the-art TASER X26 Electronic Control Device (ECD), which transmits electrical pulses through wires and into the body of the perpetrator as far as thirty-five feet away, it has the lowest injury rate of any force option, allowing potentially violent offenders to be controlled with minimal risk of injury compared to traditional blunt force options.  I emphasize "potentially violent" in view of the December 28, 2009 decision and order by the federal Ninth Circuit Court of Appeals in Bryan v. McPherson, et ano.    

In a twenty-two page opinion, the Court explained it's rationale in holding that Police Officer McPherson's use of the 26X on Carl Bryan, a twenty-one year-old  male who exhibited the behavior of an emotionally disturbed person after simply being stopped for not wearing a seat belt, was "significant force" which was not justified. 

Bryan apparently had a morning filled with unfortunate events that may try the patience of a well-adjusted person.  The Court recites the facts in which Bryan's car keys were mistakenly taken by an acquaintance.  Bryan was then required to make a one-hundred mile round trip by car to retrieve his keys.  In the course of that trip he was stopped by a California Highway Patrol officer and issued a summons for speeding.  Some time after that traffic stop, he was directed to stop by Officer McPherson when he observed Bryan operating his motor vehicle without a wearing a seat belt.  Despite  being directed to remain in his vehicle, a lawful command which Bryan denied hearing, he exited and stood outside dressed only in boxer shorts and sneakers.  Bryan, who was approximately twenty-five feet from the officer, then launched into a tirade in which he was shouting profanity and gibberish while striking his thighs with his hands.  Obviously concerned for his safety and that of Bryan, the officer deployed the 26X to maintain order.  Bryan was precipitated to the pavement by the  effects of the device and thereby sustained injury to several teeth.  Accordingly, Bryan prosecutes an action under 42 USC 1983 alleging the use of excessive force in violation of his Fourth Amendment right.  

The Court explained in a detailed opinion that, inter alia, the officer's use of the 26X without prior warning, and the physical evidence that Bryan was facing away from the officer when the device was deployed, were facts that demonstrated the unreasonableness of the use of force when evaluating that conduct by an objective standard.  Moreover, the Court found that Bryan's conduct did not pose a threat to the officer where there was no testimony that Bryan advanced toward the officer in the course of his belligerent tirade.  Rather than deploy the device, the Court concluded that the officer should have remained idle and subject to the verbal harassment until additional officers arrived at the location.

Not having the benefit of reviewing the appellate record, I can only reasonably infer that Officer McPherson did not adequately articulate the potential threat posed to him when confronted with such a situation.  The Court made much of the fact that Bryan  was unarmed.  However, what was apparently not articulated in the deposition testimony was the fact that Officer McPherson was armed and that an unarmed 21-year-old emotionally disturbed man could potentially disarm the officer and use deadly force with the officer's own weapon.  By way of example, the NYPD Patrol Guide establishes that an officer provide no less than a twenty-foot distance from an emotionally disturbed person.  Further, the officer's testimony did not establish the  demonstrated fact that a  potentially violent subject can traverse twenty-feet of ground before an officer can even unholster a firearm.  Perhaps the determining factors were overlooked in  the preparation of the officer for his examination before trial.