Is Your Release Fair?

Any contract you enter into will probably have a general release claim, releasing the company from any liability, damages, etc.  However, even these releases are limited and you should know your rights.  “Agreements to release from any and all responsibility or liability of any nature whatsoever or any loss or property, or personal injury will not bar claims based on negligence.”  Trummer v. Niewisch, 17 A.D.3d 349, 350 (2d Dep’t 2005.)

General releases, or exculpatory clauses as it is known by the courts, are “viewed as wholly void where it purports to grant an exemption from liability for willfull [intentional] or grossly negligent [reckless] acts, or where a special relationship exists between the parties such that an overriding public interest demands that such a contract be rendered ineffectual [ex: pools, gyms or other places of public amusement where a fee is charged, parking garages, owners and general contractors in contracts for construction, renovation or alteration of a building, or catering halls and their customers.”]  Princetel, LLC v. Buckley, 95 A.D.3d 855, 856 (2d Dep’t 2012.)

What the Fourth Amendment Does Not Protect

The Fourth Amendment prohibits only unreasonable searches and seizures.  Where the Defendant does not have an unreasonable expectation of privacy in the thing or area searched, the search is reasonable, and the evidence obtained from it admissible.  As such, there is no reasonable expectation of privacy in movements made on public streets and the police may monitor them without a warrant.  United States v. Knotts, 460 U.S. 276 (1983); United States v. Jones, 132 S. Ct. 945 (2012) (requiring a warrant for tracking with GPS.)

The New Jersey Supreme Court ruled that the police did not need probable cause to inspect a Defendant’s utility records, as there is no reasonable expectation of privacy in utility records.  State v. Domicz, 188 N.J. 285 (2006.)

There is no reasonable expectation of privacy in plain view.  Arizona v. Hicks, 480 U.S. 321 (1987).  Office however, must lawfully be in a position to view such evidence for it to be seized.  Harris v. U.S. 390 U.S. 234 (1968.)

There is no reasonable expectation of privacy in open fields under federal law (see: Oliver v. United States, 466 U.S. 170 (1984)).  New York landowners however, may establish a reasonable expectation of privacy by erecting a fence or a “no trespassing” sign.  People v. Scott, 79 N.Y.2d 475 (1992.)

There is no reasonable expectation of privacy from aerial observation.  California v. Ciraolo, 476 U.S. 207, 215 (1986.)  Thus, there is no objective privacy in a backyard or a semi-enclosed greenhouse open to aerial view of, say, a police plane flying an altitude of 400 feet in public airspace (Ya think those police would have better things to do than harass you, right?) (See: Florida v. Riley, 488 U.S. 445 (1989.)

There is no reasonable expectation of privacy in public places or during a lawful traffic stop from police sniffing dogs.  See, ex: United States v. Place, 462 U.S. 696 (1983); Illinois v. Caballes, 543 U.S. 405 (2005.)  HOWEVER, the police using a drug sniffing dog at the front door of a home to discover if there were marijuana plants without a warrant is.  Florida v. Jardines, 133 S. Ct. 1409, 1412 (2013) [“When the government obtains information by physically intruding on persons, houses, papers or effects a ‘search’ within the original meaning of the Fourth Amendment has ‘undoutebly occurred.'”]

There is no reasonable expectation of privacy with abandoned property.  United States v. Lee, 916 F.2d 814, 818 (2d Cir. 1990.)  Abandoned property may be seized by police UNLESS the abandonment was a direct result of unlawful police intrusions.  People v. Boodle, 47 N.Y.2d 398, cert denied, 444 U.S. 969 (1980.)  In this case, the seized property must be suppressed because it constitutes “fruit of the poisonous tree.” See: Wong Sun v. United States, 371 U.S. 471 (1963.)

Adoption

In New York, and in the absence of abandonment, it is generally necessary to obtain the consent of the other parent to adopt a child.  DRL section 111(2)(a); Caball v. Mohammad, 441 U.S. 380 (1979.)  The United States Supreme Court held that a statute denying all unwed fathers the right to veto adoption, while granting that right to unwed mothers, violated the Equal Protection Clause.

Return Dates for Motions and Other Requirements

Motion papers can be served by any adult who is not a named party to the action.  CPLR 2103(a).

PERSONAL SERVICE

When a notice of motion is personally delivery to the attorney’s office, allow a minimum of at least 8 days before court date, 2 days for an answer and no reply is allowed.  Service of cross-motion must be made 3 days before court date.  (CPLR 2214(b); 2103(b)(1).

FAX

When the motion is faxed, allow a minimum of at least 8 days before court date, 2 days before court date for an answer and no reply is allowed.  Service of cross-motion must be made 3 days before court date.  CPLR 2103 (b)(5); CPLR 2214.

MAIL

When the motion is mailed through regular service, allow a minimum of at least 13 days before court date, 2 days before court date for an answer and no reply is allowed.  Service of cross-motion must be made 6 days before court date.  CPLR 2103(b)(2); CPLR 2214

OVERNIGHT SERVICE

When the motion is mailed overnight, allow a minimum of at least 9 days before court date, 2 days before court date for an answer and no reply is allowed.  Service of cross-motion must be made 4 days before court date.  CPLR 2103(b)(6); CPLR 2214

PERSONALLY DELIVERING MOTION DEMANDING ANSWER AT LEAST 7 DAYS BEFORE COURT DATE

Allow a minimum of at least 16 days before court date, 7 days before court date for an answer and 1 day for reply.  Service of cross-motion must be made 7 days before court date.  CPLR 2103 (b)(5); CPLR 2214(b); CPLR 2215

MAILING MOTION PAPERS DEMANDING ANSWER 7 DAYS BEFORE COURT DATE

Allow a minimum of at least 21 days before court date, 7 days before court date for an answer and 1 day for reply.  Service of cross-motion must be made 10 days before court date.  CPLR 2103(b)(2); CPLR 2214(b) and 2215.

MAILING MOTION PAPERS OVERNIGHT DEMANDING ANSWER 7 DAYS BEFORE COURT DATE

Allow a minimum of at least 17 days before court date, 7 days before court date for an answer and 1 day for reply.  Service of cross-motion must be made 8 days before court date.  CPLR 2103(b)(6); CPLR 2215; CPLR 2214(b)

***If motion papers are not served or timely filed, they will not be “read in support of, or in opposition to the motion, unless the court for good cause shall direct otherwise.” CPLR 2214(a); Keller v. McDonald, 85 A.D.3d 1356, 1357 (3d Dep’t 2011).

***CPLR 2309 (c) requires affidavits notarized outside of New York be accompanied by a certificate, authenticating the person administering the oath.  Exceptions include an ex-parte motion without notice to the other parties OR on notice.  Fredette v. Town of Southampton, 95 A.D.3d 940, 942 (2d Dep’t 2012.)

***There are no minimum return dates on Orders to Show Cause.

Failure to Serve Complaint

Plaintiff’s have 120 days from the time they file the complaint with the County Clerk to serve the Defendant.  When the Plaintiff fails to serve, the Defendant may move to dismiss the complaint under CPLR 306-b.  “Although Plaintiff’s failed to properly effect service of process, his [Plaintiff’s] cross motion for an order extending his time to serve the summons and complaint should have been granted in the interest of justice.  (CPLR 306-b.)  Interest of justice requires a careful judicial analysis of the factual setting of the case and a balance of the competing interests of the parties.” (Leader v. Maroney, Pnzini & Spencer, 97 N.Y.2d 95, 105 [2001]).

Service of Process

“While a process server’s sworn affidavit of service ordinarily constitutes prima facie evidence of proper service (Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 343-344), where there is a sworn denial that delivery to the Defendant was accomplished, the affidavit of service is rebutted and the Plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing.” (internal citations omitted.)  Toyota Motor Credit Corp v. Lam, 93 A.D.3d 713 (2d Dep’t 2012.)  Unless the process server is unavailable to testify at the hearing, the process server’s written affidavit is deemed hearsay, and it is inadmissible at the hearing.  CPLR 4531; Anton v. Anton, 101 A.D.3d 819 (2d Dep’t 1984).  It is not admissible as a business record because it was prepared primarily in anticipation of litigation.

Note that if the process server does appear at the hearing, the affidavit may be used to:

1) Refresh the process server’s recollection, or
2) As evidence under the past recollection recorded exception to the hearsay rule, provided the server cannot totally and accurately recall the details of effectuating the service.  Alexander, Practice Commentaries, McKinney’s Cons Law of N.Y. Book 7B, CPLR 306:20 at 451-52.

DEFAULT JUDGMENT

Should a New York court submit a default judgment against a Defendant, that party has one year to vacate the default, upon a successful showing of reasonable excuse, lack of prejudice to the Plaintiff and an affidavit of merit to Defendant’s defense.  Unless the Defendant can show he was never properly served (in which case there is no time restraint), a court will deny the motion if an attempt to vacate was made after the one year had passed.  CPLR 5015(a)(1).  See Cuadra v. City of New York

Jurisdiction–Suing a Foreign Corporation

How can you sue a foreign corporation, such as a hotel in a New York court?  One way is by ascertaining whether the local hotel is an agent of a larger subsidiary which has significant business contacts in New York.  However, getting jurisdiction is tough because the hotel must have minimum contacts with the State of New York.  “It is settled that a finding of agency for jurisdictional purposes cannot be inferred from the mere existence of a parent-subsidiary relationship (Frummer v. Hilton Hotels Intl., 19 N.Y.2d 533, 538 cert denied 389 U.S. 923.)  Control over a subsidiaries activities must be so complete  that the subsidiary is, merely a department of the parent. (Delagi v. Volkswagenwek AG of Wolfsburg, Germany, 29 N.Y.2d 426, 432.)

Note: Many hotels and resort chains are including forum selection clauses in their contracts.  The U.S. Supreme Court has upheld such clauses, unless the clause was intended to discourage vacationers from pursuing legitimate claims against it.  See also, Paragon Holmes Inc v. Carter, 56 Misc.2d 463, aff’d 30 A.D.2d 1052 (2d Dep’t 1968.)

Forum Selection Clauses

Forum selection clauses are prima facie valid and will not be set aside except for fraud or overreaching or if enforcement would be so unreasonable and unjust as to make a trial in the selected forum ‘so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court.’ (British W. Indies Guar. Trust Co. v. Banque Internationale, 172 A.D.2d 234.)

Medical Malpractice and Wrongful Death of Child

When medical malpractice causes a miscarriage or a stillbirth, the New York mother can now sue for her emotional trauma and suffering, even though she suffered no physical injury.  What will courts award for such anguish and misery suffered by a mother?  In New York, it appears to be $1 million dollars, Ferreira v. Wychoff Med. Ctr., 81 A.D.3d 587 (2d Dep’t 2011), but worth $100,000 in Louisiana and $200,000 in Texas.  New York Times, Aug. 24, 2011, p. A-1.