April 2004 Archives

Federal Ban On Unsolicited Faxes Stands

April 16, 2004

Reversing two lower courts, the Appellate Division has recently decided that the Federal law banning unsolicited faxes is constitutional and does not restrict commercial speech because fax communication is only one method of speech and allows an advertiser all other "means of communication" while addressing a substantial governmental interest. The Appellate Court reinstated the cases the lower courts had dismissed and granted the plaintiffs in those case summary judgement as to the issue of liability for violating the fax ban law, remanding the cases for an assessment of damages, including the possibility of triple damages provided for under Federal law.

Proof Of Collectibility Not Required For Legal Malpractice Claim

April 10, 2004

Legal malpractice claims are unique in that a plaintiff must convince a jury that (i) it would have prevailed in the underlying case (the case which the plaintiff alleges the attorney did not properly litigate) and (ii) the attorney representing the plaintiff in that underlying case in fact committed malpractice in the way the underlying case was handled. In a recent decision, the First Department overruled its past decision and held that in an action alleging legal malpractice, the plaintiff does not have to show that it would have successfully collected against the defendant in the underlying case had it won.

Sexual Assault Deemed Accident Under Insurance Policy

April 9, 2004

A woman brought suit alleging that she had been sexually assaulted in a spa. One of her claims was for negligent hiring by the spa of the masseur. The spa's insurance carrier refused to defend against that claim because the policy covered only accidents and other unintended injuries. The Court of Appeals decided that the incident must be viewed from the standpoint of the spa and from that standpoint, the assault was unexpected and deemed an accident under the policy requiring the insurance company to defend and indemnify.

Mother May Recover For Emotional Distress of Malpractice

April 7, 2004

Reversing almost 20 years of precedent, the Court of Appeals has decided that a mother may sue to recover for emotional injuries resulting from medical malpractice which caused a stillborn birth.

Possible Liability For Damages Under Law Later Found Unconstitutional

April 4, 2004

A Federal judge recent ruled that New York City may be liable for damages for enforcing a law later found unconstitutional. The statute, one concerning communications made with the intent to annoy or alarm, and used as the basis for an individual's arrest, was struck down. The court was not persuaded by the City's argument that it enforced a law which was valid at that time because the law's constitutional basis had been questioned prior to the City's enforcement.