On August 18, 2009, the Sullolk County Legislature voted to ban electronic cigarettes from public indoor spaces where ‘traditional forms of smoking are already disallowed,’ but allows adults to use the devices anywhere cigarette smoking is permitted. The bill also bans the sale of e-cigarettes to anyone under the age of 19. The bill has been described as the first of its kind in the nation. It cites the ‘unknown’ amount of nicotine in the battery-operated devices as presenting a ’significant risk of rapid addiction or overdose.’ Suffolk’s new law is expected to take effect 90 days after the New York Secretary of State signs the bill in Albany. (more…)

A report of the Civil Rights Division of the Civil Rights Division’s investigation of conditions at four Office of Children and Family Services (“OCFS”) facilities found conditions violate constitutional standards in the areas of protection from harm and mental health care. The investigation revealed that: 1) staff resort quickly to a high degree of force that is disproportionate to the level of the youth’s infraction; and 2) the technique employed to restrain a youth results in an excessive number of injuries, including concussions, broken or knocked-out teeth, and spiral fractures. There was even one death. (more…)

The N.Y.C. Department of Buildings has suspended the license of Master Electrician Robert Spallino’s and fined him $100,000 after determining he installed cheap, illegal wooden parts, instead of the metal, insulated collars required by the Electrical Code, inside the electrical systems of five high-rise hotels in midtown Manhattan. It wasn’t an accident – Spallino even painted his wooden “carvings” black in a bid to fool inspectors into thinking they were made of fireproof metal, according to Department of Buildings documents. He used homemade wooden collars to rig wires together — a potentially deadly fire hazard. The city building code requires that wires pass through a fireproof conduit made of metal collars between floors. (more…)

Pedicabs, the three-wheel pedaled vehicles with a carriage in the back have gone unregulated for years in New York City. They are increasingly popular among tourists and New Yorkers – in fact, our office has recently been contacted via the internet from Australia on behalf of a visitor who sustained injuries, including a broken collar bone, while a passenger in a pedicab that was struck by a motor vehicle. Up to the bill’s signing on August 12, 2009, it’s been a bit of a free-for-all. That’s changed now. (more…)

Jose J. Shomo was convicted in New York State court, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentenced as a persistent violent felony offender to concurrent terms of 25 years to life. He had used a firearm to commit the murder. He was in the custody of the New York City Department of Corrections (“DOC”) from September 20, 1999, to January 4, 2001. In 2003, Shomo filed a pro se Section 1983 lawsuit in federal court alleging that on the day that he entered DOC custody, he was diagnosed with right arm paralysis and limited use of his left arm, and that thereafter the defendants were deliberately indifferent to providing him with necessary medical care. His suit included claims for Eighth Amendment medical indifference, violations of the Americans with Disabilities Act of 1990 (“ADA”) and the Rehabilitation Act of 1973, municipal liability, assault, and destruction of property. (more…)

In 2006, Hassan Afzal, was involved in an accident while driving a taxicab on West Street (a/k/a the West Side Highway) in the vicinity of West Houston Street in Manhattan. Mr. Afzal had a history of seizures that he failed to disclose in applications that he filed for a taxi license. In the accident, Danielle Ricci, one of the passengers in the taxi, either exited or was ejected from the cab and was then struck and killed by a second taxi. Three other passengers in the taxi suffered significant injuries while still in the cab when the vehicle struck a building. (more…)

Two stories recently in the news raise questions about what risks are assumed by baseball fans attending games.  One story involves a minor-league game last year, at which pitcher Julio Castillo threw a baseball that went into the stands during an on-field melee in Ohio, striking a fan who suffered a concussion. Castillo was recently sentenced by a judge in Montgomery County, Ohio, to 30 days in jail and three years probation.  The other story involves a minor-league game in 2003, at which 4-year-old Emilio Crespin was with his family at a picnic table in the left field stands before an Albuquerque Isotopes game when a batting practice home run fractured his skull. An appellate court recently held that his parents can sue the minor-league team and the city. (more…)

Today marks what would have been the 100th birthday of our founder, Louis H. Levine. It’s hard to imagine that on this day 100 years ago he was just starting out, and how different the world was in 1909 and all the things that have happened since then. One of the important lessons Mr. Levine taught was tenacity – don’t think that a case is lost solely based upon first blush, such as an unfavorable police report. Sometimes, for instance, a defendant at a deposition says something that provides an opening to argue that what is on a police report is wrong. A recent decision, Kaufman v. Quickway, Inc.,— N.Y.S.2d —-, 2009 N.Y. Slip Op. 05727, 2009 WL 1955864 (3rd Dept. 2009) is an example of that lesson, albeit that the lesson helped the defendant in that case. (more…)

Last year we wrote a blog about the case of Petrone v. Fernandez, 53 A.D.3d 221, 862 N.Y.S.2d 522 (2009), an Appellate Division, Second Department decision that held that liability can be imposed when the leash law violation is coupled with affirmative canine behavior such as a dog bite, or an attack upon the plaintiff, or where there is a history of prior violations, even in the absence of a showing that the dog owner or possessor had or should have had knowledge prior to the attack of the dog’s vicious propensities. The Second Department was apparently not completely sure of itself and the Appellate Division asked the Court of Appeals if this portion of its order was properly made. The Court of Appeals concluded that it was not. 12 N.Y.3d 546, — N.E.2d —-, 2009 WL 1585848, N.Y. Slip Op. 04694 (2009). (more…)

Naturalistic driving studies that record drivers (through continuous video and kinematic sensors in participants’ personal vehicles) in actual driving situations are a scientific method to study driver behavior in real-world driving conditions in the presence of real-world daily pressures. In contrast, a driving simulator is not actual driving – driving simulators engage participants in tracking tasks in a laboratory. Virginia Tech Transportation Institute (VTTI) conducted several large-scale, naturalistic driving studies that continuously observed drivers for more than 6 million miles of driving. While the VTTI study confirmed the tremendous driver distraction associated with text messaging, the results showed much less driver distraction from speaking and listening than driving simulator tests. The following table summarizes the VTTI results: (more…)