Jan 24 2018

Big Stores Can Be Big Bullies, Or How To Commit Theft Prevention Malpractice

It’s been a while since I was in the trenches doing criminal law on a daily, high-volume basis. But my inner justice-seeker became reanimated this week when a young (under 20 years of age) medical malpractice client reached out to me about his arrest for shoplifting at Macy’s. That it was a dumb thing to do goes without saying. But the reaction by Macy’s was not only out of proportion to the crime–it was unethical, in that the store tried to take advantage of the fear and lack of sophistication of a New York City teenager.

My client–I’ll call him James–tried to walk out of Macy’s with a sweater valued at approximately $300.00, but was caught by store security officers before he ever left the premises. The sweater, in pristine condition, went from the bag in my client’s hands into the possession of Macy’s security officers. The NYPD issued him a Desk Appearance Ticket (DAT) for the misdemeanor charges of petit larceny and criminal possession of stolen property in the 5th degree, which he will have to answer in criminal court.

But Macy’s followed up by sending James a letter from its Civil Recovery Department, claiming that Macy’s was entitled to collect $500.00 in civil damages, and threatening to “ask a law firm to follow up on [its] behalf” if he did not make payment in full. They justified it by citing to NY GOL 11-105, which they loosely quoted to warn that “a person who commits larceny against the property of a mercantile establishment shall be civilly liable…for the retail price of damaged or unrecovered merchandise, up to $1500, plus a penalty of 5 times the retail price of the merchandise or $75, whichever is greater, but not to exceed $500.” Relying on the law, Macy’s told James, “we make demand for the payment of $500.00 from you as settlement of the civil claim in connection with this incident.”

There was just one problem here. The sweater was not “damaged or unrecovered.” Therefore, the Macy’s Civil Recovery Department had no basis to go after James for civil damages. And it had no basis to threaten him with legal action if he didn’t pay up. Yet, when James contacted Macy’s Security upon receiving the letter to try to determine how seriously to take it, he was advised to pay the money. In fact, the woman at Macy’s went so far as to tell James that the judge in criminal court would probably look more favorably on him when deciding his fate if he paid before his court date.

Luckily for my client, and his father, who was about to send a check that he could ill afford to a company that did not deserve it, I was able to explain that Macy’s was trying to pull a scam on them, and that they should not fall for it. But Macy’s would have been successful in conning money from my client’s family had James not mentioned the arrest to me. And you can be sure that they have conned lots of cash out of lots of unsuspecting New Yorkers already. Macy’s, this is not a good look for you. Lay off the kids, and clean up your act.

Jun 16 2017

You Should Know Why Lavern’s Law Matters

New York State is far from the worst when it comes to how victims of medical malpractice are treated in court. For example, we do not have set limits on the amount of money damages that can be awarded to a plaintiff for so-called non-economic damages, that is, the damages that can be awarded to compensate for the victim’s pain and suffering. Other states do, in the form of “caps,” often placed at $250,000.

But medical malpractice victims can be hurt, a second time, by unrealistic limitations in the time they have to bring an action in court. Barring exceptional circumstances, malpractice victims who miss such a deadline, called a statute of limitations, are forever barred from having their complaint heard in court. In New York, a victim of medical malpractice has 2 and 1/2 years from the date of the malpractice to start a lawsuit. That may sound like a sufficient amount of time to realize that a medical error was made, and to hire a lawyer to do something about it.

But what if, through no fault of your own, you don’t discover the malpractice until more than 2 and 1/2 years have passed? Right now, you, and every other New Yorker, are powerless to seek compensation. But there is a groundswell of support for a law that may change that unfortunate situation. It is called “Lavern’s Law,” after a New Yorker who fell victim to the unfairness of the current statutes of limitations. This story in the NY Daily News provides some background. Lavern Wilkinson had a curable case of lung cancer, but her doctors failed to diagnose it on time. By the time they, and Lavern, realized their mistake, it was more than 2 and 1/2 years from the time of the misdiagnosis, and neither she, nor the family she left behind, had any recourse in our court system.

As this article in The Journal News points out, New York is one of only 6 states in the U.S. that fails to use a “date of discovery’ rule for medical malpractice victims, i.e., a rule that allows a malpractice victim to bring suit within a set time from the date of discovery of the malpractice–and not just the time of the malpractice.

As my colleague, Eric Turkewitz, stresses in his post on the topic, it’s time to pass Lavern’s Law, before this nonsensical void in our law works to deprive someone else of his or her right to hold a negligent doctor accountable. Eric’s post provides helpful information on how you can help advocate for getting Larvern’s Law to a vote on the Senate floor, and I hope you will do so. New York’s victims of medical malpractice deserve better.

Mar 14 2017

An Orderly Transition?

It is by now old news that President Trump’s top lawman, Jeff Sessions, ordered most of the country’s U.S. Attorneys to clear out, immediately or sooner, a couple of days ago. This normally calls for the submitting of resignations. The U.S. Attorney for the Southern District of New York, Preet Bharara, did not go peacefully however, and forced Sessions to fire him instead, for reasons that will likely come into focus in the coming weeks. One reason for the highly charged departure, though, is quite public. President Trump had met with Mr. Bharara, and had personally requested that he stay on to work during the Trump Administration’s tenure. Therefore, the change of position apparently took the U.S. Attorney by unpleasant surprise.

Not everyone in Mr. Bharara’s position was treated that way. In fact, the U.S. Attorney for the Northern District of New York was told that he could stay on, in order to accumulate enough time for his pension to become effective, and to ensure an orderly transition. That was a generous and reasonable thing to do: generous concerning Mr. Hartunian’s pension; and reasonable because leaders of federal prosectors’ offices need time to effectuate an orderly transition, and insure that investigations in progress continue to move forward under proper guidance.

The manner in which Mr. Sessions carried out his removal of most sitting U.S. Attorneys was abrupt, making the possibility of achieving orderly transitions at each office slim. From here, I can’t imagine why he chose to do it this way. But the end result is that lots of dedicated public servants who worked hard for modest paychecks are leaving their offices in a hurry, and feeling slighted. They deserve better. They deserved to be treated like the U.S. Attorney for the Northern District of New York.

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