August 2011

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In Rashada v. New York Post et al (NY Sup. August 11, 2011), 2011 Slip Op. 32234(U), Judge Scarpulla dismissed plaintiff’s defamation action against the New York Post and the author of an article allegedly suggesting that plaintiff – one of several imams at a mosque and a Department of Corrections employee – had “radicalized”…

Read More NY trial court dismisses defamation action – statements constituted opinion, not fact
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In EEOC v. Dresser Rand Co., 04-CV-6300 (W.D.N.Y. August 10, 2011), a New York federal court rejected the defendant’s argument that an employment discrimination plaintiff’s decision not to pursue additional training at a local community college resulted in a failure to mitigate his damages. Plaintiff, a Jehovah’s Witness, sued his employer alleging religious discrimination in violation…

Read More Mitigation under Title VII does not require re-education
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In Ahmad v. Bivomi M. Alshorbagi and Jacal Hacking Corp. (N.Y. Sup. July 22, 2011), the court considered, and rejected, defendant’s CPLR 4404 motion for various elements of post-trial relief following a jury’s damage award.  Plaintiff sued defendants, the driver and owner of a taxi that struck him at LaGuardia Airport.  A trial judge granted…

Read More NY Supreme Court rejects defendants’ motion to set aside jury damages award
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In law school, a professor once conveyed to our Torts class a four-word phrase that can fairly be said to embody the teachings of thousands of judicial opinions over hundreds of years:  “No evidence, no win.”  Southern District of New York Judge Loretta Preska echoed that sentiment – albeit in slightly different form (“’J’accuse!’ is not enough in…

Read More SDNY: summary judgment for Bloomberg L.P. on plaintiffs’ “pattern or practice” pregnancy discrimination claim
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An Appellate Division, First Dept. panel recently upheld the trial court’s dismissal of plaintiff’s claims alleging violations of Labor Law §§ 191 and 193.  The offer letter that granted plaintiff an entitlement to be paid commissions also provided that the commission rates were those “reasonably expected to be paid” and “may be modified at any time”…

Read More Commission Reduction Permissible Where Expressly Authorized by Agreement
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Frank v. State of New York et al., 2011 NY Slip Op 04588 (App. Div. 3d Dept. June 2, 2011): Plaintiff, a state employee, asserted claims under the public-sector whistleblower law (Civil Service Law § 75-b) and 42 U.S.C. § 1983 after he was demoted, then terminated, following his complaints of “improper governmental practices” that allegedly…

Read More NY Appellate Division: NY whistleblower election-of-remedies provision does not bar Section 1983 claim
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In Mullins et al. v. City of New York, 09-3435 (August 5, 2011), the Second Circuit held that the plaintiffs’ (4000+ NYPD sergeants) “primary duty” was not “management”, and thus they did not qualify for the “executive” exemption from the FLSA’s overtime pay requirements.  See 29 U.S.C. 207(a)(1) (overtime requirement); 29 U.S.C. 213(a)(1) (executive exemption). The court’s decision centered…

Read More Second Circuit: NYPD sergeants are entitled to overtime under the FLSA
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Timoshenko v. Airport Auto Group et al., 2011 NY Slip Op 51492(U) (N.Y. Sup. Richmond Cty. August 5, 2011): Defendant Airport Auto Group, Inc.’s employee shot NYPD officer Timoshenko after being stopped in a BMW owned by defendant.  Plaintiffs, the slain officer’s parents, sued Airport Auto Group and its president individually, on a “negligent hiring” theory. …

Read More NY Supreme (Richmond Cty.): Murdered police officer’s family may continue suit against shooter’s employer
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Montes v. Collins Enterprises, LLC et al., No. 106308/08 (NY Sup. July 8, 2011): Plaintiff, an employee of a non-party subcontractor, sustained injuries when he “stepped on a round wooden doorknob” in a room of an apartment where he was working.  Plaintiff alleged violations of Labor Law §§ 200, 240(1), and 241(6) against the owner and…

Read More NY Supreme (NY Cty.): Worker injured after slipping on doorknob at worksite may proceed on Labor Law § 241(6) claim based on Industrial Code § 23-1.7(e)(2)
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In Jackler v. Byrne, 658 F.3d 225 (2011), the Second Circuit vacated the trial court’s FRCP 12(c) dismissal of plaintiff probationary police officer’s Section 1983/First Amendment retaliation claim.  Plaintiff alleged that he was fired because he refused to follow instructions to retract a report that implicated a police officer in the use of excessive force…

Read More Second Circuit Vacates Dismissal of First Amendment Retaliation Claim Brought by Police Officer Fired For Failing to Submit False Report
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