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Here's a a legal information clinic being promoted by State Assemblymember Micah Kellner:
Family Court Clinic on Roosevelt Island
May 21, 2009
Are you facing the Family Court system without a lawyer? On May 21, 2009, from 4:00 to 6:30 p.m., my office will partner with LIFT (Legal Information for Families Today), to bring a free legal information drop-in clinic to the Church of the Good Shepherd (546 Main Street, Roosevelt Island). The clinic will offer Roosevelt Island's parents and grandparents who have questions about child support, custody, and visitation cases the chance to meet one-on-one with LIFT staff for help.
LIFT is an award-winning nonprofit organization that operates community and court-based programs all of which empower vulnerable families to advocate for themselves in Family Court, ensuring that all families - no matter what their income level or ability to hire a lawyer - have the ability to access justice in the complex Family Court system.
There is no need to schedule an appointment for the May 21 event, nor must you be a Roosevelt Island resident. The event is free and open to the public. Refreshments will be served. For more information about any of LIFT's programs call 212-343-1122 or visit www.LIFTonline.org.
The Brennan Center Legal Series and its Steering Committee Members
Michael Waldman (Brennan Center for Justice), Jim Johnson (Brennan Center board chair, Debevoise & Plimpton) Michele Balfour, Jeremy Creelan (Jenner & Block), Beth Golden, Professor Helen Hershkoff (NYU School of Law), Daniel Kolb (Davis Polk & Wardwell), Edward Labaton (Labaton Sucharow), Lawrence Pedowitz (Wachtell, Lipton, Rosen & Katz), Roy Reardon (Simpson Thacher & Bartlett), Lee Richards (Richards Kibbe & Orbe), Professor Cristina RodrÃguez (NYU School of Law), Charles Stillman (Stillman, Friedman & Shechtman), Sung-Hee Suh (Schulte Roth & Zabel), and Neal Wolin (The Hartford Financial Services Group)
Invite You to a Conversation on
The Justice Gap: Fixing Legal Services for the Poor
with
Michael Waldman - Executive Director, Brennan Center for Justice
David Udell - Justice Program Director, Brennan Center for Justice
Rebekah Diller - Deputy Director, Justice Program, Brennan Center for Justice
Eric Tirschwell - Kramer Levin Naftalis & Frankel
Craig Siegel - Kramer Levin Naftalis & Frankel, former Brennan Center counsel
In 1996, a two-decade long effort to dismantle the nation's modest system for providing representation to the poor in civil matters culminated in the imposition of binding restrictions on legal services lawyers. These restrictions prevent lawyers funded by federal Legal Services Corporation dollars from, among other things, claiming court-ordered attorney's fee awards, participating in class actions, and engaging in legislative advocacy. Furthermore, a poison pill restriction also prevents legal services programs from using their private funds to finance any of the prohibited activities once they accept their first LSC dollar.
Challenges to these restrictions have thus far met partial success, but a devastating gap remains between the legal needs of the poor and the public resources devoted to meeting them. Brennan Center lawyers, in this fight since the beginning, will discuss the crisis in representation of the poor, the present phase of the litigation, and current efforts to obtain corrective legislation in the new Congress and with the Obama transition team.
Please join us! Thursday, December 18, 2008 12:30 p.m. - 1:30 p.m.
Kramer Levin Naftalis & Frankel
1177 Avenue of the Americas (between 45th & 46th Streets)
New York, NY 10036
RSVP: Kindly respond by December 15, 2008 to max.scales@nyu.edu or by calling 212.992.8643.
 In certain instances, the New York State Family Court Act affords indigent litigants an entitlement to have counsel assigned to them by the court.*
If a party waives that right and opts to proceed pro se -- or on their own -- the court must ensure that the individual has made that decision "knowingly, intelligently, and voluntarily." While no rigid test exists, appellate authority has required a showing that the individual "was aware of the dangers and disadvantages of proceeding without counsel." In Jetter v. Jetter, the Kings County Family Court issued an order of protection against Mr. Jetter and directed that he "refrain from, inter alia, committing any criminal offense against his wife." On appeal, the Appellate Division, Second Department, reversed because the judge failed to advise Mr. Jetter of the "risks of self-representation." Frankly, if you need to be told of that danger you may be best suited for the appointment of a guardian. No? 
To download a copy of the Appellate Division's decision, please use this link: Jetter v. Jetter -------------------------- *S 262. Assignment of counsel for indigent persons. (a) Each of the persons described below in this subdivision has the right to the assistance of counsel. When such person first appears in court, the judge shall advise such person before proceeding that he has the right to be represented by counsel of his own choosing, of his right to have an adjournment to confer with counsel, and of his right to have counsel assigned by the court in any case where he is financially unable to obtain the same:
(i) the respondent in any proceeding under article ten of this act and the petitioner in any proceeding under part eight of article ten of this act;
(ii) the petitioner and the respondent in any proceeding under article eight of this act;
(iii) the respondent in any proceeding under part three of article six of this act;
(iv) the parent, foster parent, or other person having physical or legal custody of the child in any proceeding under section three hundred fifty-eight-a, three hundred eighty-four, three hundred eighty-four-b, or three hundred ninety-two of the social services law, and a non-custodial parent or grandparent served with notice pursuant to paragraph (e) of subdivision two of section three hundred eighty-four-a of the social services law;
(v) the parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child, in any proceeding before the court in which the court has jurisdiction to determine such custody;
(vi) any person in any proceeding before the court in which an order or other determination is being sought to hold such person in contempt of the court or in willful violation of a previous order of the court, except for a contempt which may be punished summarily under section seven hundred fifty-five of the judiciary law;
(vii) the parent of a child in any adoption proceeding who opposes the adoption of such child.
(viii) the respondent in any proceeding under article five of this act in relation to the establishment of paternity.
(b) Assignment of counsel in other cases. In addition to the cases listed in subdivision (a) of this section, a judge may assign counsel to represent any adult in a proceeding under this act if he determines that such assignment of counsel is mandated by the constitution of the state of New York or of the United States, and includes such determination in the order assigning counsel;
(c) Implementation. Any order for the assignment of counsel issued under this part shall be implemented as provided in article eighteen-B of the county law.
 Unreasonably refusing a landlord access to your apartment can result in your eviction.
In 3420 Newkirk LLC v. Sulker, the Sulkers were unwilling to allow their landlord entry into their rent-stabilized unit for the purpose of addressing a "severe water condition" that not only impacted their apartment but that of a "disabled elderly person, on dialysis, whose rent subsidy was in danger of termination owing to the deteriorated conditions therein." After a trial, the Kings County Civil Court found that the tenants had violated a substantial obligation of their tenancy by refusing to allow their landlord access to perform repairs. On appeal, the tenants contended they were at a severe disadvantage since they had been unrepresented at the time of the trial. Finding no irregularity in the way the trial was conducted, the Appellate Term, 2d and 11th Judicial Districts, offered the following quote: "[I]t is well settled that a litigant who appears pro se at trial does so at his [or her] own peril and acquires no greater rights than any other litigant" ... and, in any event, the record does not reveal that the court below failed to apply the law accurately and impartially, or that it improvidently exercised its discretion in its ruling with respect to the conduct of the proceedings and the admission of evidence.
The tenants' remaining arguments, including but not limited to, that the landlord's intention was to harass them and that the case was in retaliation for their attempts to form a tenants' association, were summarily discounted by the appellate court as contrary to the weight of the evidence and governing law, and, the judgment of possession was permitted to stand. In other words, these tenants were deaccessed. 
For a copy of the Appellate Term's decision, please use this link: 3420 Newkirk LLC v. Sulker
We previously reported on Susan Hudock's pro se battle against Aventis Pharmaceuticals.* Ms. Hudock's federal court dispute, which reached the United States Court of Appeals for the Ninth Circuit, alleged that the big pharma had discriminated against her in violation of the Americans with Disability Act (ADA). Aventis was alleged to have wrongfully terminated Hudock's employment as a sales representative when she was no longer physically able to drive herself to appointments. After receiving an unfavorable jury verdict, Ms. Hudock appealed to the Ninth Circuit alleging an array of irregularities, including errors with the District Court's jury instructions. In a decision dated April 25, 2007, the District Court's judgment was affirmed. Among other things, the Ninth Circuit faulted the pro se litigant for not objecting to the instructions at the time of trial. (That struck us as odd, given Susan's self-represented status and the fact that she repeatedly expressed her discomfort and lack of familiarity with the governing protocols and procedures.) Despite the unfavorable outcome, we are advised that Susan remains steadfast. Here's a copy of the message that we recently received from Susan's brother, John. Dear Mr. Ferrara: I am writing to provide you with an update on Sue's case. As you see the decision, unfortunately, was rendered for Aventis. However, Sue the good warrior that she is, ascribes to your motto and presses "Onward." *** Once again, on behalf of Sue her husband and myself we are ever grateful for your kind words and encouragement. Thank you so much. Best regards, John Hudock, Hollywood, California
Enclosed with the note was a copy of Susan's "Petition for Panel Rehearing and/or in the Alternative Petition for Rehearing En Banc." While we don't hold out much hope that her Petition will be granted, we must admire her tenacity and spunk. Onward! For a copy of Ninth Circuit's decision (dated April 25, 2007), please use this link: Hudock v. Aventis Pharmaceuticals, Inc. For a copy of Hudock's Petition for Rehearing (dated May 8, 2007), please use this link: Appellant's Petition for Panel Rehearing -------------------------------- For our prior posts, see Susan Hudock: Modern-Day David and Going Pro Se: Rethinking Attorneys' Roles
 One guiding principle at work in small claims cases is that litigants should be able to represent themselves and not need a lawyer’s assistance.*
To that end, small claims disputes are procedurally streamlined with certain aspects, such as rules of civil procedure and evidence, “liberalized” for the sake of simplicity and expediency. Yet, despite that flexibility, there are some formalities which still must be observed -- like proving your case. In Horowitz v. La Fitness International, LLC, Horowitz’s Rolex watch and some cash were stolen from a locker located in La Fitness International’s premises. Horowitz filed a small claims case against La Fitness premised upon the theft of his personal property. When that case was dismissed, Horowitz appealed. While Horowitz alleged that the Civil Court erred by finding against him, the Appellate Term, First Department, did not agree. Prior to the case’s close, the judge asked whether Horowitz had anything to add, and during the course of the proceeding was permitted to submit several items into evidence, including photographs, a police report, and estimates of the value of stolen property. There was no indication that Horowitz was prevented from raising any objections during the trial and, in fact, he did not do so. Ultimately, Horowitz was unable to demonstrate that La Fitness was liable for the loss. And, absent any irregularity, the appellate court found that “substantial justice” had been effected and affirmed the case's dismissal. How fitting was that?
For a copy of the Appellate Term’s decision, please use this link: Horowitz v. La Fitness Intl., LLC
-------------------------- *While people always have the right to represent themselves, that may not be feasible, practical, or wise in more complex legal matters.
 In Cullimore v. Buchanan, Mr. Cullimore sought to recover $3,000 for water damage that was allegedly attributable to Buchanan’s defective installation of a bay window. Buchanan countered that the leakage was not caused by any faulty work on his part, but was triggered by the improper alignment of the shingles on the homeowner’s roof. When the dispute was dismissed by the Justice Court of the Village of Wappingers Falls, Cullimore appealed.
Interestingly, the Appellate Term, 9th and 10th Judicial Districts, found it could not undertake an independent review of the case, as there was no trial record, stenographic minutes, or any appropriate transcript of the testimony. As a result, the appellate court was compelled to reverse the dismissal and remanded the case for a new trial. The AT noted that customarily a clerk of the court or the judge who presided over the case will prepare a statement setting forth the substance of the proceeding, which is sufficiently descriptive of the testimony to make appellate review possible. If that standard is not met, as was the case here, then a case will need to be retried. So, to avoid a needless “do-over,” why wouldn't a judge want to make sure everything is done right, “on the record,” the first time around? For a copy of the Appellate Term’s decision, please use this link: Cullimore v. Buchanan
Here's an unusual case for you. The Appellate Term, 2nd and 11th Judicial Districts, recently examined a lawsuit where the plaintiff sought damages for "harassment," "defamation," "malicious prosecution," and, "[w]asting time and mak[ing] me sick." The Queens County Civil Court dismissed these claims since the plaintiff's pleading failed to state a legally cognizable basis upon which relief could be granted. And, on appeal, the appellate court affirmed that outcome. First and foremost, New York State does not recognize a civil claim based on "harassment," except in the case of a regulated tenant (and, apparently, this litigation did not involve a rent-regulated apartment).* A claim predicated on "defamation," typically defined as words which wrongfully impugn an individual's honesty, integrity, sanity, or the like, requires that the offending language be included in a party's pleading. And, in the absence of that recitation, a case "must" be dismissed. (Of course, this plaintiff failed to provide the pertinent quotes in his complaint.)** "Malicious prosecution," on the other hand, generally applies when an action or proceeding was started by a party against you, was decided in your favor, there was no justifiable basis to bring the case, and, you were damaged as a result of the wrongful conduct. In this instance, since the plaintiff did not establish that a prior lawsuit had been commenced and adjudicated in his favor, that particular aspect of the dispute could not survive. Finally, since existing law does not recognize a recovery for someone "wasting your time and making you sick," that final component of the litigation was also denied resurrection. Just think how much richer we'd all be if the law permitted us to sue whenever someone wasted our time or made us sick. (Don't know about you, but I'd be a trillionaire.) For a copy of the Appellate Term's decision in Gabara v. Bodajlo, please click the following link: http://www.nycourts.gov/reporter/3dseries/2006/2006_52554.htm ---------------------------- *To view a prior blog post on "harassment," please click the following link: http://www.nyrealestatelawblog.com/2006/06/dont_harass_me.html#000037 **To view our other blog posts on "defamation," please click the following link: http://www.nyrealestatelawblog.com/search/mt-search.cgi?IncludeBlogs=4&search=defamation
Judge Gerald Lebovits has a monthly column called "The Legal Writer" featured in the Journal, a publication of the New York State Bar Association. In this month's issue (Vol. 79, No. 1), Judge Lebovits addresses "Ethical Judicial Writing" and examines a bankruptcy court decision we've scrutinized in a prior blog post. [See, "This Is Incomprehensible," by clicking on the following link: http://www.nyrealestatelawblog.com/2006/11/this_is_incomprehensible_1.html#000375] Interestingly, Judge Lebovits echoed many of the sentiments expressed in our piece and we thought you might find his analysis of that twisted decision of interest. Here are his observations: One bankruptcy judge from Texas used humor to deny a defendant's motion as incomprehensible. The judge compared the defendant and his motion "to Adam Sandler's title character in the movie 'Billy Madison,' after Billy Madison had responded to a question with answer that sounded superficially reasonable lacked any substance." Billy Madison, like the defendant in this case, was berated for his stupidity:
[W]hat you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.
Judges are different from everyone else in a courtroom. They should decipher rambling, irrational, incoherent thoughts. They should unearth the buried argument, comprehend the incomprehensible, clarify the opaque. They shouldn't give up easily on a litigant who sounds like Billy Madison. Judges who act disrespectfully to lawyers and litigants will in turn be treated disrespectfully.
Kudos to Judge Lebovits for getting it right! (Unfortunately, a few too many of his colleagues neither strive to achieve these fundamental goals nor accord litigants--or their counsel--the "respect" and "dignity" they rightfully deserve.) To download a copy of Judge Lebovits's article, please click on the following link: http://www.nyrealestatelawblog.com/blog~legal%20writer.pdf
On Wednesday Tuesday, January 17 23, 2007, "Tenants United Against Harassment" will be holding a special forum, described as a "citywide convention to select New York's most abusive landlord." According to a flyer we received, New York tenants are eligible to nominate landlords "who are using illegal methods to push tenants out," with the event's purpose being to "bring attention to the crisis of harassment, and support new legislation in the City Council that will give tenants a new tool to fight back." The event is being held on: Wednesday Tuesday, January 17 23, 2007
11:00 AM -- 1:00 PM Judson Memorial Church 55 Washington Square South (NYU area), Manhattan For additional information, you may call the West Side SRO Law Project at 212-799-9638 ext. 229. To dowload a copy of the event's 1/17/07 flyer, please click on the following link: http://www.nyrealestatelawblog.com/blog~MostAbusiveLandlord.pdf UPDATED ENTRY (JANUARY 17, 2007): Please note that after our post was originally released, the event date was changed from January 17, 2007 to January 23, 2007. (A copy of the 1/23/07 event flyer appears below.)
Continue reading "COME VOTE FOR YOUR LANDLORD!" »
Various statutory protections are in place for those tenants who are serving in the military or are dependent on those on active duty. By way of example, the Servicemembers' Civil Relief Act provides that an action or proceeding may be stayed when a court finds that: 1) a servicemember is on activity duty or was relieved of active duty within 90 days of the stay request;
2) the military service materially affects the servicemember's ability to defend the case; and
3) the servicemember has notice of the pending action or proceeding. But these protections are far from automatic. By way of example, in Corrado v. Harris, a Justice Court of the Town of Mount Pleasant, in Westchester County, refused to stay a holdover proceeding based on a co-tenant's military service. On appeal, the Appellate Division, 9th and 10th Judicial Districts, affirmed since the tenant had failed to demonstrate that her ability to defend the case was "materially impaired," and, no letter from the co-tenant's commanding officer--reflecting that cotenant's service prevented a court appearance--was produced.
Semper fidelis!
For a copy of the Appellate Term's decision in Corrado v. Harris, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_26292.htm
According to an Appellate Division decision released last week, landlords who sexually harass their tenants--even those of the same sex--could get hit with substantial fines and penalties. In Matter of State Division of Human Rights v. Stoute, a property owner was allegedly interested in pursuing a sexual relationship with one of his male tenants and, when those efforts were rebuffed, created a "sexually hostile housing environment" for that occupant. In this particular case, the owner allegedly: made "sexually offensive comments and gestures" to the tenant and his guests; advised the tenant's friends that he wished to have sexual intercourse with the tenant; "spied"on the tenant (through a curtained, ground-floor window) while the tenant was engaged in sexual activity; entered the tenant's apartment (and bedroom) without advance notice; photographed the tenant and his guests as they entered and exited the building; simultaneously exited and followed the tenant when the tenant would leave the building; threatened the tenant with "physical force;" and eavesdropped on the tenant's conversations.
After a hearing, at which the landlord did not participate, an Administrative Law Judge (ALJ) with the New York State Division of Human Rights (NYSDHR) found in the tenant's favor and awarded $7,500 in compensatory damages. On administrative appeal to the NYSDHR, the landlord later objected to the ALJ's findings and alleged that the tenant was a "flagrant exhibitionist," who refused to properly cover his ground-floor windows and who engaged in sexual activity in full view of passersby. The owner further asserted that his actions were in response to legitimate community and building-related complaints and security concerns, and that the tenant was the "epitome of dishonesty" who was attempting to extort monies from the owner. The NYSDHR Commissioner was unpersuaded by these latter arguments and concluded that the record supported the ALJ's findings that the owner's conduct was "severe and pervasive" and adversely impacted the tenant's ability to use and enjoy his apartment. Since the state's Human Rights Law prohibits a building owner from engaging in discriminatory housing-related acts, the Commissioner determined that same-sex harassment comprised a violation of that statute. And, as a result of the tenant's "mental anguish," the Commissioner upped the compensatory-damage award to $10,000 and further directed that the landlord to "cease and desist" from engaging in such conduct in the future. When the landlord failed to pay the sum awarded by the agency, a special proceeding was commenced in the Kings County Supreme Court to enforce the award. Upon transfer of the case to the Appellate Division, Second Department, the appellate court ruled in the tenant's favor since all the requisite elements of a "hostile housing environment" had been demonstrated. As the court observed: Here, substantial evidence supports the Division's determination that [landlord] sexually harassed the complainant, and in doing so violated the Human Rights Law. The Division relies on the hostile housing environment theory, and the record supports its determination that [landlord] created such an environment with respect to [tenant].
To prevail on a hostile housing environment theory, it must be shown that (1) the complainant is a member of a protected group, (2) he or she was subjected to unwelcome and extensive sexual harassment, in the form of sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, which were not solicited or desired by the complainant, and which were viewed as undesirable or offensive, (3) such harassment was based on the complainant's sex, (4) such harassment makes affected a term, condition, or privilege of housing, and (5) if vicarious liability is claimed, the complainant must show that the owner knew or should have known about the harassment and failed to remedy the situation promptly....
Although the AD conceded that this was a case of "first impression"--in that it was the first time a sexual harassment remedy had been applied to the housing context--the appellate court did not believe that the case's uniqueness foreclosed a comparison to other awards in other kinds of cases considered by the agency. The court concluded that the $10,000 compensatory-damage award was well within the range of prior decisions and, in the absence of a punitive or punishment component, "entirely proper" under the circumstances. Now how hostile was that? For a copy of the Appellate Division's decision in Matter of State Division of Human Rights v. Stoute, please click on the following link: http://www.nycourts.gov/reporter/3dseries/2006/2006_08999.htm
Some landlords and tenants believe that written lease agreements are to be avoided at all costs because they bind the parties to the agreed-upon time frame and impede any flexibility to end the relationship sooner should circumstances change. Many also feel that the writing is more of a hindrance--a needless formality--and that a handshake should suffice.
Be disabused of that notion.
While leases allow tenants to remain in exclusive possession and control of their space for the stipulated duration, should problems later arise, these documents frequently provide the parties with a number of legal rights and remedies that would not otherwise exist.
For example, if one were to sue the other during the course of the landlord-tenant relationship, the individual being sued would ordinarily be able to assert any claim for damages they might have against the one suing them--known as a "counterclaim"--and could request that the matter be heard by a jury. That request for a jury trial--a matter of constitutional right--would convert a simple rent nonpayment or holdover proceeding to a costly and delay-ridden process to say the least. Taking the typical case from weeks to months to reach a disposition and significantly exacerbating legal fees and costs.
Most lease forms avoid this problem with counterclaim and jury-trial waivers; provisions wherein the parties agree that they will not seek a jury trial or raise "unrelated" counterclaims in the event a dispute in which they are involved is taken to court. (To date, appellate decisions continue to give these waivers full force and effect.) By "unrelated," we mean that courts are unlikely to entertain countersuits that are not somehow "intertwined" with the main case or case-in-chief. So, while a court in a rent nonpayment case would allow a tenant to raise the fact that an apartment was riddled with unsafe conditions or that essential services had been denied, and would award a tenant an offset against the rent due or direct a refund of such sums paid, a judge would likely be less inclined to entertain a property-damage or personal-injury claim as a result of the waiver language. These latter claims would be severed without prejudice to the tenant bringing them in a different case or forum (like a small-claims case) and would allow the main claim--the nonpayment or holdover case--to proceed to conclusion without needless delay or complication.
Along those same lines, most lease forms provide that in the event a landlord is forced to bring a case against the tenant, and wins, the landlord would be entitled to recover its attorneys' fees and costs. There typically would be no entitlement to such fees in the absence of such language. (Under the "American rule," each side to a lawsuit bears its own fees and costs, in the absence of a lease agreement or statute which provides to the contrary.)
Here's the kicker. Under New York State law, when a residential lease provides that a landlord may recover its fees and costs incurred during the course of a lawsuit, a tenant will also entitled to seek such reimbursement--should it prevail on its claims or defenses--even when the wording of the parties' agreement is silent as the tenant's right to recoup such charges.* This reciprocality often serves to deter landlords from commencing frivolous or baseless suits against tenants--a deterrent that would not exist if the parties operated on the basis of an oral agreement or handshake.
Finally, outside of rent regulation (where tenants are afforded the option between a one or two year lease), there are very few restrictions on how long or short a free-market lease may be. It's possible to enter into a lease for as little as a several hours in a day or as long as many decades; with the ability to provide for the premature termination of the agreement upon notice given by one to the other. With free-market leases, there's also no prohibition to an arrangement allowing a tenancy to end prior to the stated termination date (subject to some advance notice, for example), thus avoiding the possibility that one is locked into a long-term arrangement with all of its attendant responsibilities and liabilities.
Thus, when properly structured, there's no question that a written lease can be a landlord's and tenant's best friend.
--------------------
* NOTE: This statutory protection--Real Property Law section 234--applies to residential leases only and provides as follows:
Tenants' right to recover attorneys' fees in actions or summary proceedings arising out of leases of residential property. Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys' fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys' fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease, and an agreement that such fees and expenses may be recovered as provided by law in an action commenced against the landlord or by way of counterclaim in any action or summary proceeding commenced by the landlord against the tenant. Any waiver of this section shall be void as against public policy.
A "Notice of Appeal" places "the world" on notice that you disagree with all or part of a judge's order or judgment and that you intend to have the outcome reviewed by a higher court. Typically, the form is rather mundane and provides as follows: Notice is hereby given that [insert name of party taking appeal], [insert: plaintiff(s) or defendant(s)] in the above named case, hereby appeal[s] to the [insert name of court] from the [insert: final judgment or order (describing it)] entered in this action on the ______ day of _________, 200_. Plaintiff George C. Swinger, Jr., (a Washington inmate), had a different spin on what this notice should contain. Dissatisfied with a decision he received from U.S. District Court Judge Ronald B. Leighton, of the Western District of Washington, this is what Mr. Swinger filed with the federal court: I hereby am informing you that I am appealing the asshole Ronald B. Leighton's decision in this matter.
You have been hereby served Notice. You're not getting away with this shit that easy.
Signed this 10th day of July 2006
/s/ George C. Swinger, Jr.
Plaintiff / Pro Se We can't wait to read his brief!
To download a copy of Mr. Swinger's filing, please click on the following link:
Notice of Appeal
In Maltezos v. Sony Electronics Inc., Alex Maltezos sued Sony Electronics, in the Small Claims Part of the New York County Civil Court, alleging he had purchased a "defective" computer.
There was a slight problem: Ms. Maltezos was unable to prove the existence of a defect to the court's satisfaction. As a result, his case was dismissed. On appeal, the Appellate Term, First Department, affirmed the dismissal noting that Maltezos had "failed to prove by competent and credible evidence that the computer he purchased was defective."
This case reinforces that expert testimony is critical--even within the context of a Small Claims case--when a litigant lacks the requisite technical expertise to support a claim. As a publication issued by the New York City Civil Court guides: The testimony of a person who has special or expert knowledge and experience concerning the subject of your claim may be necessary for you to prove your case. For example, if your claim involves the quality of medical care, you must find a doctor who is willing to give an opinion, in court, about the quality of the care you received. While you might find an expert witness who will testify at no cost to you, it is more likely that you will have to pay for an expert witness testimony. You cannot use a subpoena to compel an expert witness to appear. Winning a Small Claims case ain't always easy. And, as you see from Sony, that's no baloney!
For a copy of the Appellate Term's decision in Maltezos v. Sony Electronics Inc., please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_52001.htm
For a copy of the New York City Civil Court's publication entitled "A Guide to Small Claims Court," please click on the following link:
http://www.nycourts.gov/courts/nyc/smallclaims/pdfs/smallclaims.pdf
It's a decision that made the news and has been analyzed by commentators in such publications as The New York Times and the New York Law Journal. But the outcome in Poyck v. Bryant, didn't come as a surprise to those of us in the landlord-tenant arena who are all too familiar with the existing statutory protections which govern residential tenants' safety and welfare. (In actuality, we were wondering what took so long.)
In a case of first impression, a Judge of the New York County Civil Court was asked to decide whether secondhand smoke -- which permeated a residential-building's hallways and an adjacent apartment unit -- somehow violated state law and triggered conditions which made the space untenantable for a smoker's neighbors.
In the absence of any prior caselaw on the subject, the Honorable Shlomo S. Hagler concluded that secondhand smoke could comprise a breach of the state's "implied warranty of habitability" -- Real Property Law section 235-b -- a statute which imposes an affirmative duty or obligation on lessors to ensure that residential units are free of conditions which would pose a threat to the occupants' health, safety and well-being, even when the violative acts are caused by a third party.
Michelle and Stan Bryant were the tenants of a deregulated fair-market space situated in a condominium building located at 22 West 15th Street, here in Manhattan. In March of 2001, new neighbors -- who happened to be smokers -- moved into the adjoining apartment and their tobacco smoke wafted into the Bryants's unit (and permeated the building's common areas). Although the Bryants noted their complaints (both orally and in writing) to the building's superintendent, the unit's owner (Peter Poyck), and the owner's attorney, the smoke condition continued unabated. As a result, on August 1, 2001, the Bryants opted to break their lease (which was then scheduled to expire on December 21, 2002) and relocate to another apartment.
When Poyck later sued to recover unpaid rent arrears, the Bryants countered that no sums were due as a result of the owner's breach of the statutory warranty of habitability and conditions which triggered a constructive eviction. [A "constructive eviction" occurs when a landlord's "wrongful acts" or omissions "substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises...The tenant, however, must abandon possession in order to claim there was a constructive eviction." Barash v. Pennsylvania Terminal Real Estate Corp., 26 N.Y.2d 77 (1970).]
As Judge Hagler observed: While there appears to be no reported cases dealing with secondhand smoke in the context of implied warranty of habitability, secondhand smoke is just as insidious and invasive as the more common conditions such as noxious odors, smoke odors, chemical fumes, excessive noise, and water leaks and extreme dust penetration. Indeed, the U.S. Surgeon General, the New York State Legislature and the City of New York City Counsel declared that there is a substantial body of scientific research that breathing secondhand smoke poses a significant health hazard .... Therefore, this Court holds as a matter of law that secondhand smoke qualifies as a condition that invokes the protections of RPL section 235-b under the proper circumstances. As such, it is axiomatic that secondhand smoke can be grounds for a constructive eviction. [citations omitted] Although Poyck claimed he could not be held legally responsible for his neighbors' conduct, the Civil Court found that argument to be "misplaced," noting as follows: While the landlord contends that he had no control over the neighbors in apartment 5-C, he failed to offer any evidence that he took any action to eliminate or alleviate the hazardous condition. The landlord could have asked the board of managers of the condominium to stop the neighbors from smoking in the hallway and elevator as well as to take preventive care to properly ventilate unit 5-C so that the secondhand smoke did not seep into the Bryants' apartment. Specifically, Real Property Law section 339-v(1)(i) mandates that condominium by-laws restrict the use and maintenance of both the units and common elements such as the hallways and elevators so as to "prevent unreasonable interference with the use of respective units and of the common elements by several unit owners." The board of managers and even the landlord could have commenced an action for damages or injunctive relief for non-compliance with the by-laws and decisions of the board of managers pursuant to the Condominium Act .... Moreover, in the case of "flagrant or repeated violation" by a unit owner, the Condominium Act also authorizes the board of managers to impose sufficient surety to ensure future compliance with their by-laws and decisions. Real Property Law section 339-j. In fact, for some thirty years, our appellate courts "have continuously held that the implied warranty of habitability can apply to conditions beyond a landlord's control." And this case presented no exception to that rule.
As a result of this decision, apartment dwellers may want to think twice before "lighting up" in the privacy of their own homes. Not only can such conduct subject them to eviction, but there may also be liability for damages arising from any rent (or "maintenance") credits that may issue together with such other compensation that be awarded to neighbors under an array of cognizable legal theories, like negligence or breach or contract.
Unless an appellate court chimes in to the contrary, tobacco users can expect to be smoked out ... to the suburbs.
For a copy of the Civil Court's decision in Poyck v. Bryant, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_26343.htm
New York State laws authorize the eviction of tenants engaged in "illegal" activity within their commercial or residential space. In fact, one statute, Real Property Law section 231(1), provides that whenever a tenant--or other occupant--is engaged in "any illegal trade, manufacturer or other business," then the lease agreement between the parties is "void, and the landlord...may enter upon the premises...."
Since the laws seek to proscribe "commercial" activity, mere "possession" or "recreational use" of illegal drugs (such as marijuana) is usually insufficient to result in a forfeiture of one's home or business. By way of example, in 554 West 148th Street Associates, LLC v. Thomas, a single charge of possessing four ounces of marijuana did not result in a regulated tenant's eviction when there was no proof that: drugs were sold from the apartment and/or the building "at any time anywhere;" and/or
the space was "a place where drugs were prepared or manufactured." As the Appellate Term, First Department, concluded in the Thomas case, the prime concern is whether the commercial or residential space was used "as a focal point for drug activity or that any such illegal use occurred 'customarily or habitually' upon the premises."
By contrast, the tenant in 3890 Broadway Realty, LLC v. Polanco, was not as fortunate. In this recent case, police officers seized from the tenant's apartment over 100 tin-foil packets--containing a total of about half a pound of marijuana--together with "a digital scale and numerous empty zip-lock bags." Based on the items removed from the premises, the arresting officer was of the opinion that the marijuana had been "packaged for sale." Ultimately, the Appellate Term, First Department, concluded as follows: These demonstrated facts warranted the conclusion that tenant's apartment was being used for illegal purposes, and support the trial court's rejection of tenant's claim that the drugs were solely for personal use.... Ouch!
For a copy of the Appellate Term's decision in 554 W. 148th St. Associates LLC v. Thomas, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2005/2005_51139.htm
For a copy of the Appellate Term's decision in 3890 Broadway Realty, LLC v. Polanco, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_51578.htm
A few years ago, the Appellate Division, First Department, issued an interesting decision on "time is of the essence" provisions incorporated into landlord-tenant settlement agreements (or "stipulations of settlement"). Responding to a reluctance by lower courts to enforce these agreements as written, the appellate court concluded in 1029 Sixth LLC v. Riniv Corp., that when the document is subject to extensive negotiation and includes terms advantageous to both sides, the agreement must be honored despite any hardship or inconvenience that may be subsequently encountered by a party. As the court observed: The parties having conditioned the tenants' right to the contemplated payments on the landlord's absolute right to obtain possession of the premises, broom clean, on the vacate date, their failure to so deliver possession undermines the tenants' claims to sympathy or the consideration of equity. Their references to hardworking families do not suffice; nor do claims of fiscal hardship...In a situation completely of their own making, they are the victims of a strict stipulation provision they agreed to in order to obtain the advantage of another provision favorable to themselves.
If the insertion in the stipulation of the provisions requiring strict compliance with the requirement to vacate the premises turned out to be harsh, it was nevertheless an important, negotiated term of the agreement, and as such, must be enforced.... Thus, when an agreement provides "time is of the essence," that language will typically signify that the agreement's performance obligations are steadfast, concrete, and immalleable.
A recent case which further exemplifies this point, is 291 Pleasant Ave., LLC v. Morris, wherein the tenant, Deanna Morris, is reported to have had difficulty honoring the "time of the essence" payment terms of a settlement agreement reached within the context of holdover case. Apparently, Ms. Morris filed "no fewer than six orders to show cause seeking extensions and other relief." Ultimately, a Judge of the Housing Part of the New York County Civil Court denied the tenant additional time within which to make a required payment and authorized an eviction. On appeal, the Appellate Term, First Department, affirmed quoting from Mill Rock Plaza Associates v. Lively, another Appellate Division case: "Strict enforcement of the parties' settlement stipulation...is warranted based upon the principle that the parties in a civil dispute are free to chart their own litigation course...." While stipulations are preferred dispute-resolution mechanisms, litigants must tread cautiously for noncompliance with the terms of these agreements can undoubtedly have dire consequences. (Are you willing to stipulate to that?)
For a copy of the Appellate Division's decision in 1029 Sixth LLC v. Riniv Corp, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2004/2004_04134.htm
For a copy of the Appellate Term's decision in 291 Pleasant Ave., LLC v. Morris , please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_50958.htm
While our state and federal Constitutions safeguard freedom of speech and assembly, even those fundamental protections have their limits.
In Christopher Housing Court Co. v. Murrell, an eviction proceeding was commenced against Maxine Murrell for "threatening the health and safety of landlord's personnel." We are informed that Ms. Murrell "taunted, cursed and used abusive language against the building site manager and building supervisor." Apparently, Ms Murrell would situate herself outside of the building's management office, hold up signs, and berate the building-management's employees.
Despite being given a "probationary period" during which time she was required to refrain from engaging in the violative behavior in question, and thereby avoid eviction, Ms. Murrell's conduct "continued unabated" for some three months. As a result, the Housing Court of the Civil Court of the City of New York found in the landlord's favor and issued a final judgment of possession against the tenant. On appeal, the Appellate Term, First Department, affirmed.
In a lone dissent, the Honorable Phyllis Gangel-Jacob disagreed with the case's outcome and questioned the interpretation of the evidence, as follows: While the hearing evidence permits a finding that tenant continued to vent her anger at the building site manager, her...conduct, which essentially amounted to protests directed at building management, was not shown to have substantially threatened or jeopardized anyone's safety or otherwise disrupt the building's management or operations. Although the building site manager testified that she "felt threatened" by tenant's anger outbursts, there was no testimony that tenant directly threatened anyone's health and safety. Furthermore, Justice Gangel-Jacob believed that the record reinforced that the tenant was incapable of appreciating the consequences of her actions and that Ms. Murrell--who was not represented by counsel--was precluded from adequately defending her interests. This "diminished capacity" triggered a need for the trial court to have taken formal action to seek intervention or assistance for the tenant. As the dissenter observed: Moreover, the pro se tenant's largely incoherent and rambling testimony demonstrates that she failed to understand the nature and potential consequences of the hearing, or her right to be represented by counsel and to produce witnesses on her own behalf. Under these circumstances, an adjournment of the compliance hearing for the appointment of a guardian ad litem or a referral to Protective Services for Adults was warranted to safeguard tenant's rights. While we do not sanction Ms. Murrell's conduct, and would not wish anyone to be the recipient of her ire, we agree that a higher degree of protection or care should have been afforded to Ms. Murrell in this particular instance.
For a copy of the Appellate Term's decision in the Christopher Housing Court Co. v. Murrell, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_50992.htm
In the March 2006 edition of our firm's newsletter we reported about the case of Gboizo v. State of New York Division of Housing and Community Renewal, wherein New York County Supreme Court Justice Edward H. Lehner was unable to reconcile two sections of the Rent Stabilization Code. One provision automatically entitles a subtenant to "treble damage" when overcharged by a tenant, while another affords property "owners"--faced with a similar allegation--an opportunity to establish that the conduct was not willful. This latter showing allows owners to have the penalty reduced to the amount of the overcharge plus interest. However, according to the State Division of Housing and Community Renewal ("DHCR"), this "lack of willfulness" demonstration is only available to property owners (rather than overcharging tenants).
In Gboizo, the prime tenant leased a Manhattan apartment to a subtenant for rents ranging from $900 to $1,100 per month. Within a year, the subtenant filed a rent-overcharge complaint with the DHCR claiming that the legal regulated rent was only $225 per month. Ultimately, the claim was successful and the overcharge determination, which totaled $29,631 when trebled, was upheld. The DHCR's position was that when a tenant collects overcharges from a subtenant, the treble-damage penalty was "mandatory" and the issue of "willfulness" could not be considered.
In an Article 78 proceeding started in the New York County Supreme Court, the prime tenant asserted that it had been his belief that the unit was exempt from rent regulation. Despite some unique factual underpinnings as to the unit's status, Judge Lehner was asked to decide whether subleasing tenants could avoid treble-damage liability by establishing the inadvertence of an overcharge. Since there was "nothing in the statute ... that would bar a sublessor from this statutory right to present evidence of the absence of willful conduct," the Court concluded (in a decision dated January 31, 2006) that the agency's sublessor-hostile interpretation of the regulations was "invalid."
In an interesting twist, the DHCR later asked Judge Lehner to reconsider his decision--by way of a process called "reargument"--and, after reviewing the parties' submissions, the judge concluded that he had made a mistake. In a decision released last week, the Court noted as follows: Having been previously advised by both counsel that no authority had been located supporting the validity of the different treatment provided in the Code between overcharges by an owner as compared to those by a sublessor, and I finding none, I concluded that there was nothing in the RSL authorizing this disparate treatment. That conclusion was in error. Upon further examination, it was discovered that, over two decades ago, Judge David Saxe--now an Associate Justice of the Appellate Division, First Department--had examined the sections in question and concluded that the treatment differential was deliberate. As Judge Saxe observed Kolbert v. Clayton, 127 Misc.2d 1036, 487 N.Y.S.2d 995 (Civ.Ct., N.Y. County, 1985): On reflection, the reasoning of the Legislature is evident--the procedure in arriving at the legally chargeable amount of rent by a landlord is extremely complicated, and mistakes in calculation are not necessarily always the fault of the landlord. The tenant on the other hand, need not follow any complicated procedure or apply any intricate formulas to discover the amount of rent he may lawfully charge to a subtenant--he need only look to his lease and, if applicable, add a 10% charge. It is for this reason, I am certain, that the Legislature did not believe it necessary to equip the sublessor who overcharges with the same defense that is available to the landlord-owner. Faced with this precedent, and in the absence of a constitutional infirmity, Justice Lehner recalled his prior decision, noting, in part, as follows: Hence, since the RSL and the Code adopted pursuant thereto clearly provide for different rights between the two classes of lessors, DHCR was correct in applying the treble damages provision of section 2525.6(b) of the Code without considering the issue of willfulness. Was that backpedaling or a flip-flop? "I as free forgive you
As I would be forgiven...."
Shakespeare, Henry VIII, Act II, Scene I
For a copy of the Supreme Court's September 6, 2006 decision in Gboizo v State of New York Division of Housing and Community Renewal, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_26353.htm
For a copy of the Supreme Court's January 31, 2006 decision, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_26025.htm
In one of our earliest blog posts, we examined the challenges that face those who elect to proceed pro se--that is, litigants who choose to "fight the fight" without the benefit of professional representation. One of the individuals we featured in that piece was Susan A. Hudock, a resident of Phoenix, Arizona, who is waging a battle against her former employer, Aventis Pharmaceuticals, Inc.
As we previously reported, Ms. Hudock filed suit against the drug company on the grounds that the termination of her employment violated federal law (the "Americans with Disabilities Act"). While a jury ultimately found the company free of any civil liability, John Hudock, Susan Hudock's brother, recently confirmed that Susan has perfected her appeal to the United States Court of Appeals for the Ninth Circuit.
John clarified that his sister initially had an attorney who represented her interests in the underlying case but, when she could no longer afford to subsidize the mounting fees and costs, counsel eventually withdrew, forcing Susan to proceed unrepresented. Despite the many hardships and hurdles which the case has presented the entire Hudock family--and we hear from John that there have been quite a few--Susan continues to pursue what all litigants rightfully desire: Justice. She is to be commended for her perseverance.
John graciously supplied us with copies of his sister's appellate briefs. We have uploaded the files and provided links to those documents below. We'll provide our readers with an update when the Circuit Court issues its decision.
For a copy of Ms. Hudock's appeal brief (exhibits excluded), please click on the following link:
Hudock v. Aventis, Appellant's Brief
For a copy of Ms. Hudock's reply brief, please click on the following link:
Hudock v. Aventis, Appellant's Reply Brief
To review our original blog post "Going Pro Se: Rethinking Attorneys' Roles," please click on the following link:
http://www.nyrealestatelawblog.com/2006/03/going_pro_se_rethinking_attorn.html
-----------------------------------
UPDATE
Ms. Hudock's appeal was ultimately unsuccessful.
On April 25, 2007, the Ninth Circuit affirmed the District Court's judgment.
For more on this story, please use this link: http://www.nyrealestatelawblog.com/2007/07/hudock_v_aventis_goliath_beats.html#001130
No one likes to move. The process of packing one's belongings and relocating one's self and family is often quite tedious and stressful, not to mention the damage to personal property that inevitably results. But, who would imagine a move costing almost four million dollars?
In Perez v. Time Moving & Storage, Ms. Leonar Datil Perez alleged that her collection of newspapers, dating back to the Civil War, were damaged when they were exposed to the rain due to a delayed pickup by the moving company. In her lawsuit filed with the New York County Supreme Court, Ms. Perez is seeking the recovery of damages in the amount of $3.9 million.
During pre-trial disclosure, Ms. Perez sought to have Joseph Candella, Time's principal and co-owner, barred from attending depositions of the moving company's employees. The unrepresented Plaintiff claimed that Mr. Candella's presence "intimidated" the plaintiff and the moving's company employees and that the principal disrupted the questioning process with notes and repeated conferences with his counsel. Ms. Perez also informed the trial court that she felt at a "disadvantage" by having Candella present during the questioning process.
On motion, the trial court elected to bar Mr. Candella's presence at the depositions and indicated as follows: We have a pro se plaintiff in the presence of the attorney for the defendant and the principal and the employees. I believe it is not appropriate under these circumstances. I am not certain what exactly would be accomplished for the defendant to have the principal present since obviously there will be a transcript of the testimony and the attorney is present during the deposition to tell the principal whatever testimony his employees gave. Candella asserted the right to be present during the questioning process and argued that as the company's representative he could not be excluded unless there was a showing of "unusual" circumstances--a standard not met or established by Perez in this instance. On appeal, the Appellate Division, First Department, agreed, noting: There is no evidentiary basis for the motion court's assumption, evidently rooted in stereotype, that simply because Candella is the boss of the employees to be deposed that his presence will intimidate them. Plainly, such an assumption does not rise to the level of an unusual circumstance....
Acknowledging the importance of a litigant's presence during the discovery-questioning process, the Appellate Division did not embrace the concept of forcing a party to rely solely on the content of a deposition transcript and observed as follows: A transcript is a poor substitute for being present to assist counsel at the time of the deposition. Candella's absence would preclude him from educating counsel during the deposition on matters as to which he possesses knowledge superior to that of the attorney. Barring him from attending the deposition would also prevent him from fully assisting counsel in formulating a trial strategy.... Although Ms. Perez was unrepresented, the appellate court did not believe she was entitled to treatment which would work to an opponent's prejudice. Espousing a standard that appears to have been long forgotten, particularly within the context of landlord-tenant cases, the Appellate Division cogently concluded, "New York law does not afford a pro se litigant additional benefits to the detriment of another party absent a reasonable explanation supported by the record of why such additional benefits are warranted...."
For a copy of the Appellate Division's decision in Perez v. Time Moving & Storage, please click on the following link:
http://www.courts.state.ny.us/reporter/3dseries/2006/2006_02827.htm
In Anderson v. Abodeen, Lynis M. Anderson sued his former employer and others alleging that he had been subjected to "intentional infliction of emotional distress" and "sexual harassment" in the workplace because of a supervisor's "malicious" display of certain "nude photos."
The proponent of an "intentional infliction of emotional distress" claim must have been injured or otherwise damaged by exposure to "extreme or outrageous conduct" by someone intending to cause "severe emotional distress." Typically, a high standard must be satisfied. By way of example, the conduct in question must be of such a nature that the "average person" would undergo a "severe mental injury" if the identical circumstances were encountered. Some cases have even suggested that the objectionable behavior must "transcend the bounds of decency tolerated by society."
In order to support a workplace-related sexual harassment claim, one must usually demonstrate that a coworker or supervisor has engaged in unwelcome and inappropriate sexually based behavior, which has rendered the workplace atmosphere intimidating, hostile, or offensive. Generally, the conduct must "alter the conditions of employment," and create an abusive environment. While there is no clear cut litmus test, courts will usually look to the totality of the circumstances and examine such factors as the frequency and severity of the conduct, whether the behavior was physically threatening or humiliating, and, whether it unreasonably interfered with an employee's work performance.
On motion, the New York County Supreme Court dismissed Anderson's case. Since the supervisor's actions were not "sufficiently outrageous," and, because there was no allegation or evidence that the behavior had been motivated by an "animus against men," the Appellate Division, First Department, affirmed the lower court's determination. While Mr. Anderson may certainly have been subjected to embarrassment and ridicule, the appellate court did not believe the conduct in question rose to a legally actionable level and left the dismissal undisturbed.
Despite the end-result of this case, readers are forewarned that harassment need not always be "sexual" in nature or content, or the product of "sexual animus," in order to be considered unlawful. By way of example, if a disparate impact (or "qualitative and quantitative differences" in treatment) based on gender can be credibly demonstrated, liability may be triggered. [See, e.g., EEOC/Christopher v. National Education Association, 422 F.3d 84 | | |
