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Bay Ridge Lawyers Association
Developments in the Law E-Newsletter

February 2013 EDITION

President: Joann Monaco

Committee Chair:
Sarah Moore

Odd-Ball Case of the Month

California Man Uses “Corporations are People” Argument to Challenge HOV Lane Ticket

A driver in San Rafael, California is attempting to appeal a traffic citation for driving alone in a High Occupancy Vehicle lane. Jonathan Frieman and his attorney, Ford Greene, argue that since Frieman had corporate incorporation papers in his car when he was stopped by an officer, he was actually carpooling at the time. Technically, the state of California's definition of personhood includes both "natural persons and corporations." But Frieman's out to do more than just skirt a $478 traffic ticket with a little fancy legal footwork.

He's sworn to chase the case all the way to the Supreme Court should the first trial not go his way in an attempt to "expose the impracticality of corporate personhood." If Frieman eventually wins his case, the victory could have serious implications on the US Supreme Court's Citizens United decision.

While the US legal system has weighed the benefits and drawbacks of corporate personhood for years, the issue became more clear in 2010 when the Supreme Court ruled that restricting corporate political spending violated the First Amendment. Granting corporations constitutional rights implies the entities themselves have personhood.

Source: Pacific Sun




Possible Father was Estopped from Asserting Non-Paternity

In the Matter of Commissioner of Social Services, on Behalf of Elizabeth S. v. Julio J., 57 SSM 44


A Family Court's decision that a possible father should be equitably estopped from asserting non-paternity, was reinstated by the Appellate Division.  The Appellate Court also reversed where the evidence supported the Family Court's findings that: 1) the child knows possible father, with his encouragement, as her father; 2) a relationship existed insofar as the child was concerned; and 3) the child relied on possible father to be her father sufficiently such that it would be to her detriment for the court to direct DNA testing.

Source: Findlaw

Link to complete opinion

Facility was not allowed to Petition Guardian Court for Appointment of a Guardian of the Person Solely to Submit Medicaid Application on Behalf of the IP

Matter of Restaino (AG) 2012 NY Slip Op 22236 Decided on August 29, 2012 Supreme Court, Nassau County Diamond, J.

Quoted from the Decision:

“The petition presented in this Art. 81 guardianship proceeding raises two questions that this court has not previously addressed. The first is whether it is appropriate for a facility to petition the court solely for the appointment of a special guardian of the property of an alleged incapacitated person residing in its facility where the sole power sought is to complete the medicaid application for the facility. The second question that follows is then where there is no healthcare proxy executed by the alleged incapacitated person does the Family Healthcare Decisions Act vitiate the need for a personal needs guardian. Here the court finds that a residential facility/hospital should not petition the court for the appointment of a special guardian for the sole purpose of seeking medicaid benefits when the patient is clearly incapacitated and clearly needs a guardian of the person as well. For the reasons stated herein the court finds that the Family Healthcare Decisions Act is not a substitute for the appointment of a guardian of the person pursuant to Art. 81 of the Mental Hygiene Law.”

Complete Opinion

Even Though Finally Receiving Care Services, Plaintiff Must Be Heard on Claim of Agency’s Failure to Advise of Their Temporary Availability Earlier



She didn’t get the services at first, but did ultimately, and her suit against the Human Resources Administration is based on the agency’s failure to notify her about a right to temporary services during the pendency of her application.  She claimed that right to notice under § 133 of the Social Services Law.


The case turns almost entirely on the so-called “mootness” doctrine, the argument being that because she’s now receiving what she sought, her complaint about the lateness is moot and hence beyond the jurisdiction of the courts to consider.


There is an exception to the mootness doctrine, however, under which the claim can go forward even if its present pushers actually have no claim left.  This exception has often been recited by the Court of Appeals, as in its terse statement in the Court’s 2010 decision in City of New York v. Maul (Digest 606), in which the Court said that


“we have consistently applied an exception to the mootness doctrine, permitting judicial review, where the issues are substantial or novel, [and] likely to recur.”


In Coleman v. Daines, 19 N.Y.3d 1087, .... N.Y.S.2d .... (Oct. 30, 2012), the majority finds in a 4-3 memorandum decision that the exception is met and that the case can go forward.  In a temporary-vs.-permanent situation like this, holds the majority, the issue involved is “likely to recur”.  It says that because of “the relatively brief nature of the violation, the question is substantial and will typically evade judicial review.”

Source: New York State Law Digest No. 637 January 2013

Notice of New Address & the Tax Collector

Naughton v. Warren County

Plaintiffs were owners of real property in the Town of Chester (Town), New York. Plaintiffs then lived in New Jersey, and their address there appeared on the deed. Plaintiffs subsequently moved without informing the Town taxing authorities of their new address. After Plaintiffs failed to pay taxes on their New York property for three years, Plaintiffs defaulted in a foreclosure proceeding brought by the County on their New York property. The property was later sold.


Plaintiffs subsequently sued the County, asserting that the attempts to give them notice of the foreclosure were constitutionally inadequate and seeking a declaration that they still owned the property.


Supreme Court granted the County's motion for summary judgment, and the Appellate Division affirmed. The Court of Appeals affirmed, holding (1) when notice mail to Plaintiffs at their last known address proved undeliverable, the tax collector was not constitutionally required to find some means of making personal service on them, or to address a notice to "occupant" at the former address, or to search New Jersey public records for a new address; and (2) therefore, Plaintiffs were not deprived of their property without due process of law.



Failure to Disclose did not Breach Fiduciary Duty

Pappas v. Tzolis

Plaintiffs and Defendant formed and managed a limited liability company for the purpose of entering into a long-term lease on a building in Manhattan. Later, Defendant took sole possession of the property and bought Plaintiffs' membership interests in the LLC. Defendant subsequently assigned the lease to a subsidiary of a development company.


Believing that Defendant surreptitiously negotiated the sale with the development company before he bought their interests in the LLC, Plaintiffs commenced this action against Defendant, claiming that, by failing to disclose the negotiations with the development company, Defendant breached his fiduciary duty to them. Supreme Court dismissed the complaint. A divided Appellate Division modified Supreme Court's order, allowing four of Plaintiffs' claims to proceed - breach of fiduciary duty, conversion, unjust enrichment, and fraud and misrepresentation. The Court of Appeals reversed ad dismissed Plaintiffs' complaint in its entirety, relying on its recent decision in Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. de C.V. ( case can be read at:






  The materials appearing in this E-Newsletter are provided for informational use only, and are in no way intended to constitute legal advice. No legal opinion or advice should be inferred.  Moreover, because the law is constantly changing, the materials appearing in this E-Newsletter are not guaranteed to be correct, complete or up-to-date.The source for some of the information herein has been obtained from the NYSBA website.
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