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Excessive Force, Brutality, and Unlawful Shootings by the Police in New York State

During much of 2020, the United States has been rocked with protests over numerous incidents of police misconduct, including fatal shootings and other forms of excessive force. Unfortunately, Albany and the rest of the Capital Region have not been spared. Those who have been victimized by police misconduct (or their survivors in cases where the victim was killed) do have access to certain legal remedies, however, and we know how to use them effectively.

High Profile Incidents of Police Misconduct in the Capital Region

Police officers in Albany and elsewhere in the Capital Region have been accused of inappropriate use of force on many occasions. The following are brief descriptions of three recent high-profile incidents that provoked controversy.

March 2019: The First Street Incident:

In March 2019, a video taken by a police body camera showed Albany police officers, called in because of a loud party, beating three black men. In response, a confrontation took place between the officers and several residents of First Street. Albany police initially charged the men with resisting arrest, but the Albany D.A. later reversed course by dropping all charges against the men and charging one of the police officers with felony assault and official misconduct.

The officer, as well as two other police officers, were suspended with pay pending an investigation into the matter. The criminal charges that were filed against one of the officers have yet to be resolved.

August 2018: Shooting of Unarmed Black Man by Albany Police Detective James Olsen

On August 20, 2018, an Albany grocery store owner called the police on Ellazar Williams, a store customer, after an argument followed by a minor disturbance. When police arrived, they drew their guns and ordered Mr. Williams to stop. Williams fled, and the police fired two shots — one of which permanently paralyzed Williams from the chest down.

Albany police asserted that the shooting was justified because Williams brandished a weapon and rushed the officers. Although the security camera did not show these events, a knife was found nearby that fit a sheath found on Williams’ jeans. The District Attorney sided with the police and charged Williams with felony menacing of a police officer and misdemeanor weapons possession, provoking widespread outrage.

The Albany police officer who fired the shot that paralyzed Williams was investigated, and he was eventually cleared of wrongdoing by a grand jury. Despite this, he retired on January 4, 2019. Charges against Williams were dropped four days later, and he filed a federal civil rights lawsuit against the Albany police. In August 2019 the lawsuit was expanded to include the City of Albany.

Constitutional Rules on the Use of Force by Police

Law enforcement officers have an inherent right to use a certain amount of force in the performance of their duties. This right is limited, however, by various laws at the local, state, and national levels. Ultimately, the legal limits on the right of police officers to use force are defined by the US constitution. Local laws may place further restrictions on an officer’s right to use force, but they may not dilute constitutional limitations on the use of force by law enforcement officials.

The Use of Force Spectrum

The use of force by law enforcement occurs along a graduated spectrum, which officers may not escalate absent a threat sufficient to justify the escalation. The following are six levels of threat or force that are often used by law enforcement.

  1. Physical presence: The mere physical presence of a police officer is often enough to deter illegal activity.
  2. Speech: While it is probably true that only TV cops ever utter phrases such as “Freeze, sucker!”, verbal statements or commands can be more effective than mere physical presence in inducing compliance, especially if the refusal to obey a command would justify an arrest.
  3. Force without weapons: Police officers are trained to use holds, punches, and kicks to subdue a suspect.
  4. Non-deadly use of weapons: Certain weapons such as batons, mace, tasers, and police dogs can easily be used by a trained police officer against a suspect without a significant risk of killing a suspect.
  5. Deadly force: Deadly force can include the use of a lethal weapon such as a gun or the use of a normally non-lethal weapon in a lethal manner (the use of a chokehold by someone trained to kill with their bare hands, for example).

The use of force along this spectrum must stop as soon as the need for it stops – no punitive retaliation is allowed. The amount of force that an officer is justified in using is the minimum amount necessary to de-escalate an incident (tackling a fleeing suspect who has already been placed under arrest, for example) or to protect the officer or others. Any escalation beyond the minimum is considered excessive.

Although the terms “police brutality” and “excessive force” appear nowhere in the US constitution, the concepts underlying that term are expressed in several places, including:

  • The Fourth Amendment’s prohibition against unreasonable search and seizure (where “seizure” is written to include the seizure of a person, not only property);
  • The Eighth Amendment’s prohibition against cruel and unusual punishment; and
  • The 14th Amendment’s prohibition against depriving anyone of life, liberty, or property without due process of law.

Any of these provisions can provide the basis for legal action against the police.

Although all police brutality is prohibited, special rules apply to the use of deadly force. Deadly force can only be used to prevent a suspect from escaping, for example, if (i) it is necessary to prevent the escape, and (ii) the police officer who used deadly force had probable cause to believe that the suspect posed a risk of death or serious injury to others (including the officer) if he was allowed to escape.

Qualified Immunity

“Qualified immunity” is a legal concept that shields public officials, including police officers, from being sued for money damages unless they violated an individual’s “clearly established” rights. Although this concept makes it more difficult to successfully sue the police, its purpose is to prevent public officials from being too hesitant to perform their duties due to fears of civil liability.

Recent Legal Reforms

In June 2020, New York Governor Andrew M. Cuomo signed several bills designed to prevent the abuse of power by the police. The two most prominent reforms were:

  • Banning “chokeholds” by police under any circumstances; and
  • Repealing a statute that allowed New York police officers to conceal their disciplinary history from the public.

Further reforms are expected in the coming months.

The Most Popular Legal Remedies for Victims and Survivors

The two most popular remedies for the use of excessive force by police are filing a civil lawsuit under Section 1983 of the US Code.

Filing a Civil Lawsuit for Injunctive Relief and/or Money Damages under Section 1983 of the U.S. Code

A 1983 claim is a complaint that your civil rights have been violated by someone acting under the “color of law,” which would include an on-duty police officer under almost any circumstances.

Although you may seek injunctive relief (a court order demanding that the defendant do or refrain from doing something), most plaintiffs seek money damages from the police officers and from the city government. If the victim died as a result of police use of excessive force, a claim can still be filed on behalf of the victim’s family and the probate estate.

It is best that you consult with an attorney before filing a claim for money damages. One of the main reasons for this necessity is that your claim might be worth a lot more than you think it is. You might be entitled to compensation for:

  • medical bills;
  • past, present, and future lost earnings;
  • pain and suffering; and
  • any loss of liberty arising from the civil rights violation (false imprisonment, for example).

The “Totality of the Circumstances” Test

Civil rights claims arising from the excessive use of force by police are judged on a case-by-case basis, known in legal parlance as the “totality of the circumstances” test. Factors that may be taken into consideration include:

  • The severity of the victim’s crime (if, in fact, any crime was committed at all);
  • Whether the victim presented an immediate threat to others, including but not limited to the officer;
  • Whether the victim was resisting arrest or trying to escape;
  • Whether other alternatives to the amount of force that as used were available; and
  • Whether the officer warned the victim or could have warned him/her.

Courts also tend to give the officer the benefit of the doubt under the doctrine of qualified immunity (see above).

We Have Won Many Civil Rights Cases Involving Police Misconduct

If you believe that you have been victimized by police brutality, excessive use of force, or another form of police misconduct – or if your loved one was killed by the police – justice demands a response. You have rights that you might not even know about, and E. Stewart Jones Hacker Murphy can help you enforce those rights.

Contact us by completing our online contact form or by calling one of our office locations in Albany, Schenectady, Saratoga, or Troy, so that we can set up a free, no-obligation initial consultation. We look forward to hearing from you!

The Impact of the COVID-19 on New York Federal and State Cases and Inmates

A gavel and a Covid-19 note.Covid-19 has affected the New York state and federal justice system in a variety of ways, including the manner in which court hearings are held, the enforcement of a defendant’s right to a speedy trial, and plea bargains. It has also resulted in the release of a number of prison inmates due to humanitarian and safety concerns.

Summary of Current New York State Bail Reform Laws

In New York, anyone who is arrested must be arraigned by a judge before they can be released, unless he is issued a Desk Appearance Ticket (DAT), which operates as a sort of “get out of jail free card.” To stay out of jail between arraignment and trial, defendants may be required to post bail.

Historic state bail reform laws were implemented a few weeks before the Covid-19 crisis began. Under the new bail policies, most non-violent offenders are not required to put up bail to stay out of jail before their trial. Nevertheless, since the defendant must still show up in person for the arraignment itself, the defendant without a DAT can still be held in jail for a significant period (perhaps 36 hours or less) before the arraignment.

Covid-19’s Effect on Bail Bond Hearings

Although opponents are working to rescind New York’s bail reforms, New York’s reduced reliance on the bail system during the Covid-19 crisis greatly alleviates pressure to hold in-person bail hearings during a pandemic whose conditions demand that such proceedings be minimized. The reforms will also help New York deal with the legal challenges when someone’s bail is denied at a remote hearing using videoconferencing technology.

Legal challenges are inevitable, of course, but they will be reduced in number due to New York’s bail reforms. Since no such reforms occurred in the New York federal criminal justice system, expect legal challenges to video conference bail denials to continue for the foreseeable future.

Covid-19’s Effect on Substantive Criminal Law

Has the Covid-19 crisis resulted in new criminal laws being passed? No. Although a stay-at-home order was in place for a while, violations were not treated as crimes. Likewise, violations of business closure orders result in a fine and closure of the business, not criminal charges against the business owner. Repeated violations could, of course, result in restraining orders, a violation of which could result in criminal charges.

Covid-19’s Effect on Procedural Criminal Law

Many courts closed temporarily during the height of the state’s Covid-19 crisis, and they may do so again if a second wave washes over the state. Even if a second wave does not occur, a large backlog of cases is likely to burden the judicial system for some time to come.

Court Closures and Modifications

Court closures were extensive during the height of the Covid-19 crisis. The following is an abbreviated summary of some of the court closures that took effect beginning in March 2020.

New York State Court System

All nonessential court activities were suspended on March 16th, 2020:

  • No new criminal trials were started during the suspension period. In some cases, defendants were incarcerated during the entirety of the suspension period.
  • Special courtrooms were established in certain designated courthouses to handle “essential matters.”
  • The disposition of non-trial felony criminal matters such as motions to suppress, etc. was postponed, as long as the defendant was not incarcerated at the time.
  • The disposition of non-trial felony criminal matters where the defendant was in custody could be resolved through videoconferencing in certain cases. In other cases, matters such as these were simply postponed.
  • Arraignments took place through videoconferencing to the extent that local technology allowed (some remote locations lacked access to this technology).

Federal Courts

In most cases, New York federal courts are completely independent of New York state courts. The federal lockdown included the following features:

  • At the height of the Covid-19 crisis, the New York federal courts suspended jury selection and all jury trials, including criminal trials for several weeks (exceptions were allowed in certain cases). Even bench trials, where no jury sits and the judge decides the case, were suspended during this period.
  • Criminal matters before a magistrate were continued in person, with certain exceptions where such matters were resolved by telephone or videoconferencing.

The 6th Amendment Right to a Speedy Trial

The 6th Amendment to the US Constitution guarantees every criminal defendant a speedy trial. This is meant to avoid the possibility that he will languish in prison for an extended period due to being charged with a crime he did not actually commit and that he will eventually be acquitted of.

One of the main purposes of this rule is to prevent prosecutors, who lack evidence to convict a suspect, from holding him indefinitely, thereby forcing them to, in effect, serve a full sentence for a crime that he may or may not have committed. Someone who is charged with a crime and who is denied a speedy trial can claim a violation of his 6th amendment rights.

The Covid-19 Challenge

How do you guarantee a right to a speedy trial when courts are closed due to a virus pandemic? One way to do this is to take advantage of the ambiguity in the term itself – how soon must a “speedy” trial take place, and to what extent can it be modified by circumstances?

In New York, the Covid-19 crisis was used to justify delays in criminal trials of several weeks. Such a short delay under the circumstances might be seen as consistent with a criminal defendant’s right to a speedy trial, especially if the defendant was not incarcerated during the delay. Nevertheless, the closure of courts has created a long backlog of cases that will persist long after courts have opened back up.

Since New York state and federal courts are still dealing with this backlog, it remains to be seen to what extent the criminal justice system will be forced to resort to the dismissal of charges. If the courts reduce this backlog within a reasonable time, they might be forced to dismiss charges against many criminal defendants, no matter what the evidence against them.

Plea Bargains

In the United States, plea bargains are the rule rather than the exception. In a plea bargain, the defendant agrees to plead guilty to a lesser offense and, in exchange, the prosecutor agrees to recommend that the judge accept the plea. Prosecutors agree to plea bargains when they are uncertain whether they can win in court and when they need to reduce crowded dockets.

The court closures and the resulting backlogs in cases have greatly increased pressure on prosecutors to offer and accept plea bargains. That still doesn’t mean a defendant should plead guilty to a crime he didn’t commit, but in many cases, pressure on prosecutors to secure plea bargains can work in favor of a criminal defendant.

Effect on Inmates

Covid-19 is spreading through New York state prisons. In addition to inmates falling ill, hundreds of staff members in the New York state prison system had tested positive for COVID-19 by late April 2020, very early in the pandemic.

Although the situation is moving too rapidly for any number inserted into a blog post to be meaningful, suffice it to say that Covid-19 numbers have significantly increased in both state and federal prisons in New York, including the Albany area. Nevertheless, the feared explosion in cases has not occurred, at least outside of New York City.

Release of Aging Prisoners

In response to the spread of Covid-19 in state prisons, the state of New York is releasing certain aging prisoners due to their particular vulnerability to hospitalization and death due to Covid-19.

To qualify for early release, an inmate must:

  • be at least 55 years old;
  • have 90 days or less remaining on his sentence; and
  • have not been convicted of a sex offense or a violent felony.

Federal Inmates

In March 2020 Attorney General William Barr ordered federal prisons throughout the nation to release certain inmates due to the Covid-19 crisis. To qualify for release from federal prison, an inmate must:

  • be at least 60 years old; and
  • have never been convicted of a violent or sexual offense.

A high-profile beneficiary of the federal inmate release program was Paul Manafort, former campaign chairman for President Trump, who left federal prison to serve out the remainder of his sentence under home confinement.

Contact Us Immediately with Your Concerns

Handcuffed prisoner in jail.We live in dangerous times – times when social distancing requirements are challenging what it means to be human. If you believe that the New York state or federal criminal justice system has victimized you by using the Covid-19 crisis as an excuse to treat you unfairly, well, that doesn’t surprise us.

In any case, if you are in trouble with the New York state or the federal criminal justice system, you need to act immediately to retain an experienced defense lawyer. Contact E. Stewart Jones Hacker Murphy, through our online contact page or by telephone, for a free consultation. Although we have offices located in Albany, Colonie, Schenectady, Saratoga, and Troy, we will be happy to speak with you over the telephone.

Police Brutality, Qualified Immunity, and The Killing of George Floyd

On May 25, 2020, George Floyd, a 46-year-old black man, died in the custody of the Minneapolis police when a white police officer, Derek Chauvin, knelt on his neck for nine minutes while Floyd was handcuffed and lying face down on the street. Officer Chauvin continued kneeling on Floyd’s neck for at least three minutes after he had stopped breathing.

Floyd’s death triggered massive worldwide protests against police brutality and racism, and all four officers were arrested and charged with felonies. The case has triggered discussions in legal circles about reforming the police and limiting the application of the doctrine of qualified immunity, which protects officers from personal liability for actions performed in the line of duty.

What Is Police Brutality? Section 1983 and the Use of Excessive Force by Police Officers

The term “Section 1983” refers to the Civil Rights Act of 1871, passed in the aftermath of the Civil War, which allows people whose constitutional rights have been violated by government officials to sue those officials in civil court for money damages, including personal injury damages and wrongful death damages. Actions are typically brought under the Fourth Amendment to the US constitution, which prohibits unreasonable search and seizure.

Section 1983 has been amended and reinterpreted several times in its history, and it has often been used as a legal weapon to fight police brutality against ordinary citizens, particularly citizens of minority ethnic groups.  Section 1983 cannot be used against a private citizen acting in his personal capacity – even if that citizen happens to be a government official – but only against someone acting “under the color of law” such as an on-duty police officer.

Excessive Force 1983 Cases

Stewart Jones Hacker Murphy has represented a number of clients who have been victimized by the police, including:

Exactly How Much Force Is Considered “Excessive”?

The answer to this question is necessarily vague since it must apply to any officer using force under any circumstances. The general standard is that an officer uses excessive force when he used more force than a hypothetical “reasonable officer” would have used under identical circumstances. This definition begs the questions, however, of exactly what a “reasonable” officer would have done under this or that circumstance.

Generally speaking, the legal standard for what a “reasonable” officer would have done under similar circumstances is defined by courts making decisions in cases with highly-specific fact patterns. When a new case arises with different facts, lawyers for opposing sides will argue that “this case is like Case X” or “no, this case is more like Case Y,” in order to convince a judge to apply Section 1983 in a manner that is favorable to their client.

The inquiry, however, attempts to focus on the objective reasonableness of the amount of force that was used under the circumstances of a given case. A particular amount of force is not necessarily excessive even if the suspect was killed, and it is not necessarily reasonable even if the suspect was not injured. The officer’s state of mind is irrelevant. The question is not whether the officer acted in “good faith,” but how his actions compare with a “reasonable” officer.

The Burden of Proof

The “burden of proof,” also known as the “burden of persuasion,” refers to the weight of evidence that must be gathered against a defendant to prove whatever charge or claim is being asserted against that defendant – a wrongful death, for example (a civil offense) or a murder (a criminal offense).

The burden of proof that applies in a Section 1983 civil lawsuit for money damages is very different from the burden of proof necessary to prevail in a criminal prosecution against a rogue police officer. In almost any civil trial, the applicable legal standard for the burden of proof is typically a “preponderance of the evidence.” This means that the evidence in favor of the claim outweighs the evidence against it, even if only slightly.

The burden of proof that applies in a criminal prosecution is guilt “beyond a reasonable doubt,” which is normally a much more difficult standard to meet. In other words, it is easier to win a lawsuit against someone than to successfully prosecute them for a crime. Although the doctrine of qualified immunity does complicate matters, it can be invoked in either a civil lawsuit or a criminal trial.

This disparity between the criminal and the civil versions of the burden of proof is one of the main reasons why O.J. Simpson was acquitted of the murders of Nicole Simpson and Ron Goldman in 1995, but found liable in 1997 for $33.5 million in wrongful death damages for the deaths of the same two victims.

The Impact of Cell Phones, Squad Car Videos, and Body Cameras

Modern technology has dramatically altered the legal landscape when it comes to excessive force cases, because encounters between police and citizens can be (and usually are) filmed by bystanders. In addition, most police are required to wear body cameras to film their encounters, and squad cars are equipped with cameras as well. Civil rights claims that were once impossible to prove are now becoming commonplace.

Qualified Immunity: An Unfair Legal Defense Weapon?

The primary defense used by accused officers in Section 1983 cases, and in criminal prosecutions against officers for the excessive use of force, is known as “qualified immunity.” Qualified immunity is a principle that has not been codified in any law passed by Congress. Instead, it is a court-made law.

In a nutshell, qualified immunity allows police officers and other government officials immunity from civil or criminal liability – or from even standing trial – when performing discretionary acts in the line of duty, such as apprehending or arresting a criminal suspect. The reasoning behind qualified immunity is that it would be unfair to subject the decisions made by an officer, often made under great pressure, to after-the-fact second-guessing.

Negligence

A very controversial aspect of the qualified immunity doctrine is that proving negligence (carelessness) by the defendant is not enough to overcome a defense of qualified immunity. The idea is that nobody would want to become a police officer if a momentary lapse in judgment – which everyone experiences from time to time – could subject an officer to financial ruin or even prison time.

Nevertheless, intentional or outrageous acts used against a victim of excessive force can overcome a defense of qualified immunity, regardless of whether the defense is raised in a Section 1983 civil case or in a criminal case. A possible example is the second-degree murder charge against officer Derek Chauvin. Chauvin’s lawyer is certain to raise a qualified immunity defense, for example, although this defense may or may not be successful.

The “Clearly Established Law” Principle

To strip an official of qualified immunity and thereby subject him to legal liability for his actions, the official must have violated “clearly established statutory or constitutional rights of which a reasonable person would have known”. It is irrelevant whether the officer himself knew of these rights — all that  matters is whether the hypothetical “reasonable person” would have known of them.

A right is considered “clearly established” if prior case law has addressed the conduct in question, and in a manner that leaves little or no doubt as to the illegal nature of the official’s conduct. In other words, prior case law must include a case with similar facts in which it was determined that the conduct in question is illegal. The main problems with the “clearly established law” principle include:

  • Although the Supreme Court can establish the law for the entire US, it is not obvious that a court in Texas has the power to establish the law that applies in New York. Consequently, a right might not be clearly established nationwide unless the Supreme Court has ruled on the issue.
  • Critics allege that the “clearly established law” protects qualified immunity, but only for officials who find new ways to violate someone’s rights.

Excessive Force vs. Qualified Immunity: The Irresistible Force Meets the Immovable Object?

Ultimately, the trial of the officers in the George Floyd case is likely to revolve around the concepts of excessive force vs. qualified immunity. Qualified immunity has come under increasing scrutiny and criticism in recent years, and the pendulum has swung back and forth many times since 1871. Currently, however, the pendulum seems to be swinging strongly in favor of limiting the scope and effectiveness of qualified immunity.

Supreme Court Case Law Development of the Doctrine of Qualified Immunity over the Last 40 Years

Many changes have taken place in the doctrine of qualified immunity over the past few decades. The following is a summary of some of the cases that have reinterpreted this doctrine:

  • Harlow vs. Fitzgerald (1986): The Supreme Court originally defines the doctrine of qualified immunity.
  • Malley v. Briggs (1986): Qualified immunity does not protect a police officer who wrongfully arrests someone on the basis of an obviously faulty arrest warrant.
  • Anderson v. Creighton (1987): Qualified immunity applies to an officer who conducts an illegal search if a reasonable officer would have believed the search was lawful, based on “clearly established law,” and the information possessed by the officer at the time of the search.
  • Saucier v. Katz (2001): A qualified immunity defense must be asserted early in legal proceedings because it is a defense against standing trial at all, not a defense against legal liability. Qualified immunity can be overcome if the defendant violated a “clearly established constitutional right.”
  • Pearson v. Callahan (2009): It is within a court’s discretion whether to apply the Saucier “clearly established constitutional right” test.

2018 Reforms: The First Step Act

The momentum in favor of limiting the qualified immunity defense has been shifting since long before the Floyd case arose. On December 21, 2018, for example, Congress passed the First Step Act. Although the First Step Act contains many provisions, among its most prominent features are new restrictions on the use of force by the police.

Among the First Step Act restrictions are prohibitions on solitary confinement for juveniles, the use of restraints on pregnant inmates, and the increased use of de-escalation procedures to resolve conflicts without the use of violence.

The US Supreme Court Is Taking a Fresh Look at Qualified Immunity

The US Supreme Court is currently considering taking cases that would allow it to overturn or weaken the principle of qualified immunity. Although it is unlikely that the Supreme Court will overturn qualified immunity, it would not surprise many observers if its protections were significantly limited.

Take Action: We’ve Got Your Back

If you believe you may have a claim for excessive force by the police, or if you believe your constitutional rights were violated by the government in some other way, contact E. Stewart Jones Hacker Murphy immediately, either online or at (518) 730-7270, to schedule a free initial consultation. We maintain offices in Albany, Colonie, Schenectady, Saratoga, and Troy.

Motorcycle Accidents in Upstate New York

Your mother was right: Motorcycles are dangerous, even if you wear a helmet. This danger, however, has failed to blunt the enduring popularity of motorcycle riding. Upstate New York, for example, attracts riders from all over the nation, and sometimes from all over the world. Unfortunately, some of these riders end up in the hospital, and a few even end up in the morgue. When someone else is at fault, justice demands a response.

The Tale of the Numbers

The state of New York sees nearly 150 motorcyclist deaths per year, along with over 1,500 inpatient hospitalizations and almost 4,500 emergency room visits. These rates were highest among males aged 20 to 24, which is also the demographic that is least likely to wear a helmet. Motorcycle accidents, more than other types of accidents, are likely to have been caused by the other party to the accident (an automobile driver, for example).

The Most Common Causes of New York Motorcycle Accidents

The following is a list of some of the most common causes of motorcycle accidents in New York:

  • Lane splitting: Lane splitting occurs when a motorcycle tries to pass, by riding between cars. Although lane-splitting is tempting due to the small size of a motorcycle and the convenience afforded by being able to weave your way through heavy traffic, it is illegal in every state except California. If you were lane-splitting at the time of your accident, your case will be difficult to win.
  • Turning left: Turning left will often place you right in the middle of an automobile’s blind spot. Although turning left doesn’t necessarily make the accident your fault, it can still get you hurt or even killed.
  • Getting caught in someone’s blind spot: Turning left is not the only way to get lost in a motorist’s blind spot. Never forget the principle stated on the bumper stickers of many commercial trucks: “If you can’t see my mirrors, I can’t see you.”
  • Rounding a bend too quickly: Rounding a bend too quickly can lay your motorcycle down when an automobile would have survived the turn, due to the ease with which a motorcyclist can lose his balance. Given a motorcycle’s lack of frame protection, the results can be deadly.
  • Distracted driving: Motorcyclists are difficult for motorists to spot even under ideal conditions, much less when the driver is distracted by, say, a text message.
  • Intoxicated driving: Self-explanatory.
  • Debris on the road: Even the remnant of a tire blowout can send a motorcycle into a tailspin, with disastrous consequences at high speeds.
  • Racing.

This list is far from complete – there are a thousand ways to cause a motorcycle accident.

Negotiation vs. Trial

Over 90 percent of motorcycle accident claims settle outside of court. That doesn’t mean injured victims file lawsuits only 10 percent of the time. Sometimes it is necessary to file a lawsuit to force the other side to part with evidence that you need to pursue your claim. In such cases, the parties still typically settle the claim out of court and a trial never occurs. Nevertheless, your only leverage in settlement negotiations is your ability to win by proving your claim in court.

Proving Medical Expenses

The most prominent element of compensation that you are going to need to handle is medical bills. Document all medical bills and keep the receipts, because you will need them as evidence later. You can also use these receipts to prove that you received a particular form of medical care on a specific date.

Naturally, health care providers keep medical records of their own, which you can collect and use as evidence. Don’t rely too heavily on this approach, however, because something might happen – a doctor’s office might go bankrupt and dispose of all of its medical records, for example.

Getting Medical Bills into Evidence at Trial

Collecting medical bills is one thing, but getting them into evidence at trial is another. Even at the negotiating table, the defendant will likely ignore any medical bills that he believes cannot be introduced into evidence should there be a trial. There are two ways to get medical bills into evidence at trial: stipulation and testimony.

A stipulation is when the opposing party agrees to allow medical bills into evidence without challenge. Introducing medical bills into evidence through testimony involves questioning the recipient, the issuer (a healthcare provider), or the issuer’s record keeper under oath to confirm the legitimacy of the bills.

Establishing That Medical Bills Are Reasonable and Necessary

The defendant is obligated to reimburse you only for medical expenses that are “reasonable and necessary.” In particular, this means that:

  • The amount of the bill was reasonable under the circumstances.
  • The bill represents treatment for an injury that was caused by the defendant’s misconduct, not a pre-existing injury.
  • The medical services were necessary for the treatment of the injury. You might trigger some questions, for example, by submitting a bill from a chiropractor.

Maximum Medical Improvement (MMI)

Maximum Medical Improvement (MMI) is the point at which your doctor doesn’t believe your condition will improve anymore. Hopefully, MMI won’t occur until you have fully recovered from your injuries. Unfortunately, however, MMI may leave you with a permanent disability.

Future Medical Expenses

Once you reach MMI, it should be possible to calculate future medical expenses. Of course, if you make a full recovery by MMI, then you shouldn’t incur any future medical costs. If, on the other hand, you suffer a continuing disability that requires ongoing treatment, you are likely to accumulate medical expenses in the future and you should claim them now.

Proving Pain and Suffering

Pain and suffering” refers to the suffering that you endured as a result of your physical injuries. In most cases, compensation for pain and suffering far exceeds the amount awarded for more easily countable losses such as medical expenses. Even though pain and suffering are hard to place a dollar value on, you must still prove this element of your damages claim using admissible evidence.

Each case is different and will warrant a unique amount to compensate the injured victim for pain and suffering. It’s our job to maximize our client’s recovery.  We work closely with the plaintiff’s own treating physicians and, in some cases, retain independent experts to collect evidence regarding a client’s injuries and their value.

Evidence of Pain and Suffering

You can prove the extent and ultimate economic value of your pain and suffering through:

  • Your testimony, including oral and written statements about the extent of the pain and suffering your injuries caused you: Visibility matters – “road rash” is likely to be more convincing than whiplash, although you can receive compensation for both. You might also call household members as witnesses to testify about the extent of your pain.

Unfortunately, your statement that “It hurts a lot” is probably not going to be enough to get you maximum compensation without something else to back it up. Use objective measures, such as your withdrawal from activities that you once enjoyed, strains on your marriage and social relationships, etc.

  • Physical documentation: X-rays and medical charts can help document pain and suffering, as can photos of your injuries and prescription drug records. You can use a morphine prescription, for example, as evidence of severe physical pain, and you can use an antidepressant prescription to prove that you suffered emotional distress related to your physical injuries.
  • Expert witness testimony: An expert medical witness can testify to the degree of pain that is typical of someone suffering from your condition.

Future Pain and Suffering

As is the case with medical bills, if you suffer from a long-term or lifelong injury, you are going to need to estimate and then demand an amount for future pain and suffering. If continuing pain prevents you from returning to your old job, you may need to claim a large amount of future lost earnings as well.

If You Weren’t Wearing a Helmet

Failure to wear a motorcycle helmet at the time of the accident will almost certainly affect the amount of damages you receive. If you suffered a head injury, as helmetless motor vehicle accident victims practically always do, a New York court is likely to rule you negligent as a matter of law and bar you from recovering any money for your head injury. You can still recover for other injuries (road rash, for example) if you can prove the accident was the other driver’s fault.

We Can Help

The aftermath of a severe motorcycle accident is likely to take its place among the most traumatic periods of your life. You are certainly not going to feel like pursuing a personal injury claim against the person who caused the accident, even though your motorcycle accident claim will grow weaker the longer you delay acting upon it. Let us handle it for you.

If you have suffered a motorcycle accident injury, or if your loved one died in a motorcycle accident, contact E. Stewart Jones Hacker Murphy immediately, either online or at (518) 730-7270, to set up a free initial consultation. We maintain offices in Albany, Colonie, Schenectady, Saratoga, and Troy.

How Can I Protect Myself Against Bitcoin Fraud?

You can protect yourself against Bitcoin fraud by understanding what cryptocurrencies are, educating yourself on the most common forms of fraud, and strictly observing certain safeguards that will prevent you from becoming an “easy mark.” Many of the same general principles that will protect you from any kind of fraud will also protect you against Bitcoin fraud.

Standard currencies, such as the US dollar and the Euro, exist in paper, coin, and digital form. Their value is guaranteed by a central bank, such as the US Federal Reserve bank. Since the gold standard was abandoned in 1971, the US dollar has been backed solely by the credibility of the US government. Such is not the case with the new cryptocurrencies such as Bitcoin.

Cryptocurrencies are a private alternative to government-issued currency, and they can be exchanged for goods and services worldwide. They are backed by no central bank and have no central administrator, relying instead on peer-to-peer networks. Bitcoin is the first cryptocurrency, and so far it is by far the most popular. Bitcoin’s value has appreciated from virtually zero to as high as $20,000 per “coin” in 2018. Its use, however, is fraught with peril.

How Bitcoin Works

Bitcoin, which came into use in 2009, utilizes transactions that are verified by a network using cryptography, and these transactions are recorded in a publicly available ledger known as a blockchain. Its source code has been made public as open-source software. As of 2017, there were 3 to 6 million people using some form of cryptocurrency, with Bitcoin accounting for more than half of all transactions.

Bitcoin’s reputation has been damaged by allegations of frequent fraud, theft, and price volatility. A significant number of economists advise against its use, considering that it is particularly prone to speculative bubbles and pyramid schemes.

The Inherent Vulnerabilities of Bitcoin Transactions

The following is only a partial list of the risk of using Bitcoin instead of government-backed currency:

  • Bitcoin payments cannot be automatically reversed. Once you have invested your money, there is no way of getting it back without either the cooperation of the vendor or the filing of a lawsuit.
  • Computerized Bitcoin exchange platforms can be hacked, and they often are. Some of these platforms have collapsed for this reason, and many Bitcoin users have lost a lot of money.
  • Fraud and theft are rampant in individual Bitcoin transactions. One popular form of fraud is for someone to pose as a Bitcoin trader to induce you to send him money for an “investment” which, of course, you will never see again.
  • The Federal Deposit Insurance Corporation and other institutional safeguards that protect the US dollar to not apply to Bitcoin. The situation resembles the meager protections available to the US dollar in the runup to the Great Depression.
  • The fluctuation in the valuation of Bitcoin is extreme, rendering investments extremely speculative. Some have likened the entire cryptocurrency market to an online casino.

Common Forms of Bitcoin Fraud

The scale of Bitcoin fraud is almost incomprehensible. In 2019, for example, cybercriminals defrauded cryptocurrency users and exchanges out of at least $4.26 billion (not limited to Bitcoin). Japanese cryptocurrency exchange BITPoint, for example, lost $4.26 million in July 2019 alone. The danger to individuals is just as acute, if not more so.

The number of possible types of Bitcoin fraud is limited only by human ingenuity. Some of the most common are listed below:

  • Blackmail: A fraudster claims to be in possession of damaging information about you (an affair, business corruption, etc.), and demands payment in Bitcoin as “hush money.” You can expect threats, pressure, and various forms of intimidation. If you pay, the perpetrator is likely to increase the price until you run out of money. Contact the FBI, the local police, and the Federal Trade Commission.
  • Pyramid “chain letter” schemes: In this scam, you are offered the opportunity to make a lot of money by investing in the scheme, using Bitcoin to buy the right to recruit other people into the chain, making you even more money from the money those people invest. Essentially, this is an illegal pyramid scheme. The pyramid eventually collapses, leaving those at the top rich and everyone else broke.
  • Bogus “investment opportunities”: The opportunities for this type of scam are endless. One warning sign is the guarantee – no honest operator will guarantee that you will make money.
  • Malware & viruses: It is not difficult to use Bitcoin as a lure to insert malware and viruses into your computer and other devices. Beware of offers of easy access to Bitcoin resources, especially on social media, that require you to click a link. Malware can give scammers sensitive information about you (passwords, etc.) and access to your existing Bitcoin accounts
  • “Bit-phishing”: Online criminals might pose as a well-known company, and then use that company’s credibility to entice you to enable them access to your Bitcoin keys. At this point, your Bitcoin wallet is open to them. One prominent example is a $27 million “typosquatting” scam run out of the United Kingdom and the Netherlands that involved a fake website used to gain access to Bitcoin wallets.

Major Litigation

Litigation involving Bitcoin and other cryptocurrencies is widespread in both state and federal courts. The following is only a small sample:

  • The New York Attorney General is investigating the Bitfinex exchange over allegations of fraud and misleading investors. Prosecutors allege that the exchange and associated firm, Tether, concealed an $850 million loss, to the detriment of investors.
  • Trader Jeffrey Berk filed a lawsuit in California against cryptocurrency exchange, Coinbase, alleging that Coinbase provided misleading information and committed insider trading, causing massive losses to investors.
  • Commodity Futures Trading Commission v. Morgan Hunt and Kim Hecroft: The Commodity Futures Trading Commission claimed that the two defendants executed a fraudulent scheme to solicit Bitcoin from the general public. The defendants were found guilty and ordered to pay $400,000 in restitution.

How to Protect Yourself against Bitcoin Fraud

The following are some basic rules that can help prevent you from being scammed. Many of these principles will protect you against many different types of scams, not only Bitcoin scams:

  • Sign up for free scam alerts from the FTC. Scammers are innovative, and they are always coming up with something new.
  • Diligently research any Initial Coin Offering (ICO) opportunity you are considering. There is no substitute for this, and there are no shortcuts. Read and analyze the white papers with a critical eye, and obtain assistance if necessary. Find out as much as you can about the individuals behind the ICO.
  • Check any bitcoin exchange’s URL. If a website’s address starts with http rather than https, your suspicions should immediately be raised. Only https URLS offer encryption, which can protect against cyber attacks.
  • Only accept hardware wallets from trusted sources, because certain disreputable operators will sell hardware wallets with embedded “back doors” that will allow the contents to be stolen.
  • Be alert for identity theft. Bitcoin fraudsters will often attempt to impersonate a government official, a charity, or even a trusted relative. Don’t give out personal information or money to anyone simply on the basis of a text, an email, or some other indirect form of communication.
  • Use the internet as an investigation resource. If you are offered a phone number, check it on the internet – it may have been reported as a scam. You can also search “XYZ company scam” or “ABC company complaint” to obtain information, for example.
  • Don’t trust your caller ID, because it can be fooled by easily obtained technology. Call back only to a number you know is legitimate, that you have obtained from a reliable source(such as a phone directory) – not your caller ID.
  • Don’t pay money simply for a promise that may or may not be kept.
  • Don’t make a decision in a hurry. That is exactly what fraudsters want you to do, and that is why so many of them rely on high-pressure sales tactics.
  • Hang up on robocalls. They are illegal and they are a favorite technique of con artists.

The Challenges of Bitcoin Litigation

It can be challenging indeed to prove your case in a Bitcoin scam. In fact, in some cases, it can be difficult to even identify the perpetrator. A significant degree of technical expertise may be required to identify the defendant and build a case against him. This is not always true, of course – some Bitcoin fraud cases are more complex than others. Under no circumstances, however, is a novice qualified to litigate a Bitcoin fraud claim.

We’re Here to Help

If you have been defrauded in a Bitcoin transaction, or if someone is making a fraud allegation against you, now is not the time to consider representing yourself or retaining a law firm that is inexperienced in Bitcoin litigation. Bitcoin fraud cases are notoriously complex, and you are going to need the services of professionals with experience in Bitcoin litigation.

Contact E. Stewart Jones Hacker Murphy, through our online contact page or by telephone, to schedule a free initial consultation. Your consultation can be done over the phone – there is no need to come to our office during the coronavirus quarantine period.

For future reference, our offices are located in Albany, Colonie, Schenectady, Saratoga, and Troy

Inmate Release for Coronavirus

INMATE RELEASE FOR CORONAVIRUS CONCERNS

Without masks, many seek inmate release for coronavirus concerns

Without protective equipment or social distancing, inmates are being left in peril.

Lawyers are beginning to seek inmate release for coronavirus concerns for their clients — and courts and prosecutors are beginning to get behind it.

With the spread of the coronavirus, or COVID-19, across our nation, there has been an inevitable and unfortunate spread of the virus into the nation’s jails and prisons.  Federal inmates, state inmates and people in local jails are all affected, leading many lawyers to seek inmate release for coronavirus concerns.  The conditions within these institutions were cramped before COVID-19, and social distancing is impossible for most inmates.  Given the prohibition on alcohol and alcohol-containing products, hand sanitizer is banned in most jails and prisons.  Masks are also banned.

The crowded conditions, and an inability to institute protective measures, make an ideal breeding ground for highly contagious diseases like COVID-19.  The documented spread of the coronavirus through confined institutions and spaces like nursing homes and cruise ships shows that, when people are confined together in relatively close quarters, once the virus beings to spread it becomes nearly impossible to stop, with often horrific outcomes.

According to the CDC, COVID-19 is especially dangerous to older people and people who suffer from a number of pre-existing medical conditions.  Many of these pre-existing conditions which make people vulnerable to bad outcomes from COVID-19 are quite common, and include high-blood pressure, asthma, COPD, heart disease, emphysema, obesity, chronic kidney disease, diabetes, liver disease, or any condition that make a person immunocompromised.  This can include being HIV positive, but also includes many people who have cancer or are being treated for cancer by radiation or chemotherapy.

Many inmates, inmate advocacy groups, and even some people in authority are now openly advocating for the early release of some inmates in order to reduce the risk of spread of coronavirus or COVID-19 in jails and prisons.

The U.S. Attorney General, William Barr, has directed the Bureau of Prisons to reduce inmate populations by increasing where possible home confinement.  BOP is notoriously slow to respond to such directives, and it is unclear whether the directive that Barr gave through a memorandum will cause any immediate or any meaningful reduction in inmate populations.  Attorney General Barr has recently issued new directives concerning pretrial detainees, saying that prosecutors should consider the risk of COVID-19 when making bail recommendations in federal cases.

31 top state prosecutors from across the country have called for reducing inmate populations.  They, like others, cite the possible rapid spread of coronavirus through jails and correctional facilities.  The fact that over 10 million people are brought into and through our nations correctional facilities each year gives the possibility for the exchange of disease into and out of correctional facilities.  If jails are to serve the purpose of protecting the public and inmates, the jail cannot be a dangerous place, and COVID-19 is making jails and prisons dangerous places for all vulnerable inmates.

By reducing inmate populations, two things are accomplished.  First, inmates are removed from the “petri dish” of infection that their jail or prison has or might become.  Second, inmate density is lowered, thereby (hopefully) slowing any potential spread through the institution and increasing the ability of jail and prison administrators to introduce social distancing policies.

It is however impossible to eliminate risk.  There are documented cases of deputies, correction officers and civilian employees introducing disease into jails and prisons.  For example, in Albany, New York, a nurse who provided medical care to inmates  was found to be positive, resulting in the required isolation of 35 inmates.

The great increase in the danger resulting from confinement has prompted many inmates to seek early release, including temporary release pending trial or sentencing, as well as permanent release as a result of a modification of their sentence.  Recently, several high-profile federal inmates have been released.  A parent serving a sentence in federal prison in California for his role in the Varsity Blues/college admissions scandal was released early from his sentence by a federal judge who cited the outbreak of coronavirus in prison.  Tekashi69 was recently released early due to coronavirus concerns arising from the fact that he suffers from asthma.

But early release is not just for high-profile inmates or celebrity criminals.  At the E. Stewart Jones Hacker Murphy Law Firm, we are actively litigating numerous applications for early release and sentencing modifications for multiple clients.  If you or a loved one is currently incarcerated and is a vulnerable person, you may be a good candidate for early release or release pending trial or sentencing.  New clients are being accepted daily and we are happy to hear about your situation to determine if we may be able to help.  Please call now for a free consultation. All calls are confidential: 518-274-5820.

Availability of Insurance Coverage for Immediate Coronavirus Losses

Mitigation of Losses in the Time of Covid-19:
An Overview for New York Businesses and Consumers

On March 22, 2020, Governor Cuomo’s “New York State on PAUSE” Executive Order (E.O. #202.8) became effective.[1]  The measure requires all “non-essential” businesses to “reduce the in-person workforce at any work locations by 100%.”  This applies to most New York businesses—only certain enterprises enjoy “essential” status, such as qualifying healthcare providers, infrastructural institutions (airports, utilities, etc.), some critical manufacturing and professional sectors (pharmaceuticals, sanitary products, food products, etc.), and “essential retail,” which includes purveyors of basic necessities such as groceries, medicine, fuel, hardware and the like.[2]  Restaurants are allowed only to offer take-out or delivery service.  All other businesses are, as the name of the Order suggests, paused.  Employees are required to stay home indefinitely, working remotely when they can.  Disobedience of the Order is punishable by civil penalties of up to $2,000 per violation (and more for serial violators).[3]  It is perhaps the most dramatic episode of acute state intervention in commercial affairs in New York’s history.

As businesses and consumers alike grapple with these restrictions, questions that many may have regarded as academic a week ago are critical today.

Is my business insured for lost income from the shut down?

Many “business owner” insurance policies include coverage for lost income or “business interruption.”  But whether or not that coverage will apply to losses occasioned by a state-ordered shut down depends greatly on the particular language of your policy.

Most commonly, business interruption coverage applies to lost income caused by “direct physical loss or damage”[4] to the property where you do business, or to the equipment you use in your business.  In these policies, the definitions of “loss” and “damage” are usually restrictive to physical or mechanical impairment.  For example, if the roof in your boutique collapses, or if the kitchen in your diner is sidelined by fire damage, you may be indemnified for the income you lose during the restoration period.  Ordinarily this coverage would not relieve a business that is suspended for a reason unrelated to the damage or destruction of its own property (such as a government order to cease operations during a health crisis).

There are some versions of business interruption coverage that do apply to intervention by the government.  But here again, the language of the policy is crucial.  For example, one of the more inclusive (and less common) policy forms covers “[income] loss sustained during the period of time when … access to real or personal property is prohibited by order of civil or military authority.”[5]  It has been held that this policy does not require physical damage to trigger coverage[6]—coverage may lie, for instance, when the government bars access to the property as a protective measure in the face of an oncoming hurricane.  A policy formulation like this is perhaps promising for coverage of income lost to government-ordered Covid-19 lockdowns.

On the other hand, many other “civil authority” coverage types still require some connection to physical property damage or loss.  A common form covers “loss of Business Income you sustain … caused by action of Civil Authority that prohibits access to the described premises due the direct physical loss or damage to property other than [your property].”[7]  This version, in other words, more narrowly targets situations in which the government blocks access or entry to your property because of hazardous damage at a neighbor’s property.  A carrier is less likely to apply this coverage to a lockdown-related business interruption, in the absence of physical property damage.

Other considerations may govern the analysis if your business is interrupted more directly by actual Coronavirus exposure than it is by the PAUSE Executive Order.  For example, if you were forced to dispose of inventory or critical equipment because it was exposed to a Coronavirus-positive employee, your business interruption might be prolonged beyond the (eventual) sunset of Executive Order 202.8.  As noted, many of the common policy forms require that the business interruption stem from some form of physical “damage” or “loss” to property or equipment—but there is some debate as to whether a contamination may qualify as “damage” or “loss.”  Many courts appear to equate damage or loss with a physical structural change, but there is some authority for the proposition that a non-structural, chemical infiltration, for instance, is a sufficient physical property loss to trigger business interruption coverage.[8]

Another critical piece of the puzzle is what coverage exclusions are in your policy.  Regardless of whether your policy requires physical damage or not as a coverage trigger, a specific exclusion may disqualify you.  The most pertinent is the relatively common exclusion that bars coverage for: “loss or damage caused by or resulting from any virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease.”[9]  Therefore, a threshold consideration of your coverage prospects is to determine whether this or a similar exclusion is tucked into your policy.

The short answer, therefore, is that the devil is in the details.  Whether you may have coverage for Covid-19 related business interruption depends entirely on the particular combination of coverage formulations and exclusions in your insurance policy.  It is important to study the policy carefully to make an educated determination.

I can’t fulfill my contractual obligations because of the lockdown.  Am I liable for breach of contract?  My suppliers are offline and my tenants aren’t paying the rent.  Are they liable to me?

The first place to look is in the contract itself.  The pandemic has cast a bright spotlight on a type of provision that is often regarded as an afterthought, relegated to the bottom pages of the contract: the “force majeure” clause.  A force majeure clause (French for “superior force”) is a contract provision that expressly defines the parties’ rights and obligations in the event of an unforeseen misfortune.  A typical version might read as follows:

Neither Party shall be liable for any failure or delay in performance under this Agreement to the extent said failures or delays are proximately caused by causes beyond that Party’s reasonable control and occurring without its fault or negligence, provided that, as a condition to the claim that a party is not liable, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon.[10]

Some versions are more specific, limiting the clemency to a particular list of disasters, such as inability to perform because of fire loss, storms, “war,” flood, or the oft-debated “Acts of God.”  The Covid-19 measures may spawn a healthy crop of litigation about whether the shutdown did or did not “proximately cause” an individual party’s non-performance. In many cases there will be little doubt that an Executive Order prohibiting everyone from going to work is a circumstance beyond the parties’ control (except for cases with narrowly drawn clauses), but there may be triable questions about whether a particular company could have or should have serviced a particular agreement, working remotely or through some other permissible work-around.  At one end of the spectrum, a banquet hall clearly cannot honor a wedding reception reservation for Saturday March 28, 2020.  At the other end, a web design firm with technicians working remotely from home, may be able to complete client’s website redesign by the target date.  There are numerous businesses that fall somewhere in the middle, in which the defendant’s ability or inability to perform may, itself, be the issue in controversy.

If the shutdown has disabled your business, it is important that you review your contracts for force majeure clauses.  Don’t assume that you are protected, and don’t be passive.  If you do have such a clause, it may contain specific requirements in which you must give notice to the other party that you are invoking it, and why (like the example above). Make sure you preserve your defense by complying strictly with these requirements.

Note that if you have already accepted payment to provide a good or service and you rightfully invoke the force majeure clause as an excuse for non-delivery, the law nevertheless requires you to refund the payment you have accepted.[11]

What if my contract doesn’t have a force majeure clause?

In the absence of a force majeure clause, common law doctrine will excuse a party’s performance for unforeseen circumstances that render his or her performance impossible.  The case law stresses that the changed circumstances must make performance literally impossible, not merely more difficult or costly.[12]

Unforeseeable governmental action that effectively prohibits performance may constitute a valid impossibility defense.  However, temporary governmental interference does not necessarily excuse performance indefinitely.[13]  Therefore, for example, the Covid-19 restrictions may legitimately make it impossible for parties to close on a property sale while law firms are in isolation, but will not necessarily excuse either party from closing after the restrictions are relaxed.  The impossibility doctrine is most apt to excuse contractual obligations that are due in the short term, which cannot be met while employees are barred from the workplace.  It will be less apt to longer term contractual undertakings that can resume when the workplace is up and running again.

Special mention should be made regarding contractual obligations to make rent and mortgage payments. The Governor’s Executive Order prohibits the enforcement of tenant evictions and mortgage foreclosures for a period of ninety days.[14]  The Order does not excuse tenants or mortgagees from financial liability for missed payments, but does spare them from the remedy of dispossession during the specified time frame.  It remains to be seen whether the relief period will be extended by further Order.

If you have any questions, please contact Ben Neidl at bneidl@joneshacker.com or call 518-270-1253.


[1] See https://www.governor.ny.gov/news/no-2028-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency
[2] For a complete list of “essential” businesses, see: https://www.governor.ny.gov/news/governor-cuomo-issues-guidance-essential-services-under-new-york-state-pause-executive-order
[3] See Executive Order 202.8, citing N.Y. Public Health Law §12.
[4] See ISO Form CP 00 30 04 02, Coverage “A1.”
[5] See Fountain Powerboat Indus., Inc. v. Reliance Ins. Co., 119 F. Supp. 2d 552, 557 (E.D.N.C. 2000); see also Sloan v. Phoenix of Hartford Ins. Co., 207 N.W.2d 434 (Mich. 1973).
[6] Id.
[7] See ISO Form CP 00 30 04 02, Coverage “A5.”
[8] See Gregory Packaging, Inc. v. Travelers Property and Casualty Company of America, No. 12-cv-04418, 2014 WL 6675934 (D.N.J. Nov. 25, 2014); see also Trupo v. Preferred Mut. Ins. Co., 59 A.D.3d 1044 (4th Dep’t 2009)(chemical infiltration of home constituted “direct physical loss” under home owner’s policy).
[9] See ISO Form CP 01 40 07 06.
[10] See 6B New York Forms Legal & Bus. § 11A:37 (West).
[11] Cintron v. Tony Royal Quality Used Cars, Inc., 132 Misc.2d 75 (Civ. Ct. Kings Co. 1986); Toledano & Pinto, Inc. v. Anasae Corp., 83 N.Y.S.2d 612 (S. Ct. N.Y. Co. 1948).
[12] Di Scipio v. Sullivan, 30 A.D.3d 660 (3d Dep’t 2006).
[13] Green Island Contracting Co. v. State, 117 Misc.2d 435 (Ct. Claims 1983); Schoelkopf v. Morlbach Brewing Co., 184 N.Y.S. 267 (S. Ct. Erie Co. 1920).
[14] https://www.governor.ny.gov/news/no-2028-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency