Saturday, July 26, 2008

UB law student interns in London

ABL cannot wait to hear about Jenna Piasecki's experience abroad this summer. Thanks again to James Normington for hosting Jenna as a mini-pupil this summer.

Monday, July 21, 2008

Attorney advertisers gone wild

2d Cir. finds D SOL under 4th Am. for "poop pit"

In Simko v. Town of Highlands, the Second Circuit Court of Appeals rejected an assertion of 4th Amendment protection for a shed and adjoining "poop pit" because they were visible from neighboring properties (despite enclosure by trees, bushes, and stumps) and the canine fecal matter suggested that the area was not intended for the type of "intimate human activity" necessary for an area to fall within the curtilage of the home. 276 Fed. Appx. 39, 2008 WL 1925143.

Thursday, July 17, 2008

WNY Book Arts Center debut

Congratulations to P22's Carima El-Behairy and Richard Kegler for making this investment in Buffalo's Renaissance -- and on having brought the TypeCon conference to Buffalo last week.

Wednesday, July 09, 2008

Adverse possession - tomato plants no longer suffice

New York recently revised its adverse possession law, that favorite topic of Property professors across the country.

Monday, July 07, 2008

You have to hate it when . . .

the judge reads from a document and tells your opponent that "this is not a bad document for you. Not a home run, but a base hit."

Friday, July 04, 2008

3d Dep't agrees with ABL re hold harmless clause

In Elmira Teachers' Association v. Elmira City School District, the Third Department held that a hold harmless clause contained in Salary Reduction Agreements signed by school district employees barred their claims for losses stemming from investment in the district's 403(b) Plan. The hold harmless provision provided that "[t]he Employee agrees that the Employer shall have no liability whatsoever for any loss suffered by the Employee with regard to his [or her] selection of an insurance company or mutual fund, or the solvency of, operation of, or benefits provided by said insurance company or mutual fund company." The Court held that this provision was clear and unambiguous -- that it encompassed losses suffered by employees who invested their money in a fund that was ultimately liquidated. Plaintiffs attempted to avoid this result by arguing that their claims against the District were for negligent selection and supervision of the third-party-administrator. This argument, however, was rejected because employees who selected other investment options -- but who participated in the same 403(b) Plan administered by the TPA selected by the District -- did not lose any money.

The District filed a pre-discovery summary judgment motion that eliminated three claims, with two claims surviving. Those two claims were dismissed by the Third Department. The District also obtained a stay of discovery in the action pending resolution of the appeal.

The Third Department's ruling is consistent with a ruling by Justice Arthur G. Pitts of Suffolk County that dismissed an identical Complaint brought by teachers in Long Island. That decision is currently on appeal to the Second Department.

ABL thanks Matt Lerner for his insights concerning the Third Department.