MEDIA

July 9, 2004

Lead Poisoning, Ineffective Counsel, Definite Complaint Statement

Published in: New York Law Journal | volume 231
Written by: Peter R. Schlam and Harvey M. Stone

In the U.S. District Court for the Eastern District of New York, Judge Raymond J. Dearie found that the acts of Department of Health agents in dealing with elevated lead levels in an apartment did not deprive New York City of immunity from tort liability. Judge David G. Trager saw no basis to fault a defense attorney for failing to argue at sentencing that the government’s decision to withhold a § 5K1.1 letter was made in bad faith. Judge Arthur D. Spatt held that plaintiff adequately pleaded a § 1985 conspiracy. Judge Spatt also denied a motion for a more definite statement of patent and copyright claims.

Lead Poisoning – Liability of City

In Caban v. 600 East 21st Street Co., 99 CV 8218 (EDNY, June 4, 2004), Judge Dearie granted summary judgment to the City of New York in a suit brought against it and the owners of an apartment building by the guardian of an infant injured by lead poisoning.

Plaintiff Caban resided with her mother, Crespo, in apartment A10 at 600 East 21st Street from Caban’s birth in 1989 until early 1993, when they moved to apartment B5 in the same building. In October 1993 a hospital examination of Caban showed poisonous blood-lead levels. Within a few days the hospital reported this to the Department of Health.

In early November 1993 department agents made several visits to apartment B5 to test for lead, which was found in paint samples, and advised Crespo about lead poisoning and methods of lowering the risks, including diet, housekeeping and medical follow-ups. In mid-November the department ordered the building owners to abate the violations. A follow-up inspection two weeks later found that the violations had not been corrected.

On December 6 the department issued another abatement order. New management promised to begin abatement, the inspections continued, and the violations remained unabated as of Jan. 21, 1994.

Further hospital tests, showing lead poisoning, were reported to the department on February 3. A Department of Health Advisor visited the apartment and again discussed the seriousness of the situation with Crespo.

The next day hospital doctors advised Crespo that Caban could not live in the apartment. The two then moved into apartment A5. Before the abatement work on B5 was completed, they moved back to that apartment because the child was upset about being away from home.

In March 1994 plaintiffs filed a Notice of Claim against the city. Follow-up inspections by Department of Health showed some progress, but continuing violations. In the fall of 1994 plaintiff was twice hospitalized with lead poisoning.

Plaintiffs claimed here that the city breached a special duty owed to Caban by negligent advice, failure to advise Crespo to move Caban or hospitalize her sooner, and failure to ensure prompt abatement. Though under New York law municipalities are immune from tort liability for reasonable discretionary acts, there is an exception to this rule if a plaintiff has established a "special relationship" with the municipality. In Judge Dearie’s view, however, none of the three circumstances existed to show this "special relationship." See Pelaez v. Seide, 2004 N.Y. LEXIS 475, *1 (March 25, 2004).

First, under Pelaez, the city did not "violate a statutory duty enacted for the benefit of a particular class of persons." To make this showing, plaintiffs had to identify a statute that explicitly or implicitly provides a private right of action. This they could not do. For example, as to Public Health Law § 1370-a(2)(a), the role of the government in dealing with lead poisoning is mainly "administrative and advisory’; and the legislative design "encourag[es] municipalities to cooperate administratively, while preserving the tort remedy against owners…" Slip op. 5-6 (quoting Pelaez).

Second, the city did not voluntarily assume a special duty to Crespo on which plaintiffs relied. The counseling, inspection and monitoring by the city —- like the conduct of the Pelaez defendants—-were the kinds of activities envisioned by the health laws.

Third, the city did not assume positive direction and control over abatement of the hazards. As in Pelaez, the landlords, not the city, were in immediate control of the abatement process.

The city was therefore granted summary judgment.

§ 5K1.1 – Ineffective Assistance

In Porras v. United States, 00 CV 2244 (EDNY, May 11, 2004), Judge Trager, denying a § 2255 motion, rejected petitioner’s claim that his lawyer should have argued at sentencing that the government acted in bad faith by declining to provide a § 5K1.1 letter based on his cooperation.

In connection with his guilty plea to a narcotics conspiracy, petitioner entered into a cooperation agreement, which stated that the prosecution would file a § 5K1.1 motion if he provided "substantial assistance" to law enforcement. The agreement also stated that the government’s "good faith determination" as to whether petitioner had cooperated fully and provided substantial assistance would be binding.

Petitioner was sentenced to 70 months’ imprisonment, with no downward departure for cooperation. The prosecution submitted no § 5K1.1 motion. At sentencing defense counsel conceded that petitioner’s "best efforts to cooperate have not met with concrete success." Counsel also noted that all parties had acted in good faith.

The prosecution argued that the appropriate sentencing guideline level was 29, carrying a minimum sentence of 87 months. The court applied level 27, finding that the unloaded gun in petitioner’s pocket when he was arrested was apparently not being used "in connection with the offense.’

In his § 2255 motion, petitioner argued that his lawyer’s performance at sentencing was ineffective. According to petitioner, his lawyer should have alleged bad faith on the government’s part in not providing a § 5K1.1 letter. But the only evidence of governmental bad faith was a letter which petitioner himself had sent to his lawyer outlining the information he had provided during his cooperation. Petitioner also claimed that "one of the parties referenced in the letter" was arrested and prosecuted or awaiting prosecution, and that "some, or all, of the information used in this prosecution may well have originated with the Movant." All of this, petitioner argued, warranted a hearing on the government’s decision not to file a § 5K1.1 letter.

But as Judge Trager observed, "[i]t would be an extraordinary development in the law if a lawyer must make a baseless charge of bad faith or be deemed to have performed his duties in a deficient manner." The government never disputed that petitioner provided information. Rather, the court noted, the information did not result in "substantial assistance" warranting a downward departure.

Judge Trager injected a further dose of reality:

[Defense counsel’s] candor led the court to stretch its interpretation of [petitioner’s] weapon possession in order to give the defendant some credit for his ultimately ineffective cooperation. Accordingly, any attempt to allege bad faith without a basis for doing so might have resulted in an enhanced sentence.

§ 1985 Conspiracy Claims

In Perry v. Metropolitan Suburban Bus Authority, 03 CV 5388 (EDNY, June 3, 2004), Judge Spatt denied defendants’ motion to dismiss a § 1985 claim for conspiracy to deny plaintiff her constitutional rights on the basis of her race and gender arising from wrongful termination of employment.

Plaintiff, an African-American, worked for the Metropolitan Suburban Bus Authority as a full time bus operator from October 1993 until August 2003. She was a member of defendant Transport Workers Union, Local 252, AFL-CIO. In August 2002, plaintiff suffered a heart related ailment which caused her to be absent on sick leave. In December 2002 and January 2003, Dr. Stern, the employer’s physician; Dr. Miller, its medical director; and her own physician deemed her able to return to work. Subsequently, the Bus Authority referred her to Dr. Stern for a second examination. This violated the collective bargaining agreement, requiring referral to an impartial doctor (which Dr. Stern was not), only if the authority medical director, the union and employer were unable to agree.

Dr. Stern reversed his previous finding, determining that plaintiff was not able to return to work and was totally disabled. Based on this determination, plaintiff sought permanent disability from the authority’s insurance carrier, but that request was denied because her records and test results did not indicate that she was unable to return to work. The authority still insisted that plaintiff was unfit to resume her duties and terminated her employment on Aug. 6, 2003.

Local 252 filed a grievance and a demand for arbitration, but never advised plaintiff of either, and consequently she did not participate. Local 252 similarly failed to notify plaintiff that a Step I grievance hearing was scheduled. As a result she was unable to provide documentation and witnesses in support of her claim. The grievance was held in plaintiff’s absence, and the authority determined that she had produced no supporting evidence. Her Step II grievance was denied, and Local 252 advised her there was nothing further to be done.

Plaintiff alleged that white and male employees who were similarly situated were permitted to return to work, and were more aggressively represented by the union. Moreover, the decision to terminate her occurred just before she vested for retirement benefits and thus precluded certain entitlements. Plaintiff claimed that the authority and Local 252 violated § 1985 by conspiring to deny her the opportunity for a grievance and an arbitration hearing on the issue of the termination of her employment in violation of equal protection and due process.

Judge Spatt found plaintiff’s allegations sufficient to plead a cause of action under § 1985, rejecting the authority’s argument that deprivation of rights under Title VII could not be the basis for a claim under that section. Judge Spatt noted that plaintiff did not mention Title VII in her complaint.

Rule 12(e)

In Home & Nature Inc. v. Sherman Specialty Company, Inc., 04 CV 0075 (EDNY, June 22, 2004), Judge Spatt denied defendant’s motion for a more definite statement of the complaint pursuant to Federal Rules of Civil Procedure 12(e).

Plaintiff alleged infringement of eight patents for jewelry design and construction, which it attached to the complaint, and five copyrights for jewelry design, also attached. Plaintiff had given prior notice to defendant that it was violating its intellectual property rights, but plaintiff asserted that defendant continued to infringe upon its patents and copyrights.

In compliance with Rule 8, plaintiff had alleged (1) ownership of the patents and (2) the name of the infringing individual defendant; (3) provided the patent numbers and the cover pages of the patents; (4) described defendant’s infringing acts; and (5) identified the sections of the patent law it invoked. For the copyright infringement claim, plaintiff (1) listed the copyright numbers, attached the U.S. Certificates of Copyright Registration and stated that defendant had infringed the copyrights; (2) asserted ownership of the five copyrights, listing the numbers and attaching copies of the registration; (4) alleged that it had complied with the Copyright Laws, which was confirmed by the notation on the registration; and (5) stated that defendant had infringed the copyrights and described the infringing acts.

Judge Spatt determined that plaintiff had complied with Rule 8, and that the information sought by defendant was more properly obtained in discovery.

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.

[This article is reprinted with permission from the July 9, 2004, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]