Here are some non-confidential wins. (To settle against a private employer, one must usually agree to confidentiality.) I’ve thrown in a few interesting losses; the practice of law cannot be predicted. Along with my other complete, or substantial, partial victories, past performance never guarantees similar results. What matters most is what happened to you: Hire the right attorney to tell your story within the rules to get the best outcome. I get up and go to work because I believe I am a perceptive observer of life, have a decent moral compass and often am honored to pick the stories most compelling. I don’t operate on volume. If you feel you have a case that you can explain, call 212-334-7398.
A unanimous (7-0) decision by the New York Court of Appeals, New York’s highest court, for my client resulting in the affirmance of the dismissal of the indictment. 93 N.Y.2d 249 (1999). I was much less experienced at the time, but you can see me arguing the case up top.
Zarda v. Altitude Express, United States Court of Appeals, Second Circuit, 15-3775.
This was a rare en banc decision in the Second Circuit, which usually does not convene all of its judges, but goes in panels of three. En banc hearings are held only once every three years in this Circuit, which covers New York, Connecticut and Vermont. The decision was the second U.S. Court of appeals to hold, by a vote of 10-3 judges that sexual orientation is discrimination based on sex under the U.S. Civil Rights Act. There are several reasons for this court’s holding, which reaches 163 pages, the Circuit was the second to hold that sexual orientation decision is sex discrimination under Title VII under the U.S. Civil Rights Act. The case took several years to complete (and might go on further) and is surely my greatest victory, which I continued after my client died because justice had been denied. More regarding Zarda v Altitude Express.
Jury verdict $6,030,744 in a disability discrimination case. A nurse needed just a little help in lifting, and the employer stubbornly refused. A jury gave her damages and punished the Hospital. Federal Court, Eastern District of New York, 96 CV 5222 (RJD)
The judge held the $5 million punishment was too severe and the final appellate decision agreed but upheld the judgment of 1.5 million dollars. Punitive damage awards are hard to come by and are almost always fought to the very end. Nevertheless, It is my biggest win (and I like to mention that Glenn Greenwald, a law school classmate, now a famous journalist, started this case. He was not co-counsel, but Ms. Norville’s first attorney, and laid the groundwork for me to win in the second trial). 2004 U.S. App. LEXIS 21034 (2d Cir., October 8, 2004).
Total judgment exceeding $750,000 for retaliation against hotel worker for complaining that his supervisor discriminated against him, leading to his termination. Federal Court, Southern District of New York, 11 CV 7037 (JPO).
More about the Muñoz case reported in:
Jury Verdict upheld by trial judge Paul Oetken, who held that the jury weighed the evidence, as the rules permit, and that my client’s win was “a complete success,” 2014 U.S. Dist. LEXIS 132166, fn.5 (S.D.N.Y. Sept. 18, 2014).
The entire judgment in excess of $750,000 – including every penny of the jury’s punitive damage award – is upheld by Second Circuit Court of Appeals within two days of argument. Summary Order, June 17, 2015. The oral argument, in which I, in defending the verdict, speak starting at approximately marker 11:35, can be heard here.
Total jury and judge verdict $455,069 for disability discrimination in a case involving a train operator on the Times Square Shuttle who was removed from her job because she might need extra bathroom breaks during the day. Federal Court, Eastern District of New York, 02 CV 5222 (CPS).
Jury Verdict Affirmed, Summary order, Second Circuit Court of Appeals, August 3, 2009.
More about the Simmons case reported in:
Settlement of $105,000 in medical malpractice/civil-rights case involving the confinement of an honors student to Kings County Psychiatric Hospital. Kings County Supreme Court, 09/500122.
More about the Eze case reported in:
Appellate victory: Appellate Division, First Department unanimously reverses lower court and reinstates a doctor’s malpractice claim against a lawyer. 65 A.D.3d 437 (First Dept.2009).
More about the Fielding case reported in:
Jury verdict $241,000 in race discrimination case before retired Judge Lawrence McKenna. Federal Court, Southern District of New York, 02 Civ. 2684 (LMM). Most of my clients are people of color but this was a “reverse discrimination” case against a law firm. Illegal discrimination is insidious, no matter its victim. The judge was the now retired Lawrence McKenna, before whom I observed give a fair trial to a Pakistani immigrant caught in the scheme of an evil man, U.S. v, Shafi. Mr. Shafi was a certainly innocent man and was found not guilty because of the dedication and creativity of a very talented lawyer I was lucky to have been assigned to “second chair.” (I really did nothing – just watched the lawyer in action and a modest judge go to great lengths to ensure a fair trial. The experience had a profound effect on me.)
The jury awarded Mr. Baker $403,490.55 in a legal malpractice and attorney fraud case involving an attorney’s failure to file suit against a testing lab for the false report of an HIV diagnosis. Unfortunately, Ricky Baker went to the Lesbian and Gay Lawyer’s Association Referral Service, which did not (at the time) require proof of malpractice insurance. Had they so required, none of Ricky Baker’s suffering would have occurred.
The case was tried in Federal Court, Southern District of New York, 96 CV 5222 (DLC), November 1998. It was my first big case, but looking back I consider the win surfing on a bunch of the failures of others: Obviously, the lawyer who committed fraud; but also the State of New York that does not require malpractice insurance, nor even the disclosure of the lack thereof. I’ve mentioned the referral service. In the end, I bet the judge regrets the case entering her courtroom. My client got relief, but it was so hard; the lawyer showed that he was willing to flout her orders and the dispute morphed into my client’s dispute with the lawyer to the judge’s – I am assuming – frustration with her role in the process, which depends on the promise that lawyers will follow court orders. I learned a lot in this case, and don’t regret pursuing it. But I see it with much different perspective now than a mere win so many years ago.
More about the Baker case reported in:
Settlement of $222,500 for false HIV diagnosis Supreme Court, New York County (defendants remain confidential in this case defended by New York City’s two premier medical malpractice firms.) The parties reached the settlement after the judge denied all motions for summary judgment. New York County Supreme Court Justice Joan Lobis held that the jury must determine whether the lab or the medical group negligently swapped plaintiff’s blood sample for another’s, or whether the doctor was not quick enough to realize that something was amiss and have the client retested. The judge’s publicly available, non-precedential decision is available here. (Dent v. [Anonymous]., 926 N.Y.S.2d 343 (Sup. Ct. N.Y. 2011)).
Settlement of $219,000 in a legal malpractice case involving attorney’s failure to advise his client to obtain independent tax advice before commencing risky legal strategy, New York County Supreme Court, 06/108425.
In this age discrimination case, the Judge found, pretrial, that the City of New York was responsible for two years of discovery delays and ordered the City to pay attorneys fees and expert witness fees to correct its waste of time. The City paid over $66,000 in attorneys and expert witness fees. 05 Civ 2129 (JG)(RML), 2008 WL 1991107 E.D.N.Y. May 05, 2008, also reported in New York Law Journal, May 30, 2008; reargument and appeal by City denied, 2008 WL 3334028 E.D.N.Y. Aug 08, 2008
More about the Attard case reported in:
The judge awarded, as a matter of law, my client judgment against his former attorney for gross overbilling amounting to $330,598. 16 Misc.3d 1130 (2007), appeal dismissed, slip op., (First Dept. December 18, 2008)
More about the Siagha case was reported in:
Recognition for Litigating for People with HIV, June 1996. In one case I was recognized by GMHC for a strategy I used in exploiting confidentiality laws against an insurance company, which publicly exposed the HIV status of a GMHC client in the attempt to cancel his coverage. The case settled very quickly.
My volunteer work for GMHC was also reported when I worked for BigLaw in:
Verdict, 2006, $129,700, for legal malpractice in attorney’s failing to appear at a real estate closing, Kings County Supreme Court, 04/31413. The punitive damages were thrown out, but the finding of legal malpractice was upheld. 57 A.D.3d 872 (2d Dept. 2008)
Reinstating civil rights claim based on the error of a judge whose flawed reasoning led to the rejection of a black juror. Barnes was the first reversal in a civil case for this particular violation of law in the Second Circuit, the federal jurisdiction just below the U.S. Supreme Court that includes New York, Connecticut, and Vermont. 202 F.3d 150 (2d Cir.1999) (Sack, J.).
This was my first federal appeal and it reinstated the plaintiff’s claims against the Smithsonian Institution brought because of employment discrimination on the basis of HIV diagnosis. 157 F.3d 101 (2d Cir.1998) (I got extremely lucky in this case because Congress changed the law after a first decision was handed down. The Court then withdrew its first decision and ruled in my client’s favor. Without congressional intervention, which denominated the Smithsonian as part of the Executive Branch – when it had never been denominated as part of any branch of government – I would have lost. But a win is a win.)
Affirming jury verdict for my client in a legal malpractice case involving an attorney who abandoned his client at an Admiralty trial – involving the laws of the sea on a ship sailing under the U.S. flag. 25 A.D.3d 477 (1st Dept 2006). I successfully tried and defended the appeal of this case, but the judge would not allow me an instruction on punitive damages.
Federal Judge Griesa rejects Conde-Nast’s attempt to defend its termination, and cynical attempt to characterize a good employee’s need to care for her autistic child as “babysitting.” 2003 U.S. Dist. LEXIS 17088; 84 Empl. Prac. Dec. (CCH) P41,498, September 29, 2003.
Denying the Police Department’s attempt to shortchange formerly unrepresented prisoner of an oral settlement agreement. 1996 U.S. Dist. LEXIS 11561 (S.D.N.Y., August 12, 1996) (Patterson, J.)
Upholding the denial of summary judgment to the defense in (what was then commonly referred to as) AIDS discrimination case. 254 A.D.2d 53 (1st Dept.1998). The case later settled confidentially.
Reversing the dismissal of a legal malpractice case. 39 A.D.3d 231 (1st Dept 2007).
$245,000 settlement in HIV and mental health discrimination case where an electrician was harassed and forced to choose between his job and Con Ed’s insistence that he take psychotropic medications. This was an unusual and, from my perspective, a wonderful case wherein an oppressive employer (backed up by junior doctors on the payroll) tried to corner a man – a little nutty to be sure – but a fine performer, out of the company. He was an inventor, a good worker, and though he had an unusual personality, was harmless. Furthermore, he was protected by the Americans with Disabilities Act. 98-cv-00979, Federal Court, Southern District of New York, January 1999.
Sexual orientation/HIV discrimination case settled on confidential basis
More about Ferguson reported in
$160,000 settlement for home seller’s fraud and attorney’s failure to reveal conflict of interest, New York County Supreme Court, 118423/2000
$175,000 for a disabled man who suffered a grievous hand injury when a police officer stomped on it with his boot. 7030/1998
$150,000 settlement in false arrest/malicious prosecution case. Kings County Supreme Court, 6921/1997.
$135,000 settlement in false arrest case involving suggestive photo identification. Bronx County Supreme Court, 14680/1999.
Reversing defendant’s conviction for conspiracy to commit kidnapping. 300 A.D.2d 35(1st Dept 2002), lv. denied, 100 N.Y.2d 541 (2003). (This case was unusual: Mr. Missrie (miss-er-ey) was 75 and in jail at the time the alleged crime occurred – that is the one in which I presented him. A predatory, habitual criminal went after Mr. Missrie at the behest of the DA to induce him to plan some bad things – things that could never have happened but for the other criminal looking to pressure an elderly man then snitch on him and get out of jail. That’s the ugly reality of some criminal prosecutions. The first trial I defended on the defense of entrapment; it ended in a hung jury with 9 of 12 jurors favoring acquittal. After the second trial resulted in a guilty verdict, I got it reversed. On remand, Mr. Missrie took a plea rather than opt for a third trial. The sentence amounted to time served, though, sadly, this memorable client died in prison awaiting parole from his sentence on the other charge. My client took the stand at both trials; the cliché that the defendant must NEVER take the stand is not true. It is a right to remain silent, sometimes properly invoked, but in a contested case, a jury wants to hear the defendant’s story, studies show. You have a right to remain silent, but perhaps no more than an understanding among the cops, the prosecutor, the defense lawyer, the defendant and the judge. A jury will be told to disregard the right not to testify, but might not embrace it. On the other hand, sometimes a defendant has priors, and those come out if he takes the stand.
Missrie is the only felony I’ve tried to a jury (twice). A hung jury is a loss to the prosecution, and I was subtly complimented that at the second trial, the assistant DA was replaced by a less experienced but more talented one; I lost to him on the retrial I got reversed. However, even if that loss was reversed, and even if he pulled one sleazy trick, I learned something. It was the sharp judge who made a couple of related mistakes that got Mr. Missrie a reversal. The ADA was at about my level of experience but did a super job speaking to the jury; I was very impressed and the experience prompted me, in part, to study under Gerry Spence.
Mr. Missrie, age 77, after reversal, went back to the trial court and pled, essentially, to time served. For a first felony trial, that’s not too shabby for me – though I’d by then done several bench trials in Family Court, including two acquittals I secured for kids whom the complainant couldn’t identify the alleged perpetrator. (It was the evidence that got the acquittal, not me.) Other than Missrie, I’ve tried two other misdemeanor charges in adult court, wherein the main charges were dismissed and the client got no sentence whatsoever: an “unconditional discharge.” I also had many misdemeanors dismissed under procedural rules: Bad pleading and speedy trial violations. Also, I’ve advised some clients to plea to non-criminal charges in some misdemeanor cases. For the short period in which I represented persons accused of felonies, there were a few clients who pleaded to jail time; I don’t consider these “wins,” but reviewed the evidence against the client, advised him or her, and he or she made the decision. I know New York criminal law, but the defense is saturated; I choose not to market myself as a criminal defense attorney. Nevertheless, I love it and if a New York criminal case comes to my office, I will consider it if the client can afford a reasonable fee, and I am certain I can handle it. Some people call saying they “don’t want the public defender,” but I chase them away and ask why? There are some bad publicly paid lawyers, but the Public Defender’s offices in the City are underfunded but nevertheless staffed with highly dedicated, talented but overworked lawyers.
The appeals court here reduced defendant’s sentence for robbery from 50 years to 15 years. 261 A.D.2d 291 (1st Dept.1999). I did not represent the defendant at trial, after which the judge, the Honorable Colleen McMahon, now Chief Judge of Federal Court in the Southern District, sentenced him to a gobsmacking 100 years to life (which is automatically reduced to 50 under the law). But 50 years was still too much. No one had died or been injured because of the criminal acts; it was an ugly robbery among drug dealers and the punishment – an effective life sentence – the appeals court recognized did not fit the crime. Chillingly, the first time around, the sentence was upheld and it was only because I asked the court to look more closely at the penological purposes of sentencing, in comparison to other crimes, that it changed the ruling on a motion for reconsideration. I speculate the DA’s office at the time had a hand in that, given how weak and how late was the opposition to my motion for reargument. Of course, I’ll never know.