Finders Keepers?
Imagine that you're a contractor working on customer's home. You've
started to demolish a bathroom wall in preparation for renovating
the house. Suddenly, you find boxes containing close to $200,000 in
cash behind the wall! Who does the money belong to? Should it go to
the homeowner? You are, after all, in someone else's home. But wait
a second! You tell yourself that if you hadn't stumbled upon the
treasure, the homeowner could live a lifetime without ever having a
clue the money was there. This happened in real life not too long
ago. The dispute resulted in both sides hiring attorneys to
represent them.
From childhood, we are familiar with the concept of "finder's
keepers, losers weepers." If we stumbled across a baseball card or
hot wheels car, the tranquility of a Saturday morning could be
transformed into a noisy dispute, with arguments flying about, such
as, "I saw it first!", or "I laid dibs on it!" The business of
finding something that used to belong to someone else can easily
lead to sparks. But it can also bring out the best in people. Just
think of those news stories where someone finds a bag filled with
money and goes to great troubles to find the owner.
The law has ways of dealing with property that has been separated
from its owners.
The law distinguishes between property that is lost and property
that is abandoned. If property is lost, it means that the owner did
not intend to part with it, but rather was separated from it by an
unlucky circumstance, such as valuable coins dropping out of a coin
collector's travel bag. Generally, the finder of such property has a
responsibility to find out the rightful owner and make some
reasonable efforts to locate her. Aside from a moral obligation to
"do the right thing", there are state statutes that outline the
duties of the finder. Let's say that after reasonable efforts, such
as running ads or posting signs, the rightful owner doesn’t appear.
The finder could become the new owner.
Another form of lost property is "misplaced" property. The general
idea is the same as lost property, in that the owner didn't intend
to part with the item. A person could place their cell phone on the
counter during a hotel check-out, and then forget it there after
being distracted. The finder of the phone is under an obligation to
return the phone to the counter.
There is yet another distinction for property separated from its
original owner, and that is abandoned property. Abandoned property
means the owner parted with something without having intent to
reclaim it. Abandoned property can lead to heated disputes because
of the legal test applied. The finder must show that the original
owner did in fact abandon the property and did not have intent to
reclaim it later. That can sometimes be more difficult than it
sounds. Think of scenarios where a galleon carrying gold and other
treasures sinks off the shores of a foreign country. When it is
found 200 years after it sinks, imagine the disputes that can be
ignited by $5 million worth of gold and jewels.
Since most people don't inscribe their contact information on many
personal items, and the determination of whether something is
abandoned can often be disputed, it is clear that the childhood law
of "finders keepers" can become complicated in the real world.
***
Timur handles lawsuits for car accidents, slip & fall accidents,
work accidents, cruise ship accidents, serious personal injury,
hospital errors, medical malpractice, dangerous product,
pharmaceutical drugs, workplace discrimination, sexual harassment
and other areas of law. ▪ Association of Trial Lawyers of America ▪
www.benimavukatim.com ▪ t.akpinar@verizon.net ▪ 718 224-9824
Avoid These Six Mistakes in a Car Accident
They say that bad things sometimes happen to good people. And
likewise, bad car accidents can happen to good drivers. It's not
easy to be a driver in our region of the country. Winters can be
harsh, with icy roads. Our roadways are congested. As populations
swell and life becomes harder, drivers become more aggressive. While
it's bad enough to have an accident, it's even worse if a person
makes one of these six basic mistakes.
Mistake 1 - not calling the police. One of the first things you
should do is to call the police, and if someone is injured,
requesting an ambulance. I'm not talking about a situation where
someone dings your door in a supermarket parking lot. I'm talking
about an accident where there is property damage and possible
injury. When the police arrive, they should assess the situation and
determine if further medi-cal assistance is needed. The police
should also prepare a report that outlines what happened and who was
at fault. This is important for preserving your legal rights,
whether you were injured and wish to sue the other driver, or even
if you were at fault and need to defend yourself in a lawsuit.
Mistake 2 - not exchanging contact information and insu-rance
information. Although the police report should contain the pertinent
information on both parties, that isn't always the case. If the
scene is hectic or people are dist-racted, vital information may not
make its way to the police report. Exchange names, telephone
numbers, make, model, year, license plate number, and insurance
information. Request the name of the other driver's insurance
carrier and the policy number. This information should be on the
insurance I.D. card in their glove compartment.
Mistake 3 - holding a trial of what happened before the police even
arrive. It's easy for both sides to be anxious, agitated, scared or
angry. Wait for the police to arrive before making statements. Don't
try to hold a trial of the other driver and don't let them do the
same to you. In a moment of excitement, people can say things that
can hurt them, if used in an adversarial setting by the insurance
company attorney three years down the road.
Mistake 4 - not notifying your insurance carrier in a timely manner.
In the hours that follow an accident, it's understandable that
anyone is shaken and scared. They might not call their insurance
agent immediately. However, it needs to be done in a reasonably
prompt time. If a person doesn't do this, they can compromise their
rights. If the insurance company learns that it needs to defend you,
they are not going to appreciate the fact that they lost precious
time in investigating an accident.
Mistake 5 - not addressing your medical needs. One of the reasons
people are afraid to go to doctors today is a financial one.
However, in a car accident, all healthcare costs are covered by
no-fault insurance. Ambulances, emergency rooms, physicians, and
radiologists are supposed to be paid by your no-fault insurance. If
someone is in pain, they should seek medical attention.
Mistake 6 - not getting good advice about your legal rights. A
person involved in a car accident is going to be told different
things from many different people. While there is no shortage of
"experts" out there, a person should seek the advice of an
experienced attorney who understands the legal issues that arise.
Safe driving!
***
Timur handles lawsuits for car accidents, slip & fall accidents,
work accidents, cruise ship accidents, serious personal injury,
hospital errors, medical malpractice, dangerous product,
pharmaceutical drugs, workplace discrimination, sexual harassment
and other areas of law. ▪ Association of Trial Lawyers of America ▪
www.benimavukatim.com ▪ t.akpinar@verizon.net ▪ 718 224-9824
How Will I Open My New Store?
The Turkish community exhibits excellent entrepreneurial skills.
Just look at how many successful Turks run their own businesses.
This includes restaurants, grocery stores, gas stations, medical
offices, hair salons, and more. These are generally independent
people who are willing to take chances, work hard, and be married to
a business full-time.
When such people consider opening a restaurant, they may think in
terms of the food they'll serve, the lettering on the menus, whether
their waiters will work on tips alone, or if they should provide
music and belly dancing on Saturday nights.
Well, there's another important aspect to starting any business,
which is, "what kind of business structure will I choose?" In other
words, will I operate as a sole proprietorship? Will I operate as a
partnership? Will I operate as a corporation, or a limited liability
corporation? The differences can be important in terms of liability
and taxes. Liability means how your business will handle lawsuits if
you are sued. As for taxes, we all know what taxes are!
Let's take a look at the various ways to open a business. The most
basic is the sole proprietorship. Here, the business owner basically
hangs the "open for business" sign on the door and gets to work.
Although it is simple and affords complete control to the owner, it
also means that the owner is on the hook for all liabilities of the
business. There's no corporate structure to hide behind.
Another business structure is where two or more parties operate as a
partnership. There are general partnerships, where the partners
share the management, profits, and liabilities of the business.
There are also limited partnerships, where general partners manage
and operate the business, while limited partners do not. The limited
partner’s role is in the background, investing and providing assets.
Although the limited partner will share in the profits, they enjoy
being free from obligations and liabilities. Another structure, the
limited liability partnership, is distinguished by the fact that a
partner is not liable for the crimes or other wrongful acts of
another partner. The reason this is significant is that partners are
generally liable for the actions of their partner colleagues.
We all know of the business structure known as the corporation,
which is often seen as large, powerful, and sometimes ominous. Well,
not every corporation is a multi-billion dollar international
operation. And within the general heading of "corporation", there
are public corporations, close corporations, S corporations,
quasi-corporations and other variations. In general, a corporation
enables people to do business in the capacity of the corporation,
rather than as individuals. The operation of the corporation is
handled by the officers and the board of directors. Because these
people are not operating in their individual capacity, they cannot
generally be sued for the liabilities and debts of the corporation.
Another form of business entity is the limited liability company, or
LLC. With the LLC, the members enjoy the protection offered as in a
corporation if the business is sued. However, like an S corporation,
they also enjoy the avoidance of being taxed twice on earnings.
This is a very simple overview of the types of business structures
available to entrepreneurs. Anyone considering opening a business
should do more detailed research to learn which business entity is
the best for them in terms of paying taxes, handling debts and other
liabilities.
***
Timur handles lawsuits for car accidents, slip & fall accidents,
work accidents, cruise ship accidents, serious personal injury,
hospital errors, medical malpractice, dangerous product,
pharmaceutical drugs, workplace discrimination, sexual harassment
and other areas of law. ▪ Association of Trial Lawyers of America ▪
www.benimavukatim.com ▪ t.akpinar@verizon.net ▪ 718 224-9824
Anatomy of a Lawsuit
As a society, we tend to do a lot of suing. I'm not sure if
everyone agrees that this is such a good thing, but it is a reality.
People sue for any number of reasons. They sue when they get hurt.
They sue when they get fired. They sue when they don't want a
shopping mall built in their neighborhood. Although our legal system
accommodates many types of lawsuits, the basic elements are similar
from one dispute to another. This is not to say a divorce action is
just like a car accident lawsuit. But the general manner in which
lawsuits are prosecuted tends to be similar.
The basic anatomy of a typical civil lawsuit is made up of the
complaint, the answer, the bill of particulars, the discovery
process, trial, and verdict. In between all these things, there may
be conferences, meetings, motions and other activities, but these
elements are common to most cases. A lawsuit is commenced with the
complaint. The complaint is the basic "who", "what", "where" of the
lawsuit. The complaint identifies the parties, identifies the
incident on which the lawsuit is based, identifies the legal theory
on which the lawsuit is based, and makes a demand for damages. When
people demand money, it's meant to compensate them for things like
injuries, medical expenses, or roof repairs arising from a
neighbor's tree falling on their house. The person suing is called
the plaintiff and the person being sued is called the defendant.
Next comes the answer. The answer is the defendant's response to the
plaintiff's complaint. In the answer, the defendant may deny the
plaintiff's claims. Or the defendant may assert that she has no
knowledge of the plaintiff's claims. The defendant may in turn bring
her own claims against the plaintiff. We call that a counterclaim.
She will typically respond with a demand for a bill of particulars.
In doing so, she is telling the plaintiff that more information is
necessary to determine just what really happened and if the damages
are what they are said to be. The plaintiff then provides the
information demanded. The plaintiff may raise objections, such as
certain information being demanded is irrelevant, or privileged
because of confidentiality or immunity reasons.
The discovery process comes next in our simple outline. Discovery
consists of the tools used to collect information in preparation for
trial. The tools for discovery include depositions, interrogatories,
and physical exams. Depositions are where a person answers questions
verbally under oath. Interrogatories are where a person answers
questions in writing. Physical exam means submitting to an
examination of some sort arranged by the adversary. If the lawsuit
is about the plaintiff's injuries, a physical exam by a doctor hired
by the insurance company would be conducted to confirm the existence
of an injury or disability.
After discovery is completed, the next step is the trial. The trial
is the most recognized part of a lawsuit. After all, on all those
legal shows, the part we see is the trial. The trial is where
attorneys for both sides present arguments to the jury to support
their client's position. Naturally, these arguments are at odds with
one another. If I make arguments about the extent of my client's
injuries, I realize that the attorney for the insurance company will
make arguments to diminish those injuries. We may call expert
witnesses to the stand to support the arguments we make. At the
conclusion of our arguments, the matter is given to the jury to
decide for the plaintiff or the defendant. The judge instructs the
jurors as to the facts and issues they may consider in coming up
with their decision. ***
Timur handles lawsuits for car accidents, slip & fall accidents,
work accidents, cruise ship accidents, serious personal injury,
hospital errors, medical malpractice, dangerous product,
pharmaceutical drugs, workplace discrimination, sexual harassment
and other areas of law. ▪ Association of Trial Lawyers of America ▪
www.benimavukatim.com ▪ t.akpinar@verizon.net ▪ 718 224-9824
Satisfaction Guaranteed!
Everyone, at one time or another will find themselves shopping
for computer software. There's so much out there. There are programs
for spreadsheets, word processing, learning languages, designing
websites... it’s downright overwhelming. Just listen to the ads,
"Try my software for 30 days. If you're not satisfied, I'll send you
back your money, no questions asked, I'll even pay your return
shipping." Wow...that's some guarantee! Imagine buying everything
under such terms. Wouldn't that be nice!
As a society, we've come to expect strong consumer protection in the
things we buy. We're used to money-back guarantees. We're used to
liberal return policies. Warranties have become so important that
many people simply shop for an item by comparing the warranties
offered by compe-ting manufacturers. Look at automobiles. There was
a time when automakers offered 12 month, 12,000 mile warranties.
Imagine offering that today...hah! It would seem like a joke. Car
makers now commonly offer 3 year, 5 year, 7 year and even longer
warranties.
Since warranties are such an important part of our lives, let's take
a look at how they work. There are several different types of
warranties. First off, there are express warranties and implied
warranties. An express warranty is a spoken or written statement
about the product. The warranty for a new car is a good example of
an express warranty. Warranties can also be made by describing the
product you're selling. For example, if I get on TV and make a
commercial that the fruit drinks I sell are made with only natural
organic fruit and no sweeteners are added, that's an express
warranty. If I turn around and sell artificially flavored drinks
sweetened with high fructose corn syrup instead, I've violated an
express warranty. This statement of fact is a representation about
the product. Keep in mind that manufacturers can be very clever.
They can make statements about their products that seem like a
representation of some sort... such as, "thought by many to be the
finest car on the road", or "this could very well be the best tea
you'll ever taste." Those statements are not express warranties.
Legally, they are nothing!
The next kind of warranty is an implied warranty. That means that
the manufacturer doesn't actually come out and make a statement.
They're held to an implied warranty of merchantability when they
sell a product. That's a fancy word for the concept that the goods
have to be acceptable, of decent quality and suited for their normal
use or consumption. If the goods are golf balls, they need to be
able to pass muster as golf balls. If they shatter into pieces when
hit with golf club, that fails the implied warranty of
merchantability. If the goods are peanuts, they have to look, smell
and taste like a decent peanut.
Another kind of implied warranty is an implied warranty of fitness
for a particular purpose. Such a warranty could arise if I go to a
outdoor mountain & camping store and tell the owner, "I need a very
well-made jacket to protect me from the most extreme weather
conditions because I plan to climb Mt. Everest." If she picks out a
jacket and says, "Here, this red one is the one you want... it will
keep you warm even in minus 40 degree temperatures in 50 mph winds."
Because I rely upon her expertise in making my selection, the
implied warranty arises. I hope this information makes you more
aware of your warranty rights the next time you make an important
purchase. ***
Criminal Intent
Have you ever watched those courtside TV shows that give live
coverage of high profile trials? There are times where the coverage
can become boring, and the attorneys shuffle papers and pause while
searching for their next question. But then there are other times
when the sparks fly more than during a good thunderstorm. Those
instances are usually when a prosecutor is trying to demonstrate
that someone committed a murder or other serious crime. The
prosecutor can be trying to demonstrate what the criminal was
thinking at the time of the crime. This type of questioning is
supposed to make the jury think things like, "Well, if she was only
afraid of her husband finding out about some minor damage to her
car's front grill, why did she speed away at 70 mph? Was it that she
injured a pedestrian and wanted to flee the scene of the accident?"
Sometimes the questioning may revolve around suspicious bank
transactions, "It's odd that he withdrew $ 45,000 from the bank in a
single withdrawal... was he planning a lavish gift for his wife as
he insists, or was he planning to pay the thug who he hired to
eliminate a business rival?" The law is going to punish a criminal
according to "what they were thinking when they committed the
crime." We call that criminal intent. Look at any two crimes and
you'll see they share the same two common elements, (1.) the
criminal act itself, and (2.) the blameworthy mental state. If the
prosecutor can prove beyond a reasonable doubt that a person's
intent was evil and dark-hearted, they're going to jail for a long
time. If the prosecutor can only demonstrate that the criminal did
something accidentally, or foolishly, the punishment won't be as
severe. Criminal law handles this issue by listing the different
degrees of a criminal state of mind. For instance, in New York, the
mental state of the criminal consists of four different degrees of
blameworthiness. These are: Intentionally - Here the criminal
commits the act intentionally. Robbing a bank is an example.
Murdering someone in a cold-blooded plot is another example.
"Intentionally" is the worst state of mind for a criminal defendant
and will result in the most severe punishment. Knowingly - When a
criminal acts with the knowledge that a certain result will occur,
that's called acting knowingly. For instance, if someone sets off
fireworks from their seat at a crowded sports stadium, it's clear
that when those fireworks land in the crowds, people are going to be
severely injured. Recklessly - This is when a criminal recognizes a
known risk and chooses to disregard it. If two people on dune buggys
raced through a crowded beach, that would be reckless conduct. They
recognize a risk, but they choose to have their race anyway.
Negligently - Negligent, or criminally negligent conduct arises when
someone fails to see the risk created by their actions. A new driver
who doesn't appreciate the dangers of driving with the car stereo
playing loud music would be an example of negligent conduct. These
standards of criminal intent apply to any crime, whether it's a
homicide, or it's stealing money from a corporation by a director.
State of mind is a key element for determining a punishment. 718 224-9824
Insurance Law
The next time you’re in your car listening to the radio, pay
attention to the number of insurance ads you hear. You realize it’s
quite a few, sometimes one after the other! These ads catch my
attention because in my line of work, I’m constantly dealing with
insurance company attorneys. When I notice how folksy, cute or funny
those ads can sound, it makes me chuckle because I deal with the
more serious side of those same companies. Insurance is a big part
of our lives. If we’re involved in an accident, hospital stay, or
disability, the first thing we may think is, “Are we covered by
insurance for that?” Because our society has become so complex, and
insurance has become so expensive, it’s important to recognize the
different types of insurance and how they are supposed to protect
us. The general purpose of any insurance contract is to transfer an
insured person’s financial risk to the insuran-ce carrier. This
takes place by the insurance company’s promise to indemnify (pay)
the insured (person paying the premiums) for a valid loss when a
claim is made. There are a wide range of insurance coverages
designed to protect us from a wide range of risks. Homeowner’s
Insurance - this coverage protects you from the possible losses
associated with owning a home. This includes protection against
fire, burglary, trees falling on the house, and visitors injuring
themselves while on the pro-perty. Renter’s Insurance - this
coverage protects you from the possible losses associated with
renting an apartment. This includes protection against burglary,
visitors injuring themselves in the apartment, and damage to other
apartments that arise because of your fault. Flood Insurance - this
coverage protects you from the losses arising from floods. People
sometimes don’t realize that flood insurance is a separate coverage
from homeowner’s insurance. Life Insurance - this coverage protects
a person’s loved ones by making payment to them upon the person’s
death. Health Insurance - this coverage pays for health care
services and hospitalization. Some of these policies cover only
emergency medical care, while others cover a wide range of
preventive care. Disability Insurance - this coverage pays benefits
upon the insured’s disability and inability to work. Auto Insurance
- this coverage pays the claims of people injured or damaged by the
policy holder’s negligence. In addition, auto insurance pays the
policy holder’s own medical expenses as well as lost-wages if unable
to return to work as a result of the accident. Long Term Care
Insurance - this coverage is to pay the expenses of long term care
for seniors who need home care services, assisted living or nursing
home care. Insurance is the kind of thing many people don’t really
want to think about because the idea of something going wrong is
unpleasant. It’s even more unpleasant because some types of
insurance, such as family health plans, have become prohibitively
expensive. It’s no secret that an alarming portion of the nation
does not have health insurance. Given the curve balls that life can
throw our way, it’s evident that insurance is not a frill or a
luxury. However, sometimes the very cost of insurance itself can
create a major risk to a person’s finances. Since everyone’s
insurance needs can be different, it can be worthwhile to seek the
advice of an insurance professional who is knowledgeable, honest and
trustworthy.
Attorney Fees
As an attorney, I get many phone calls throughout the course of the
day. People call with questions about real estate, divorce,
citizenship, corporate and criminal matters. As a rule, I don't
stray outside my area of injury litigation because an attorney
cannot know everything there is to know about every legal subject.
So I'm always happy to direct callers to attorneys in whom I have
confidence. However, when I do accept a client's case, the first
thing I'll think about is, "What are the legal issues here?" But if
I placed myself in the client's shoes, I might instead think, "How
much will this cost me?" That's only reasonable. When I shop for a
set of tires, one of my own considerations is the same thing… "How
much will this cost me?" So it's only fair to assume that as human
beings, we tend to think alike… “How much?” Knowing a few basics can
make the situation seem less confusing. In general, attorneys work
on a flat fee, hourly fee and contingency fee basis. Let's start
with flat fees. If you retain an attorney to handle a real estate
closing when you buy or sell a house, it will likely be on a flat
rate basis. That means you and the attorney agree to a set figure,
such as $1,200. You take comfort in the fact that you won't pay more
than this figure, no matter how many times you need to call your
attorney to resolve problems arising with titles, surveys,
mortgages, or non-working appliances. Bankruptcy attorneys also work
in this manner, advertising flat rate bankruptcy fees. The basic fee
may be $750, but clients should ask if that includes court costs.
Attorneys handle DWI cases (driving while intoxicated) on a flat fee
basis as well. However, clients should ask if the attorney charges
separately for court appearances. An attorney who charges a $1,000
all-inclusive fee for a DWI case could be less expensive than an
attorney whose fee is $850, but who then bills $250 for each court
appearance. Immigration and estate attorneys can work on a flat fee
basis as well. However, if an estate is complex and requires
updating to stay abreast of changes with gift and estate tax laws,
an estate attorney would probably charge an hourly fee. When you go
to an auto service center for an oil change, you'll notice a sign on
the shop wall that says "Mechanic's fees will be computed at a rate
of $85 per hour..." Attorneys also work in this manner, but in some
types of cases, they’ll use a retainer. The client pays a bulk
dollar amount up front. An attorney in a divorce proceeding or a
criminal case may say, "My fee is $200 per hour. I'll need a
retainer of $5,000 to get started. The attorney will draw payment
from this retainer. You have a right to ask for a breakdown of what
the attorney did during the hours billed to you. Attorneys may also
work on a contingency basis. Because I handle accident litigation, I
work in this manner. This means that my fee will be one third of
what I recover for the client in an injury lawsuit, after deducting
court costs and other legal expenses. With a contingency basis,
payment of the attorney’s fee hinges upon a successful outcome of
the case. Attorneys realize that they need to be aggressive and
well-prepared in court if they’re going to get paid. When you hire
an attorney, you shouldn't be afraid to ask questions about how your
fee will be determined. If you're not sure of how you'll be charged
for something, ask your attorney. Any reputable attorney should be
happy to patiently explain how they charge for services. Good luck
in all your legal matters!
Lemon Laws
Buying a used car can be an adventure. I remember a cold December
day almost thirty years ago at a used car lot in Brooklyn. I needed
a car badly because my Chevy compact had been demolished in a
terrible accident with a full-sized Cadillac. Everywhere on the lot,
the mood was festive. There were holiday lights, evergreen trees and
cheerful music. The promise of a new year was around the corner. But
the cars I saw didn’t hold the same promise. I was tired and cold.
I’d seen every car on three other lots and just wanted to go
home….another day wasted looking at worthless cars. I’d seen cars
with windshield cracks that were hidden with clear glue. I’d seen
cars whose frames had been welded to cover up accident damage. I’d
seen cars whose tires were touched up with black paint. In the end,
all that was left on the lot was a brown car with a dark metallic
red driver side door. The friendly salesman said, “It’s not that
much of a color difference...and the engine runs good.” He was
right…the dark metallic red door seemed close in color to the car’s
brown body…at least in the fading afternoon light. I opened the door
and sat in the car. After three used car lots, the smell was
familiar…the heavy scent of air freshener to cover up cigarette
smoke. The look was familiar…that funny way in which six coats of
armor-all spray reflects light off the dashboard. But to be honest,
I was sick and tired of looking around different dealers. I just
wanted this time-wasting adventure to come to an end. And then I
pictured myself pulling up to work in this car…with the mismatching
door. At that point I decided to go home before I said, “why not…the
car runs…how much do you want for it?” But I did need a car badly,
so I eventually brought some other junk pile soon afterwards. And it
didn’t last me six months. There’s an expression, “I’m not rich
enough to buy something cheap”, or something like that. I think the
expression applies pretty well to the purchase of a used car. A car
is a complex machine with many systems and mechanisms that can fail.
And if they fail, knowing your legal rights can help limit the money
you lose. That’s why we have lemon laws…to protect car buyers from
cars with defects. For instance, under New York’s used car lemon
law, warranties start at 18,000 miles and continue to 100,000 miles,
depending on mileage. New York outlines the defects that a dealer
must remedy and how many attempts are given to fix a defect. It
covers a buyer’s options if the defect cannot be remedied. If you
purchased a used car and are experiencing difficulty in resolving a
problem, you need to act fast. For instance, in New York, warranty
periods run 30 days, 60 days, and 90 days, depending on the car’s
mileage. That’s not a lot of time to discover and act on a
mechanical or electrical problem. There may be other business and
consumer laws that apply if the misrepresentations were made. If you
were told the car had ABS brakes, but the car turned out not to have
them, that’s a misrepresentation. If fraud is involved, additional
protection may be available under state law. Fraud would include
things such as tampering with the odometer to make a car’s mileage
seem lower. Although there are good deals out there for new cars,
with attractive financing and leasing plans, many people still find
that a used car is their only option. And in those cases, lemon laws
are meant to be a safety net. Good luck and safe driving!
Your Legal Rights on a Cruise Ship
It’s no surprise that cruise vacations have become so popular in
recent years. There are so many cruise lines and so many vacation
packages tailored to passengers of all ages and interests. Because
cruise vacations offer conveniences such as not having to worry
about hotel arrangements, not having to buy meals in unfamiliar
places, and never running out of things to do aboard a well-run
ship, they have become very popular. However, passengers should
realize that crimes and accidents that occur on cruise ships might
not be treated the same as those occurring on land. This lesson was
learned the hard way by a passenger who called me after he was
injured in the ship’s swimming pool area. He wanted me to represent
him in a lawsuit for his injuries. The problem was that he had
waited too long before taking action. Cruise ship accidents are not
like accidents on land where a person has two or three years to
bring a lawsuit. Cruise ship accidents can involve maritime law.
That can mean different rules than those involving accidents on
shore. For instance, many cruise lines impose very short time
periods in which to bring a lawsuit for injuries. Passengers must
realize that their ship could be sailing under the flag of a foreign
state. Many cruise ships are not U.S. flag vessels. Although you can
book your vacation in New York City, the cruise line itself may
operate out of Florida. And Florida is where you may have to bring
your lawsuit if something goes wrong. Cruises are fun events, and
people don’t go on a cruise thinking about what they’ll do in the
event of an accident. But passengers shouldn’t forget that they’re
on a ship at sea. Think about the recent incident involving the
cruise ship Sea Diamond in the Aegean Sea. The ship hit a reef and
sank. Aboard the Crown Princess, passengers were injured when the
ship heeled over drastically during an operational error. Water
spilled from pools, objects were sent sliding across decks and
people were injured. Passengers can be injured on a cruise ship by
any number of things… food poisoning, being hit by an object falling
from an upper deck, a medical error by the ship’s doctor or nurse,
slipping and falling on a wet deck or staircase, a swimming pool
accident, or being struck by an automatic door. If passengers keep
in mind the things they should do in such an accident, they can be
in a better position to protect their rights. In a cruise ship
accident, passengers should first determine if they need first aid.
Next, they should report the accident to a qualified member of the
ship’s crew and fill out an accident report with the ship’s security
or safety officer. The report should document the facts and details
of what happened. Were there eye witnesses? If so, the report should
include their names and contact information. It should list injuries
and how the injuries arose. Passengers should request a copy of the
accident report. An injured passenger should take photographs of his
or her injuries and the location aboard the ship where the accident
occurred. If necessary, the passenger should follow up with his or
her doctor after getting home. Hopefully, a cruise vacation should
be a happy occasion. It should be a wonderful experience of enjoying
good times with family and friends, having great food and drinks,
and seeing beautiful places and wanting to go back for more. But
there’s nothing wrong with knowing a few things about your legal
rights, because if something goes wrong, maritime law and cruise
ship regulations could come as an unpleasant surprise.
Our Awareness and Attitudes…
How They Shape the Law I was born in the fifties. That was a time
when children ran behind trucks spraying the pesticide DDT as if
they were giving away ice-cream. In our classrooms, we were shown
how to roll around the floor with an asbestos blanket in the event
of a fire. Given the precautions used in the removal of asbestos
from public schools today, the idea of an asbestos blanket seems
mind boggling. We live in an age where we are better informed about
so many hazards that simply weren’t understood in the past. I’m
still amazed by advertisements in magazines from the 1940’s
describing that some cigarettes are more pleasing to a person’s
throat than others. It seems incredible to read things like this.
But you have to remember… it was a time when cigarette manufacturers
were not required to warn smokers about lung cancer, heart disease
and emphysema. Maybe these things demonstrate that public awareness
doesn’t come overnight. Sometimes a terrible event can bring our
attention to things we didn’t recognize before. In Bhopal, India,
the release of deadly gas from a Union Carbide chemical plant in
1984 stunned the world. The widespread death in the surrounding
communities brought attention to the potential for large scale
chemical disaster. Veterans returning from Vietnam taught the public
a regrettable lesson about the hazards of exposure to dioxin. Dioxin
was a constituent of Agent Orange, the herbicide used to defoliate
the jungles of Southeast Asia during the Vietnam War. And right here
in Upstate New York, the government sued Hooker Chemical to force
them to clean up areas around Niagara Falls that had been used as
dumping grounds for hazardous chemicals. The year was 1979. The most
famous contaminated area was Love Canal. It’s now a household word
because the surrounding community turned into a ghost town overnight
as its residents fled. Look at the criminalization of drunk driving.
From my childhood, I remember watching irresponsible adults who
could barely stand up at the end of a party saying foolish things
like, “give me one for the road!” Looking back, it was clear that
society didn’t take drunk driving seriously. But things changed.
Somewhere between the 1960’s and the present time, drunk driving
went from being seen as a social folly to a becoming criminal
felony…didn’t it? When I think about how our awareness about so many
things has evolved, a recollection from my childhood sums it up best
for me. I was in the fourth grade on a class trip to the New York
City Fire Department Academy in 1967. Since I still remember the
variety of candy bars in the vending machines at the academy’s
cafeteria, it was a memorable trip for me. My classmates and I were
awestruck by the brave firemen… the coolest guys in the world,
paying so much attention to us ten year olds! We were star-struck!
These were real-life heroes! And I remember this one big strapping
firefighter with a booming voice telling us, “Kids…tell your parents
not to smoke in bed…because that’s how fires start!” We all looked
at each other grimly as we nodded our heads. This was serious stuff.
After the bus brought us home from the class trip, we ran home to
warn our parents not to smoke in bed. Looking back now, it seems
ludicrous to be told not to smoke in bed. But I guess that’s only
because of what we’ve learned through the years about the other
deadly hazards of cigarettes. Who knows what the future holds for
our laws. I’m sure there are things we do now….that in thirty years,
we’ll say, “I can’t believe there wasn’t a law against that!”
Coming to America
By Way of Employment It’s difficult to picture what America would
have been like if not for immigration. Immigrants from Europe, Asia,
South America and other parts of the world have left a legacy that’s
here to stay. Look up at the buildings in Manhattan the next time
you’re paying a dollar a minute to sit in a cab that’s stuck in
traffic. The architectural details in old office buildings you see
are the product of craftsman who came here in the 1800’s and early
1900’s. Think of the space shuttles and NASA space programs. Many of
the brilliant physicists and engineers who made such programs
possible came to the United States from Europe in the years
following World War II. And if you aren’t interested in architecture
or science, think of something more fundamental. Without stepping
foot off Manhattan, you can enjoy food from China, Turkey, France,
Italy, Japan, Germany and every other corner of the world…at
restaurants that are within walking distance of one another other.
All these things are the legacy of immigrants. And immig-rants will
continue to come to the United States by many different means. Some
may win a green card lottery. Some will marry U.S. citizens. Some
will be sponsored by family members. And some will come here because
employment in the United States brings them here. There are a few
conditions that must be met for someone to become an immigrant based
upon a permanent employment opportunity. A candidate must be
eligible for lawful permanent residency. There are other conditions
as well, including approval of an immigrant visa petition. The four
categories of permanent residence based upon employment in the
United States are: EB-1 Priority Workers: These are people of
extraordinary ability in the sciences, arts, education, business or
athletics. This category includes recognized artists and musicians,
professional athletes, distinguished professors, researchers,
managers and executives subject to international transfer to the
U.S. EB-2 Professionals with Advanced Degrees or Persons with
Exceptional Ability: This covers foreign nationals of exceptional
ability in the sciences, arts or business. It also covers advanced
degree professionals well as qualified alien physicians who practice
medicine in an area of the U.S. which is underserviced. EB-3 Skilled
or Professional Workers: This includes foreign national
professionals with bachelor degrees. It also includes foreign
national skilled workers with a minimum of two years training and
experience, and foreign national unskilled workers. EB-4 Special
Immigrants: This covers foreign national religious workers such as
missionaries, priests and religious instructors. Employers who would
like to petition for a foreign national to work in the United States
on a permanent basis should file a Form I-140, Petition for Alien
Worker. Detailed instructions accompany the form. Filing
requirements are different for the different categories. Good Luck!
What is Discrimination?
Here’s a question for you. Can someone be fired from a company for
being a smoker? I’m not talking about lighting up a cigarette while
refueling a commercial passenger jet on a runway. If someone does
that, he or she will be fired….and they deserve to be, for
jeopardizing so many lives. But I’m asking this… what if a person
just happens to be a smoker? They don’t smoke at work. They don’t
take cigarette breaks. They just happen to smoke… When they’re at
home, when they relax, in their free time. The question has nothing
to do with the merits of smoking. We all know smoking is a very
serious health risk. We know smoking has become socially
unacceptable. I’m asking if someone can be fired for merely using
tobacco… AWAY from the job. This question is at the heart of a
recent dispute where an employee was fired for being a smoker. The
employer argues that the termination is proper because the company
wants to maintain a non-smoking workforce. Some states have laws
against firing smokers. Employers argue that they want people
without nicotine in their system because of the cost of healthcare
for smokers. But civil rights advocates argue that such a policy
against smokers amounts to discrimination. Who is next they say? Can
a company fire people who roller blade… because the chance of
breaking a leg while rollerblading in Central Park can make them
miss three months of work? Can a company fire its executives who eat
rich, buttery cakes and cheese omelets smothered in mayonnaise for
breakfast… because those eating habits can result in coronary
disease and stroke that can leave the executives disabled? This is
the way a good attorney must think if he or she wants to
aggressively protect a client who has been discriminated against in
the workplace. In the previous edition of Forum, I covered some of
the basic federal laws meant to protect workers from discrimination
in the workplace. These included Title VII of the Civil Rights Act
of 1964, The Equal Pay Act of 1963, the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act of 1990,
and the Rehabilitation Act. So then, what is this thing we call
“discrimination”? At times, it can be something difficult to put
your finger on because it might not be apparent without delving deep
into an employer’s records and practices. On the other hand, it
might be very obvious… such as in the case of a wrongful firing. But
back to the question… What is discrimination? Discrimination is
conduct that amounts to unfair treatment of an employee in the
workplace based on race, color, religion, sex, national origin, age
or disability. Discrimination can include unfair decisions regarding
hiring or firing someone based on one of these elements.
Discrimination can include unfair decisions involving promotions,
transfers, layoffs or recalls. It can include unfair testing of
employees. It can include unfair practices with salary, pension
plans, vacation time, sick leave and disability benefits. Sometimes
a person will easily recognize a violation of discrimination law if
an employer has treated them unfairly. But sometimes, it is more
subtle. If you think you’ve been discriminated against in the
workplace and want to learn more about your rights, you may wish to
speak with an attorney.
You’re
Fired!
If you’ve seen the TV show The Apprentice, you immediately recognize
those words used by Donald when he pulls the plug on a contestant.
In real life, the words “you’re fired” seem to conjure up some
failure on the part of an employee. It’s as if the employee has
failed the company, didn’t work hard enough…or betrayed the trust of
the company. We recognize such a mentality from the loyalty demanded
of workers in the Far East and other parts of Asia. But the truth
is, those words are heard quite often today. There are many reasons
why people are fired from their jobs. And being fired doesn’t
necessarily mean someone was a lazy cow who came to work late,
performed poorly, and made too many personal phone calls. Times have
changed. Companies are cutting back in personnel. Technology has
enabled fewer employees to accomplish more. Companies have gotten a
taste of inexpensive labor from the third world. Companies farm out
more work to independent contractors, thus eliminating the need for
providing health insurance. So getting fired today is not
necessarily a reflection of an employee’s failure. It has become an
accepted by-product of corporate downsizing, overseas competition,
and an increasing pool of qualified job candidates with which to
compete. Sometimes an employee will be fired because he or she fails
to meet the standards of a job description, or fails to meet
productivity goals. And sometimes an employee will be fired because
someone doesn’t like them. A supervisor may not like the nationality
or race of the person. We call that discrimination. And sometimes it
will be difficult to determine just why an employee was fired. The
employer may tell one story…and the employee may tell another. There
are laws designed to prevent unfair terminations and other unfair
actions based on discrimination. While the body of federal and state
laws on this subject can fill a library, it’s good to be aware of
the basic laws made to protect you from discrimination in the
workplace. These include: ▪ Title VII of the Civil Rights Act of
1964: This law prohibits employment discrimination based on race,
color, religion, sex or national origin. ▪ The Equal Pay Act of
1963: This law prohibits men and women who perform substantially
equal work in the same workplace from being discriminated against in
salary, based on gender. ▪ The Age Discrimination in Employment Act
of 1967: This law is designed to prevent discrimination against
individuals who are 40 years of age or older. ▪ The Americans with
Disabilities Act of 1990: Title I and Title V of the ADA prohibit
discrimination against individuals with disabilities (in the private
sector, local, and state governments) ▪ The Rehabilitation Act: This
is a law to prevent discrimination against individuals with
disabilities who work in the federal government. Because this
subject is close to home for many workers experiencing difficult
times in the workplace during our rough economy, I’ll cover more
details about your rights when it comes down to discrimination in an
upcoming issue of Forum.
