New York

Date: September 23, 2013 Last Edit: May 09, 2016

Brands v. National Labor Relations Board – Labor

Court of Appeals for the Second Circuit

The Legal Center joined an amicus brief challenging the National
Labor Relations Board’s application of its Specialty Healthcare rule to
create a “microunion” composed of a subset of employees for collective bargaining
purposes. The Board’s disruptive application of the Specialty Healthcare
rule is currently being litigated in other cases.

Status: PENDING. Amicus
brief filed 12/17/15.

v. Crane Co.
– Legal Reform
New York Court of Appeals

The state’s highest court will consider whether a
manufacturer of a product such as a pump or valve has a duty to warn about
asbestos-containing replacement parts (gaskets and packing) or externally
applied thermal insulation made by others and used in conjunction with the
manufacturer’s products. 

EEOC v. Sterling Jewelers – Employment
U.S. Court of Appeals for the Second Circuit

In its suit, the EEOC accused
Sterling of having a nationwide pattern of discriminating against women when it
came to pay and promotion. The district court dismissed the case finding that the
EEOC failed to provide evidence that it conducted a thorough, nationwide
investigation of Sterling’s employment practices prior to filing the lawsuit.

ExxonMobil v. NYC – Causation is
Attacked by Defendant’s Appeal

U.S. Court of Appeals for the Second

Exxon has appealed its $100 million jury verdict regarding
MTBE. The amicus brief filed in support of Exxon maintains that the entire
award was based on hypothetical damage that might occur.  The brief argues
that an award based on a “if this then that” future injury
violates basic tort principles of causation and could be very problematic in
the product liability arena.

In re Card Interchange Fee Class Action – Unfair Competition

U.S. District Court for the Eastern District of New York

NFIB filed an amicus brief opposing Visa/Mastercard’s proposed settlement in an interchange fee dispute involving merchants and consumers. NFIB contends that the proposed settlement would put small business at a further disadvantage when it comes to negotiating interchange fees with banks.

Konstantin v.
Tishman Liquidators
– Legal Reform

New York Court of

New York Court of Appeals will determine the duty of a manufacturer to warn
about asbestos products made by third-parties and installed on the defendant’s
product post-sale by the Navy. 

Status: PENDING. Amicus
brief filed 2/29/16.

Kurtz v. Verizon – Property Rights
U.S. Supreme Court – cert petition

In this case property owners in New York advanced a due
process claim in challenge to Verizon plans to install telecommunications
equipment on their buildings. They sought to bring the claim in federal court,
but the Second Circuit held that due process claims must be brought in state
court, if the owner could potentially advance a takings claim. Accordingly, the
NFIB Legal Center filed a brief asking the Supreme Court to take this case to
ensure that small business owners have an opportunity to vindicate their
property rights in federal court.

In Re:  New York
City Asbestos Litigation, Elizabeth Holdampf and John Holdampf v. A.C. &
S., Inc., et al. and the Port Authority of New York and New Jersey
— Fighting Employer Liability for
Third Parties


State of New York Court of

The NFIB Legal Center joined
other business groups in challenging a court ruling finding that an employer
may be held liable for a non-employee spouse’s personal injury from
“secondary exposure” to asbestos.  The appeal involves injuries
allegedly sustained by the plaintiff as a result of laundering her husband’s
asbestos-contaminated clothes during the 30-year period he worked for New
York’s Port Authority.  Extension of liability to third-party
non-employees is extremely problematic for businesses in general.

Restaurant Association v. NY Labor Board
– Employment

York Industrial Board of Appeals

joined an amicus letter brief filed in the National Restaurant Association’s
challenge with the state Industrial Board of Appeals, asking the panel to throw
out a September order from the state Department of Labor implementing a higher
minimum wage at fast-food chains like McDonald’s and Burger King. Critics of
the minimum-wage bump, which would gradually ramp up to $15-an-hour statewide
by July 2021. The state’s current minimum wage is $8.75. NFIB argued in the
amicus that the labor department’s order is a “thinly veiled attempt by
Governor Cuomo” to illegally bypass the state Legislature.

Status: PENDING. Amicus
brief filed 12/4/15.

New York Statewide Coalition v. NYC Department of Health & Mental Hygiene – Challenging NYC Soda Ban – Regulatory
Supreme Court of New York Appellate Division

NFIB joined an amicus brief defending the right of small businesses to meet consumer demands by joining with other industry groups in challenging New York City’s proposed ban on large sugary drinks. Groups representing beverage makers, restaurants and other pro-business organizations successfully challenged the law in state court. However, the case is now up for appeal.

Peat v.
Fordham Hill Owners Corp
– Legal

New York Appellate Division – motion for

New York Court of Appeals

On October 31, 2013, the Appellate Division First Department
affirmed a pain and suffering award of $16 million. Previously, far more
serious injuries had been awarded $12 million awards for comparable injuries
have been far less that the award in Peat. Motion for reconsideration
requested in December, 2013.


Romanoff v. United States
– Property Rights
Federal Circuit


In the 1930s a railroad company
took an easement to build a rail-line over the Romanoff family’s property;
however, the line is no longer active. After years of abandonment the City of
New York sought to convert the line into a recreational trail by invoking the
National Trails System Act. The Court of Federal Claims held that this was
lawful and that no compensation was owed to the family. On appeal the family
argued that the City illegally converted the rail-line easement to allow public
uses that were not previously authorized. The Federal Circuit rejected these
arguments—concluding that New York law allows for a general public use
easement, without bothering to submit the issue to New York courts. NFIB Small
Business Legal Center thereafter joined with Owners Counsel of America and
other concerned property rights advocates in urging the Federal Circuit to
reverse en banc. If left undisturbed, the decision of the Federal
Circuit will invite government to covert abandoned rail-lines into public
trails without paying the underlying owner anything.


Status: PENDING. Amicus
brief filed 5/5/16.

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