New York

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

Edelman v. New York  – Tax

U.S. Supreme Court – Cert. Petition

In Comptroller of Maryland v. Wynne the Supreme Court ruled that states must provide credits for taxes imposed on income for which a taxpayer has already paid taxes to another jurisdiction. Nonetheless, several lower court cases have refused to apply this principal and have allowed double-taxation schemes to persist. NFIB Legal Center has urged the Supreme Court to take this case to reinforce its prior ruling.

 

State of NY v. Department of Labor  – Employment

DC Circuit

NFIB Legal Center filed in this case to defend the Trump Administration’s actions authorizing association health plans for small businesses.

 

Yovino v. Rizzo – Employment

U.S. Supreme Court – Petition for Certiorari

The NFIB Small Business Legal Center filed a brief that argued that the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex,” 29 U.S.C. § 206(d)(1) where a prior salary is a “factor other than sex.”

 

Association of Car Wash Owners v. New York City – Labor

U.S. Court of Appeals for the Second Circuit

The Legal Center joined with the U.S. Chamber of Commerce to support the Association of Car Wash Owners, a group that represents about 90 washing operations throughout the city. The lawsuit centers on new NYC regulations that require owners of nonunionized carwashes to post a $150,000 surety bond before obtaining a license. Unionized operations would pay $30,000. The amicus brief argued that the two-tier system is illegal, violating past decisions by the United States Supreme Court that limit local governments’ ability to favor or discourage collective bargaining.

 

Juni v. Ford (AO Smith Water Products) – Legal Reform

New York Court of Appeals

Plaintiff Juni argues that he can sue and win based on “any exposure” to asbestos no matter how. NFIB Legal Center joined an industry brief urging the appellate court to reject such a finding and dismiss plaintiff’s claim.

 

Marinello v. United States – Overcriminalization

U.S. Supreme Court

The Court has been asked to decide whether a general obstruction statute makes it a crime for a person to engage in otherwise legal conduct that happens to make it more difficult for the Internal Revenue Service to perform audits. Marinello was convicted under 26 U.S.C. 7212(a), a criminal tax statute. Under section 7212(a), it’s a felony to obstruct the administration of tax laws. The NFIB Legal Center argued in an amicus brief that the statute requires that the defendant must know that there is a pending Internal Revenue Service (IRS) action or proceeding when engaging in the allegedly obstructive conduct.

 

Stahl v. City of New York  – Property Rights

U.S. Supreme Court – cert petition

In this case the Second Circuit held that a landowner cannot raise a due process objection to imposition of unlawful restrictions—or the unlawful denial of a permit application—where the land use authority has been vested with any degree of discretion to reject the application. NFIB Legal Center filed an amicus brief in support of the owner’s petition for certiorari to the Supreme Court arguing that such a rule contravenes existing precedent and the very concept of due process. The brief emphasized that zoning authorities all too often maintain discretion when considering permit applications, but that they should not be allowed to deny permits for improper reasons—for example in considering irrelevant factors.

 

Calderon v. Geico – Legal Reform

U.S. Court of Appeals for the Fourth Circuit – request for rehearing en banc

U.S. Supreme Court – cert petition

The insurance industry has long classified fraud investigators as exempt from overtime under the administrative work exception. In a case involving materially identical facts, the Sixth Circuit held Nationwide’s fraud investigators performed exempt administrative work.  Foster v. Nationwide Mut. Ins. Co., 710 F.3d 640 (6th Cir. 2013). In GEICO’s case, the Fourth Circuit concluded otherwise, acknowledging that it created a circuit split. Geico is seeking a rehearing of the case.

 

Constellation Brands v. National Labor Relations Board – Labor

U.S. 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.

 

Dummit 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 Circuit

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 Appeals

The 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. 

 

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 VICTORY!

State of New York Court of Appeals

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.

 

National Restaurant Association v. NY Labor Board – Employment

New York Industrial Board of Appeals

NFIB 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.

 

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 Reform

New York Appellate Division – motion for reconsideration

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.

 

Town of Chester v. Laroe Estates  – Legal Reform

U.S. Supreme Court

This case raises the question of whether a party seeking to intervene in a lawsuit in federal court must demonstrate standing in the same way that a party seeking to initiate a lawsuit must prove standing. NFIB Small Business Legal Center joined with National Association of Home Builders in urging the Court to rule that there is no requirement for intervenors to prove standing—especially for a party seeking to intervene on behalf of a defendant. This is important because radical environmental groups often initiate lawsuits to force federal agencies to promulgate new regulations—often with the intention of hammering out settlement agreements that hurts regulated entities. As such, its essential that industry groups should be allowed to freely intervene in those cases to oppose problematic settlements. 

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If you have a case that impacts small business, please contact us at: 1-800-552-NFIB as we are actively looking for opportunities to weigh in on important issues in this state. NFIB Small Business Legal Center is involved in many cases that impact this state and others; to see our complete list of Supreme Court cases click on Washington, DC on the interactive map.

 

 

 

 

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