The Warshawsky Law Firm Blog
Tuesday, January 19, 2016
The Warshawsky Law Firm is pleased to announce that founding partner Steven M. Warshawsky will be appearing tonight on “Today’s Verdict with David Lesch” on BronxNet TV to discuss the 2015 Year-End Report on the Federal Judiciary issued by U.S. Supreme Court Chief Justice John Roberts. “Today’s Verdict” may be seen online and on selected cable channels. Update: Mr. Warshawsky's appearance can be seen here, starting at 13:45.
Monday, January 11, 2016
The Warshawsky Law Firm represents a former public safety officer with the Roosevelt Island Operating Corporation who was wrongfully terminated, after nine years of employment, after she spoke out in support of a fellow officer who was being sexually harassed by their supervisor. Our client supported her colleague and corroborated her accusations during a meeting with agency managers and during an investigative interview conducted by the New York State Division of Human Rights. These communications constituted "protected activity" under the law.
Unfortunately, after our client made her statements in support of her colleague, the supervisor began an illegal campaign of retaliation intended to punish our client for siding with the other officer. He stopped treating her in a professional and cordial manner. He subjected her to intrusive and unjustified workplace scrutiny. He started writing her up for minor rules infractions that he previously ignored and for which he did not write up other officers. Ultimately, he falsely accused her of serious misconduct, which led to her termination. The supervisor's objective was to have our client fired, which he succeeded in accomplishing with the help of agency management.
We recently filed an EEOC charge of discrimination for our client, alleging unlawful retaliation (in violation of Title VII) and also disability discrimination (in violation of the ADA) because she was fired while on short-term disability leave for a car accident. The charge is pending before the New York District Office of the U.S. Equal Employment Opportunity Commission. We believe strongly in our client's case and are working hard to get her job back and to obtain fair compensation for the mistreatment and hardship she experienced.
If you or someone you know has been retaliated against in the workplace, please contact The Warshawsky Law Firm today.
Monday, December 21, 2015
The holidays is a festive time of year, full of family celebrations, gift giving, and ringing in the new year. Unfortunately, it also is a time when many employees are laid off, as businesses look back at their performance over the past year and re-evaluate their budgets and staffing needs going forward. (Another time when lay offs are common is near the end of the first quarter, before annual bonuses are paid out.)
The Warshawsky Law Firm receives numerous inquiries during the holiday period from laid off employees who want to learn about their legal rights or who have been given severance agreements that they need reviewed and explained. Perhaps the two most frequent questions we are asked are: Am I entitled to severance? and Is it possible to get more severance?
The answer to the first question is no, unless the employer has a formal policy of paying severance to laid off employees, or unless the employer has made a promise to the specific employee, in a written employment contract, to pay severance (which many high-level employees receive).
As a general matter, there is no entitlement to severance under federal, state, or city law. However, some companies "promise" employees that they will receive severance if they are laid off. This promise usually is found in an employee handbook. If it is written in nondiscretionary, contractual language, then it may be legally enforceable (meaning, if the employer fails to pay the severance, the employee may be able to sue the company for breach of contract to obtain the severance). Such a policy needs to be reviewed carefully with an attorney to determine if it is binding on the company and if the laid off employee otherwise qualifies for the severance.
The harder question is whether it is possible to get more severance. Although each employee's situation must be evaluated individually, for most employees the answer will be no. Companies that have written severance policies usually will not make exceptions to the "formula" used for calculating how much severance each employee receives (for example, one week pay for every year of service). But sometimes it may be possible for an employee to make a personal appeal to the company for more severance based on length of service or excellent work performance or hardship or another relevant factor that touches on the "fairness" of the severance amount. In these situations, the company is under no legal obligation to increase the amount of the severance payment, but it may be willing to do so to help out an especially valued or deserving employee.
Is it possible for an attorney to "write a letter" to the company to obtain more severance for the employee? Yes and no. Unless the attorney has a prior relationship with the company, an attorney's letter only will have influence if there are valid legal claims -- usually some kind of discrimination -- that the employee could assert against the company. Evaluating these potential legal claims is the most important reason for consulting with a qualified employment lawyer before signing any severance agreement.
A severance agreement is a contract between the company and the employee in which the employee agrees to waive any claims he/she may have against the company in exchange for the severance payment. This "bargain" is the heart of every severance agreement, although these agreements usually impose additional obligations on the employee, including not to disclose the severance agreement and not to disparage the company. Even "straightforward" severance agreements are full of legalese that requires an attorney to review and explain.
Ultimately, the key question is whether the amount of severance that is being offered is "enough" -- in terms of whether it reasonably compensates the employee for the rights he/she is giving up and the obligations he/she is accepting under the agreement.
Frankly, for most employees, who do not have any viable legal claims against their companies, almost any amount of severance will be better than nothing. But some employees will have viable legal claims -- which they may not know about until they consult with an attorney -- that may be "worth" more than the amount of severance that is being offered. For these employees, accepting the severance may be a mistake. The bottom line is that the decision whether or not to accept a severance agreement should not be made until the employee has consulted with a qualified employment lawyer.
For more discussion about severance agreements, please see here.
The Warshawsky Law Firm has reviewed severance agreements for employees at all levels and in a wide range of industries, including finance, technology, real estate, travel, fashion, publishing, media, entertainment, insurance, medicine, and law. If you have been offered a severance agreement, please contact us today.
Thursday, November 5, 2015
The Warshawsky Law Firm represents a certified asbestos investigator who was wrongly terminated after he complained that his coworkers and supervisors were illegally forging his signature and using his investigator's stamp on asbestos inspection reports that were submitted to the New York City Department of Environmental Protection.
Our client worked for a nationally recognized engineering and environmental consulting company based in New Jersey. On at least two occasions, other employees at the company submitted asbestos inspection reports to the NYC DEP under our client's name, without his prior knowledge and authorization, in violation of NYC laws and regulations. When our client complained to management about these illegal practices, he was retaliated against and fired.
The Warshawsky Law Firm has filed a whistleblower lawsuit on our client's behalf asserting claims under the New Jersey Conscientious Employee Protection Act. The NJ CEPA provides, in relevant part, that “[a]n employer shall not take any retaliatory action against an employee because the employee . . . (a) Discloses . . . to a supervisor . . . an activity, policy, or practice of the employer . . . that the employee reasonably believes (1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to . . . any governmental entity . . . or (c) Objects to . . . any activity, policy or practice which the employee reasonably believes (1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to . . . any governmental entity . . . .” N.J. Stat. § 34:19-3.
The lawsuit was filed this week in the U.S. District Court for the Southern District of New York. Case No. 15-CV-8592 (WHP) (SDNY). Steven M. Warshawsky is lead plaintiff counsel on the case.
If you or someone you know has been retaliated at work for "blowing the whistle" on the company's illegal activities, please contact The Warshawsky Law Firm today.
Wednesday, October 28, 2015
As civil rights attorneys, The Warshawsky Law Firm represents people whose constitutional and statutory rights have been violated by government agencies and private institutions. The most common civil rights cases we handle are lawsuits against the police for false arrest.
False arrests happen everyday in New York City and in cities and states across the country. Basically, a false arrest occurs anytime a police officer arrests a person without "probable cause." Probable cause exists when a police officer has knowledge or reasonably trustworthy information (more than mere suspicion) sufficient to believe that the person to be arrested has committed a crime. If a police officer does not have this knowledge or information, then it is illegal (under both federal and state law) to arrest the person. For more information about the law governing false arrest claims, see here and here.
Although false arrests, and other civil rights violations, happen to people of all socioeconomic backgrounds, they happen disproportionately to racial minorities, especially African-Americans. In the remainder of this blog post, I want to discuss how this situation affects -- and hampers -- handling these cases at trial. The problem arises in the context of selecting jurors to serve on juries.
Trial by jury is a venerable institution that is designed to protect individual rights and promote justice by having cases decided by ordinary citizens in the local community, instead of by judges or other government officials. While no system of justice comes close to being perfect, trial by jury is a crucial part of our representative democracy and, in my opinion, is the best method for resolving most legal disputes.
How are juries selected for trial? This happens at the start of trial, in a process called "voir dire." (This is French, derived from the original Latin, for "to speak the truth.") Voir dire is defined in Black's Law Dictionary as "[a] preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury."
At the start of trial, a large group of potential jurors is brought to the courtroom. Then they are questioned (in federal court, almost exclusively by the judge; in state court, by the judge and the attorneys) to determine (i) who is unable to serve on the jury for personal or medical reasons, (ii) who may have conflicts of interest relating to the case, and (iii) who may be biased or otherwise unable to treat the parties fairly and impartially. During this process, which can take several hours, many people will be excused for one reason or another. The remaining 6 or 12 people (depending on the required size of the jury) become the jury for trial.
Obviously, when litigating these cases, especially cases involving black plaintiffs, it would be helpful to have people on the jury who are sensitive to the reality of police misconduct. In my experience, however, most people automatically assume that police officers, by virtue of being cops, are "good people" who simply are doing their jobs. Many police officers are; but many aren't.
Unfortunately, the jurors who would be most open-minded to the idea that a police officer may have violated a person's rights tend to be people who have had their own bad experiences with the police. These people know that police officers do not always respect individual rights and sometimes assert their power arbitrarily and without justification. This is particularly common among African-Americans jurors, who frequently tell stories of negative interactions with police officers that they, their family members, or their friends have experienced.
The Catch 22 referred to in the title of this post is that these jurors, who otherwise are qualified to serve, usually are excused from the jury -- not on "racial" grounds, but on the grounds that they cannot be fair to the defendant police officers -- leaving only jurors whose rosy view of the police has not been clouded by real life experience. The result is that juries in civil rights cases are inherently biased in favor of the police, because only people with "positive" attitudes towards police officers are allowed to serve on the jury.
Civil rights lawyers who have tried cases will agree that it can be difficult to persuade a jury that police officers violated a plaintiff's rights. This is especially true in false arrest cases (but less true in excessive force cases, where the misconduct is harder to rationalize away). As explained above, the challenge in these cases begins with jury selection, where potentially helpful jurors routinely are excluded from the jury. Plaintiffs and their attorneys should keep this dilemma in mind when litigating these cases and weighing the pros and cons of settling versus going to trial.
If you or someone you know has been the victim of a false arrest or other police misconduct, please contact The Warshawsky Law Firm today.
Monday, October 12, 2015
Although people speak about "having their day in court," very few civil cases actually go to trial. The vast majority of civil cases either are dismissed or settle. According to various online sources, only approximately 10% of civil cases go to trial. Moreover, research shows that many of the cases that go to trial would have been better off settled. In this blog post, I want to discuss some of the considerations that go into deciding whether or not to settle a lawsuit.
As I explain to potential clients, in most cases, it is not easy to win a lawsuit.
First, the plaintiff's allegations have to be strong enough to avoid being dismissed for "failure to state a claim for relief." This is a relatively low hurdle to jump over (but higher in federal court than in state court). Assuming the plaintiff has a legitimate grievance against the defendant, and assuming that the plaintiff's allegations do not raise novel legal issues, this hurdle is one that a competent lawyer should be able to get over -- or the lawyer should not take the case.
The second, much higher hurdle is called "summary judgment," which is where the defendants ask the judge to throw out the lawsuit because, based on the evidence developed during discovery, there is no basis for the jury to rule in the plaintiff's favor. Some kinds of cases, e.g., employment discrimination, are especially prone to being dismissed on summary judgment. Other kinds of cases, e.g., false arrest, are less likely to be dismissed on summary judgment. Unfortunately, at the start of a lawsuit, it is difficult to predict the chances that any given case will be dismissed on summary judgment. Nevertheless, the ability to exercise this judgment accurately is a hallmark of an experienced, effective civil litigator.
The last hurdle that a plaintiff must get over to win a lawsuit is the trial. Even when the plaintiff has a strong case, the jury can side with the defendant. There are no guarantees once the jury starts deliberating. The jury's sense of "justice" does not have to coincide with the plaintiff's. Moreover, depending on the type of case, it can be more or less challenging to persuade the jury to find in favor of the plaintiff. For example, juries are notoriously reluctant to rule against police officers in civil rights cases.
In short, winning a civil lawsuit isn't easy, but litigation is an all-or-nothing affair in which the only outcomes are win or lose.
Given the nature of the legal system, it almost always make sense for the plaintiff to settle for a reasonable amount of money instead of running the risk of losing and obtaining no compensation for the harms the plaintiff has suffered. (In addition, plaintiffs who lose cases can be required to reimburse the defendants for their costs and attorney's fees -- so the plaintiff ends up even worse off financially.)
OK, but what is a "reasonable amount of money"? How is this determined?
Unfortunately, there is no formula that can answer this question. It involves making an educated assessment of the "value" of the case (based on the damages that the applicable law allows a plaintiff to recover) and the "likelihood" of winning or losing at each stage in the litigation process (primarily based on case law). These variables then must be viewed in light of the plaintiff's financial circumstances and willingness to risk losing the case. For example, a plaintiff who does not "need" the money from a settlement is going to evaluate a case differently than someone who needs the money to pay bills. Very few plaintiffs are this fortunate, however. Most need the money, and sooner than later -- which can be a compelling reason to settle a lawsuit.
But again, it all depends on whether the defendant makes a "reasonable" settlement offer. Some offers are just too low to accept, even for cases that are worth little and have low chances for success.
In my experience, however, most defendants in most cases will make settlement offers that are "reasonable" based on the facts and law of the case, even if the offers are lower than the plaintiffs would like (as they almost always are, of course).
This brings me to a critical issue: unrealistic expectations. In my experience, most plaintiffs believe their cases are "worth" more than they really are (from a legal perspective). This is understandable, because the plaintiffs have experienced injustice and want compensation. Unfortunately, the law usually does not provide for the amount of compensation they think is fair. Usually, the law provides for much less. In those situations, all I can do is explain to my clients how the legal system values their case and help them make an appropriate settlement decision based on the strengths and weaknesses of their case as well as their personal circumstances.
At The Warshawsky Law Firm, our goal is to obtain as much compensation as possible for our clients. We screen potential cases carefully. We research and draft complaints thoroughly. We conduct aggressive discovery to obtain the evidence needed to defeat a motion for summary judgment. Above all, we prepare cases with an eye for trial. We are not afraid to take cases to trial. Indeed, we had three jury trials this year alone. But this does not mean that going to trial always is in our clients' best interest. Often it isn't. It almost always makes more sense to accept a reasonable settlement than to "roll the dice" at trial.
The decision whether or not to settle ultimately depends on the facts of each case and each plaintiff's personal circumstances. Sometimes, however, plaintiffs refuse to settle and then obtain a worse outcome later (either a lower settlement, a summary judgment dismissal, or a loss at trial). This happens much more often than the cases in which the plaintiff "hits a home run" at trial.
If I could offer just one piece of advice to plaintiffs, it would be to lower their expectations and accept settlement offers that they and their attorneys think are "reasonable"; then they should take the money, consider that a victory, and move on with their lives.
Wednesday, September 23, 2015
In recent years, there has been an explosion of sexual misconduct cases at our nation's colleges and universities. Many commentators ascribe this increase to the U.S. Department of Education's "Dear Colleague Letter" that was issued in April 2011. The "letter" actually is a "significant guidance document" that advises colleges and universities about their obligations under Title IX of the Education Amendments of 1972 -- specifically, their "responsibility to take immediate and effective steps to end sexual harassment and sexual violence."
While there is considerable debate about the true incidence of sexual assault among college students, in their zeal to address this problem, colleges and universities have trampled on the rights -- and ruined the futures -- of many students (invariably male) who have been wrongly accused and "convicted" (by the schools, not the courts) of sexual misconduct. This is a complicated legal issue, but there is no question that the student disciplinary systems currently in place at many colleges and universities do not comport with basic principles of due process and equal protection.
Is it possible for a college student wrongly accused of sexual misconduct to "fight back"? Yes, but again the issue is complicated. To date, there have been at least 86 lawsuits filed across the nation challenging these student disciplinary proceedings. See here for a listing of these lawsuits. So far, most of the courts that have ruled on these lawsuits have sided with the schools, but there have been some rulings favorable to the students. Legally, this is an evolving area, with different causes of action (due process, equal protection, Title IX, breach of contract, defamation, and others) being pursued to accomplish the same goals: to exonerate the student of wrongdoing, to restore his academic standing, and to obtain compensation for the harms done to him.
At The Warshawsky Law Firm we are available to represent college students who have been wrongly accused of sexual misconduct. We can assist with pending student disciplinary proceedings and we can represent students in court to challenge the unfair outcomes in these cases. Because these cases are legally complex and loaded with political agendas, it is important to retain experienced, sophisticated counsel for these matters.
For more information about representing college students wrongly accused of sexual misconduct, please contact The Warshawsky Law Firm today.
Monday, September 21, 2015
At The Warshawsky Law Firm, we handle a wide variety of employment discrimination cases. When first meeting a prospective client, perhaps our most important task is evaluating the strengths and weaknesses of a potential lawsuit. Indeed, we usually are asked by the client whether he/she "has a case" and "what are the chances of winning." This is a complicated question that can be difficult to answer based on the limited information and documentation that the client usually has in his/her possession. Often times the full picture of an employment situation does not emerge until after the lawsuit has been filed and the parties engage in discovery.
The central question in every discrimination case is whether the plaintiff can prove that the employer was motivated by unlawful discriminatory bias, hostility, or animosity. For example, in a wrongful termination case, was the plaintiff fired because of his/her race or age or religion, etc.? While the plaintiff may "believe" that he/she was discriminated against by the employer, this is not good enough in court. To be able to win a lawsuit in court, the plaintiff must have objective evidence that shows that the employer acted from a discriminatory motive.
What kind of evidence? While each case is different and various factual circumstances can raise an inference of unlawful discrimination, the most common types of evidence that courts look for are discriminatory comments and differential treatment of similarly situated employees.
Discriminatory comments are just that -- spoken or written comments that demonstrate discriminatory animus. For example, derogatory comments about a person's race or sex or disability, etc. Comment evidence is the most important type of evidence in an employment discrimination case.
Differential treatment of similarly situated employees means, for example, that the employer treats black and white employees differently in the same context (for example, when being disciplined for alleged infractions of workplace rules). This is the second most important type of evidence -- showing that employees are treated differently for no reason other than their race, sex, disability, etc.
Two recent decisions by U.S. District Judge John Gleeson of the Eastern District of New York (a highly respected jurist) illustrate these basic principles.
The first case is Charles Krugler v. MTA New York City Transit Authority, et al., Case No. 12-CV-2900. The second case is Russell Herling v. New York City Department of Education, et al., Case No. 13-CV-5287.
In the Krugler case, the plaintiff was a 57-year old transit employee who alleged that his employer had discriminated against him on the basis of age by rejecting him for 18 promotions that he had applied for between 2001 and 2011.
In a decision issued on September 10, 2015, Judge Gleeson granted the defendants' motion for summary judgment and dismissed the lawsuit. Why? Because the plaintiff did not have any evidence, other than his own opinion, that he had been discriminated against based on his age. There were no discriminatory comments, and the evidence showed that older employees had been interviewed for and in some cases selected for the positions in question -- as Judge Gleeson explained, "[t]his is persuasive evidence that the defendants did not discriminate against Krugler based on his age." Moreover, "Krugler was eventually promoted to the position of AGS, one of the positions he claims he was passed over for because of his age." Based on these facts, Judge Gleeson concluded "as a matter of law" that "age discrimination played no role in the failure to promote Krugler."
In the Herling case, the plaintiff was a white Jewish physical education teacher at a public high school in Brooklyn who alleged that his employer had discriminated against him on the basis of race and religion by disciplining him for workplace infractions, giving him an unsatisfactory rating, and denying him opportunities for additional pay.
In a decision also issued on September 10, 2015, Judge Gleeson denied the defendants' motion for summary judgment and allowed the plaintiff's case to proceed to trial. Why? Unlike the plaintiff in the Krugler case, the plaintiff in the Herling case offered objective evidence of his supervisor's discriminatory animus. This evidence included several discriminatory comments and specific examples of non-white and non-Jewish teachers receiving preferential treatment. For example, the plaintiff showed that black employees who committed the same alleged rules infractions (e.g., being late to work, not submitting student grades properly) were not disciplined for the same or worse conduct for which he was disciplined. Judge Gleeson agreed with the plaintiff that this evidence was sufficient to raise an inference of discrimination. Although the defendants offered various non-discriminatory reasons for the plaintiff's workplace treatment, Judge Gleeson ruled that the plaintiff's evidence was strong enough to require a jury to decide whether or not he had been discriminated against.
The outcomes in these two cases highlight the crucial importance in an employment discrimination case for the plaintiff to present objective evidence -- usually in the form of discriminatory comments and/or differential treatment of similarly situated employees -- that the employer was motivated by discriminatory animus. Without such evidence, it is very difficult for a plaintiff to persuade a court to allow the case to go to trial.
If you or someone you know has been the victim of workplace discrimination, please contact The Warshawsky Law Firm today.
Thursday, September 17, 2015
The Warshawsky Law Firm has filed a federal civil rights lawsuit against the City of New York and two individual NYPD officers on behalf of a young African-American man who was brutally assaulted and falsely arrested by police officers in the Meatpacking District in Manhattan. The lawsuit was filed in the U.S. District Court for the Southern District of New York.
The events in the case took place in February 2014. The plaintiff and several of his friends (all African-Americans) were leaving a nightclub when they noticed a crowd of people (predominately white) forming around two cab drivers who were having an argument. The plaintiff and one of his friends walked over to see what was happening. Shortly thereafter, two police officers arrived on the scene and ordered the crowd to disperse. The plaintiff and his friend promptly complied with the officers' order and started walking away towards the sidewalk.
While the plaintiff was walking away, without warning or provocation, one of the police officers forcefully shoved him in the back and shouted, “I told you to go.” The plaintiff was startled and stumbled, then turned around with a perplexed look on his face and asked his friend, “Why is this guy pushing me?" There was no justification for the officer to shove him. It appears that the officer (who is white) intentionally singled out and assaulted the plaintiff because he is African-American.
Without warning or provocation, the officer then shoved him again, this time even more forcefully and on the chest. This caused the plaintiff to start falling backwards and he instinctively reached out and grabbed the officer's jacket to try to stop himself from falling. The officer then grabbed the plaintiff by his arms and shoulders and starting lifting him up. The plaintiff believed that the officer was helping him to his feet, and he apologized for grabbing his jacket, but then the officer tried to throw him on the ground, the two men became tangled, and they both fell to the street.
The physical contact between them was initiated by the police officer, without legal justification and for malicious purposes. The plaintiff did nothing more than try to prevent himself from falling. He did not hit, trip, or throw the police officer.
After the plaintiff and the officer fell to the ground, additional police officers rushed over and started assaulting him. The plaintiff was pushed, grabbed, punched, kicked, and struck with batons, while the officers cursed at him.
At one point while he was being assaulted, the plaintiff felt a police officer place a knee in the middle of his back and then lift up his head and torso from behind. While he was being held in this position, he saw the first police officer walk up to him and knee him twice in the face, breaking his nose and causing extensive bleeding and bruising. Then he was pulled to his feet and placed under arrest on bogus charges of assaulting a police officer, obstructing governmental administration, and disorderly conduct. The charges eventually were dismissed.
This is a very serious case of police abuse, involving an unprovoked and unjustified assault, excessive force, serious personal injuries, and false arrest and malicious prosecution based on trumped-up charges designed to cover-up and excuse the police officers' gross misconduct and violation of the plaintiff's constitutional rights.
This case originally was handled by the law firm of Rubenstein & Rynecki, who filed the case in state court in October 2014 but then allowed the case to flounder for many months until our client came to us looking for lawyers who would be committed to his case. The Warshawsky Law Firm will fight this case aggressively, so our client receives the justice and compensation due to him for the harms he suffered by the police.
If you or someone you know has suffered abuse at the hands of the police, please contact The Warshawsky Law Firm today.
Wednesday, September 9, 2015
On August 27, 2015, The Warshawsky Law Firm filed a false arrest lawsuit against Toys "R" Us on behalf of a former Toys "R" Us store manager who was wrongly accused of stealing cash from the store safe. The case was filed in the U.S. District Court for the Eastern District of New York.
As alleged in the complaint (names redacted for privacy):
This is an action for false arrest, malicious prosecution, and related causes of action, in violation of New York state law, arising from the plaintiff's arrest on August 29, 2014, based on a false criminal complaint made to the police by the Regional Asset Protection Manager for Toys “R” Us.
The plaintiff worked as the store manager for the Toys “R” Us store in Bayshore, New York. The company wrongly and maliciously accused the plaintiff of stealing a cash deposit bag from the store safe, despite surveillance videotape evidence (produced by Toys “R” Us during the criminal case) showing (1) the plaintiff depositing the cash bag into the safe at the time of the alleged theft and (2) the cash bag later being removed from the safe by an assistant store manager – conclusively demonstrating that the theft did not occur by the plaintiff.
The company's investigation into the theft was negligent, reckless, unreasonable, unprofessional, and incompetent. The investigator never interviewed the plaintiff about the theft. He overlooked and/or ignored exculpatory evidence concerning the plaintiff. He never considered the assistant store manager – the last person seen in possession of the stolen cash bag – a potential suspect.
Based on the evidence available to the investigator at the time he reported the theft to the police, there was no probable cause to accuse the plaintiff of the crime. Nevertheless, based on his complaint, the plaintiff was arrested and charged with felony grand larceny; he lost his job and remained unemployed for one year; he and his family suffered great personal and financial distress; and he was prosecuted for nearly 10 months before the charges against him were dismissed by the Suffolk County District Attorney’s Office.
By this action, the plaintiff demands compensatory damages for the harms he has suffered as a result of the defendant’s tortious conduct (in an amount no less than $500,000), punitive damages to punish and deter the defendant from engaging in similar tortious conduct in the future (in an amount no less than $500,000), attorney's fees and costs, and all available legal and equitable relief. The plaintiff demands trial by jury.
If you or someone you know has been the victim of a false arrest, please contact The Warshawsky Law Firm today.
Friday, September 4, 2015
That was the jury's verdict yesterday in a criminal case in Suffolk County District Court in Central Islip, New York. The Warshawsky Law Firm represented the defendant, who had been falsely accused by a former boyfriend of violating an order of protection by making two telephone calls to his residence and leaving a message on his answering machine. The specific crime charged was criminal contempt in the second degree (P.L. 215.50 (3)). The former boyfriend had tried to set up the defendant, to get back at her after his wife (who our client did not know about) discovered he was having an affair.
Steven M. Warshawsky was lead counsel on the case. On cross-examination of the prosecution's witnesses -- the arresting police officer and the former boyfriend -- Mr. Warshawsky demonstrated to the jury that there was no evidence substantiating the accusation against our client. There were no telephone records of the alleged calls, and the answering machine message had been digitally date-stamped with a completely different day and time than the date that the alleged calls were made. The jury saw through the implausible excuses offered by the witnesses for these gaps and discrepancies in the prosecution's evidence. The jury deliberated only 30 minutes before returning their "not guilty" verdict.
We are extremely happy for our client, who has been living with the burden and stress and fear of this hanging over her head for a year and a half.
Justice was done.
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The Warshawsky Law Firm represents clients in employment law, civil rights law, and litigation in the New York City metropolitan area, which includes Manhattan, Bronx, Brooklyn, Queens, and Staten Island, as well as Nassau, Suffolk, Westchester, Rockland, Duchess, Putnam, Orange, and Sullivan Counties.