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The highest court in NYS is, somewhat confusingly, the Court of Appeals (source). So NY Supreme Court would likely be the court of original jurisdiction.

There are two more levels of appeal in the NY court system. This probably is not over.

I would like to take the opportunity to point out that the article is dead wrong on one specific point. In New York, the highest court is the Court of Appeals, not the Supreme Court proof.

As I understand it (oblig IANAL), if you can pass a state bar exam, you are a lawyer in that state. You don't have to prove your education in law, or have affiliation with any recognized lawyers' associations. You just need to prove you know everything you could have learned in law school, but didn't. As it is, you can represent yourself in a court of law and it's a bonus if you actually know the protocol, so you are, for all purposes, a lawyer for yourself (Yes, I know there's a difference between representing yourself versus someone else.)

You understand it incorrectly. Passing the state bar exam is one barrier to entry (a VERY DIFFICULT barrier), but you also have to pass the MPRE (an ethics exam), possibly take an additional ethics course (if you're in New York, like I am) and finally, submit an application to the court for admission. The application is very thorough - I just sent mine in and had to include reference letters from every attorney I ever worked with and had to list every job and residence I've had for the last ten-odd years. Here's a link to the packet, if you want to look it over. After you have submitted the packet, you get grilled by the character and fitness committee and then, if you make it through that step, you become a lawyer.

I believe that the original poster isn't a great journalist. (Did you see how I qualified that?) He or she didn't bring up the fact that after creating websites like obsidianfinancesucks.com, she offered her services to Obsidian to clear up their "PR Problem" at $2,500 a month. That seems like an important fact that someone might need to shape his or her opinion on the ruling. As I understand the judge's ruling, it doesn't bar all bloggers from being considered journalists, just this one and even then, only as it applies to this case.

That such a surrogate technological deployment [use of a GPS tracking device] is not — particularly when placed at the unsupervised discretion of agents of the state "engaged in the often competitive enterprise of ferreting out crime" (Johnson v United States, 333 US 10, 14 [1948]) — compatible with any reasonable notion of personal privacy or ordered liberty would appear to us obvious. One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit's batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.
— People v. Weaver, 2009 NY Slip Op 03762 http://www.nycourts.gov/reporter/3dseries/2009/2009_03762.htm

In about five minutes of clicking I found it on the decisions of the New York State Court of Appeals, People v. Scott C. Weaver:

• HTML format
• PDF format and
• Word Perfect format.

To confirm it was the right case, I checked the first paragraph:

"LIPPMAN, Chief Judge:
In the early morning hours of December 21, 2005, a State Police Investigator crept [*2]underneath defendant's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper. The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.

In about five minutes of clicking I found it on the decisions of the New York State Court of Appeals, People v. Scott C. Weaver:

• HTML format
• PDF format and
• Word Perfect format.

To confirm it was the right case, I checked the first paragraph:

"LIPPMAN, Chief Judge:
In the early morning hours of December 21, 2005, a State Police Investigator crept [*2]underneath defendant's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper. The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.

In about five minutes of clicking I found it on the decisions of the New York State Court of Appeals, People v. Scott C. Weaver:

• HTML format
• PDF format and
• Word Perfect format.

To confirm it was the right case, I checked the first paragraph:

"LIPPMAN, Chief Judge:
In the early morning hours of December 21, 2005, a State Police Investigator crept [*2]underneath defendant's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper. The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.

I'd like to see the full text of the opinion. The small extracts I've seen so far basically amount to "I don't like giving the police such power", which, if it were the only legal basis of the opinion, would be the worst kind of legislating-from-the-bench, and not likely to survive an appeal. Surely in 20 pages of opinion, there was an actual legal basis given for their decision. One can hope?

The newspaper said the defendant's name was Scott Weaver. From this, if New York puts its appellate cases on-line (Virginia is one state that does), one could look up "State v. Weaver" or "People v. Weaver" (depending on how criminal cases are styled in New York) and see all the cases in 2009 that were decided with that header.

I started with http://state.ny.us/ which translates to http://www.ny.gov/ . Right on the page is "New York State Unified Court System" Click that, then click on "How do I", click on "find a decision", clicked on "Court of Appeals", clicked on "May" and found People v. Scott C. Weaver, No. 53. The PDF and the Word Perfect document are available there at: http://www.nycourts.gov/ctapps/decisions/2009/may09/53opn09.pdf and http://www.nycourts.gov/ctapps/decisions/2009/may09/53opn09.wpd Indirectly I found out there is a website for the court, and somehow found the HTML version: http://www.nycourts.gov/reporter/3dseries/2009/2009_03762.htm

I'd like to see the full text of the opinion. The small extracts I've seen so far basically amount to "I don't like giving the police such power", which, if it were the only legal basis of the opinion, would be the worst kind of legislating-from-the-bench, and not likely to survive an appeal. Surely in 20 pages of opinion, there was an actual legal basis given for their decision. One can hope?

The newspaper said the defendant's name was Scott Weaver. From this, if New York puts its appellate cases on-line (Virginia is one state that does), one could look up "State v. Weaver" or "People v. Weaver" (depending on how criminal cases are styled in New York) and see all the cases in 2009 that were decided with that header.

I started with http://state.ny.us/ which translates to http://www.ny.gov/ . Right on the page is "New York State Unified Court System" Click that, then click on "How do I", click on "find a decision", clicked on "Court of Appeals", clicked on "May" and found People v. Scott C. Weaver, No. 53. The PDF and the Word Perfect document are available there at: http://www.nycourts.gov/ctapps/decisions/2009/may09/53opn09.pdf and http://www.nycourts.gov/ctapps/decisions/2009/may09/53opn09.wpd Indirectly I found out there is a website for the court, and somehow found the HTML version: http://www.nycourts.gov/reporter/3dseries/2009/2009_03762.htm

I'd like to see the full text of the opinion. The small extracts I've seen so far basically amount to "I don't like giving the police such power", which, if it were the only legal basis of the opinion, would be the worst kind of legislating-from-the-bench, and not likely to survive an appeal. Surely in 20 pages of opinion, there was an actual legal basis given for their decision. One can hope?

The newspaper said the defendant's name was Scott Weaver. From this, if New York puts its appellate cases on-line (Virginia is one state that does), one could look up "State v. Weaver" or "People v. Weaver" (depending on how criminal cases are styled in New York) and see all the cases in 2009 that were decided with that header.

I started with http://state.ny.us/ which translates to http://www.ny.gov/ . Right on the page is "New York State Unified Court System" Click that, then click on "How do I", click on "find a decision", clicked on "Court of Appeals", clicked on "May" and found People v. Scott C. Weaver, No. 53. The PDF and the Word Perfect document are available there at: http://www.nycourts.gov/ctapps/decisions/2009/may09/53opn09.pdf and http://www.nycourts.gov/ctapps/decisions/2009/may09/53opn09.wpd Indirectly I found out there is a website for the court, and somehow found the HTML version: http://www.nycourts.gov/reporter/3dseries/2009/2009_03762.htm

State courts tend not to rule on federal questions of first impression if they can help it. Nobody likes being overturned.

"Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause."

http://www.nycourts.gov/ctapps/decisions/2009/may09/53opn09.pdf

You may petition the U.S. Supreme Court for a writ of certiorari from the highest state court, so if there is a federal issue involved they may address it. But even so, certiorari is unlikely, and overruling even moreso, especially when there's an independent basis in state law.

Well, since you were too stingy to do so, I dug up this and will provide the link:

http://www.nycourts.gov/ctapps/decisions/2009/may09/53opn09.pdf

It was decided under the state constitution, since federal law was deemed to still be undecided on the issue. What I find intriguing is that the judges looked to rulings in other states (Oregon and Washington), but apparently the Wisconsin case was too recent to be included in that survey. I wonder if they would have ruled differently? Recall that the N.Y. decision was 4-3, it would have taken only 1 of the justices to tip the other way...

Yawn - Facebook is no different to email & US courts have served via email in the past.

One crappy, lossy, non-guaranteed electronic communications medium vs another.

Not necessarily. See Stevens v Publicis S.A. (also here), in which a New York court found that a series of emails was sufficient to modify an employment contract. The court said that the parties sigs "constitute[d] 'signed writings' within the meaning of the statute of frauds" because they signified an "intent to authenticate the contents."

you have made this statement in multiple places in this discussion. I have tried to verify the veracity of your claims, however google finds nothing, and the ny court law server is throwing errors when i query it, but the ny court system web site specifically has a "how to defend myself when i cannot afford a lawyer" pdf, which might indicate you are incorrect (..if a lawyer is free to anybody in any court, why would you even need a pdf guide to defending yourself pro se.. EVERYONE would just take the free lawyer). Unfortunately it crashes both firefox and ie, so i'll never know what it contains.

and you have the gall (in another post) to call other states "redneck" ? tell your 'redneck state' to hire some better sysadmins from the "crazy redneck" states i've lived in where one is NOT provided an attorney by the civil courts ;) ..(redneck places like.. you know.. CA.. WA..) ...so if you can find a cite (or a new england lawyer can reply and confirm/deny), because this sounds somewhat implausible to me. in my experience, even in CRIMINAL court, getting access to a free lawyer is very difficult unless you are up on very serious charges or completely indigent. for instance, in WA, one must show bank records to the court (etc) to prove one has no means of income, etc.. and even then they provide you with an attorney, you must agree to pay something like $350-500 to their firm for representing you.

so, since everyone here seems to disagree with you, I would respectfully ask for you to cite your source.. I am quite interested to find out if this is true. As of yet, I am under the impression that nothing is free in the US legal system.

They don't post thses instructions on websites!
Just sample jury instructions on a government website......

The Association of the Bar of the City of New York has pointed out the First Amendment problems with the proposed rules and suggested detailed changes (pdf file) in them.

These are the rules you would be referring to. Proposed amendments to Rules
1200-1
1200-5-a
1200-6
1200-7
1200-8
http://www.nycourts.gov/rules/proposedamendments.s html

You have not read the rules correctly. It is nowhere limited to actual solicitation for services. It applies to all electronic communications which are "about a lawyer" and "by a lawyer", which would probably apply to all law firm web sites, internet and email newsletters, and to any legal blog where the lawyer actually identifies himself. If you think there is a section restricting the rules to "actual solicitation of services" please point to that section. Here are the rules:

http://www.nycourts.gov/rules/proposedamendments.s html

Thank you. I agree that it is way over the top. I can see where big corporations -- who can pay top dollar for legal information -- would love to see the information become less available to the public. For example, how happy do you think the record labels would be to see my recording industry blog shut down?

Fortunately, though, the entire legal community in New York agrees with you as well, that it is way over the top. So I don't think the rules will go through in that overbroad format.

For those of you who haven't seen the rules, they're posted here.

The proposed rules are posted here.

tddoog wrote:

"Too bad for Newyorkcountrylawyer and his blog. I wonder if slashdot interviews would count?"

If those rules go into effect, both of my blogs, Recording Industry vs. The People, and Ohio Election Fraud (formerly "Fairness"), along with my web sites, info.riaalawsuits.us and Ohio Election 2004 would be taken down, as it would be far too costly and time consuming to comply with the new rules. See my collection of articles on New York's rules and the impact they would have on lawyer blogs herej.

Fortunately, though, the various bar associations and other lawyer groups are very concerned about the rules, and are putting in detailed comments explaining how the proposed rules are too overbroad. And the Appellate Divisions have postponed the proposed effective dates, in order to give the legal community and the public at large more time to comment.

Arguably my entire membership in Slashdot would indeed count, since my profile identifies me. It would of course be impossible to comply with those rules, so I might just have to stop participating in Slashdot, which for me would be sad indeed. I have really come to enjoy it here.

Blogs by lawyers are a pretty new thing, but I think they have made a significant contribution. I think it would be a shame if we had to stop blogging just because we're lawyers.

I don't think the proposed rules will be passed in that form, so I'm not too worried.

For those of you who haven't seen the proposed rules, they're posted here.

Unless you're a lawyer or have some twisted interest in these things, this probably isn't the court you're thinking of. States usually have three levels of courts: trial court, court of last appeal, and an intermediate appellate court. (Some states do away with the latter.) Normally, the Supreme Court is the court of last appeal, but in New York it's backwards. The New York Supreme Court is really the trial court, then comes the Appellate Division, then finally the New York Court of Appeals at the top of the ladder.

Just FYI.

Is here [pdf].

Yeah, I suppose there's a first for everything, even karma whoring. Either way, here's the decision, in PDF format.

Additionally, the post is misleading; the dissent only says that the majority does not support its interpretation of the Commerce clause with authority, not that the Commissioner's word is law.

Quite correct. The technical term I was grasping for--but couldn't quite reach, this morning--was "depraved indifference". Deaths as a consequence of depraved indifference qualify as second-degree murder in New York state; in other jurisdictions your mileage may vary. (Here's the PDF of the standard directions to a New York jury for a depraved indifference second degree murder charge; also available the Google HTMLified version.)

Obviously, such a criminal finding might be challenging to come by. You'd have to prove that specific individuals at Union Carbide knew that their facility was unsafe, and that a fatal accident was a reasonably foreseeable outcome, and that they failed to take reasonable steps to protect the public. It is indeed a high bar to clear.

The original text of the decision can be found here:

http://www.nycourts.gov/comdiv/Law%20Report%20File s/May%202002/Hallmarkdec040202.wpd (no idea what format this is; WordPerfect document?) but if you search google for the terms:

wells v paramount 2002 new york

it's the second hit (don't put quotes around the search terms) and you can view it as HTML.

I read the decision and I guess I don't understand it either; maybe the judgment is ignoring copyright law because the original agreement was made in 1951, before the copyright expired (in 1954), so the whole suit is from the point of view of a copyrighted work. So if you look at just this decision, it looks like the copyright is still in effect and this contract is still relevant; but if you take this decision in conjunction with the fact that the work is in the public domain (which is not at issue in this suit), THEN it becomes essentially pointless.

It's possible that the decision means that, even though it's in the public domain, the Wellses signed a contract saying that they would not sell the rights to a television broadcast to anyone else, and they tried to do so anyway. But why they would try to do so if it was in the public domain already, I have no idea.

IANAL.

• The rule is now well established. A contractual provision fixing damages in the event of breach will be sustained if the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation. If, however, the amount fixed is plainly or grossly disproportionate to the probable loss, the provision calls for a penalty and will not be enforced. In interpreting a provision fixing damages, it is not material whether the parties themselves have chosen to call the provision one for "liquidated damages", as in this case, or have styled it as a penalty. (citations omitted.) Such an approach would put too much faith in form and too little in substance. Similarly, the agreement should be interpreted as of the date of its making and not as of the date of its breach.

  (Truck Rent-A-Center, Inc. v Puritan Farms 2nd, Inc., 41 NY2d 420, 425 [1977]; see Fingerlakes Chiropractic, P.C. v Maggio, 269 AD2d 790 [4th Dept. 2000]; Benderson v. Poss, 142 AD2d 937 [4th Dept. 1988]; Pyramid Centres & Co. v Kinney Shoe Corp., 244 AD2d 625 [3d Dept. 1997].)

It's up to a court to decide whether $500 is proportional to the actual loss incurred by PayPal. You usually don't get to count administrative time as costs in contract disputes; it has to be an outside expense.