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Andrew J. Gambaccini

Andrew Gambaccini’s Answers

12 total


  • Can i sue a school that i was sexually assualted at in 2008?

    i was sexually assualted by 2 students and a staff member in 2008 even though it is 2012 would i still be able to sue

    Andrew’s Answer

    The prior responses are correct that there are some variables here. Generally speaking, for most claims that would be associated with your situation, there is a three year window to file a lawsuit from the point at which a reasonable person would know of the damage at issue. It is not necessary that all of the details be known for that clock to start running - for instance, you might know that you were assaulted but not know the name of the attacker. There, the knowledge of the injury is sufficient to put you on notice of your potential claim and the clock begins to run.
    In addition, if the school was public and one of the claims is that the institution, through its decision-makers, supervisors or employees, was negligent, there is a requirement that the notice of that claim of negligence be presented within two years.
    Of course, a lot of this depends on your age at the time (since the statutes of limitation would not begin to run until you are no longer a minor) or on other factors (such as a period of incapacity). Your best bet is to consult with an attorney promptly.

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  • Do I need a lawyer for tenants rights when landlord hires a police officer to do query check?

    Landlord hired a police officer which I paid $ 40.00 to do a query check, ( which I found out after ). i know it's against the law for the officer to get paid to run a back ground check on anyone. Needless to say they got the wrong person, the la...

    Andrew’s Answer

    Piecing together the information in your original question with the information in your supplement, I am gathering that you sought housing from a landlord and, in connection with that application, the landlord indicated that he would run a criminal history check that you paid to be run. You now wish to have the landlord release to you the report that he received.

    In Massachusetts, landlords to have the ability to have a criminal background check performed on potential tenants. It sounds like that was the case here. Those checks are performed by the Department of Criminal Justice Information Services (formerly the Criminal History Systems Board). For a fee, or upon approval of a waiver of the fee, you can access your own criminal history and see the report for yourself.

    There might be some miscommunication on the nature of the inquiry that was performed by the landlord. A criminal history generally would be run through the payment of a fee to the DCJIS. That information is fairly well limited to information about prior criminal dispositions. It is possible that the landlord also performed other inquiries (a google search or using a people locator program) that provided information about towns that you perhaps had lived in and the like.

    In terms of your specific question, getting the document. The landlord wouldn't necessarily be required to give you a copy of what the landlord received unless there was some arrangement (preferably in writing) that when he sought your criminal history you would receive a copy as well. The easier thing for you to do would be to go to the DCJIS website and submit your own request for the information.

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  • Do I have a case against police, state attorney or person who assaulted me?

    I am a 34 yr old disabled veteran and I was beaten up by my step-father on January 5th. The police came and Baker Acted him. He was out in 25 hrs. Then on Jan 26th he tried to kill my Mom with an axe. The police arrested him on that incident but I...

    Andrew’s Answer

    • Selected as best answer

    Although it would appear that you have a civil claim against your stepfather, that claim would be based only upon his actions toward you. Your mother would have her own claim against him for damages based upon his actions toward her, and you cannot make a claim against your stepfather for what happened to your mother as part of your "damage." In deciding whether to pursue that claim, one item to keep in mind would be, even if you were to prevail against your stepfather, does he have sufficient assets to cover a judgment. To sue and prevail against a person with no assets might bring you a level of personal vindication, but it will not bring financial relief to compensate you for your damages and might make it unlikely that you will find an attorney to represent you in the endeavor.

    As to a claim against the state's attorney, prosecutors who make the decisions as to whether or not to bring claims against someone are afforded immunity from suit for those decisions. The reason is obvious - if prosecutors could be sued for making those decisions, prosecutors would be sued in just about every instance. Persons who are charged with a crime would sue the prosecutors because of the decision to charge and, in instances in which charges are not brought, others involved in the case (such as you or your mother in this situation) would sue based upon the failure to prosecute.

    As to the law enforcement aspect of your situation, you would not be able to bring a claim under the federal constitution. The United States Supreme Court has determined in a series of cases that, unless within certain narrow areas that do not appear to be presented here, a person cannot sue law enforcement or other officials based upon a theory that those officials failed to protect the person from the acts, even the criminal acts, of a third party.

    At the same time, the Supreme Court left open the possibility that a state, under its own laws and authorities concerning torts and civil liability, could allow for claims to be made against officials for failing to protect a person from the wrongdoing of a third party. In order to know whether such a claim exists under Florida law, you should consult an attorney licensed there who practices in the area of civil litigation.

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  • Seized, accosted, & transported, unwilling to a crime seine

    My son remained calm, did not pose a threat to the constable, did not act in a suspicious manner, did not display any resistance, and was not engaged in any illegal conduct, when approached by constable for 2nd time, then was seized, accosted, & ...

    Andrew’s Answer

    Although it is clear that you have received your son's version of events, I suspect that there is more to the story from the perspective of law enforcement or from the person who appears to have been the victim of whatever crime allegedly occurred. Most of what you indicate (lack of involvement in a crime, a failure to identify your son by the complainant) as the basis for the assertion that his rights have been violated are exactly what the criminal process is for - to decide these very questions and, ultimately, whether there is enough evidence to support a conviction. If your son was arrested, then law enforcement does have the right to search him incident to that arrest. As for what you and your son should do next, if he has not done so already, he should seek out and retain a criminal defense attorney to represent him with respect to the charges that are pending.

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  • What does it mean due process according to the 4th Amendment? My attorney said you have due process as a parent?

    My attorney spoke very quickly but he said you are entitled to due process under the 4th amendment. What does that mean? I am the surviving parent and I am trying to get my daughter age 12 back to me. There were divorce proceedings but nothing ...

    Andrew’s Answer

    Prior to responding to your question, I offer a general piece of advice given that you indicate that you have an attorney on this issue. Part of the job of your attorney is to explain things to you in a way that you can understand, at least in a general way, your situation and your options. Now, it certainly could be the case that your attorney spoke quickly because he was late but, in the event that you are unclear about something related to your case or options, I think it would be wise for you to follow up on another occasion and have your attorney explain the situation more fully.

    As to your question, I presume that your lawyer referenced the 14th amendment, not the 4th. The 14th amendment contains language referred to as the due process clause, which states that a state may not deprive a person of life, liberty or property without due process of law.

    As the courts have interpreted this clause, there are two legal principles that flow from the language. The first is a theory called substantive due process. In general, this principle means that, without adequate justification, a state take from a person certain protected interests. What justification is adequate varies with the situation, the right that is at issue and the government's interest in taking action that might curtail that right. For example, the Supreme Court has recognized that women have a privacy interest in making certain personal decisions, such as the choice to have an abortion. At the same time, the Supreme Court has said that a government's interest can become, at certain times, sufficiently compelling to justify state interference with that privacy interest; so, in that way, a state could ban abortions in the third trimester.

    The second theory is called procedural due process. This essentially means that before a state can act so as to impact a person's life, liberty or property interests, the state must provide a certain amount of process to that person. Often that process will include things like notice of what the government wishes to do and an opportunity for the person to be heard (perhaps before a court or administrative agency) on the issue, either before the interest is impacted or at some point after the interest is impacted.

    From your question, it seems as if your attorney was referencing procedural due process and believes that you were not given the appropriate level of procedural protection (sufficient notice or a hearing) when guardianship of your minor child was awarded. Your attorney is correct that, in that process, the overriding question will be the best interests of the minor child.

    As I indicated, I would suggest following up with your attorney to obtain more detail about this situation and what your options look like as you engage in this process.

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  • If someone has been served 3 times be granted a retrial if they claim they never been served

    if served by constable on their job

    Andrew’s Answer

    Proper service of process often can be a technical and difficult to achieve task in various sets of circumstances. Unfortunately, constable and other process servers often overlook technical defects in the name of expediency and because, in many cases, technical defects might be overlooked. For example, you reference service at work, a process server might arrive at a person's office to serve that person and, learning that the person is out at lunch, might leave the material with a secretary. Now it is likely that the material will find its way to the person who was to be served (and that is the goal of this task), but the service might not have been proper if the secretary who was served was not designated to fulfill that role by the person who was to be served or, perhaps, the company.
    It also matters who is doing the serving - for instance a seventeen year old cannot serve someone properly because the "server" is not of majority age. In many, if not all, jurisdictions a party to a case cannot serve a defendant himself or herself.
    The fact that you have indicated that this person was served three times leads me to believe that there might have been a problem with the first two attempts at service, and that there might be a problem with the third attempt at service.
    Assuming that there are defects in the service, the answer to your question (and I assume that the "retrial" you reference is the removal of a default such that the case goes from being won by you to having to be litigated by you) is yes, a default can be removed. The only way that a court acquires jurisdiction over a case is by acquiring jurisdiction over the defendant(s) through proper service (a plaintiff's filing of a complaint with a court means that the court need not acquire personal jurisdiction over the plaintiff in the same way). If the court never acquired personal jurisdiction over a defendant because that defendant was not served properly, then a default can be removed.
    It would make sense for you to present this issue to a lawyer licensed in Texas who is familiar with the rules regarding service in that jurisdiction and who can inform you whether proper service has been achieved or, if not, how to go about making sure it is done properly.

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  • Do i need a civil attorney

    i call for police protection and the police left the scene and i was attacked

    Andrew’s Answer

    Although your post contains little by way of detail, generally speaking it never hurts to consult with an attorney to determine if you have been legally wronged in some manner (also giving you guidance on the costs and other practical considerations that go into bringing a lawsuit). Many attorneys will provide such consultations for free, while others might charge a modest fee. In either event, consulting with an attorney is a good option because you can provide him or her with a great amount of information about your situation and you can receive his or her feedback at the same time.
    From what you have posted, there appear to be some legal obstacles for you. There was a Supreme Court case some years ago that indicated, as a matter of federal constitutional law, that police or other state actors do not have an affirmative obligation to protect citizens from the harmful actions of another private person. So, in some scenarios, the failure of a police officer to protect you from some other person hurting you does not mean you can sue the police officer or his employer. To that rule, there are some exceptions, such as when a person is placed into police custody (arrested, placed into protective custody, etc.) - there the police have assumed control over you and have a related obligation to protect you from harming yourself or others harming you. Another exception would be if the police officer or other person created the danger that then caused you some harm.
    It is for reasons such as this that it makes sense to consult with an attorney experienced in the area. Only with additional information can an attorney tell you if you have a claim recognized by law and, if you do, the factors that go into the decision as to whether to bring a lawsuit.

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  • Can a detective call a person they know to tip them off to go to the court house before they go to arrest them

    the defendant is being tried by the state for identity theft, credit card Fraud, Mail fraud, ss fraud, etc. The defendant did not show up for court and a bench warrant was issued. The landlord of the defendant has a family member that is a detecti...

    Andrew’s Answer

    I am not clear why the assertion is made in this scenario that the law enforcement officer did not do his job, or even that he did anything inappropriate. The reason for the bench warrant was that the defendant did not appear for court and the obvious goal of such a warrant would be to cause an arrest that would secure the defendant's appearance in court. If a law enforcement officer is able to secure the defendant's submission to the court in some manner, such as a phone call and the encouragement to surrender, the purpose of the warrant has been carried out and it will be up to the court as to whether to recall the warrant or to take some other action based upon the initial failure to appear.

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  • Personal injury in supermarket

    I was plowed into by a cashier holding a cash register in a major supermarket, resulting in a arm injury. can I legally get a copy of the supermarket video tape and the accident report filed by the store manager? the insurance lawyer for the super...

    Andrew’s Answer

    Without a formal proceeding, such as a lawsuit, being commenced, there generally is no ability to compel another person or entity to produce material that might be relevant to your claim. If a proceeding in court were to be initiated, you or your lawyer then would have the ability to request relevant materials from the other side. If the other side refuses to produce the material on the basis of a privilege after a formal request is made, the dispute then can be brought to the attention of the court and the court presiding over your case would decide the question.

    One thing to keep in mind is to be cautious of where you file an action. In Massachusetts, there is a cap on the recovery that you can obtain in small claims court - meaning you can recover no more than a few thousand dollars. If your injuries were or are serious or ongoing, small claims might not be the court to file in since your damages would exceed the amount you would be able to recover.

    I also agree with the prior recommendations that you should contact a personal injury attorney for more concrete advice based upon the circumstances of your situation.

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  • Can police give disorderly conduct ticket on private property .

    They said neighbor called about someone arguing . Me and my wife were in the shop having a talk things got little heated and some loud talking was commited. So they gave us both tickets on our property .

    Andrew’s Answer

    Disorderly conduct statutes vary by state or jurisdiction, so you would need to inquire as to what the relevant statutory scheme in Texas is in order to make an argument as to whether or not your conduct falls within the statute. For the most part, disorderly conduct statutes contain language that prohibits behavior that causes a disturbance or annoyance to others. Based upon the information you provided, although your conversation with your wife took place on your property, it appears that the argument was heard by at least one other person given that a neighbor called the police to complain (in other words, the disturbance carried out into the public). In terms of harassment, I would think that the claim is a bit of a stretch here because the officer did not initiate the interaction with you and your wife - he was called there based upon the report of your neighbor. Even further, it usually is not a successful defense that the officer had an ax to grind of some sort - the important question is whether the officer had sufficient cause to take the action he did (arrest, ticket, etc.). Put another way, even if the officer gains some personal enjoyment from ticketing a person he or she dislikes, if there was an adequate reason to issue the ticket (such as the complaint of a neighbor), the ticketing would be a legitimate exercise.

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