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Alan Stanford Fanger

Alan Fanger’s Answers

29 total

  • Rights

    my husband was hurt on the job, had shoulder surgery and therapy and was receiving workers comp. he was released from therapy to return to work when he returned to work they said then didnt need him. what are our options? isnt the employer suppose...

    Alan’s Answer

    Your husband may have rights under three different laws: (1) The workers compensation statute, which prohibits an employer from discriminating against an employee for filing a workers compensation claim; (2) The Family and Medical Leave Act, which allows an employee to take an unpaid leave of absence and requires the employer to hold open the employee's position (or a position comparable in responsibility and pay) once the leave period is completed and the employee is ready to return to work; and (3) our state and federal anti-discrimination statutes, which prohibit discrimination against an employee on the basis of disability. The merits of your husband's claim depends upon a number of factors, including (a) the number of persons employed by the employer; (b) the nature of his condition; (c) the length of his leave; (d) the employer's financial situation, both at the time your husband was hurt and the time that he was ready to return to work. These issues are best discussed with an attorney. Please be advised that there very short time deadlines applicable to two of the three laws to which I referred above, and therefore you should consult with an attorney immediately.

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  • If a tenant has stopped paying rent, how long do you have to give him on a notice to quit to pay up or move out

    If a tenant has stopped paying rent, how long do you have to give him on a notice to quit to pay up or move out

    Alan’s Answer

    If a tenant has not paid rent, you must serve him/her with a 14-day notice to quit. The notice must contain certain language and is best prepared by an attorney. The notice must also be served by certified or registered mail or by a constable or sheriff (preferably the latter two). If the tenant does not pay within the 14-day period, you may bring an eviction complaint. There is a timetable for doing that can best be explained by an attorney. Under no circumstances can you evict a tenant without what is known as an execution for possession issued by a court (and even then not until a sheriff or constable has provided the tenant with 48 hours advance notice that they will be evicted).

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  • Terminated for asking for short term disability paperwork from HR Department.

    My doctor last thursday recommended treatment for a disability that falls under the Americans with disabilities Act(ADA). Thursday night I sent an email to my HR department asking what paperwork was needed for short term disability(STD is covered ...

    Alan’s Answer

    Thanks for your question. I am very sorry to hear about your job loss. There are two separate questions here: (1) Is there a basis for a claim of discrimination based upon disability; and (2) Can you make a claim under your former employer's short-term disability policy despite no longer being employed by the company?

    An employer may not terminate an employee because that employee has a disability or is regarded by the employer as being disabled. Filing a claim under an STD policy is certainly a signal to the employer that you claim to be disabled, and if the resulting job action can be linked to the request for that application, that could be found to constitute discrimination. The employer might claim in defense that it had already planned the layoff, though the events seem a bit more than coincidental. There are a line of cases in which courts and anti-discrimination agencies have found discrimination to have occurred in the circumstances you describe.

    Whether you remain eligible to file under the STD policy is a bit more complex. The terms of the policy and/or the group disability plan probably govern here. The critical issue is whether the policy requires you to be disabled as of the date you file the claim, or whether it requires you to be both disabled and employed by the company as of such date.

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  • What is the statute of limitations in Massachusetts for a legal malpractice case

    What is the statute of limitations in Massachusetts for a legal malpractice case? I know that it is 3 years, but when does that 3 years begin? Is it from the date of the last trial, or the date of the judgment, or something else?

    Alan’s Answer

    The statute of limitations for legal malpractice begins to run when you when you are harmed by malpractice or first learned of the harm (or could have learned of the harm through the exercise of "reasonable diligence"). However, there are two significant exceptions to that rule: (1) if that same attorney continues to represent you after the incident or event constituting the malpractice, the statute does not begin to run until the attorney's representation of you concludes; or (2) if the attorney actively takes steps to conceal his malpractice from you, the statute does not run until you learn of the concealment.

    The question of when the "harm" occurs is something that people often ask about. The harm occurs when your rights are adversely affected. So, for example, if an attorney conducting a trial failed to call an expert witness, and if that failure resulted in the case being dismissed, the "clock" for statute of limitations purposes would not start to run until the dismissal (unless, of course, the attorney continued to represent you beyond the dismissal or somehow concealed the dismissal from you.

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  • Do children of the deceased have a right to view the will and who oversees the executor to make sure he carries out the will

    My mother died last week in Massachusetts. My brother is the executor, and he refuses to give any information to his sisters. Do the sisters have the legal right to see the will? Do we need a lawyer to view the will? Can we go to probate court ...

    Alan’s Answer

    I am sorry about your loss.

    Under Massachusetts law, a will is required to be published in the probate court in which the decedent was "domiciled" (as of his or her death) within 30 days of the date of death. Shortly after publication of the will, all heirs at law (usually spouses and children) are required to be sent a notice of both the probate proceeding and the requested appointment of the executor nominated by the will. That notice provides a date by which you or your attorney must file an "appearance."

    This date is critical; if you do not file a notice of appearance by that date, you lose the ability to contest either the nomination of executor or the validity of the will. The notice of appearance is nothing more than a document with the name of the court, the case number and a title "Notice of Appearance" and stating that you are appearing in the matter.

    There is then a second and even more critical deadline. That deadline is the date by which you must file what is known as an "affidavit of objections." The affidavit must be filed no later than 30 days after you file the notice of appearance. In the affidavit of objections, you are required to state under oath all of the reasons why you believe the will is invalid and/or the executor should not be appointed. These could range from lack of mental capacity to undue influence or even forgery to, in the case of executor appointment, a prior conviction of a crime involving fraud or theft.

    I highly recommend that you consult with an attorney at least for the preparation of this affidavit (which must contain certain "magical" language), if not for the filing of the appearance.

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  • Landlord/tenant

    is a 14 day to quit notice legal if it's sent by regular mail?

    Alan’s Answer

    No. A 14-day notice to quit must be served in a manner that is likely to give you reasonable notice that your tenancy is being terminated. Notices that are validly served come by way of sheriff, constable, certified or registered mail, but regular mail is not considered a method reasonably likely to inform a tenant that the tenancy has been terminated. If the landlord moves ahead with eviction proceedings, you may use the lack of valid service of the notice to quit as a defense to eviction (among other defenses you may have). Whatever you do, do NOT tell the landlord that you received the notice by mail. If you eventually get served with a summary process summons and complaint, be sure to contact an attorney, who can effectively raise this and other defenses on your behalf.

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  • What is the procedure for determining the validity of a Will

    An attorney has died that produced a will and you believe there was another will made up after that time. This practice closed and the will in question is 20 years old. A new will was mentioned by a family member who is a heir, but is not the will...

    Alan’s Answer

    Thanks for this interesting question. The search for the true "last will and testament" is a classic search for the truth. Just because a will shows up in an attorney's files doesn't mean that it is in fact the decedent's last will. Only by carefully--perhaps even diplomatically--inquiring of family members will you be able to piece together the factual "fabric" necessary to at least create a question as to whether there was in fact a more recent will. One thing to keep in mind is the attorney who the decedent would have engaged to prepare a later will, and/or the family members who would have been nominated by the will as executor or executrix. Persons or even charities who you believe would have benefited from the later will might have reason to know of an amendment.

    If and when you have additional facts to call into question whether the will asserted to be valid truly is valid, you should then engage an attorney to dig more deeply and make it uncomfortable for those persons who may be trying to defraud the Probate Court and potential heirs by misrepresenting the state of the decedent's will.

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  • Wrongful termination question

    I work for a hospital in a administrative role. I have whitnessed and documented inopropriate awarding of contracts to the highest bidder for no other reason then this ame awarded company takes the same people that terminated out charter fishing e...

    Alan’s Answer

    I am very sorry to hear about your layoff. In certain instances employees may recover for wrongful termination of their employment based on retaliation against the employee that violates public policy. For example, an employee who reports public health violations in a hospital setting to a government agency could validly claim wrongful termination if that employee were fired shortly after reporting that violation to authorities. Your situation is slightly different but is nonetheless worth pursuing further. What I would want to know is the following: (a) Was the manner in which the hospital awarded contracts violative of the hospital's internal policies?; (b) how did you bring these irregularities to the attention of these two people (e.g. verbally, by e-mail); (c) Was there a state of federal mandate that the hospital award contracts in a manner other than how they awarded them?; (d) how much time elapsed between the time these two people assumed their new positions as your supervisor(s), and the time you were laid off; and (e) what was the configuration of the layoff...by seniority, department, job type, etc.

    Please feel free to contact me if you wish to discuss the matter further.

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  • Can I contest a judgment that was entered against me for not appearing at the hearing in MA state

    When I was pregnant I was sent a notice to reply to court about a credit card debt. I did not reply but the lawyer got judgement without even sending me a court date. Is it right for them to send me a court date.

    Alan’s Answer

    If the summons and complaint were delivered to you and there is proof (in the form of what is known as a "return of service" signed by the sheriff or constable who delivered it to you, then the judgment is valid. However, this doesn't preclude you from attempting to have the judgment set aside. You would need to make a written motion to the court and prepare and sign an affidavit under the pains and penalties of perjury explaining why you did not answer the complaint. In my experience just marking the motion for a hearing often allows the case to be resolved through a payment plan. Of course, you may have defenses to the claim--defenses would include (a) the charges are not yours or (b)the figures on the billings are inaccurate--and those defense should be included in the affidavit. Absent having those defenses in the affidavit, some judges will deny motions of this type. However, as I mentioned above, it's productive just to be able to get in front of the court and speak with the issuing bank's attorney (most of them are quite reasonable to deal with).

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