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Matt Bryant

Matt Bryant’s Answers

290 total


  • A read about NY Short term disability for a pregnant woman on maternity leave. I copied and pasted what I read. Is this right?

    About New York Short term disability. How Much Can I Expect to Receive in Benefits? For pregnancy, women are covered for six weeks after a normal pregnancy and eight weeks after a Caesarian section (those these lengths may be extended if there ar...

    Matt’s Answer

    That is correct. NY Minimum and looks like it is almost directly from the NYS Disability website.

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  • Diversity jurisdiction and choice of law in E commerce State and Federal? Please answer both questions =)

    Usually in the Ecommerce world if there is a dispute, the consumer must sue in the companies state court of business barring few exceptions. In the Federal system using diversity jurisdiction, a consumer may bring a case in either their district o...

    Matt’s Answer

    Happy to answer both questions but I briefly challenge your assumptions about the usual practice in the E-commerce world. I would suggest the "usual" practice is to look to the online vendor's terms and conditions that govern the transaction and could impose enforceable forum selection and dispute resolution obligations. Absent a contractual provision requiring a specific outcome, I do not believe there is a "usual" answer for online transactions. This segues directly to your questions:

    1. The short answer is absent a contractual provisions selecting governing law, a federal court sitting in diversity would conduct a conflict of laws rules analysis to determine which law should govern. Therefore the "Company's", or vendor's, home state law will not, ipso facto, necessarily apply.

    More detail: The first step in a conflicts of law analysis is determining whether there is an actual conflict between the forum state and the competing jurisdiction. If there is no material conflict, the federal court will apply the law of its host state. If there is a conflict, the court will determine which jurisdiction has the greatest interest in the dispute. This is done by assessing the location of the transaction vis-a-vis solicitation and negotiations as well as the type of dispute and its surrounding circumstances. In an online transaction, a vendor is putting its goods in the stream of commerce throughout the country and therefore, very likely, subject to personal jurisdiction out of state. Moreover, in a consumer transaction I would expect the consumer's state to have a substantial interest in protecting its citizens by virtue of its domestic consumer protection law such that, absent a choice of law in the contract, I think it would be very difficult to persuade a court to apply NY law simply because an online vendor is domiciled here.

    2. If the dispute raises a federal question with a circuit split, the federal court hearing the dispute will apply the law of the Circuit in which its sits. It typically will not consider another Circuit's interpretation of the law simply because one of the parties is domiciliary of such other Circuit. If the Circuit in which the court sits has not ruled on the issue, then the parties argue which side the court should adopt.

    If you are conducting business online and you do not have terms and conditions which regulate disputes and protect your LLC from extraterritorial jurisdiction, you should consult with an attorney to create some.

    Good luck.

    Matt

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  • What is the sol on suing for discovery of fraud

    ncbn

    Matt’s Answer

    Fraud is six years from accrual of the fraud or within 2 years of (a) the discovery or (b) that time when a reasonable plaintiff should have discovered the fraud.

    The discovery rule is only an issue if you discovery the fraud 4 or more years after the fraud was perpetrated. Just arithmetic.

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  • Is there a time limit for a defendant to enter a judgment for court expenses?

    It's been over two years since the defendant in a NY Supreme Court civil trial was awarded about $1,000 for expenses for an appeal to the appellate division. They have never entered the judgment. My credit score is being lowered because of this ...

    Matt’s Answer

    Depends on how award was made. If the decision directed the defendant to "settle judgment" or "submit judgment" the awardee had 60 days to do so lest it be deemed abandoned. That is 22 NYCRR Section 202.48 a court rule, not a statute of limitations. However, if the judgment directed the clerk to enter it automatically, failure to do so will not affect the judgment's validity.

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  • Can an instant motion of a bank contested by the Defendant in countermotion be re-opened or amended for new evidence

    It was discovered after the papers only proceeding that the Plaintiff had submitted a statement of account that was defective to the extent that it failed to disclose payments made that were not credited to the account. After the close of papers,...

    Matt’s Answer

    • Selected as best answer

    An intriguing question and likely one with no right answer. I would recommend finding a local attorney who is willing to counsel you for a reduced fee or as a favor (they do exist!). (Also look for law school litigation clinics and professors who may want to take a stab at helping real litigants.) That said, there is no specific or mandatory procedural vehicle that cures your dilemma: how to add newly discovered evidence to a pending motion.

    An important caveat: new evidence requires a showing of due diligence to explain why this evidence was not available at the time you made your original opposition or cross motion. This is a red-flag here based on your fact pattern but there are not enough facts presented to discuss it intelligently. If the new evidence was discoverable, irrespective of whether it had been discovered, it typically will not qualify as new evidence.

    Assuming it is new evidence, for example the bank provided new discovery after the motion was submitted and you want to use it now, there are effectively 3 ad hoc ways to address this. First, you could seek leave to file a sur-reply. I would look in the Judge's individual rules for information on whether sur-replies will be entertained or requested. This would be purely discretionary on the Judge's part though. Second, you could file an order to show cause why an order should not issue supplementing the record or otherwise granting the relief requested in the pending motion based on the new evidence. Third, you could wait for an order and then move based on newly discovered evidence, which I don't recommend. In state court, once you get an order on the motion, if adverse, you could move to renew the motion based on new facts (CPLR 2221(e).) Alternatively, you could also move, either in state or federal court, for relief from judgment based on newly discovered evidence (CPLR 5015 or Rule 60). However, none of those vehicles are available until after a judgment or order is entered and I generally would not recommend as per the caveat about due diligence in obtaining and presenting the evidence to the court.

    Because you are pro se, I think a combination of the first and second should be considered. Look at the judge's individual rules and call the adversarial attorney to set up a conference call with the court to request leave to make a sur-reply or otherwise discuss supplementing the record by order to show cause.

    Good luck.

    Matt

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  • Is an employer within their rights to deny an accommodation to a worker that is typically provided to other workers?

    Is an employer within their rights to deny an accommodation to a worker that is typically provided to other workers without a request? Example: A supermarket allows cashiers to rotate to give their legs a break from standing too often. A worke...

    Matt’s Answer

    The short answer is "no" The test, for disability purposes, under both federal and state law in New York is whether the employer can provide a "reasonable accommodation". A reasonable accommodation, in its most simple form, is one that is not unduly burdensome to the employer If an employer has, in practice, provided certain accommodations to other employees it by definition is a reasonable accommodation that cannot be denied in this context.

    If the employee specifically requests such an accommodation for a medical condition and is denied, that is likely, under New York state law, prima facie disability-type discrimination. Under federal law it depends on whether the medical condition qualifies as a disability by impairing a major life function

    It is important to remember that under both federal and state law, the test is reasonableness of the requested accommodation. It does not matter whether the employer has ever accommodated others in the same manner or not - if they do the employer cannot deny the request but even if they have never done so in the past they must do so if it is reasonable.

    You should consult with a plaintiff-side employment lawyer. Once you disclose your condition and make the request the employer cannot punish or retaliate against you.

    Good luck

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  • Can i garnish wages from someone who is a speech therapist in his wn pactice?he is being sued and will lose

    also. can i get a judgment on his house?how do u collect from this type of thing?he is a dangerous stalker and identity thief ad i am eing tormented

    Matt’s Answer

    Already planning ahead, I see? For some reason I feel compelled to caution you not to count your chickens before they hatch. That said, your recovery depends on whom you have sued and the identity of the ultimate judgment debtor(s). This is why attorneys conduct due diligence reviews of potential defendants prior to suing them: we need to make sure they have assets to pay us later.

    Direct Answer:
    If you sued the individual and have a judgment against him, you may garnish wages like any judgment creditor. This presupposes, however, that he pays himself wages. If he owns his own practice, he may not. Even if he does pay himself wages now, he could attempt to evade collection by not paying himself later, taking draws off the books, or as expense reimbursements. If you have a claim and judgment against the business, then you may go after the business assets (what's in the bank, inventory, equipment, etc.). If he does business as an unincorporated sole proprietor, then all the better because he and his business are one and the same.

    The same issue exists with regard to his house. You may only lien a house if the deed is in the name of judgment debtor. You can go to the county clerk's office to find out or see if you can locate his deed online through ACRIS. If he put the deed in his wife's name or shell corporation, and only have a judgment against him, you could not automatically lien the home even if you think it is actually he is the true owner.

    Identify Theft and Stalking:
    If he, or anyone else, has stolen your identity or committed fraud, you should report him to the police or look into personal security systems such as Life Lock. There are criminal laws that protect us from stalking and harassment and you may be entitled to an order of protection, as well, which is not available in a civil claim for money damages. That said, if this is a simple business or client dispute, for example malpractice or a disagreement over amounts allegedly due for services rendered that he is seeking to be paid, I would caution against attempting to escalate the dispute into something more. If he is legitimately stalking you, and this is not about a civil dispute for money, you should file a police report and seek an order of protection; but the two rarely go together.

    Good luck.

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  • Do I sue online distributor where I ordered, or manufacturer? What court civil or supreme?

    On-line website where I have ordered, happens to be a distributor! Manufacturer makes, but not sells. Distributor website sold me wrong, but insist they did right! Do distributor know that I am claiming, or they just distribute the orders made...

    Matt’s Answer

    Your question is not clear. As I understand it, you ordered an item online, received a different item than the one you wanted, and the distributor will not correct the mistake.

    Based on that fact pattern, you claim appears to go against the distributor, not the manufacturer. It is a simple breach of contract claim. You determine which court to sue in by the amount at stake and what you are seeking. Civil Court has jurisdiction for all claims up to $25,000; it also has a small claims part that can be very effective for claims up to $5,000. The costs associated with Civil Court are far less than filing in Supreme. Other than amounts in excess of $25,000 the only reason to file in Supreme is if you seek equitable relief. That may or may not be appropriate in your case. If this is a rare item that you need and only available through this exclusive website, you may want to consider specific performance (an order enjoining the distributor to provide the correct part). In most contract cases, however, money damages are sufficient. You may purchase the item elsewhere and sue the distributor for the increased costs for example; you can hold the defective item and sue for your money back, etc. Even without equitable powers, you may consider suing the distributor in Civil Court and trying to settle the matter through an exchange.

    On my understanding of the facts, however, there appears to be no claim against the manufacturer. Claims against a manufacturer typically allege some class of defect in the product or processes such as a defective design. Unless the manufacturer controls the distributor, the manufacturer typically cannot be held responsible for the distribution. A caveat to that may exist if the manufacturer compels, such as through an exclusive distribution agreement, customers to deal with a particular distributor. In that case, you may seek to hold the manufacturer responsible as principal of its distribution agent.

    But there is no need to complicate simple breach of contract claims or look for claims against the manufacturer. Your strategy should take into consideration whether you can get the item elsewhere or if this is the only potential source.

    Good luck.

    Mat

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  • Abuse of Process? Opposing Counsel In A Civil Suit Shared Personal Information About Me, Obtained By Subpoena, To A Non-Party.

    I'm the defendant in a nasty civl lawsuit. Plaintiff's attorney issued a subpoena to my college for my academic records & my school handed them over. I was born with 2 social security numbers because my parents divorced right after my bir...

    Matt’s Answer

    I see no one has ventured an answer and that because the first par (that is visible when screening questions) is actually not so easy to answer.

    Abuse of process claims are very difficult to sustain. If the documents were in fact related and material to your pending civil litigation, then getting your academic records was not an abuse of process. If they were not material to the pending claims, then the door may be open slightly.

    If an attorney conducts a personal investigation unrelated to a pending litigation by using subpoena power to get information unrelated to that case, that could very well be an abuse of process and it is absolutely unethical. Even where documents are properly obtained, an attorney is not free to share them with anyone he or she pleases. Sharing your SSN with third-parties is prohibited under federal and state law. Neither the attorney nor the school should be disclosing that information in unredacted form.

    I would consult with an attorney to discuss privacy issues and grievances. Give Steve Pipenger a call. He really gets into these sorts of things. You do not need to sustain an abuse of process claim but you should review your rights and take reasonable measure necessary to protect your confidential information.

    Best of luck,

    Matt

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  • Can i use the name of a character/corporation from a video game as the brand of my own company?

    I found a particular name in a video game to be pretty cool, so i wanted to use it as my start-up company's name. The name is not an actual word and it’s very distinctive. However, the game was released over 15 years ago, and not many have played ...

    Matt’s Answer

    There isn't "yes or no" answer to your question. Fictional characters within a protected work are "copyrightable". Check the link for basic information. As a legal proposition, there certainly is exposure to a potential claim or lawsuit. However, such a claim may be weak given the age of the game, its lack of use, and lack of recognition.

    My off the cuff "impression" based on the general nature of this question is that the copyright holder would have a claim but that it would not be worth very much. You can conduct a search copyright and trademark searches for the character/fictional name as a starting point. When you are prepared to start up, you should consult an attorney. I recommend Mr. Stephen Pipenger.

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