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Jack Richard Lebowitz
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Jack Lebowitz’s Answers

2,043 total


  • Is your lawyer supposed to tell you to not bring up facts damaging to your civil case?

    Ignore damaging facts, so they are not brought up. I don't mean your lawyer tells you to lie just zip your mouth and hope they don't realize that's damning to your facts.

    Jack’s Answer

    It's probably good advice. Cases are seldom "black and white" and some facts and circumstances might not help your case if the other side were to harp on it.

    Let's say, as an example, your left arm was mangled in an accident and you often had terrible pains that prevented you from your former work in a distribution warehouse which required the use of both arms and hands eight hours a day, but you were still able to go bowling and garden.

    If you volunteered that information about your hobbies, the other side would surely argue that you weren't injured at all in a manner that caused financial damages and you were faking your disability. Not talking about gardening and bowling is not "lying" about your disability in this example.

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  • Are standards in New York State courts (higher or lower than other U.S. states) to determine if a lawsuit is frivolous or not?

    I came from the west coast to open a food business in the Big Apple because I like New York. After a while I decide to sell the business. The real estate agent who was suppose to help me to sell the business, turned out to be a crook from Italy. S...

    Jack’s Answer

    Hard to say whether standards for frivolous lawsuits are higher or lower in New York than other states. The federal courts have a uniform rule, FRCP 11, and NYS has a similar rule for state courts, 22 NYCRR Part 130, but it is the attorney or filer of the papers (party if pro se) who is signing the papers to indicate the lawsuit has some legal merit, and is not frivolous or vexatious (intended to just annoy or delay the other party). However, the bar here is fairly low. As long as the attorney or filer believes the claim or defense MIGHT have some merit and isn't total bs or bad law, he can certify the papers aren't frivolous. And as to questions of fact, like what the agent told him about your discussions, he has to belive his client's claim, even if you think they're bs, unless they are so off the wall or contradictory that the attorney has good reason to suspect his client is outright lying. This would be hard to prove.

    As to how a similar rule might work in other state courts that have it, I have no clue.

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  • If I spanked my child and the other partial custody parent recorded it can it be used in court against me?

    Family Court custody secret video taping

    Jack’s Answer

    Depends. The evidence is relevant, but many custody orders do not expressly forbid corporeal punishment, and spanking is a borderline question of abuse since it used to be a traditional form of discipline that shamed a child but did not permanently injure him. Today, it's out of fashion (for probably good reasons) and many custody orders have an express prohibition on corporeal punishment of any sort, just as they might forbid tobacco or alcohol use during parenting time.

    If your order prohibits corporeal punishment, you can be charged with a violation. If the order is silent or there is no order, you can expect a modification petition but are probably off the hook as to a violation. If your punishment is frequent and part of a pattern of arguable abuse or neglect, you might have your parenting supervised or lose primary physical custody if you have it.

    And if you're asking whether cell phone cameras or other electronic evidence like texts or emails can be suppressed because you didn't consent to the recording, I'd say you're probably fighting a losing battle there if the other parent can establish that evidence was relevant and authentic (not "doctored").

    Topic changed from privacy to child custody. If the police or a peeping tom photographed the spanking, you might have a case, but you have no reasonable expectation of privacy from a blood relative you permitted in your own residence.

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  • Can I amend a pleading without making a motion if the Defendant still has not been served?

    A lawsuit was filed along with a TRO in a foreclosure matter. The TRO was denied. The bank was notified that the Defendant intended to sue. The original suit that was filed with the TRO needs some minor changes. Does the Plaintiff in the suit h...

    Jack’s Answer

    Yes, Mr. Tengza nailed it, and made an important point I'll emphasize. If you aren't going to retain an attorney for whatever reason and are deciding to represent yourself pro se, the Civil Practice Law and Rules (CPLR) is essential reading and answers many of these basic questions about pleadings, service, statutes of limitation, discovery, motions and the like. If you're going pro se, there's no excuse for you not frequently checking the CPLR as attorneys do. You can find it online for free on the state legislature website "Google "Laws of New York" or a more useful book form at almost every decent sized public library (ask the reference librarian). Books have the added benefit of being able to be browsed for related sections in each "Article" (chapter) which is hard online, as well as having practice commentaries written by expert lawyers and case law after each section of the statute law.

    Most judges will cut pro se clients a bit of slack on strict adherence to the CPLR and related court Rules of Practice (also available on line on the NY Courts website, again Google), but you only get so many mulligans if you keep repeating mistakes and the other represented parties object and say they are being prejudiced.

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  • What can I do to address a neglected, empty, burned down house next door to me?

    Hello, How can I get the attention of NYC officials to recognize that the house next door is a nuisance, in that it is empty, burned, vermin infested and noxious, and virtually abandoned by its long time absent owner, and thereby substantiall...

    Jack’s Answer

    I agree with Mr Berson's proposals. Here are some orthers:

    1. Call police precinct to inform them of possible illegal activities.
    2. Flyer with neighborhood groups. Use anonymous email or burner cell phone to avoid retaliation or intimidation from neighbor.
    3. Raise issue with your district community board, City Counselman, Borough President and Mayor's office as well as your State Assemblyman and any candidates for election this fall from Queens.
    4. Call Building Department and ask whether building should be condemned as health and safety concern and owner required to demolish it.
    5. Consider a private nuisance lawsuit under the State Real Property Actions and Proceedings Law to require either building brought into compliance with codes and to make it inhabitable, or to require it be razed with attention paid to health risks in the deletion, such as the recovery and disposal of asbestos.

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  • Can I sue an opposing attorney and his firm for committing perjury in court and in his pleadings ?

    During civil circuit court proceedings opposing counsel lied in his filings and in court. His partner then pulled the same exact thing during the appeal. (The Florida Bar sent me paperwork to file for disciplinary action, I hadn't contacted the ba...

    Jack’s Answer

    I would tend to agree with attorney Cameron's analysis. "Perjury" is a statement made under oath (in a sworn affidavit or as a sworn witness in Court) that the declaration knows to be false and that can be proven to be false. Generally, an attorney is not himself testifying, but is arguing facts based on the testimony of his client. An attorney is not allowed to argue "frivolous" or "vexatious" claims of a client he knows or strongly suspects to be false, but it is not the attorney's job to be a detective or the trier of fact. Just because the other party believes something to be false or a lie does not mean the opposing counsel is committing perjury. In an adversarial system, both sides present their view of the facts, which are often in dispute, and got the trier of fact (judge or jury) to resolve the facts. Even if a case was decided against a client does not mean his attorney's arguments in trial or on appeal are "perjury".

    Perhaps if the attorney is a party or witness in a malpractice action involving that attorney's malpractice, there might be an argument that sworn testimony about a wrongful action (e.g.., backdating a document) was perjury, but you would still have to prove the declaring KNEW his testimony was false, and that is hard to prove. For the adversarial justice system to work, there has to be a limited privilege that most testimony offered is believed by the declarant for the system to work.

    I know this conclusion is perhaps difficult to accept if you "know" the attorney "lied", but like the similar legal concept of "fraud", in practice such a claim is almost impossible to prove.

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  • Are "no refund policies" legal?

    I registered my son for a basketball camp. I paid half of what was owed ( $324) by debit card. They have a no refund policy if the child gets sick or parent loses job. I had tor cancel our trip due to the bad fires and poor air quality for my son ...

    Jack’s Answer

    I'm sorry you are having some problems, but It seems like you have already answered your question: the camp has a no refund policy designed to cover exactly the situation you describe, the child cannot attend due to no fault of the camp. While you say "you were robbed because you received nothing in return for your large payment", the law would say you had no remedy if you were aware of the no refund policy and the camp probably did incur some administrative costs in performing the pre-camp evaluation. I'm not sure whether you paid $324 or half of that on a debit card, but few attorneys would take a case on such a small claim.

    You could go to small claims court, but as a matter of contract you would lose if the no refund policy was disclosed before you paid the deposit. You could also dispute the credit card charge with your bank, but you would also most likely lose that too when the bank checked with the merchant camp and the band documented your application and agreement with the no refund policy.

    Topic changed from ethics which concerns attorney disciplinary rules to consumer protection.

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