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Under New York law, the doctrine of <i>caveat emptor</i>, or buyer beware, applies to the purchase and sale of real property. <i>Stambovsky v. Ackley</i>, 169 AD2d 254, 257. Under this doctrine, which has undergone some recent modifications, the seller of real property is under no duty to speak (<i>ie</i>, make certain disclosures to the purchaser) concerning the condition of the property when the parties deal at arms' length. <i>Id</i>. Mere silence on the part of the seller concerning a defective or otherwise undesirable condition of the property, without some act or conduct that deceived the purchaser, does not amount to conduct that is actionable as a fraud.
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It is not uncommon in Family and Supreme Court matters for a moment to come in the court proceedings when, having been asked for the basis of a particular forensic opinion, the forensic evaluator utters the famous words, "Well, based on my clinical experience ... " In addition, it is commonly assumed among legal professionals that one good way of supporting a forensic evaluator's assertions is to amplify for the court the number of years of clinical experience a particular expert has had, the number of evaluations he or she has completed, etc. However, the sobering reality is that decades of research on clinical judgment accuracy raise questions about the weight that should be given to how experienced a particular clinician is.
Commissioner John B. Mattingly of New York City's Administration for Children's Services (ACS) recently issued a statement following the occasion of his 1-year anniversary at his post. Among the accomplishments trumpeted was the fact that his agency had "continued the historic decline in the number of New York City children living in foster care -- passing the 20,000 mark, the 19,000 mark, and the 18,000 mark, to the current census of nearly 17,300." Following publicity surrounding the recent deaths of several children in their homes after their families came under ACS's scrutiny -- some of them reunited with those families after initially having been taken away and others who arguably should have been separated from their families
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The seminal modern case on marital contracts is <i>Christian v. Christian</i>, 42 NY2d 63 (1977). In that case, which involved a post-marital separation agreement, the Court of Appeals held that such agreements that are regular on their face should be binding and valid unless shown to be otherwise, but may be set aside if grounds are demonstrated which would serve to vitiate an ordinary contract. Judicial review in this regard was to be "exercised circumspectly, sparingly and with a persisting view" toward encouraging parties to settle their disputes ...
An investigation by the SEC is always cause for great concern by corporations, executives and their attorneys. In recent years, there has been reason for even greater concern due to prosecutors' increased focus on corporate fraud and the resulting increase in "parallel proceedings." Parallel proceedings involve simultaneous or successive investigations and/or litigation of separate criminal and civil actions by different government agencies arising out of the same set of facts. This trend requires defense counsel to assess whether corporations and individuals may be subjects of a criminal investigation in cases that would not have given rise to such scrutiny several years ago. Faced with possible criminal liability, clients and counsel must carefully evaluate and weigh the potential benefits of cooperating in an SEC civil investigation versus the very real possibility of furnishing incriminating information to the government for use in a criminal proceeding.
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National cases of interest to you and your practice.
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The Fifth Amendment's protection against self-incrimination is one of the foundational rights of the America justice system. It provides that "no person ... shall be compelled in any criminal case to be a witness against himself." It protects witnesses from what Justice Field called the "cruel trilemma of self-accusation, perjury, or contempt." <i>Brown v. Walker</i>, 161 U.S. 591, 637 (1896) (Field, J., dissenting). In this post-Enron era of corporate prosecutions, it is critical that corporate insiders understand the scope of the Fifth Amendment's protection.
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Many organizations have hotlines that are needlessly weak or even ineffective, and they often don't even know it. There are no up-to-date, authoritative standards for hotlines. This has forced SEC registrants and their auditors to use an unusually high degree of judgment in evaluating the effectiveness of hotlines for Sarbanes-Oxley ' 404 reporting. Non-registrants are even more vulnerable to "phantom hotline syndrome."