Using Letters of Credit to Secure Lease Obligations
August 31, 2005
For a relatively small fee and assuming sufficient collateral or creditworthiness of the tenant or a guarantor, a tenant may be able to apply for and have its bank issue to its landlord a letter of credit ("L/C") to secure the tenant's obligations under a long-term lease. If the L/C is large enough, the landlord may enter into a lease with a tenant that the landlord would otherwise refuse due to the tenant's lack of creditworthiness. From the tenant's perspective, an L/C may be preferable to a large security deposit. An L/C will not necessarily tie up large amounts of the tenant's cash or other liquid collateral, as would a security deposit. Instead, the cash can be deployed as working capital in the tenant's business.
Criminal Charges Dropped Against New Paltz Mayor
August 31, 2005
Stating that trial would be pointless and cause dissention without any concommitant contribution to the public good, the Ulster County District Attorney, Donald A. Williams, dropped the charges pending against New Paltz Mayor Jason West for illegally marrying same-sex couples. West had faced 24 misdemeanor counts for joining in marriage two-dozen same-sex couples in February 2004. In his letter to the judge dropping all charges, Williams said, "Any additional action would serve only to advance a personal agenda in highly volatile manner." Thus, the legal roller coaster West had been riding on for more than a year came to an abrupt halt in mid-July with little more than a whimper.
Custody Cases and Forensic Experts
August 31, 2005
At the recent Annual Meeting of the Family Law Section of the New York State Bar Association, Justice Sondra Miller of the Appellate Division, Second Department, stated that the Matrimonial Commission, which she chairs, is now taking a close look at one of the more controversial topics in matrimonial litigation: the use of forensic experts. A survey on recent experiences with experts in matrimonial and family law proceedings revealed that the use of forensic experts in child custody cases is causing concern, not only in the judiciary, but in the mental health professions as well. In the past, many judges simply accepted with few, if any, questions the expert's opinion on what constitutes the best interests of a child. Now, with some prominent psychologists questioning whether their profession is equipped to address such an abstract and unscientific question as a child's best interests, judges are taking a more skeptical view.
The Jurisdictional Conundrum
August 31, 2005
<b>Part Two of a Two-Part Article.</b> In last month's newsletter, we looked at the questions presented when a divorce action is capable of being brought in another state as well as in New York. Which forum should entertain the divorce action, particularly when an enhanced earning capacity issue is presented? One consideration, as discussed previously, is the "first-to-file" rule. However, there are other matters of importance the courts must think about before deciding to take on divorce actions that could be brought in other forums.
Verdicts
August 31, 2005
Recent rulings of interest to you and your practice.
The Insurer's Right to Settle
August 31, 2005
As a practical matter, the decision of whether to settle claims brought against a policyholder is typically left to the insurer. The interests of the insurer and the policyholder are typically aligned, whether it is because of the policyholder's inherent desire to resolve the litigation, or the insurer's vastly greater experience in defending and settling claims. For claims falling within policy limits, however, there remains an enhanced possibility of a dispute between the policyholder and insurer over whether to settle. All litigation expenses will be borne by the insurer, as will the costs of any judgment. In contrast, continuing the litigation is a nominal cost for the policyholder. The policyholder may also have collateral interests at stake. In the most common of examples, a physician may wish to fight a malpractice claim rather than settle because of the potential damage to his or her professional reputation, a loss of business, an increase in future premiums, the potential termination of the policy, or impairment to his or her ability to obtain future coverage.
The Anatomy of a Professional Medical Misconduct Hearing
August 31, 2005
... Ignorance of the process can turn a well-intentioned physician into a respondent in a physician misconduct proceeding. Since nothing threatens the foundation of a physician's practice more than the prospect of such a scenario, any contact from a representative of the state must be taken very seriously. Unfortunately, the combined effects of misinformation and misguided actions leave many physicians vulnerable to a procedure that can effectively strip them of their ability to earn a living. Learning the "who," "what," "why" and "how" of the process can hopefully keep you, your client or your client's staff members upstream of a problem and help ensure the continued viability of everyone's practice.
First Vioxx Ruling
August 31, 2005
Merck & Co., founded in 1891, has a slogan -- what it calls its "guiding philosophy." That philosophy is, "patients first." In the first of many Vioxx trials expected to be litigated in state and federal courts across the country, the jury wasn't buying it. On Aug. 19, after a month-long trial, ten out of 12 jurors -- the number needed to return a verdict of guilty -- found Merck liable to the plaintiffs, survivors of a man who took Vioxx for pain relief. The damages award was staggering: $24.5 million in economic losses and compensation for mental anguish and $229 million in punitive damages.
