Second Circuit Tackles RLUIPA
The federal Religious Land Use and Institutionalized Persons Act (RLUIPA) threatens to have a significant impact on local zoning decisions. Municipalities across the country have challenged the statute's constitutionality. In the most recent of those cases, <i>Westchester Day School v. Village of Mamaroneck</i>, 2004 US App LEXIS 20327 (NYLJ, 10/15/2004, p. 18, col. 1), the Second Circuit declined to address the constitutional issues directly, but suggested a narrow construction of the statute that would reduce RLUIPA's impact on local zoning policies.
Brooklyn Jury Convicts One, Exonerates Other
On Sept. 20, a Brooklyn jury found a court officer guilty of accepting bribes to steer cases to Brooklyn Matrimonial Justice Gerald P. Garson's docket, but acquitted the other defendant in the case.
Divorce and the Foreign-National Spouse
In last month's newsletter, we looked at some of the problems divorcing non-permanent U.S. resident immigrants can face when divorce, annulment or separation interferes with their plans to become permanent residents. We discussed some of the ways they can overcome these obstacles to legal permanent residence in the United States, but there are others that should be considered, in the appropriate circumstances.
Forensic Domestic Violence Assessments
The forensic evaluator's report can be crucial to the outcome of a domestic violence case, but the wrong type of evaluation can undermine a strong case. Psychologists who put themselves into the shoes of the judge when making their evaluations step over the line of clinical evaluation and can alienate the fact finder. Obtaining an assessment from a forensic psychologist with the correct understanding of his or her role in the decision-making process can is crucial.
Same-Sex Marriage Developments
In October, state comptroller Alan G. Hevesi issued the first official opinion from the government of New York concerning the state's recognition of the foreign marriages of gay partners with regard to a concrete right to state benefits. In a letter to a state employee who had asked what his partner's state benefits would be if they got married in Canada, Hevesi wrote that the employee's spouse would be entitled to state pension funds in the same manner that a traditional, opposite-sex spouse would be. New York State already allows state employees to name same-sex partners as beneficiaries of their pension funds, but Hevesi's decision means same-sex spouses will have rights that they might not have if their partners did not voluntarily name them as pension beneficiaries. In addition, same-sex spouses will be entitled to cost-of-living increases and accidental death benefits.
No-Fault Divorce on Front Burner
New York remains the only state in the union without a no-fault divorce provision on its books. Domestic Relations Law ' 170 authorizes divorce on grounds of adultery, abandonment and cruel and unusual treatment, but the closest thing to a no-fault divorce in this state is the recorded separation agreement followed by a year of living separately. Although this last ground might seem simple enough to comply with, it requires agreement by the parties and the often-expensive maintenance of separate residences before the marital assets have been distributed. If the New York State Bar Association has its way, all this will soon change.
Mild Traumatic Brain Injuries Pose Different Set of Rules
Patients in hospitals and nursing homes sometimes get injured, perhaps when they become disoriented and try to get out of bed unassisted or are being moved by hospital staff from a gurney to a bed. Patients can experience cerebral hypoxia (<i>ie</i>, a deficient oxygen supply to the brain) from anesthesia or surgical complications. Medical malpractice lawsuits often follow, with plaintiffs asserting that the hospital, nursing home staff or physicians failed to properly monitor and maintain the patient's safety. These plaintiffs may claim to have suffered acquired brain injuries (ABIs) or traumatic brain injuries (TBIs) that continue to hinder their ability to function in their everyday lives. However, while these assertions may be true, they call for further investigation on the part of the defense. Plaintiffs in medical malpractice actions have a financial incentive for exaggerating their symptoms, so an evaluation should be made to determine if the plaintiff is malingering.
