August 1997

Vol.2 – No.1

Your Small Business Dot Com

The Internet provides a speedy, cost-effective way for businesses and professionals to compete internationally. Whether you are operating from your basement or Madison Avenue, your business can look like a million dollars. The Internet has leveled the playing field between big and small businesses. A small business can reach as many potential customers as a large business. The Web gives a whole new meaning to the phrase “home based business”.

Hot Sites

The Center for Democracy and Technology (CDT), a Washington, D.C.-based public interest and advocacy organization dedicated to protecting civil liberties and advancing democratic values for online technology, has a privacy demonstration page (http://www.cdt.org). The capacity for invading privacy on the Internet is built into the technology. Your browser can automatically disclose to a Web site your e-mail address and the web site that you previously visited. The Anonymizer site (http://www.anonymizer.com) gives you an anonymous identity-a pseudonym-by which you can browse the Web anonymously. How much house can you afford? Stewart Title Insurance Company (www.stewart.com) has a mortgage calculator, glossary of terms, guide to closings, home buying considerations, selecting an agent, why title insurance is necessary and tips for sellers. The National Association of Realtors® (www.realtor.com) will help you find a home from 811,000 properties with a customized search for each city, home ownership tips, mortgage information and Realtors® associations. The Securities Class Action Clearinghouse (securities.stanford.edu), hosted by Stanford Law School, provides useful statistics and information on securities class actions.

What’s New in Consumer Law?

Ban on cyberspace pedophilia is unconstitutional. A recently enacted New York law that made it a felony to send sexually explicit materials to children via the Internet has been ruled to be an unconstitutional intrusion on interstate commerce. Although the U.S. District Court found that the protection of children from pedophilia is an entirely valid and laudable goal of state legislation, it runs afoul of the U.S. Commerce Clause.

What’s New in Debtor/Creditor Law?

The Fair Debt Collection Practices Act (FDCPA) does not apply to a demand letter sent by an attorney to collect for the theft of cable vision services through a decoding mechanism. The alleged theft is not a “debt” under the FDCPA (U.S. District Court for the District of Connecticut). However, recovery of a bounced check given to a restaurant (Ninth Circuit) and overdue condominium fees (Seventh Circuit) are “debts” covered by the FDCPA.

What’s New in Divorce/Family Law?

Child support credits were adopted by the New Jersey Supreme Court effective September 1st. The following fourteen states also give noncustodial parents child support credits for spending more time with their children: Alaska, Colorado, Washington, D.C., Maryland, Michigan, Minnesota, Nebraska, North Carolina, Oregon, Utah, Vermont, Virginia, Wisconsin and Wyoming. In New Jersey, noncustodial parents are eligible for a “shared-parenting credit” if they provide a separate bedroom for their children in their home and the children are kept for either two overnights a week or 28 percent of the time, not counting holidays and extended visits of five days or more. Additionally, all noncustodial parents are eligible for a separate, smaller visitation credit to cover expenses, such as food and transportation.

What’s New in Estate Planning Law?

Trustee surcharged $4 million. At the date of death, the estate was worth $2.5 million, 71 percent of which was Kodak stock worth $139 per share. However, the stock went down to $109 by the end of the year and continued to fluctuate until it reached about $47 in the early 1980s when the trustee filed an accounting. The widow filed objections to the accounting. The Surrogate found that the bank trustee had disregarded its investment obligations and imposed a $4 million surcharge under the Prudent Persons statute. The trustee had failed to consider the size of the trust and the needs of the beneficiary. The stock should have been diversified (New York Court of Appeals).

What’s New in Health Law?

State cannot recover Medicaid from estate where there is a disabled child. A mother received Medicaid benefits until her death. Her will divided her property equally between a healthy child and a disabled child. The law prohibits recovery of Medicaid from an estate where the recipient is survived by a disabled child. The state sought recovery from the assets passing to the healthy child. The New York Appellate Division disallowed any recovery whatsoever, holding that the statute that prohibits recovery operates to bar recoupment of any assets of the estate regardless of whether they are in fact paid to the disabled child. Doctor must warn of possible birth defect. A doctor can be sued for wrongful conception where he did not tell a couple that they were likely to have a child with sickle cell disease and they conceived a child who had the disease. Damages included the medical expenses of pregnancy, pain and suffering, lost wages and the cost of extraordinary care in treating the child (North Carolina Court of Appeals). There are similar rulings in Florida and Washington.

What’s New in Landlord/Tenant Law?

Tenant liable for fire caused by her son. A six-unit apartment house was seriously damaged by a fire originating in the master bedroom. The tenant left her three year old son alone in the master bedroom for several minutes while she showered. She returned to the room to find the carpet in flames started by the child playing with a lighter or matches. The Rockingham, North Carolina County Superior Court awarded the landlord $187,000.00 for negligent supervision. Landlord must mitigate. The Texas Supreme Court has abandoned the common law rule that landlords have no duty to mitigate their damages when tenants breach their leases and abandon the property. Failure by landlords to use reasonable efforts to fill vacant premises will bar their recovery against a breaching tenant to the extent that they could have mitigated damages.

What’s New in Personal Injury Law?

Shopper awarded $4 million for severe brain damage caused by falling merchandise. Twelve to thirty large boxes of toys stacked on high shelves above the aisle collapsed on top of a former Air Force medical corpsman while he was shopping. He was knocked to the ground and struck his head on the floor. He was unconscious for approximately thirty minutes and spent three weeks in the hospital. He has permanent brain damage, including intractable epilepsy and psychosis and is unable to take care of himself (California). Store liable for shooting of clerk. A convenience store clerk who was shot by a robber was awarded $1.8 million against the employer’s parent company for inadequate security despite the fact the store was not in a high-crime area and there had been no similar incidences. The court determined that the robbery was foreseeable because: (a) there is an “inherent risk” of robbery in convenience stores; (b) there was a dramatic increase in convenience store robberies nationwide and within the state; (c) the store lacked good lighting, an alarm system, video cameras and a barrier separating the cash register from the rest of the store to protect the clerk; and (d) the store was located next to a vacant lot which could serve as an easy escape route (New Jersey Appellate Division).

What’s New in Real Estate Law?

Beware of IRS estate tax lien. If you acquire property from an estate or from a seller who purchased it from an estate, it may be subject to a special tax lien under IRC Section 6324(a)(1). The lien is on all real and personal property of the decedent for ten years and secures the entire estate tax due from the estate. Because the lien is established and perfected by statute, the government is not required to record any instrument evidencing the lien. The lien attaches to an estate on the date of death and runs with the land of the estate until it is divested, even if the land is transferred to a bona fide purchaser for value.

What’s New in Small Business Law?

Insurance doesn’t cover gradual gas leak. A business which stored and sold gasoline had an insurance policy that covered it for any property damage or personal injury it might cause, but it excluded coverage for damages caused by the discharge of toxic chemicals, liquids or other pollutants into or upon the land. However, the policy did cover a toxic discharge which was sudden and accidental. Owners of neighboring properties sued the business for gasoline leaks. The insurance company rightfully declined coverage because the leak was gradual and cumulative and not sudden and accidental as required by the policy (New York Court of Appeals). New EEOC rules for job interviews. Applicants for employment cannot be asked a question that is likely to elicit information about a disability before being given a job offer. However, after an offer is made, the employer can ask about any disabilities. A job offer can also be conditioned on the applicant’s answer to these questions. Examples of legal and illegal questions will be covered in the newsletter over the next few months. It is legal to ask about current and past use of illegal drugs, but not about addiction. An employer may ask “have you ever used illegal drugs?”, but not “have you done so in the last six months?”. However, it is illegal to ask “how often do you use illegal drugs?” or “have you been treated for drug abuse?”. It is illegal to ask about lawful drug use, unless the applicant has tested positive for illegal drugs and the employer is looking for an explanation.

Injured Victims’ Rights

The Friedman & Ranzenhofer, P.C. Ten Point Pledge to Accident/Injury Clients is:

• To communicate with you in plain language that is easy to understand.
• To promptly return your telephone calls.
• To quickly and thoroughly investigate and analyze your case. Friedman & Ranzenhofer, P.C. does not accept every accident case.
• To have your case personally handled by an attorney.
• To keep you informed of the progress of your case at all times.
• To show you the personal care, concern and attention which has been the hallmark of our law firm since 1955.
• To not handle your case in an “assembly line” fashion.
• To accommodate the needs of you and your family during the handling of your case.
• To vigorously protect your legal rights.
• To never release your name to the media after your case has been completed, except with your written permission.

Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall, dog bite and defective product cases. He is a member of the Association of Trial Lawyers of America, the New York Trial Lawyers Association, the New York State Trial Lawyers Association and the Erie County Bar Association Negligence Committee.