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coopererving

New York Court Declines to Enforce Non-Compete Clause Against Veterinarian.

On December 4, 2018, Judge Richard D. Northrup, Jr., of the New York State Supreme Court, County of Delaware, declined to grant an employer’s motion for a preliminary injunction and temporary restraining order in the case of Jonathan H.F. Davis, DVM v. Mathew R. Zeh, DVM, Index No. 2018-1073 (Sup Ct., Delaware County 2018).  Dr. Davis owns a veterinarian clinic that used to employ Dr. Zeh.  After terminating Dr. Zeh’s employment, Dr. Davis sought to prohibit Dr. Zeh, a veterinary doctor, from continuing to practice veterinary medicine in his own clinic.  Dr. Davis relied on a non-compete agreement clause in the employment agreement that prohibited employees from engaging in any business that competed with Dr. Davis’ veterinarian business for a period of 3 years.  In a decision that recognizes New York’s disfavored view of restrictive covenants, Judge Northrup, Jr., denied the employer’s injunctive relief finding that the employer failed establish likelihood of success on the merits and that the non-compete provision was enforceable. Click here for decision.

Teacher will go to trial in sex and age discrimination lawsuit.

On July 4, 2018, Judge Brenda K. Sannes of the NDNY denied summary judgment in the case of Colistra v. Cairo-Durham Central School District. Against opposition from the School District, the Court ruled that Ms. Colistra, the former Director of Special Education and Curriculum and Instruction, was entitled to a trial on her claims of sex and age discrimination, concluding that there were issues of fact for a jury to decide as to whether she was belittled in her position because she was female and whether she was retaliated against because she asserted that the District operated as a “boys’ club.”

Steck re-elected for New York State Assembly.

On November 6, 2018, Phil Steck won re-election as a member of the New York State Assembly. Steck received 10,000 more than his opponent out of about 49,000 votes case. Steck’s 29,000 votes are among the highest for any Member of Assembly in a competitive district. Steck, a Democrat, represents the Town of Colonie, the Town of Niskayuna, and the City of Schenectady.

Court grants permanent injunction against RPI.

Court annulled determination by Rensselaer Polytechnic Institute (RPI) that unaffiliated student violated RPI’s Student Sexual Misconduct Policy, and issued injunction preventing RPI from disseminating improper investigation materials and allegations to unaffiliated student’s academic institution.  Court ordered RPI to delete and purge John Doe’s statement and annul their determination that John Doe allegedly violated RPI’s student sexual misconduct policy.  Matter of John Doe v. Rensselaer Polytechnic Institute, and Larry Hardy as Title IX Coordinator for Rensselaer Polytechnic Institute (Rensselaer. Cnty. Sup. Ct. 2017).

https://www.thefire.org/rensselaer-polytechnic-institute-thinks-youre-subject-to-its-student-conduct-policy-even-if-youre-not-a-student/

 

Greene County man, in lawsuit, alleges excessive force by two Saugerties police officers

Cooper Erving & Savage, LLP files a civil rights lawsuit on behalf of a disabled man assaulted by Saugerties police officers working undercover for a drug enforcement inter-agency task force operated by the County of Ulster and the Ulster County District Attorney’s Office [Johndrue Mabb v. The Town of Saugerties et al., 1:18-cv-0866 (N.D.N.Y. 2018)].

http://www.dailyfreeman.com/general-news/20180820/greene-county-man-in-lawsuit-alleges-excessive-force-by-two-saugerties-police-officers

https://hudsonvalleyone.com/2018/08/17/suit-claims-saugerties-cops-roughed-up-man-causing-permanent-injury/

Ex-Mayor Sues Village for Injunction and Damages for Creation of Nuisance, and for Interfering with his Right to Maintain the Parking Lot Adjacent to his Property.

PRESS RELEASE

FOR IMMEDIATE RELEASE

Contact: Carlo A. C. de Oliveira, Attorney
August 29, 2017 (Cooper Erving & Savage LLP)
449-3900
cdeoliveira@coopererving.com

Ex-Mayor Sues Village For Injunction and Damages for Creation of Nuisance, and for Interfering with his Right to Maintain the Parking Lot Adjacent to his Property.

Mark Nadeau, a local contractor and former Mayor of the Village of Cobleskill, filed a civil action with the Supreme Court, County of Schoharie seeking injunction and punitive damages for the Village of Cobleskill interference with his rights to maintain the parking lot adjacent to his property at Union Street.

The Verified Complaint alleges that the parking lot in the intersection of Union and Main streets is a right of way easement that was intended to provide access from the property formerly known as the “United States Hotel” to Main and Union Streets. In 2002, the Village created a defect on the pavement when it paved over old fuel tanks buried under the surface of the parking lot. The Village also repaved the parking lot to a much higher elevation in order to address a long standing drainage problem, and to divert water toward Union Street. In his Complaint, Mr. Nadeau alleges that the Village created a hazardous condition on the parking lot, which prevented prospective buyers and tenants from buying or leasing his property. Mr. Nadeau offered to re-grade the parking lot at no cost to the Village but the Village refused. The Village has since barricaded the parking lot and prohibited Mr. Nadeau from repairing it. Mr. Nadeau alleges that the Village’s conduct substantially interfered with his right to use and enjoy the right of way easement, where the parking lot now sits, including his right to maintain and repair said parking lot.

Mr. Nadeau is being represented by attorney Carlo A. C. de Oliveira of Cooper Erving & Savage LLP.

CAIRO-DURHAM TEACHER VINDICATED AFTER 7-YEAR LONG COURT BATTLE.

PRESS RELEASE

FOR IMMEDIATE RELEASE

Contact: Carlo A. C. de Oliveira, Attorney
Phillip G. Steck, Attorney
April 3, 2017 (Cooper Erving & Savage LLP)
449-3900
cdeoliveira@coopererving.com
psteck@coopererving.com

CAIRO-DURHAM TEACHER VINDICATED AFTER 7-YEAR LONG COURT BATTLE.

In an important case that defines the FMLA (Family and Medical Leave) rights of women after childbirth, the United States Court of Appeals for the Second Circuit, based in New York City, and the United States District Court for the Northern District of New York, based in Syracuse, have ruled that an employer must notify a pregnant woman of any adverse consequences which taking FMLA leave may have on her employment benefits.

On March 30, 2017, after a 7-year long court battle, which included an appeal to the Second Circuit, District Court Judge Norman A. Mordue ruled that the Cairo-Durham Central School District interfered with a former teacher’s FMLA rights by failing to give her notice that she would lose seniority while on unpaid FMLA leave. The plaintiff, Donna Scarpinati de Oliveira, was terminated from her employment after the former Superintendent of the Schools deducted the time the plaintiff spent on unpaid FMLA maternity leave from her seniority, resulting in her layoff.

Ms. de Oliveira, grew up in Cairo and graduated from the Cairo-Durham Central School District. After beginning her teaching career, also at the District, she moved to Maryland, where she taught and became a tenured teacher. In 2007, she returned to New York to be near her family and friends and to teach at Cairo-Durham. Ms. de Oliveira’s fate changed after she gave birth to her child in the summer of 2009. Ms. de Oliveira sought unpaid FMLA leave to care for her newborn child for 23 days. Unbeknownst to her, the District reduced her seniority by those 23 days. As a result, Ms. de Oliveira lost her job as part of a layoff of the four least senior teachers in the school. Had she been advised that her seniority status would have been affected by her unpaid FMLA leave, she would have not taken as much unpaid leave and would not have been terminated from her employment.

Judge Mordue stated that “Plaintiff’s testimony and affidavits clearly and consistently show that that she would not have taken unpaid FMLA leave if the District defendants had properly notified her that she would not accrue seniority while on such leave.” (deOliveira v. Cairo Durham Case No. 1:11-cv-0393, p. 9. Judge Mordue further found that Plaintiff “had child care available whenever she decided to return to teaching; she and the baby were both healthy; she wanted to work; she came back to work after using only about half of her FMLA leave; she knew that she and a few other teachers had the least seniority; she was aware that layoffs could occur any year due to budgetary reasons, a decline in enrollment, or voter rejection of the school budget; and when she decided to take unpaid FMLA leave, she believed that all her terms and conditions of employment – including seniority – would not be adversely affected.” A trial is scheduled to take place on August 21, 2017, at which time a Jury will determine what damages the School District must pay Ms. de Oliveira for violation of her FMLA rights.

Ms. deOliveira was represented by attorneys Carlo A. C. de Oliveira and Phillip G. Steck of Cooper Erving & Savage LLP. Mr. Steck commented: “Labor laws are passed such as FMLA but unfortunately they are often ignored. This is the second case we have had where a public employer ignored the clear requirements of the FMLA.” Last year, Mr. Steck and Mr. de Oliveira obtained a federal injunction to stop a school district from terminating the employment of a teacher who took leave to care for her newborn children.

Court Orders City of Ogdensburg to Approve Zoning Application for Facility Serving Individuals with Mental Illness.

PRESS RELEASE

FOR IMMEDIATE RELEASE

Contact: Carlo A. C. de Oliveira, Attorney
April 6, 2016 (Cooper Erving & Savage LLP)
449-3900
cdeoliveira@coopererving.com

Court Orders City of Ogdensburg to Approve Zoning Application for Facility Serving Individuals with Mental Illness.

Angela Heroux worked as a part-time cashier/clerk for the Lake Placid Central School District. She spoke out against the school budget at a meeting of the Board of Education on May 9, 2006. Superintendent Ernest Stretton reacted angrily to Mrs. Heroux’s speech, He replied:

“It’s despicable. To sit here and read that garbage and implicate this board is despicable. If you don’t like it, you can pack your bags and leave. This is not about the budget; this is about a disgruntled employee.” Shortly thereafter, her employment was terminated.

On June 30, 2006, Mrs. Heroux filed a lawsuit in the United States District Court for the Northern District of New York stating that Mr. Stretton and the Board of Education had violated her rights under the United States Constitution by retaliating against her for her speech on the school budget. The First Amendment prohibits the government from penalizing someone who simply has exercised her right as a citizen to speak out on matters of public concern. The lawsuit sought damages against the Lake Placid Central School District under the Civil Rights Act of 1871, which was enacted to prevent local and State government from violating the Federal Constitutional rights of citizens.

Today, the Lake Placid Central School District consented to allow judgment to be entered against it in the lawsuit in the amount of $69,000. This concludes the lawsuit.

Phillip G. Steck, of Cooper Erving & Savage LLP, in Albany, New York, Ms. Heroux’s attorney, commented: “I am very happy for Angela. By allowing judgment to be taken against it, the School District and the Superintendent are admitting that they acted wrongfully. She should feel vindicated.” The amount of the judgment reflected the fact that Mrs. Heroux was only a part-time employee of the School District.

Mrs. Heroux added: “This has been a very difficult situation for me and my family. I would never want anyone to go through what we have in this small town. No taxpayer should ever be penalized for asking questions, speaking their mind, or wanting accountability from their elected officials.”

Mrs. Heroux explained why she accepted the amount of the judgment. “The best thing to do is put this behind me and move on. My goal was never to go through years of litigation.” Mrs. Heroux, who has a child in the Lake Placid Central School District, saw her acceptance of the judgment as in the whole community’s best interest. “One person’s vindictiveness has caused much distress. That attitude is counterproductive. The goal is to make sure the community carefully watches every dollar that is spent and properly provides for the students in our schools and the families and neighbors who struggle each day to make ends meet in the North Country.”

LAWSUIT FILED AGAINST MUNICIPALITY FOR USING ZONING LAWS TO DISCRIMINATE AGAINST THE MENTALLY ILL

PRESS RELEASE

FOR IMMEDIATE RELEASE

Contact: Carlo A. C. de Oliveira, Attorney
July 31, 2015(Cooper Erving & Savage LLP)
518-449-3900
NDNY: 7:15-cv-925

LAWSUIT FILED AGAINST MUNICIPALITY FOR USING ZONING LAWS
TO DISCRIMINATE AGAINST THE MENTALLY ILL

On July 30, 2015, the law firm of Cooper Erving & Savage LLP filed a federal civil action in the United States District Court for the Northern District of New York alleging that the City of Ogdensburg, in the County of St. Lawrence, discriminated against Step by Step, Inc., a Not-for-Profit organization that provides outpatient mental health services for individuals with mental illness in the City of Ogdensburg.

The lawsuit alleges that the City of Ogdensburg violated The Fair Housing Act and The Americans With Disability Act when it denied Step by Step Inc.’s application to rezone an area formerly occupied by an elementary school from a Single Family Residential (“SFR”) to a Planned Development District (“PDD”).

Step by Step has been providing outpatient mental health support services for individuals with mental illnesses in the City of Ogdensburg since 1997. In September 2014, Step by Step purchased a parcel of land located at 1515 Knox Street in the City of Ogdensburg for the purpose of redeveloping the existing former school building to provide for a combination of supportive housing, respite/hospital diversion housing, rental office space for other non-for-profit organizations, and mental health support services to individuals with mental illnesses. Because 1515 Knox Street is zoned in a single family residential area, Article IX of the City Code required Step by Step to file a PDD application to have the area rezoned from a SFR to a PDD. The Complaint alleges that Step by Step complied with all requirements set forth in the City Code but that the City Council, pressured by community members opposing Step by Step’s project voted to deny Step by Step’s application.

According to the complaint, the City of Ogdensburg ignored its own laws and procedures governing rezoning applications in order to appease the discriminatory viewpoints of members of the community when it decided to deny Step by Step’s application. The Complaint provides a chronology of Step by Step’s application process and the City Council’s attempt to place Step by Step’s application on hold indefinitely until the Council could pass a more restrictive Adaptive Reuse District law that would allow for greater public input in the Council’s decision making process. The debate over Step by Step’s application in the City Council can be viewed at the City of Ogdensburg website: at http://www.ogdensburg.org/index.aspx?nid=107 under “Council Meetings.” It is clear from the City Council meetings that Step by Step’s rezoning application focused on the population Step by Step serves rather than the criteria necessary to have a zoning change approved under the City Code. During the application process, City residents opposing Step by Step’s application referred to Step by Step’s patients as “these people,” “mentals,” and “sex offenders,” while City Council members spoke of the need to protect the community from PDD applications such as the one filed by Step by Step.
The City of Ogdensburg denied Step by Step’s application preventing Step by Step from moving its services to 1515 Knox Street. As a result, Step by Step will not be able to provide housing opportunities to its patients and other individuals in the community suffering from mental illnesses and who are living under conditions that are not conducive to their well-being.

Attorney Carlo A. C. de Oliveira said that his client tried to avoid litigation at all costs; however, Step by Step could not sit idle in face of such blatant discriminatory treatment against the mentally ill by the City of Ogdensburg. David Bayne, Executive Director of Step by Step, stated that Step by Step was seeking to provide services to the community by keeping individuals suffering from mental illnesses out of the streets and out of the hospitals by providing them the support necessary to become productive members of society. “Step by Step’s services help save taxpayers’ money!” “Now, the City faces a lawsuit that will undoubtedly and unnecessarily cost money to the taxpayers the City could be saving.” De Oliveira stated that the City of Ogdensburg ignored a letter he sent to the Mayor dated May 27, 2015 advising the City of the legal ramifications of allowing the community’s illegal prejudices to control the Council’s decision making process regarding Step by Step’s application. “It was disheartening to see that the Council had no intention of considering the merits of Step by Step’s application but, instead, it focused on Step by Step’s patients.” “The Council meetings turned into a public lynching of Step by Step and its patients but the merits of Step by Step’s application were never discussed.” “There was no hope that this Council would ever approve an application made by Step by Step to rezone 1515 Knox Street to provide services to the mentally ill.” “Filing a lawsuit was inevitable.”

De Oliveira also stated that his client plans on seeking a preliminary injunction to order the City of Ogdensburg to approve Step by Step’s application on the grounds that Step by Step and its patients have suffered and will continue to be irreparably harmed if Step by Step is not permitted to provide housing services to its members at 1515 Knox Street.

Cooper Erving & Savage LLP Obtains Judgment

Cooper Erving & Savage LLP obtains judgment against the City of Schenectady Police Department and New York  State Troopers for the excessive use of force

In 2008, Cooper Erving & Savage LLP commenced suit in the United States Federal District Court – Northern District of New York against the City of Schenectady Police Department, individual police officers of the City of Schenectady Police Department and two Troopers of the New York State Police for excessive force used against an individual in the City of Schenectady. It was claimed that in April 2006, the Schenectady police officers, with the assistance of the New York State Police, used excessive force and that the City of Schenectady failed to properly train and supervise its officers in the use of force. On March 26, 2010, Judgment was entered against the City of Schenectady and the individual officers.

After suit was commenced, the attorneys from Cooper Erving & Savage LLP were able to obtain documentary evidence, as well as pre-trial testimony, which confirmed that seven officers tackled the individual to the ground, punched and kneed him multiple times, subjected him to pressure point manipulation and chemical spray, and repeatedly struck him with a steel baton. A videotape was obtained by the attorneys of Cooper Erving & Savage LLP which appeared to show an officer repeatedly kicking him.

The individual was never charged with anything stemming from the evening of the attack.