Wrongfully arrested by the NYPD? You can sue them if you act fast!

The New York City Police Department plays a crucial role in keeping our city and our residents safe. However, often times in carrying out their duties, officers break the law, either negligently or intentionally, thereby unlawfully arresting and unlawfully detaining innocent civilians. When this happens, the government (NYPD) is in violation of your most fundamental rights and your rights protected by the New York and U.S. Constitution. As such, victims of an unlawful arrest and unlawful imprisonment may file a lawsuit to obtain justice for the the government’s unlawful acts towards them.

Under the Constitution of the United States and New York State, the government, which includes law enforcement officials such as police officers, is only allowed to arrest and detain people when there is a probable cause to believe that the individual has committed a crime OR when there is a court issued warrant for the person’s arrest.

Therefore, when police officers (or government) engage(s) in abuse of power, such as arresting and detaining people without an arrest warrant or probable cause that a crime has been committed, their conduct gives rise to a lawsuit that can be brought by the person who was wrongfully arrested and/or detained.

The wrongfully accused can bring false arrest claims under state law against both the individual police officer and the City of New York as the city will be held vicariously (automatically) liable for the police officer’s misconduct. The New York City Police Department is not a proper defendant.

Additionally, the wrongfully accused can bring false arrest/imprisonment claims under Federal Law. Under the Civil Rights Act of 1871 – a federal statute, numbered 42 U.S.C. § 1983 (Section 1983), people can sue the government for civil rights violations such as right to liberty guaranteed by the U.S. Constitution. A Section 1983 case claim is applicable when someone like a police officer is acting “under color of” any state or local law has deprived a person of rights created by the United States Constitution or federal laws.

You may have a claim for false arrest and/or false imprisonment if any of the following occurred:

• You were released from Central Booking WITHOUT seeing a judge because the prosecutor declined to prosecute (DP);

• Police officer(s) told you that your arrest was based on mistaken identity;

• Police officer(s) said or somehow implied that you were arrested because of your race, age, sex, religion, or the way you dress;

• You were arrested after a motor vehicle stop BUT the police had no reason to make the stop (such as violating a basic traffic law);

• After seeing the judge, your case was dismissed in court. In a situation like this, you will likely have causes of action for both false arrest and malicious prosecution;

• Your case was dismissed by the prosecutor upon the prosecutor’s review of the facts surrounding your arrest;

• Your case was Adjourned in Contemplation of Dismissal (ACD). Accepting an ACD is not an admission of guilt; and

• Other unlawful activities by the police that lead to your unlawful arrest and/or imprisonment.

If you are a victim of an unlawful arrest and/or imprisonment, you are entitled to monetary damages to be compensated for sustaining emotional and economic damages. Keep in mind that under New York state law, you have to bring your claim within 90-days of the arrest. Don’t wait or you may lose the right to pursue your claim under state law.

If you believe your civil rights have been violated in New York, contact lawyer Kian D. Khatibi to defend your civil rights.

ATTORNEY ADVERTISING. This blog post does not constitute legal advice. Prior Results Do Not Guarantee Similar Outcome.

Should you trademark your business name?

As a business owner, you are probably aware that it is important to promote your business name and constantly improve its reputation by investing in branding and advertising. However, it is also crucial to protect your business name so that others can’t use it for their own benefit. When I speak to business owners here in my hometown of New York City, most are under the false impression that their business name is fully protected once they have incorporated their business name or registered it as an LLC. When you apply to be a corporation or an LLC, the secretary of state’s office is going to check to make sure that your proposed business name isn’t already in use by another company in your state.

If or when your LLC or corporation (Inc. or Corp.) application is approved, your company name is protected in the state to the extent that no other business will be able to form an LLC or corporation with the same name in that state. But keep in mind that registering your business name as an LLC or corporation will not stop a business that operates as a sole proprietorship or partnership from using your name in the state. It just won’t be able to register as an LLC or corporation with that name. And remember that registering your company as an LLC in New York will not prevent anyone from registering that name as an LLC  in another state.

HOW DOES A TRADEMARK DIFFER FROM REGISTERING YOUR BUSINESS WITH THE STATE?

Registering your trademark with the United States Patent and Trademark Office (USPTO) will provide you the exclusive right to use your business name nationwide in connection with the goods and/or services you’ve identified in your USPTO registration.  A federal trademark also allows you to enforce your trademark by filing a lawsuit in federal court. These are strong protections. However, it will be up to you, the owner of the mark, to monitor unauthorized uses of your trade name and take steps to stop them.

Getting a trademark registered with the USPTO can take upwards of 6 to 12 months. The process is more expensive and involved than registering a business name with the state, but it provides you with exclusive rights in all 50 states, especially if you’re targeting clients outside of your state. And, unlike copyrights or patents, trademarks have an unlimited lifespan so long as you comply with the renewal requirements.

Warranty of Habitability in New York

The Warranty of Habitability under the New York Real Property Law § 235-b provides residential tenants the right to live under habitable conditions. This law was enacted in 1975. Prior to 1971, residential leases relegated most of the responsibility for maintenance and repairs to the tenants. Fortunately for New York tenants, the New York State Legislature enacted the Warranty of Habitability in 1975 which continues to protect tenants rights until present day.

The Warranty of Habitability is an implied right in every residential lease, regardless of whether its actually written in the lease or not. Moreover, neither the landlord nor the tenant can agree to waive or modify the Warranty of Habitability. And if your lease happens to contain the language where you give up your right to a live in habitable, safe and clean apartment, the Courts will not enforce that part of the lease.

For instance, if your apartment lacks adequate heat or hot water on a regular basis, your landlord is in breach of Warranty of Habitability. If your apartment has a pest or rodent infestation and your landlord fails to cure the issue, than he or she is in breach of Warranty of Habitability. Keep in mind that in order for your landlord to be in breach of Warranty of Habitability, the unlivable, unsafe or unclean condition may not have been caused by you. Otherwise, you the tenant must cure the condition, not your landlord.

If your landlord is in breach of Warranty of Habitability, there are several things that you can do as a tenant. First and foremost, give your landlord written notice about the poor condition in your apartment and keep a copy of the written notice for proof. You can ask your landlord for rent abatement or credit towards your rent for poor conditions in your apartment. If the landlord refuses to work with you, you can bring suit against your landlord for rent reduction under the Warranty of Habitability. Also, you may withhold rent and not pay until the condition is cured.”The obligation to pay rent is dependent upon the landlord’s satisfactory maintenance of the premises in habitable condition” (Park West Management Corp. v. Mitchell, 47 N.Y.2d 316). However, if you withhold rent, your landlord may, and probably will sue you for non-payment of rent. In that case, you can countersue the landlord for breach of Warranty of Habitability. The Court will then decide what amount of credit (rent abatement) you shall receive towards your rental arrears.

“If your landlord is in breach of Warranty of Habitability, there are several things that you can do as a tenant.”

Another thing you can do is try to make the necessary repairs yourself and then subtract those repairs from your rent either by talking and negotiating with your landlord, or by taking the adversarial approach of suing your landlord for reduction of rent, or by withholding rent and waiting for the landlord to bring suit against you for non-payment of rent at which point you can counterclaim for breach of Warranty of Habitability.

New York landlords must keep apartments and common areas in good livable conditions, clean and free of pests, rodents, insects, garbage and other materials that interfere with habitable living. All electrical, plumbing, sanitary, heating and ventilating systems must be working. Also, any appliances that came with the apartment lease must be in good, safe and working order.

Remember, if you feel that your landlord is in breach of Warrant of Habitability, be sure to put the landlord on notice. Otherwise the landlord may claim that he did not know of the poor conditions and that is why the poor conditions were not cured.

If you are a tenant with Warranty of Habitability related issues, you might want to consult with a seasoned landlord/tenant lawyer who can advocate on your behalf with a landlord who is acting unreasonable and contrary to law.

ATTORNEY ADVERTISING. This blog post does not constitute legal advice. Prior Results Do Not Guarantee Similar Outcome.

Your rights to a speedy trial in New York.

Individuals charged with a crime have a right to a speedy trial. This is a very powerful right for a criminal defendant. You may ask “why?” Because under this right, if the People (the government) violate speedy trial rights of the criminal defendant, charges may get dismissed, even if there is strong evidence against the defendant.

The US Constitution, specifically the Sixth Amendment protects criminal defendants from delayed prosecution: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . .” The US Constitution does not set forth a time period in which the People must be ready for trial after commencing a criminal action against a criminal defense, which usually occurs at the arraignment. That is when the clock starts running.

Contrastingly, New York law sets forth a time period in which the People must be ready for trial after commencement of a criminal action. New York Criminal Procedure Law (“CPL”) § 30.30 says that from the time of arraignment of a criminally accused, People must be ready for trial as follows:

• 180 days for a Felony; (punishable by more than 1 year in prison).

• 90 days for a Class A Misdemeanor; (punishable by up to 1 year in jail).

• 60 days for a Class B, Misdemeanor (punishable by up to 90 days in jail).

• 30 days for a Violation (punished by up to 15 days in jail).

In New York, rights to a speedy trial among attorneys is commonly referred to as “30.30” rights, named after CPL § 30.30.

Keep in mind that the clock does not always start running immediately after arraignment. Also, there are situations that exclude certain time periods from running against the speedy trial clock. Examples of excludable time is unavailability of a witness to testify due to medical leave, unavailability of the criminal defendant who may be hospitalized or detained by a federal agency, etc. For example, if the defendant consents to the People’s request to adjourn the case to a future date, that period of adjournment is excluded from counting against the speedy trial clock. If the Defendant misses a court date, the speedy trial clock will stop from running. CPL § 30.30(4) lists certain periods that are excludable. In addition to that, there is a plethora of case law defining excludable time periods.

The best way to keep track of speedy trial time is by hiring a competent defense attorney who will keep track of the speedy trial clock in order to protect your Constitutional and statutory rights to a speedy trial.

ATTORNEY ADVERTISING. This blog post does not constitute legal advice. Prior Results Do Not Guarantee Similar Outcome.