He Said/She Said, Save Our Sons, and the Stories that Stick: Part Two of a Two-Part Series of Columns

SHERRY F. COLB

In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.

Read More

People v. Batticks

Citation: 2020 NY Slip Op 05840

Opinion Date: October 20, 2020

Judge: DiFiore

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Court of Appeals affirmed the order of the Appellate Division affirming Defendant's conviction of second-degree assault, holding that the trial court did not abuse its discretion in giving the jury a curative instruction and forgoing a Buford inquiry of a sworn juror after her exclamation during trial that she was very offended by the repetitive use of a racial slur by Defendant's counsel while cross-examining the victim. On appeal, Defendant argued that the trial court abused its discretion as a matter of law in its response to the juror's disruption of the trial. The Court of Appeals disagreed, holding (1) the court's curative instruction was a "thorough and sensible approach" that addressed each of the concerns raised by counsel and reached the same result that would have been afforded by a Buford inquiry of the single juror; and (2) therefore, the court's remedy was not an abuse of its discretion.

Chavez v. Occidental Chemical Corp

Citation: 2020 NY Slip Op 05839

Opinion Date: October 20, 2020

Judge: Stein

Areas of Law: Class Action, Drugs & Biotech

The Court of Appeals answered questions certified to it by the United States Court of Appeals for the Second Circuit regarding whether New York recognizes so-called American Pipe tolling of the statute of limitations for absent class members of a putative class action filed in another jurisdiction. In 2012, Plaintiffs filed individual lawsuits alleging injuries based upon the manufacturing of a nematicide by Occidental Chemical Corporation. The cases were consolidated, and the action was transferred to the United States District Court for the Southern District of New York. Occidental moved for judgment on the pleadings, arguing that Plaintiffs' claims were time-barred under New York law. Plaintiffs argued in response that a putative class action originally filed in Texas state court in 1993 had tolled the applicable three-year statute of limitations. The New York District Court Judge denied the motion and certified an interlocutory appeal to the Second Circuit, which, in turn, certified questions to the Court of Appeals. The Court of Appeals answered (1) New York recognizes American Pipe & Construction Co. v. Utah, 414 US 538 (1974), tolling for absent class members of putative class actions filed in other state and federal courts; and (2) a non-merits dismissal of class certification, as occurred here in 1995, extinguishes tolling.

Lynch v. City of New York

Citation: 2020 NY Slip Op 05841

Opinion Date: October 20, 2020

Judge: Fahey

Areas of Law: Labor & Employment Law

The Court of Appeals reversed the order of the Appellate Division and reinstated Supreme Court's judgment declaring that Defendants violated the second subdivision (h) of Administrative Code of the City of New York 13-218 by excluding police officers in tier 3 of the state retirement system from the retirement benefits conferred by that subdivision reinstated, holding that the relevant part of section 13-218 rendered those officers eligible for credit for certain periods of unpaid childcare leave. At issue was the policy of the City of New York that tier 3 officers are not eligible for certain benefits available to officers in tier 2 of the New York City Police Pension Fund retirement plan, including the mechanism that allows police officers to obtain credit for certain periods of absence without pay for childcare leave. Supreme Court awarded Plaintiffs judgment, declaring that affected police officers were entitled to the childcare leave benefit. The Appellate Division reversed. The Court of Appeals reversed, holding that section 13-218 renders officers of the New York City Police Department who are members of the tier 3 retirement system are eligible for credit for periods of unpaid childcare leave and that the grant of such benefits for those officers is consistent with the Retirement and Social Security Law.