Legal Research

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Free With Registration: Evidence
Friday, February 13, 2009
By Michael Martin

 "Michael M. Martin, the distinguished professor of law at Fordham Law School, writes: When a photograph is offered as evidence of a fact it depicts, it must be shown to be a fair depiction of the fact, customarily through the testimony of the person who took it. However, testimony by the photographer is not required: any person with knowledge of the matter depicted can attest that the photo is a fair representation of the fact for which it is offered. In a recent Second Department decision, a photograph for which the usual authenticating foundation could not be provided was held to be properly admitted. I believe that the reasoning of the opinion was doctrinally suspect; however, the result seems likely correct."

New York Court of Appeals Roundup
Friday, February 13, 2009
By Mary Elizabeth McGarry and Roy L. Reardon

"Mary Elizabeth McGarry and Roy L. Reardon, partners at Simpson Thacher & Bartlett, discuss three of the Court's recent decisions: in Helmsley-Spear Inc. v. Fishman, the Court found that federal labor law did not preempt the state court's ability to enjoin a nuisance; in D'Onofrio v. City of New York, it addressed what constitutes adequate notice of a sidewalk defect for purposes of what has become commonly known as the 'Pothole Law'; and in Matter of Rivera v. Firetog, the Court reviewed the criteria for directing a mistrial on all counts due to a jury deadlock in the absence of a declaration by the jury that it has reached a partial verdict, and the standard of review of mistrial orders."

OUTSIDE COUNSEL:

The Lender's Exit Strategy In Mezzanine Financing
Friday, February 13, 2009
By Sandra Stern

" Sandra Stern, a partner at Nordquist & Stern, explores the secured party's options for enforcing its security interest and disposing of the collateral after it has declared an event of default in a mezzanine loan and advises that the secured party's first decision should be whether it will proceed by judicial foreclosure or a nonjudicial process under the self help rules in Part 6 of Article 9 of the UCC." 

REAL ESTATE TRENDS:

 Adverse Possession Changes Make Results Less Certain
Wednesday, February 11, 2009
By Adam Leitman Bailey and John M. Desiderio

"Adam Leitman Bailey and John M. Desiderio, partners at Adam Leitman Bailey, P.C., write: Since 1998, of the 105 New York state cases dealing with adverse possession, 29 involved allegations by the property owners that the adverse possessors were aware they did not own the property. Nevertheless, none of these cases, including Walling, involved what could truly be considered a 'stealth' takeover when the law of adverse possession required, as a precondition to divesting an owner's title, that the adverse possession be 'open and notorious' and 'continuous' for a 10-year period. One must ask what great harm had adverse possession law, as enunciated by Walling, done to the citizens of the state? "