New York Recent Legal Answers from Lawyers

Mr. Smith, sorry to hear what you went through.  Unfortunately, the statute of limitations for personal injury cases in New York is only three (3) years which means you may be out of time in which to file a lawsuit.  You are, of course, free to speak with a personal injury attorney.  You can find one using the Find a Lawyer tab on the Lawyers.com homepage.  Keep in mind that you might have difficult medically connecting inhalation of toxic dust with a traumatic brain injury or the other medical conditions which you are alleging. Best regards, Jonathan R. Ratchik, Esq. Kramer, Dunleavy & Ratchik, PLLC 61 Broadway, Suite 2220 New York, NY  10006 (212) 226-6662 www.kdrpilawyers.com... Read More

It's hard to predict that because judges' schedules determine dates. I am without knowledge regarding how you were discriminated but it's important to consider that "retirement" will not help wage loss damages calculations. A number of years ago a general practice lawyer, with about 40 years of experience, called me. He had failed to advise his client that it was imperative to keep looking for work and to keep a detailed log of every job a terminated employee applied for and was rejected after the "discriminatory" job loss. Mitigation of damages is key for all terminated employees. Remember that the courts tell us that employment discrimination damage awards are not a lottery ticket. What the courts mean is that every discriminated employee must prove the damages she or he has suffered. And the first prong of calculating damages is to examine past wage loss. For any period of time in which an employee was not seeking alternate employment many courts, if not all, may conclude that an employee did not mitigate damages and therefore will not award based on wage loss. During this pandemic I have personal knowledge of an employee who was reluctant to leave their job because they were of advancing age. They were certain that no one would hire them given their age. But as fate would have it, an employer from a far away state was willing to give them a remote job, working from home, earning more money than they earned from their prior employer. And with technology those possibilities are ones which I have heard about over and over again. I have spoken with and represented employees earning $500,000 as well as $50,000 pre-pandemic. And these employees have landed out-of-state positions, working from home here in New York, without ever leaving their residences, to interview, get hired, and perform jobs from home. Speak with your NYS DHR lawyer about mitigation of damages and what your best case scenario outcome might be if you failed to mitigate. My employment law reality check videos on YouTube suggest calling many employment lawyers for good reason. The Division of Human Rights does great things. But when pre-hearing conferences or settlement opportunities go nowhere sometimes it's because one or both sides have not deeply examined their positions or expectations. The judges who conduct those conferences are not ones who will hear your case. But they have witnessed hundreds or more complainants with very good lawyers lose those hearings more often than win them. Read the decisions. Both sides must be realistic about resolution. Take a look at decisions or orders of the New York State Division of Human Rights, paying special attention to the percentage of complainants who win at hearing, as well as the dollar amounts of awards. Google it. Those decisions, posted on-line, are valuable. Stay healthy and good luck. ... Read More

I moved your question to wage and hour law. The government agencies which oversee this are: New York State Department of Labor which operates consistent with the policies and procedures of the United States Department of Labor. Everyone is entitled to be paid for all of the hours worked. Apparently the employer admits that it owes you more money. Here is a suggestion. Not legal advice. Write them a certified return receipt letter (green card which is returned to you by the USPS proving the employer received your letter - costs you less than $10). A suggestion of what you might write to the owner of the business: Dear owner, I worked for you from X date to Y date. On Z date I informed you that this was not a good fit for me. I am entitled to be paid XX dollars. This includes YY hours at ZZ hourly rate plus approximately ZZZ in tips as discussed when I was hired. I demand that you pay me XXX dollars by mailing a check to my  address at: _______________ or direct depositing into account # if you authorized that when you were hired, no later than (10 days after you estimate the owner receives the letter) or I will need to file a small claims court lawsuit and ask the court to award me the above amount plus all the costs and expenses and anything else the court may deem appropriate. Signed, dated, and make sure to keep copies of everything. After the time period expires, and you have received the green card with the business owners signature go to the small claims court clerk in the county where the business is located or where you live and ask them to help you complete the forms. You will attach all of the above and a copy of the green card proving the employer received your demand to your lawsuit. Good luck. Not legal advice and I do not handle small claims matters but the above should at least get you started. The other option is to file a complaint with New York's Department of Labor but that could take a very long time, even though small claims court may not be as fast as you want either. Hopefully the restaurant owner will see the light when it receives your demand, pay you what you are owed, and you can move on. ... Read More

Everyone is entitled to be paid their wages or salary earned. Some employees have written agreements while others rely on verbal or handshake deals. Either one is valid although the verbal or handshake one is much harder to prove without witnesses or other evidence to support the pay rate. It looks like the pay rate had nothing to do with your quitting. By that, I mean, that the employer was paying you 700 weekly before you quit. In that scenario it should be much easier to prove that your agreement, regardless of whether it was put in writing or just verbal, and regardless of whether you agreed to work for a specific time period or were like most "at will" employed, should be enforceable. It also looks like you will potentially be filing a lawsuit in small claims court. The county small claims court clerk should be able to provide you with forms to help draft the complaint. The county where you performed services or where you live are the clerks you should contact. Before you start filing lawsuits you might consider a certified or registered letter to your former employer. This is not legal advice but the letter might read soemthing like this: Dear former employer, I worked until X date. Before then I informed you that I was "leaving". I had been paid X dollars a week before I resigned. My last paycheck was only for Y dollars (see attached). I should have been paid Z dollars instead (see copies of emails, texts contracts attached showing the higher rate). There was no policy or contract which I am aware of that required me to do anything before I resigned. I did not sign any authorization that you could deduct anything from my final paycheck except the normal deductions for taxes, etc... that you had been taking out all along. You owe me AA dollars plus interest, my costs of filing suit if I have to plus whatever else a court awards. I look forward to receiving BB dollars from you at CC address by DD date or I will have to pursue formal legal action. Sincerely, your name. Then when you file in court the above plus attachments will essentially be your lawsuit plus whatever the clerk suggests you add. Keep the signed return green card from the post office proving that your employer received your demand letter plus copies of the letter, receipts, attachments. Good luck. You should get paid. Small Claims Court.... Read More

Sorry to hear what you're going through.  Given how much they cost to litigate, medical malpractice lawsuits do not make sense unless you've suffered a serious, permanent injury.  Without minimizing what you went through, emotional distress, without more, would not justify such a lawsuit.  You may wish, however, to file a complaint with the Office of Professional Medical Conduct (OPMC), https://www.health.ny.gov/professionals/doctors/conduct/. Best regards, Jonathan R. Ratchik, Esq. Kramer, Dunleavy & Ratchik, PLLC 61 Broadway, Suite 2220 New York, NY  10006 (212) 226-6662 http://kdrpilawyers.com/   ... Read More

As far as potential jail time, that will depend upon a number of different factors, including what you are actually charged with, what your criminal history is like, as well as any mitigating factors that your attorney might be able to present to the DA's office on your behalf. It's unclear how you stole the $200.00, so that will influence what you are actually charged with as well. For instance, if you simply stole $200.00 out of her desk when she wasn't looking, then you may find that you are charged with Petit Larceny, which is a misdemeanor crime and carries up to a year in jail or three years probation. Alternatively, if you forcibly stole the property from her you may find yourself charged with Robbery, which is a felony and potentially carries significantly more jail time than a misdemeanor - as far as how much jail time, that depends on specific Robbery charge that you are charged with, which will depend on the specific facts of your case (i.e. if you used a weapon in the commission of the crime, caused an injury, etc.)  With all that being said, as far as surrendering yourself to the police department, you should definitely retain an attorney to represent you during any interrogation procedure that may occur with the police, or at a bare minimum speak with an attorney before surrendering yourself so that you understand your rights when dealing with the police department (such as your right to remain silent and refuse to answer questions).  Additionally, as far as your case, your attorney should be able to negotiate with the District Attorney's Office and, again depending on the specific facts and circumstances of your case, may be able to negotiate you a plea agreement which involves no jail time. ... Read More

As far as potential jail time, that will depend upon a number of different factors, including what you are actually charged with, what your criminal history is like, as well as any mitigating factors that your attorney might be able to present to the DA's office on your behalf. It's unclear how you stole the $200.00, so that will influence what you are actually charged with as well. For instance, if you simply stole $200.00 out of her desk when she wasn't looking, then you may find that you are charged with Petit Larceny, which is a misdemeanor crime and carries up to a year in jail or three years probation. Alternatively, if you forcibly stole the property from her you may find yourself charged with Robbery, which is a felony and potentially carries significantly more jail time than a misdemeanor - as far as how much jail time, that depends on specific Robbery charge that you are charged with, which will depend on the specific facts of your case (i.e. if you used a weapon in the commission of the crime, caused an injury, etc.)    With all that being said, as far as surrendering yourself to the police department, you should definitely retain an attorney to represent you during any interrogation procedure that may occur with the police, or at a bare minimum speak with an attorney before surrendering yourself so that you understand your rights when dealing with the police department (such as your right to remain silent and refuse to answer questions).    Additionally, as far as your case, your attorney should be able to negotiate with the District Attorney's Office and, again depending on the specific facts and circumstances of your case, may be able to negotiate you a plea agreement which involves no jail time. ... Read More

I 140, PWD, and premium processing are not your forms: they are filed by the employer and the employer is the attorney's client. I 485 form, I 765 are your forms. You can consult with a malpractice attorney regarding the delays, however, keep in mind that the employer's portion of the case is not technically yours even through you are the beneficiary, and it is the employer not you who would have to 'sue' if there are violations of standard of care and damages.... Read More

If your employee filed for an extension of their EAD and received a letter confirming that their original EAD is automatically extended for 180 days from the date of its expiration, a company may continue employing them. You can look at I 9 employment book and see what documents may be accepted as proof of employment eligibility. ... Read More

Human resources may and often will conduct an investigation. The purpose would be to determine whether there is a problem in the workplace. Sometimes the problem an employee complains about is not the real problem or there's no problem at all. Even under the new more protective state Human Rights Law petty slights or  trivial inconveniences are not actionable. That does not mean that more training might be a good idea for everyone. Good luck. During COVID more employees have complained about everything because everyone is stressed. We all believed modern medicine could cure anything and now most of us who are paying attention know better. Stay safe.... Read More

Yes, the moratorium has expired. You may proceed. However, if the tenant filed with the srate for emergency rental assistance, your proceeding will be stayed pending the determination of your tenant's application. If your tenant does not have a lease or the lease expired, you should consider a Holdover eviction action.... Read More

If you are starting your own private practice in law you have different options, from a business law perspective, you may elect a sole proprietorship without any further filing. However, for purposes of limited liability, you may elect to organize your practice as an LLC, a PC, or an LLP. You have different options. For more information you can look here: https://gamlawoffice.com/business-formation-service/... Read More

I believe you asked this same question on AVVO. I tried to provide some suggestions on that site. Apply honestly and if you are even considering opening your own business or conducting business as an independent contractor on-line make sure you ask New York State's Department of Labor before doing so. Were you to engage in or launch your own business before requesting or informing DOL that you intend to do so, that oversight usually results in a denial of benefits. Request permission before applying for unemployment benefits. Call some employment lawyers who have handled unemployment appeals during COVID, which I have not had the time to do. ... Read More

You are correct that where your H-1B is valid until 6/2022 and your wife has H-4 status until the same date, you do not need to extend your wife’s status as it is not dependent upon the employer but upon your maintaining H-1B status. Your wife may wish to do so, however, to keep the same date as yours on your H-1B transfer. If you decide to file the I-539, your wife would put in the same proposed date of validity as your new H-1B on box 1 of part three. Due to the limitations of the Lawyers.com Forums, Alan Lee & Arthur Lee, Esqs.’ (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.... Read More

When filing for a TN visa extension with USCIS, only a copy of the passport is required. Please note that USCIS does not do anything with the passport and only issues an I-797 s notice of approval if it decides to favorably adjudicate the TN extension request. If you travel outside the US, you will still have to pass inspection with Customs and Border Protection when you reenter the US in which the officer will take a look anew at the merits of your request for TN extension. Due to the limitations of the Lawyers.com Forums, Alan Lee & Arthur Lee, Esqs.’ (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.... Read More

With certain important exceptions, a parent is obligated to support his or her child up to the age of 21 years.  You should consult an experienced Family Law attorney since these cases are very fact-dependent (for example, is there an existing court order; is either child emancipated; and other factors).... Read More

For TN extension, you can either go outside the US and cross back over with the adjudicator being Customs and Border Protection or you can request USCIS for an extension in the US. You would use form I-129 with the TN supplement. The address to mail to USCIS is: USPS, FedEx, UPS, and DHL deliveries: USCIS Vermont Service Center Attn: I-129 TN 38 River Road Essex Junction, VT  05479-0001 I-129/I-907 Premium Processing Premium Processing Service USCIS Vermont Service Center Attn: I-129 TN 30 River Road Essex Junction, VT 05452-3808 Due to the limitations of the Lawyers.com Forums, Alan Lee & Arthur Lee, Esqs.’ (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.... Read More

Although noncompetition agreements are not, generally, favorably viewed, courts do enforce them when necessary. Remember that an agreement is an agreement even if one side gets a bad deal. They use a balancing analysis to determine the impact on an employee's ability to work versus the investment, resources, contacts, training and other factors the employer invested and might unfairly lose. No one can answer your question with the sparse facts you provided. Rather than risk a cease and desist letter, possibly an injunction, you would best be servied by calling employment lawyers. Many will gladly speak with you on the phone for a few minutes. And probably most will agree to read and make suggestions on the actual restrictive covenant, employment offer letter, empoyer policies, other documents such as job descriptions which might be necessary for a flat fee. It's much cheaper to go that route than to lose 2 jobs. The one you quit and the new one which is potentially told about the restriction and lets you go for non-disclosure of the restriction.... Read More