Broadway Utica
HomeColumnsJudge Joan ShkaneJune Legal Myths vs. Reality

June Legal Myths vs. Reality

By Judge Joan Shkane 

This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.

Please note: Senator Sam Ervin, chair of the Senate Select Committee on Watergate in the preface to their report pointed out that the law is not self-executing.  It must be executed by humans.  And therefore, it must not be in the hands of those who are not faithful to it. 

MYTH: Cemeteries are free from legal responsibility for errors.

REALITY: A recent case involved a family in Brooklyn who sued the cemetery where their mother was buried.  Last June, the cemetery workers tried to force the mother’s coffin into a grave, while the family watched. The workers had dug the grave too small. The workers tried to shake the coffin to free it from being stuck. 

While the family watched, the coffin popped open exposing the body of their mother, to the horror of those watching.  Ultimately the workers had to bring a backhoe to lengthen the grave and move the body to a new coffin before they could bury the mother. 

The family claim they suffered enormous emotional damages over the incident. They could not accept that their matriarch had been so poorly treated.  

The defendant cemetery asked the judge to dismiss the case because there is no recognizable legal lawsuit to answer.  The judge ruled that there is indeed a case that should be put to a jury for a decision on liability (legal responsibility) and perhaps damages. In the event of a finding against the cemetery, the jury may decide how much the cemetery must pay to the family in compensation for their horrors.

MYTH:  Courts are bound by laws that were later repealed.

REALITY: In March, 2020, during Covid-19, New York State nursing homes were given immunity from lawsuits based on the pandemic.  Then the Legislature repealed the law on April 6, 2021, just a little over one year after passage.  

In April, 2020, a woman died from Covid in a nursing home in Erie County, New York.  The legal basis for the lawsuit brought by her survivors is twofold: gross negligence and willful or intentional infliction of harm.

The family say that the nursing home failed to use basic safety measures, that the mother was unnecessarily exposed to the virus, and that there was a lack of personal protective equipment for residents and providers as well as non-compliance with safety protocols and testing.  

The family further says that the residents, including their relative, were at increased risk of harm. They argue that the repeal of the law was intended to correct a bad law that should never have been passed, and that nursing homes should never have been given immunity from legal responsibility.    

The nursing home argues that the law known as the Emergency or Disaster Treatment Protection Act, which was in effect for barely a year, protected the nursing home. They asked the Court to dismiss the lawsuit on the basis of this repealed law. The Court ruled that nursing homes cannot use the repealed immunity law to shield them from harm they caused to the State’s most vulnerable residents.  Now a jury will decide whether damages to the aggrieved family is appropriate.  

MYTH: Our freedom of speech right is slowly being taken apart.

REALITY: Last year a man shouted terrible, ugly words at a New York City police office.  The judge handling the case described the words as diatribes, and racist, hateful and obscene. Even the defendant’s lawyer said that the words the defendant used were extraordinarily offensive language.  

The police officer, who was Asian, sued. His lawyer said that the Asian community has been facing unprecedented attacks, which are hate crimes.  

He pointed out that hate makes more hate, and that hate speech brings violence.  

Nevertheless, the Manhattan judge handling the case dismissed the police officer’s lawsuit.  His reasoning was that the conduct should be condemned and has no place in a civil society.  He further said that hate speech alone, without an act, is free speech protected under the First Amendment of the U.S. Constitution, and cannot be eroded.  He suggested that the officer could ask another higher court or the legislature to carve out an exception to the First Amendment that would prohibit hate speech.  In order to do so through the court system, the officer is appealing the decision to a higher court.  The man, in the meantime, continues his racist remarks, without following the speech with action.  Yet.  

Attention to legal myths is not wrong.  It can be a starting point for developing an interest in the law.  However, if specific legal issues are important in your life, for instance, regarding custody of children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.  

Mark Ziobro
Mark Ziobro
Mark is the current Managing Editor for The Utica Phoenix, and a Central New York Native.

Most Popular