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Legal Myths & Reality: Judge Joan Shkane

March, 2021

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

MYTH:  An adult incapacitated person with a significant developmental disability cannot be adopted because the adult’s consent is required, and an incapacitated person cannot legally consent.

REALITY:  An adult in New York State can be adopted.  This law has been used for various reasons, including, but not limited to, instead of marriage before LGBTQ persons could legally marry.  However, it has long been the law that the adult person’s consent is required if the adoptee is over 14 years old.  The law also provides that a judge can proceed without the incapacitated adult’s consent under certain undefined circumstances.  Sometimes New York’s highest court makes a decision on the exact definition and appropriateness of a law.  Sometimes the court speaks on appropriate procedure for all courts to follow.  New York’s highest court has recently considered the issue of absence of consent to adopt because of incapacitation.  The Court of Appeals now confirms that, indeed, a court can order an adult adoption without the consent of the adoptee in certain circumstances, and explores those circumstances.  The subject case involved an adult woman who suffered from a significant developmental disability.  Because of the severe disability she was unable to give her consent to the adoption by petitioners who had operated a Family Care home and had custody of the adoptee since she was a child.  Her disability made her non-verbal.  She had no living relatives.  The petitioners wanted to provide permanency for the adoptee, who was 66 years old.  After procedural steps, including a hearing, the Court found that there was a lot of love between the adoptee and the petitioners, and that the petitioners could financially support the adoptee.  The next step was a hearing to decide if the adoption was in the adoptee’s best interest.  This is the same standard used in a child custody dispute, among other types of cases.  “Best interest” is an international standard, used in many parts of the world in many types of cases.  The trial court found that adoption was in the best interest of the adoptee, even though she was unable to consent.  The Court of Appeals decided that permitting the adoption without consent was best for this particular adoptee.  Most importantly, the Court laid out the appropriate steps to be followed in future cases of this sort, including a best interest hearing.  This will be a guide to all lower court judges in the future, and to lawyers, on how to proceed.  The Court of Appeals made clear the law and the correct way to proceed.

MYTH: If you have placed an order with Amazon for a product and the product is not satisfactory, you are unable to sue Amazon for credit or other satisfaction, but must try to figure out, if you can, who made the product and who distributed it.

REALITY: This area of the law is known as product liability law.  Under this law those who make, distribute or sell a defective product are liable for harm caused by the product.  The legal theory is that an injured buyer should not have to figure out who specifically to sue for injuries.  The consumer can sue anyone in a chain of distribution of a defective product.  That entity can then sue other responsible entities, and ultimately the real responsible party will be sorted out and part of the lawsuit.  This is helpful to a consumer when it is not clear who the responsible party is, or when the responsible party is not within the jurisdiction (power to decide) of New York State.  This can apply to a product made in another state, or another country, for instance, China.

For the first time a New York State trial level court decided that Amazon is liable for injuries caused by a defective product offered on its website by a third party vendor.  New York joins only several other state’s courts that agree.  (California agrees, Ohio does not, and cases in other states are pending.)  This decision is not binding on other New York courts because it is trial level, not appellate level, and is subject to further arguments based on facts and legitimate defenses.  However, its expansion to include Amazon is groundbreaking.

The legal issue is what is the definition of “seller” within the law.  With respect to Amazon, for some of the products they offer on their website, they are clearly the seller.  With other products, the product is sold by third-party merchants who have a contract with Amazon that Amazon will list products, and fulfill orders, including taking payment.  Amazon has often claimed that it is not a seller when they just list a product, process a payment and fulfill an order.  If a future appellate court agrees with the trial level court, then consumers in New York State can look to Amazon to make good on the product, regardless of who made it and sent it to the consumer.  An important consumer protection law.  Thank the Hon. Gerard Neri of Onondaga County!

Myth: New York State courts are not in touch with reality on the ground.

REALITY:  In 2020, New York State asked former Homeland Security Secretary Honorable Jeh Johnson to chair a task force on the existence of racism in the court system.  Stakeholders across the State were asked to weigh in on the issue, and hundreds of private persons were interviewed.  The result was an in-depth report.  The committee reported to the Chief Judge of New York that racism is pervasive.  Not a surprise to those who work in the system.  The commission proposed methods to fight racism in the courts, including mandatory bias training and improving the system for filing complaints.  Within the last decade I had the privilege of spending a training weekend in the company of Justice Edwina Mendelson, the Deputy Chief Administrative Judge for Justice Initiatives. (She was then a Family Court Judge.)  She is smart, kind, and very good natured!  She actively participated in Secretary Johnson’s study and recounted some of her experiences.  She told how she was repeatedly excluded in the courts as a lawyer, which she attributed to her race and gender.  One time she was asked to wait outside the courtroom until her case was ready to proceed, while other White or male attorneys were allowed to move freely between waiting area and courtroom.  Some other events she recounted were not so subtle.

Based on the interviews and testimony Secretary Johnson’s committee found racial disparities pervasive in the legal system.  It is found in the staff, and among judges.  They also found racism against attorneys, court officers, defendants and visitors of color.  The Chief Judge will be acting on this report to improve access to justice for all New Yorkers, thereby trying to bring reality to the court system.

Giving 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.


Utica Phoenix Staff
Utica Phoenix Staff
The Utica Phoenix is a publication of For The Good, Inc., a 501 (c) (3) in Utica, NY. The Phoenix is an independent newsmagazine covering local news, state news, community events, and more. Follow us on Twitter and Facebook, and also check out Utica Phoenix Radio at 95.5 FM/1550 AM, complete with Urban hits, morning talk shows, live DJs, and more.

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