Case Digests

u.s. district

Court, wdny

Fraud

No-Sale Theory

U.S. v. Kurtz

04-CR-0155A

Judge Arcara

Background: In 2004, the defendant was charged with mail and wire fraud. The indictment alleges the defendant, a faculty member of the art department of the State University of New York at Buffalo, sought to acquire samples of certain biological materials from a supplier, a not-for-profit organization in Virginia. The supplier had a policy of selling biological materials only to approved businesses and institutions with a demonstrated need. The defendant, along with an investigator from the University of Pittsburgh's Human Genetics Laboratory, developed a scheme wherein the investigator purchased the material and provided it to the defendant. The defendant filed a motion for dismissal of the indictment because it fails to allege any deprivation of property within the meaning of the mail and wire fraud statutes, and because it fails to allege the defendant intended to defraud the seller or the laboratory of any property.

Ruling: The court agrees the indictment is insufficient as the essential elements of wire fraud and mail fraud are not pled. The indictment also does not state a violation of law under a no-sale theory of fraud since it does not state what interest the seller had in limiting sales to certain purchasers. The indictment is dismissed.

William J. Hochul Jr., U.S. Attorney's Office, for the United States, and Paul J. Cambria Jr. of Lipsitz Green Scime Cambria LLP for the defendant

Fourth Amendment

Excessive Force

Fifield v. Barrancotta

04-CV-6540L

Judge Larimer

Background: Plaintiff Darwin Fifield Sr., an inmate at the Wyoming Correctional Facility, brought action against the defendants, which include the chief of the Lockport Police Department and various lieutenants. Fifield alleges Barrancotta, Seekins and Wasik used excessive force in arresting him, and Merritt approved such conduct, all in violation of his Fourth Amendment right to freedom from unreasonable search and seizure. Fifield was arrested at his home in 2003 after an accusation of child abuse was made against him.

Ruling: The plaintiff admits he never complained of the tightness of the handcuffs when he was arrested and he requested no medical attention. The court notes the severity of the crimes charged and the plaintiff's threats made to officers in the past appear to justify the caution used in the plaintiff's arrest. The plaintiff failed to state a claim for unlawful and excessive force and the complaint is dismissed.

Darwin J. Fifield, pro se, and R. Anthony Rupp III of Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC for the defendants

Appellate

division, third

Department

Accidental Disability

Benefits

Unexpected Event

Sweeney v. Hevesi

503568

Article 78 review of determination

by the comptroller

Background: The petitioner worked as an outside maintenance worker for a school district and was injured while lifting a heavy roll of fencing. He later was found to have suffered a herniated disk. The petitioner's application for disability benefits was denied because the injuries were not found to be accidental within the meaning of the statute.

Ruling: An injury that occurs without an unexpected event and is the result of activity undertaken in the performance of ordinary employment activities is not an accidental injury. The work the petitioner was performing was a relatively frequent task. There is sufficient support for the comptroller's ruling that the petitioner's injury occurred in the performance of normal duties as a maintenance worker.

Harry Binder of Binder & Binder PC for the petitioner, and William E. Storrs, Office of the Attorney General, for the respondent

Negligence

Actual Notice

Heilbrunn v. Town of Woodstock

503636

Appealed from Supreme Court,

Ulster County

Background: The plaintiff appeals from a verdict in favor of the defendant. While waiting to enter a community center to attend a film festival, the plaintiff was standing on a handicapped- accessible ramp and leaning on a railing when the railing broke. The plaintiff commenced action alleging the defendant was negligent by allowing a dangerous and defective condition to exist on the premises. The jury found the defendant was not negligent.

Ruling: The court states that to establish the defendant's legal responsibility for the accident, the plaintiff was required to prove the defendant had actual or constructive notice of the alleged defect that caused the accident. The finding of the jury was not against the weight of the evidence.

Paul H. Wein of Wein, Young, Fenton & Kelsey for the appellant, and Monte J. Rosenstein for the respondent

Dangerous Condition

-- Plaintiff Affidavit

Valenti v. Exxon Mobil Corp.

503658

Appealed from Supreme Court,

Ulster County

Background: The plaintiff claimed he sustained permanent physical injuries when he slipped and fell on ice at the defendant's service station. The defendant moved for dismissal, arguing there was no evidence that the plaintiff's fall was caused by ice. The complaint was dismissed and the plaintiff appeals.