Claimed Lawyer ProfileQ&ABlawgsearch
- Civil Rights
- Consumer Law
Jurisdictions Admitted to Practice
- New York
- Western New York Law Center, Inc.
- - Current
- A Buffalo, New York non-profit legal services corporation that helps consumers with foreclosure, debt, and other matters.
- Law Offices of Matthew A. Parham
- A Buffalo, New York law firm focusing on defense of debt collection lawsuits, civil rights and police misconduct litigation, and consumer lawsuits against abusive debt collectors.
- Litigation Associate
- Sullivan & Cromwell LLP
- New York University School of Law
- Columbia University
- Johns Hopkins University
- Pro Bono Publico
- Legal Aid Society
- Recognized for exceptional assistance on a noteworthy immigration case in which the U.S. District Court for the Southern District granted citizenship to a former Vietnam War veteran who had resided in the United States for more than 50 years. The published decision has received widespread attention due to its in-depth discussion of the “good moral character” requirement for US citizenship and will provide support for countless naturalization applicants in the future.
- Pro Bono Publico
- Legal Aid Society
- Recognized for providing outstanding pro bono service to long-term permanent residents, who were Vietnam War veterans, seeking U.S. citizenship
- SUNY-Buffalo School of Law
- Adjunct Professor
- - Current
Websites & Blogs
- Law Praxis
- Small Businesses Can Avoid Expensive Problems Up Front with Thoughtful Formation Documents
26 June 2012
- Car Dealers Must Disclose Reliance on Negative Credit History to Raise Car Loan Interest Rate
19 June 2012
- Telephone Consumer Protection Act: The Federal Courts Giveth and They Taketh Away
11 June 2012
- Credit-Card Plaintiffs Are Often Unable or Unwilling to Prove Their Debt Collection Case at Trial
5 June 2012
- New York Civil Procedure Roundup
5 June 2012
- Should Judges Write Their Own Opinions?
5 June 2012
- Tenth Circuit Issues Justiciability Decision in FCRA Pre-Emption Case
3 June 2012
- Broaden Credit Protections for Military Personnel
26 May 2012
- Prison Law Roundup: Second and Sixth Circuits Fairly Uphold Rules of Procedure in Prisoner Cases; Fourth Circuit Strikes Blow for Religious Freedom; Seventh Circuit Upholds Prisoner's Right to Be Free from Unnecessary, Prolonged Pain
25 May 2012
16 Questions Answered
- Q. Is there a law that protects consumers against retailers charging full price for sale priced items at the register?
- A: That's a so-called "bait and switch." It violates the New York False Advertising laws, General Business Law 350 and 350-a. It also may violate the Unlawful Selling Practices law, General Business Law 396, if it was intentional, though only the Attorney General can sue under that law. New York City also has a Truth in Pricing Law, NYC Admin. Code, Ch. 5, Subch. 2, though I don't know if you can sue under it or if it can only be enforced by the City Department of Consumer Affairs. Other municipalities may have similar ordinances.
- Q. A building contractor has taken money to build but refused to complete the work. Can I file consumer fraud charges?
- A: If this was for work on your home, then possibly. If the contractor promised to do work, took money, and then disappeared, there may be a strong case for consumer deception under General Business Law section 349, which prohibits deceptive acts or practices in any business; or for common law fraud. An attorney may be willing to take a case under section 349, because it allows for the recovery of attorney's fees from the contractor. Also, if you were given anything in writing, New York has a consumer protection law specifically addressing written home improvement contracts. It is General Business Law 772 and it says: § 772. Penalty for fraud. 1. Any owner who is induced to contract for a home improvement, in reliance on false or fraudulent written representations or false written statements, may sue and recover from such contractor a penalty of five hundred dollars plus reasonable attorney's fees, in addition to any damages sustained by the owner by reason of such statements or representations. In addition, if the court finds that the suit by the owner was without arguable legal merit, it may award reasonable attorney's fees to the contractor. Either General Business Law 349 or 772 may be enforced by the New York attorney general and by a private citizen in a lawsuit. If by charges you have in mind a criminal complaint, in my experience police departments are unlikely to process this as a criminal matter but you could certainly try.
- Q. What is the best source for identifying cases involving fraud in the art market?
- A: I'm not sure I understand the question. Generally for legal research to identify cases on some topic, Westlaw and Lexis are the most comprehensive and commonly used databases of case law among attorneys, but they are pay services to which you may not have access. Google Scholar has a large collection of case law and a good natural search function. There are other case law databases, such as FastCase, FindLaw, and LoisLaw.
- Q. Explain "issues of material fact" re: MSJ and "admissible eveidence" for same. civil
- A: To get summary judgment, a moving party has to submit enough admissible evidence to the court to show that the party is entitled to win the case so that there is no issue of material fact to be decided at a trial. A fact is material if its truth or falsity affects whether the plaintiff wins or loses the case. So what facts are material depends on what kind of case, what the case is about. For example, if the case is about a car accident, whether the defendant ran a red light or was speeding might be material. Whether the plaintiff has insurance wouldn't be. To address what evidence is "admissible" requires a discussion of the rules of evidence that cannot be accomplished in a short answer. Generally, if evidence tends to show a material fact it is relevant. Relevant evidence is admissible unless some rule of evidence excludes it. For example, there is a rule of evidence that excludes offers to settle the case. You can't use the fact that someone offered to settle to prove that they are liable. As another example, the rule against hearsay excludes from evidence any out-of-court statement of someone not present as a witness, offered to prove the facts in the statement, unless some exception to the rule applies, of which there are many. So for example, you cannot offer evidence that a witness to the accident told you the next day that the light was red. That's hearsay. You could offer the witness's own affidavit swearing that the light was red. It's not hearsay because they're testifying about what they saw, not what they heard. Also, if the witness was the defendant, you could offer your own affidavit about what they said the next day, because statements of a party offered against the party are an exception to the rule. Or if the witness said the light was red during the accident, while they were looking at the light, you could offer your own affidavit describing what they said, because there is an exception to the rule for "present sense impressions." As you can see, there are a lot of rules. Generally, though, your own affidavit, affidavits of witnesses, about what you/they saw/did, and documents that are directly relevant to the lawsuit, are the kinds of things you would submit with a motion for summary judgment. You have to submit evidence addressing each element you need to prove whatever kind of case you have. To defeat summary judgment, the non-movant has to show that there are issues of material fact to be decided at a trial. Thus, assuming the movant met its burden to submit admissible evidence showing it is entitled to win the case, the person opposing summary judgment has to either submit evidence that supports different findings of fact as to the material facts, or that tends to show facts supporting a defense. For example, a witness statement that the light was green. In an assault case, the defendant could submit a statement that the plaintiff punched them first - that would be a defense.
- Q. What does it mean when your case is assigned to calander control part justice
- A: Generally it doesn't mean anything. It means no specific judge has been assigned to the case. Whether one will be in the future depends on the case posture. You should still attend any pending court appearance and meet any pending deadline such as for a motion. I assume you saw this on one of the online docket check sites operated by the New York court system, such as WebCivil Local. Courts on WebCivil Local will often put in the system calendar control deadlines, which are not dates when you have to appear or do anything but rather are just dates when the clerk's office is going to look at the file to see if anything has happened. No judge is actually assigned, so they put something to the effect of Calendar Control as the assigned judge in the database. I haven't seen this on WebCivil Supreme, because cases in Supreme and County Court are not input into that system at all until after a judge has been assigned to the case. The only exception might be where there is an appeal from a lower court to County Court, in some counties a judge isn't assigned until briefing is completed, so for some period of time there will be no specific assigned judge listed.
- Q. IN 2005-6- I WON ARBITRATION, THE BANK WILL NOT RELEASE MY MONEY. WHAT ORGANIZATION ENFORCES PAYMENTS FROM BANKS?
- A: Generally if you win an award in arbitration, you can file a lawsuit in a court with jurisdiction over the Bank (often the contract that contained the arbitration clause also says the Bank consents to the jurisdiction of certain courts) to confirm the award. Once the award is confirmed in a court, it becomes a civil judgment which you can enforce just like any other civil judgment. For example, by placing a lien on the Bank's headquarters and then sending the Sheriff to sell the building or its contents (furniture, computers) at auction.
- Q. Did the Executive Branch work during the time of the Cherokee Nation v. Georgia?
- A: It's an unusual question. In Cherokee Nation v. Georgia the Cherokee sued Georgia seeking release of a Cherokee citizen being tried for a murder committed on the Cherokee territory, taking the position that Georgia lacked jurisdiction over that territory. While the suit was pending, Georgia executed the individual in question in defiance of a writ of habeas corpus signed by Chief Justice John Marshall. The Supreme Court ultimately dismissed the case, holding that it lacked original jurisdiction over a suit by the Cherokee Nation because, while a "nation" in an international law sense, the Cherokee were not a "foreign nation" as that term is used in Article III of the U.S. Constitution, but were rather a "domestic dependent nation." In the related Worcester v. Georgia case, though, the plaintiff was an individual U.S. citizen preacher who had been arrested and jailed by Georgia for living and preaching among the Cherokee in violation of a state law, and the case invoked appellate and not original jurisdiction of the Supreme Court, challenging the decisions of the Georgia courts to affirm his criminal conviction. The Supreme Court in Worcester actually reached the merits of the case, and held that indeed, the Cherokee were right and Georgia lacked jurisdiction over the Cherokee territory. The Court ordered Worcester released. To address the specific question, the Executive Branch, in the person of Andrew Jackson, is famously misquoted as having stated, "John Marshall has issued his decision. Now let him enforce it." The quote is apocryphal, and strictly speaking the Executive was never called on to act in either of the two cases. The Cherokees' attorney (William Wirt, who ran against Jackson for President as the Anti-Masonic Party nominee in 1832) never moved to hold Georgia in contempt, which would have resulted potentially in a need for the Executive to intervene by, for example, sending the U.S. Marshals to arrest Georgia officials. And Georgia did eventually comply with the Worcester holding by releasing Worcester, though it extorted from him first a promise to stop preaching among the Cherokee. In a broader sense, the case is an example of the Executive working too well. Indeed, the Whig opposition generally supported the Cherokee and viewed Jackson as an incipient dictator assuming too much power for the Executive vis-a-vis other branches of government. Georgia continued to ignore the holding of Worcester by continuing to encroach on the Cherokee, and Jackson implicitly sided with Georgia by supporting efforts to obtain a sham treaty consenting to forced removal to Oklahoma.
- Q. What is the name of the law that protects tribal members from their own tribal government
- A: It sounds likely that you are thinking of the Indian Civil Rights Act, which is at 25 USC 1301-03. The tribe itself may also have something akin to a bill of rights that it has itself enacted, or customary laws or doctrines recognizing additional or different rights than those in the ICRA. But in the ICRA Congress imposed on tribes the obligation to enforce a subset of the bill of rights, though the tribe has interpretive authority to interpret those rights differently than the federal courts to a certain extent.
- Q. If someone refuses to pay for item they requested sent by mail, without cause. Is there legal action that can be taken?
- A: Sure. You can sue them for breach of a contract for a sale of goods. The evidentiary requirements for such a suit and the cost of pursuing it will depend in part on how much is owed. If only a small amount, a small-claims suit may be the most efficient option. If a really small amount, it may not make economic sense to sue.
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