Earl Ward Secures Not-Guilty Verdict for Man Accused of Potsdam Boy’s Murder

After a three-week trial, Oral Nicholas Hillary was acquitted of the 2011 murder of Garrett Phillips, a 12 year old resident of Potsdam, New York.

Hillary’s legal team, led by ECBA partner Earl S. Ward and co-counsel Norman Siegel, argued that the lack of evidence against Mr. Hillary mandated that he be acquitted of all charges.  As Mr. Ward stated in his closing argument, “There is absolutely no direct evidence tying Mr. Hillary to this crime. Nick Hillary is not the type of person that would walk into a room, put his hands around the neck of a child and strangle him, kill that child. That is not Nick Hillary.” Judge Felix J. Cantena agreed, finding Mr. Hillary not guilty of all charges.

The New York Times extensively covered the trial, among other media outlets. You can watch Judge Cantena read the verdict here. You can listen to Mr. Ward’s closing argument here.



Landmark $5.75 Million Settlement in Rikers Death Case

The Legal Aid Society Prisoners’ Rights Project and Emery Celli Brinckerhoff & Abady announced a settlement in the case of Bradley Ballard, whose horrific death at Rikers Island in 2013 was ruled a homicide. The settlement of $5,750,000 is the largest ever entered into by New York City for a death in custody.

Mr. Ballard, 39, was a seriously mentally ill and diabetic man who died in 2013 due to the abuse and cruelty of Department of Correction staff and the medical providers on Rikers Island. From the moment Mr. Ballard arrived at Rikers, on a parole violation for failing to change a report of address, his serious medical and mental health needs were mishandled by the City’s health care contractor at the time, Corizon Health, Inc.  The abuse took a macabre turn when Department of Correction staff illegally shut him in his cell as a rogue punishment for perceived rudeness, leaving him to decompensate without medication or treatment for his schizophrenia and diabetes.  For seven days, until Mr. Ballard died on September 11, 2013, correction and medical staff walked by the locked cell without offering assistance, turned off the water to his cell, and ignored his obvious and fatally deteriorating state until it was too late.

Mr. Ballard’s death was unusual in its gruesomeness, and his suffering was unmatched as reflected by the historic settlement. But the torture he endured resulted from longstanding and known system failures that have plagued Rikers healthcare and supervision of medical and correction staff.  In 2015, Corizon’s contract for healthcare was finally cancelled, though many of the correction staff who so woefully failed in their duties remain in the jails.   Mr. Ballard’s family can only hope that the City can usher in a new era of basic humanity and competence at Rikers.  They hope that the settlement will spark a rigorous review of the cascade of failures and misconduct that caused Mr. Bradley’s premature and painful death.  No other patient, and no family, should have to endure their suffering.

Mr. Ballard’s mother, Beverly Ann Griffin, was represented in this lawsuit by Jonathan S. Abady, Debra L. Greenberger and Hayley Horowitz of ECBA and Jonathan Chasan and Mary Lynne Werlwas of the Legal Aid Society.


Foster Child Sues Agency Responsible for Placing Him in Home of Serial Abuser

On September 22, 2016, ECBA, along with Ressler and Tesh PLLC, filed a federal lawsuit in Long Island on behalf of a young, special needs child who was improperly placed by the agency SCO Family of Services in the home of an abusive pedophile—Cesar Gonzales-Mugaburu. This child, who is originally from Washington State, was transferred through SCO Family of Services nearly 3,000 miles away to Mugaburu in Long Island. Once there, he suffered a fate similar to the many vulnerable boys forced to live with this madman. He was physically and mentally abused, subjected to long periods of starvation, and sexually assaulted. As alleged in the lawsuit, SCO Family of Services ignored repeated complaints about Mugaburu, including those from J.A. himself, warnings from Suffolk County’s foster agency, and numerous red flags about Mugaburu and his home.

Read more about the case and Mugaburu in press coverage by the New York Times and Daily News.


City Settles Case for $750,000 After Rikers Guards Ruptured Inmate’s Spleen

The City of New York has agreed to pay $750,000 to settle an excessive force lawsuit brought by ECBA and the Legal Aid Society’s Prisoners’ Rights Project for the assault and beating of Michael Cruz. In June 2014, multiple officers beat Mr. Cruz so badly that they broke his rib, which eventually pierced his spleen and led to massive internal bleeding. The assault and resulting injuries were life-threatening. Mr. Cruz, who was only 20 years old at the time, was forced to undergo emergency surgery to remove his spleen.

ECBA attorneys Jonathan Abady, Ali Frick, and Sam Shapiro represented Mr. Cruz together with Jonathan S. Chasan and Mary Lynne Werlwas of the Legal Aid Society.


Unreliable DNA Testing Rejected in Upstate Murder Trial

A New York judge rejected prosecutors’ attempts to use controversial DNA methods in the upcoming murder trial of Oral Nicholas Hillary, who is represented by ECBA attorney Earl Ward and co-counsel Normal Siegel.  The August 26 decision is a significant victory for Mr. Hillary, who has maintained his innocence in the 2011 murder of a 12-year-old boy in upstate New York.

Earlier this year, prosecutors stated their intention to use a computer program known as STRmix to analyze a miniscule scraping from the victim’s fingernails, even though previous attempts to link Mr. Hillary’s DNA to the victim were unsuccessful.  Mr. Ward and the defense team challenged the reliability of STRmix at two hearings held in July and August. Judge Felix J. Catena for St. Lawrence County Court agreed with the defense that the program lacked validation and ruled that its results are inadmissible.

The trial is scheduled to begin on September 6 in Canton, New York.


Class Action Challenges Racially Discriminatory and Predatory Practices by HUD and Private Equity Fund

On August 12, 2016, ECBA and MFY Legal Services filed a federal class action challenging the legality of a Department of Housing and Urban Development (HUD) program that sells government-insured FHA home mortgages to private equity funds, leaving these borrowers without insurance-program benefits they are entitled to and putting them at heightened risk of foreclosure. The suit further alleges that HUD’s program violates the Fair Housing Act because HUD is disproportionately selling FHA loans issued to African-American borrowers in New York City for homes in predominantly African American neighborhoods like St. Albans, Queens.

 The lawsuit, filed in the Eastern District of New York, also challenges the actions of Lone Star Funds, the largest purchaser of mortgages sold through the HUD program. The lawsuit alleges that once Lone Star purchases the mortgages from HUD, it preys on the homeowners: the company makes false and misleading statements to the homeowners, refuses to offer homeowners loan modifications it is legally obligated to provide, and instead offers homeowners exploitative loan modifications that spell almost certain foreclosure for these borrowers down the line. The complaint also alleges that Lone Star violates the Fair Housing Act because its policies disproportionately impact African-American borrowers and predominantly African-American communities in New York City.

 The suit was covered by the New York Times on Monday, August 15, 2016. The putative class is represented by ECBA attorneys, Matthew D. Brinckerhoff and Diane L. Houk, along with co-counsel MFY Legal Services. A copy of the complaint is accessible here.


Class Action Leads to End of Tampon Tax in New York State

Five months after five women filed a groundbreaking class action suit to end the Tampon Tax in New York, Governor Cuomo has signed legislation ending the illegal tax.

“We are thrilled New York State is finally repealing this discriminatory tax on all ‘menstruators’ and hope the nation will swiftly follow suit. It’s about time we all recognize the necessity of menstruation products and the obsolescence of their taxation,” said Plaintiff Margo Seibert, an actress in New York.

“Albany has finally seen the light! There’s more work to be done to ease access to these vital products, particularly for low income women, but repealing the tax was a great first step,” said Plaintiff Jennifer Moore, a children’s program coordinator.

“One state down, thirty-nine to go,” said Ilann M. Maazel, lead counsel for the plaintiffs. “This is a tremendous victory for women and for all New Yorkers. It will save women tens of millions of dollars. This lawsuit jumpstarted Albany into action. It’s the beginning of the end of the Tampon Tax in this country.”

“New York has finally stopped taxing women for being women. Now the governor should make sure that New York women who paid this sexist tax for years—especially those women who could least afford it—are compensated and reimbursed,” said Zoe Salzman, another lawyer for the women.

“From the time I entered law school 25 years ago, I’ve known that the tampon tax violated state and federal law. It’s a remnant of a time when all-male legislatures made decisions that devalued women’s interests. That New York State has finally ended this injustice is great cause for celebration,” said Laura Strausfeld, a lawyer who developed a critical theory of the lawsuit on behalf of the plaintiffs.

The five women who brought the case are an actor/co-founder of Racket., a mathematician/data scientist, a programs coordinator for children’s programs, a photographer, and a professor.

The plaintiffs congratulate Assemblywoman Linda Rosenthal for her leadership on this issue.

Follow the latest developments HERE. Read an interview with Zoe Salzman on the case and legislation here.


Daniel Kornstein Published in the New York Law Journal

On July 20, 2016, Daniel Kornstein penned an insightful examination of the 2016 presidential campaign in the New York Law Journal. In his thought-provoking analysis, Kornstein ponders the corrosive influence of political defamation and negative campaigning on American democracy, and discusses whether or not the law should play a role in curtailing the threat posed by candidates’ dishonest and inflammatory comments.

To read Daniel Kornstein’s article titled, “Political Defamation and Democracy,” click here.


Daniel Kornstein Joins the New York State Bar Association Journal Board of Editors

ECBA is proud to announce that Daniel Kornstein has been invited to join the Board of Editors of the New York State Bar Association Journal. The NYSBA Journal features articles relating to the practice of law in New York and is published nine times a year.


Objecting Merchants Win as Second Circuit Vacates Class Action Settlement for Visa/Mastercard Interchange “Swipe” Fees

On June 30, 2016, the Second Circuit reversed the District Court’s approval of a class action settlement concerning the fees Visa and Mastercard charge merchants for accepting credit cards.  ECBA represents the leading merchant trade groups that objected to the settlement, The National Retail Federation and Retail Industry Leaders Association.  ECBA attorneys Andrew G. Celli, Jr. and Debra L. Greenberger wrote one of the two primary objecting merchant appeals briefs; Mr. Celli and ECBA attorney Diane Houk handled the case in the District Court.