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Bushwick Slip and Fall and Umbrella Policy Face Speedy Trial Before SDNY Judge Rakoff

By Matthew Russell Lee, Exclusive; video

SDNY COURTHOUSE, June 17 – It started with a fracture femur in a slip and fall accident on the sidewalk in front of 467 Bushwick Avenue in Brooklyn on July 2, 2015 - and led to the U.S. District Court for the Southern District of New York courtroom of Judge Jed Rakoff.

   Great American Insurance Company of Cincinnati is suing broker Joseph Zelik of 2405 Avenue U in Brooklyn about umbrella and excess liability coverage. Both sides wanted nothing to happen in the case for the next thirty days.

But they do no know Judge Rakoff.

He denied the request, and said that the parties' proposed dates for summary judgment motions would come after the trial - "unique in the annals of jurisprudence," he said.

Judge Rakoff moved each proposed date up, emphasizing that interrogatories are limited under local rules (as he would repeat, accompanied by the physical tearing up of non-conforming interrogatories, in a WOW Media case a few minutes later), and setting it down for trial on November 18.

  The final pre-trial conference will be on October 31 - "in honor of Haloween," Judge Rakoff said. The case is Great American Insurance Company v. Joseph Zelik, 19-cv-1805 (Rakoff).

Next case: It was just a photograph of a salted caramel apple pie. But when Hudson Yards-based WOW Media Products used it, and photograph Byron Smith sued in the SDNY it got assigned to Judge Rakoff. Torn up interrogatories ensued.

  On June 17 in the initial pre-trial conference to agree on a case management plan, Judge Rakoff first chided WOW Media's lawyer for proposing too much time to begin interrogatories or written questions. He replied that the plaintiff's lawyer had submitted interrogatories that went beyond Local Rule 33.3a which Judge Rakoff had cited.

  "Let me see then," Judge Rakoff said. The defense lawyer David S. Gold of Cole Schotz PC of Hackensack, New Jersey, after saying "May I approach" handed them up.

  "These are grossly in excess," Judge Rakoff said, again citing the Local Rule.

  And then he tore up the paper, saying "They are stricken." He added that he does not expect plaintiff's counsel Richard Liebowitz of Valley Stream, New York, to do it again. Nor do we - at least not before Judge Rakoff. It began with just a photo of a salted caramel apple pie, published without payment on as point 22 of "Things to Eat In Brooklyn: Salted Caramel Apple Pie at Four & Twenty Blackbirds."

 The case is Smith v. Wow Media Products, 19-cv-4119 (Rakoff).

Back in May before Judge Rakoff a Chinese firm claiming patent to so-called "soft SIM" technology presented a witness who couldn't remember what he'd said during his deposition, and insisted he owned the patent to the whole concept, the whole system, a SIM without a hard SIM card, a future of roaming like the Chinese Navy in the South China Sea.

Judge Rakoff repeatedly had to tell the witness to answer yes or no and not just nod; even in the deposition transcript read back he had said "hmm hmm." His colleagues followed it intently, one of them in the gallery with his laptop open. Had it been stripped of its network card? Or was this soft too? Inner City Press may have more on this.

Hours later on May 2 when Malik Gray came to be sentenced for his role in a scheme that defrauded and stole from drivers for Uber and Lyft in The Bronx, in the back of the
SDNY courtroom of Judge Jed Rakoff were two U.S. Marshals. They had been alerted to be ready in case Judge Rakoff ordered Gray immediately remanded.

   Gray has been under house detention for more than 13 months, and Judge Rakoff zeroed in on times he has gone out without excuse. The longest one cited was on April 18, from 4:31 pm to 7:36 pm. Gray's lawyer Arnold J. Levine was ready: this had been to attend Gray's son's birthday party at Chuck e Cheese, something Judge Rakoff himself had signed off on. Already remand seemed less likely. Another unauthorized stepping out of the house was to speak to his son's mother. Judge Rakoff asked why she couldn't come into the house. The family doesn't want her to come in, Levine explained, their inter-personal communication inside are not what they could be.

   Judge Rakoff, who slyly quoted his article in the New York Review of Books about eye witness identification at a March 19 proceeding in the case, also asked about Gray having impregnated two different women, and being left by the second of them when she found him texting with a third woman. Levine quoted divorce statistics - Rakoff shot back that Gray has short circuited the whole marry and divorce merry go round - and then said that staying together for the kids is not the best approach.

   Judge Rakoff said that Gray was cheating, or that the mother of his newborn son thought that he was cheating, "not without reason." He acknowledged that he did not have enough basis to form a conclusion, and turned to his other sentences in the wider ride share rip off case. He sentenced George Joseph to 42 months and Devon Williams to 36 months. Levine wanted 24 months for Gray and started arguing under the sentencing guidelines. Judge Rakoff told him that he did not consider those, but wanted to hear about relative culpability and any disparities in sentencing. The wider case is USA v. Pina, et al., 18-cr-00179 (JSR).

  Ultimately Judge Rakoff sentenced Gray to 36 months, the same as Devon Williams, and three years of Supervised Relief. They owe $441,775 in restitution.  But Gray was not remanded, the Marshals left into their corridor before Rakoff set June 25 for Gray to report to wherever he is assigned. He has requested near Bridgeport, Connecticut to be near his mother. He said he won't target Uber and Lyft drivers in the future because he wouldn't want it done to him, that he'd done it in order to feed his children. Call it the Chuck e Cheese defense.

By contrast on May 1 defendant Jesus Lopez walked into the SDNY courtroom of Judge Valerie E. Caproni to be sentenced on May 1 for driving 10 kilograms of cocaine from California to New York.

  He was wearing a suit; he had been allowed out on bond while awaiting sentencing due to his mother having Stage Four cancer. Before the sentencing he uploaded a video directed at Judge Caproni but still online as of this writing on Vimeo, here.

   The courtroom was full, with two U.S. Marshals in the back row, and the two front rows, Inner City Press was later informed by a participant in the proceeding, filled by judges from China. Lopez' lawyer Jeff Greco argued in his sentencing submission for time served, essentially one month.

  But Judge Caproni, after asking Assistant U.S. Attorney Nathan Rhen why the government wasn't seeking forfeiture of the truck Lopez used to drive the drugs - "there's a lot of equity in there," she said -- looked sternly at Lopez.

   Judge Caproni was not impressed by Lopez' statement that he took drugs because he was bored, that boredom was one of his triggers. She said she did not believe that he had only agreed to drive the drugs in order to feed his own habit. First she sentenced him to 60 month, five years, in prison.

  Then as the U.S. Marshals rustled in the row behind Inner City Press, she said she would be remanding Lopex into custody today. Right now. Her courtroom deputy handed the Marshals an order to that effect.

   Defense attorney Greco said that Lopez' mother could die at any time, and that the Bureau of Prisons would be unlikely to let him out to attend her funeral. Judge Caproni said there was no way to know when his mother would die, and that she had allowed him to remain out on bond pending sentencing so he could spent time with her. The Chinese judges sat as Jesus Lopez took his wallet out of his pants and put his hands out for shackling.

  A well known courtroom artist in the SDNY has told Inner City Press about the time she managed to sketch a similar remand of a higher profile defendant, Bernie Madoff. But there was no artist present for the remand of Jesus Lopez, and cameras are not allowed - only this article. The case is U.S. v. Lopez, part of the larger conspiracy prosecution U.S. v. Soto et al., 18-cr-00282 (Caproni).

  Notably one floor above in 40 Foley Square, a man who pled guilty to stealing $7 million in Medicare and Medicaid fraud has had his sentencing delayed for a year already, and perhaps another year, so that his wife can finish a medical residency program. That case is U.S v. Javed, 16-cr-00601-VSB. Unlike the unpublicized case of Jesus Lopez, the Office of the US Attorney for the SDNY announced the Javed sentencing to the press (but not its subsequent deferral). Click here for that story.

  Which approach is the right one? How can these disparities be explained? These are among the questions that Inner City Press will be pursuing, in the SDNY. Watch this site, and the new @SDNYLIVE Twitter feed.

Background: Even in Judge Caproni's courtroom, there are more positive or lenient stories. When Todd Howe, who pled guilty in the New York State corruption case(s), came up for sentencing on April 5, Judge Caproni was told that Howe is now working more than 12 hours a day in Idaho, on ski slopes and now a golf course. After his guilty plea he had been remanded to the Metropolitan Correctional Center when he disputed to Capital One some credit card charges and the government believed it to be another attempted fraud.

With him out of MCC for seven months, Judge Caproni said it may have just been a mistake. She put off sentencing Howe, instead putting him on five years probation. If he "stays clean" during that time, it all goes away. If not, he faces serious time.

  In the elevator down after Howe's lawyer, in what she called her last criminal sentencing, said Howe still respects government service after his lobbying career meltdown, Inner City Press asked Howe what he thought for example of congestion pricing. He laughed and said it is not needed in Idaho. Meanwhile a shackled prisoner Jones was led into Judge Caproni's now empty courtroom to plead guilty to selling crack in The Bronx and hiding a gun after a 1999 felony conviction. That sentencing is set for August 1. Inner City Press and @SDNYLIVE will be there.


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