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ECBAWM Announces an Adult Survivors Act Practice

ECBAWM announces that it is creating an Adult Survivors Act (ASA) practice to represent survivors to pursue sexual abuse cases under New York’s ASA, which became law on May 24, 2022. The new law allows adult victims (people who were 18 or older at the time of the abuse) a one-time opportunity to file civil lawsuits in New York, even if any statutes of limitations have otherwise run out. The one-year window to file claims will open in November 2022 and ECBAWM is actively representing survivors now.

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LGBTQ Students Win Right to Form Official Student Club at Yeshiva University

On Tuesday, June 14, 2022, the Supreme Court of the State of New York, New York County, ordered that Yeshiva University immediately recognize an undergraduate LGBTQ student organization, the YU Pride Alliance, and grant the YU Pride Alliance “full and equal accommodations, advantages, facilities and privileges of all other student groups at Yeshiva” as required by the New York City Human Rights Law.

The LGBTQ student group and four current and former students filed the civil rights lawsuit against Yeshiva University in April 2021, arguing that the university’s ongoing refusal to recognize the club was discriminatory and harmful to students. The court’s decision affirms that as an institution of higher education in New York, Yeshiva University must follow the City’s anti-discrimination law and cannot treat LGBTQ students worse or differently than other students on campus. As the Court, Justice Lynn L. Kotler, held: “What plaintiffs seek is simply equal access to the tangible benefits that Yeshiva affords other student groups on its campus.”

ECBAWM partner Katie Rosenfeld, who along with ECBAWM attorneys Max Selver and Marissa Benavides represented the Plaintiffs, said: “The court’s decision paves the way for LGBTQ students and allies at Yeshiva University to fully participate in their community as equal members, just as the New York City Human Rights Law guarantees. Now the students can move on with the true work of their organization: peer support, discussions groups, community service projects, social events, speaker series, and other positive and important student efforts. It’s fitting that the court’s important ruling comes this month, as we celebrate June as LGBTQ Pride Month.”

Documents
Decision and Order
Press Release

Press Coverage
“Yeshiva University Must Recognize L.G.B.T.Q. Club, Judge Says,” NewYork Times
“Yeshiva University LGBTQ group wins first round in fight for recognition,” Gay City News
“Push to have LGBTQ club at Yeshiva University recognized,” FOX 5 New York

Article

ECBAWM Files Civil Rights Lawsuit on Behalf of George Bell, Wrongfully Imprisoned for Over 24 Years

ECBAWM, together with co-counsel Scott Stevenson, has filed a civil rights lawsuit against the city of New York and eight former New York City police officers on behalf of George Bell. The suit alleges that as a result of rampant misconduct by the police and prosecutors within the Queens County District Attorney’s Office, Mr. Bell was convicted of a double homicide that he did not commit. Mr. Bell faced the death penalty before being sentenced to life in prison. He was 19 years old at the time of his arrest. Mr. Bell’s conviction was vacated and he was finally freed at the age of 44, having spent over 24 years incarcerated.

During the criminal investigation of the crimes for which Mr. Bell was charged the police pursued Mr. Bell based on an unreliable tip, interrogated Mr. Bell through the night on Christmas Eve, and then brutally beat him until he agreed to falsely confess. After Mr. Bell’s arrest, the prosecution and/or police came into possession of exonerating evidence that they did not disclose to Mr. Bell. This evidence made clear that a local armed robbery gang called Speedstick, not Mr. Bell, had committed these murders, and law enforcement knew it years before Mr. Bell was even tried. Rather than admit that they had the wrong man, police and district attorneys suppressed this evidence and fabricated additional evidence to implicate Mr. Bell. These civil rights violations were part of a pattern of the Queens District Attorney’s Office under District Attorney Richard Brown that has recently come to light and has formed the basis for multiple wrongful conviction claims against the City of New York. When vacating Mr. Bell’s conviction, Queens County Supreme Court Justice Zayas concluded that law enforcement’s handling of Mr. Bell’s case “leaves the distinct impression that the suppression of the [exonerating] information was not an isolated instance of misconduct, but part of a larger pattern of behavior that was calculated to deprive the defendants of fair trials, which is particularly egregious given that the death penalty was being sought against 19-year-old George Bell.”

Mr. Bell is represented by Richard Emery, Earl Ward, Debra Greenberger, and David Berman of ECBAWM, as well as co-counsel Scott Stevenson.

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Post-Release Supervision Class Action to Proceed to Damages Trial

In Betances v. Fischer, ECBAWM represents a class of over 3000 individuals who were administratively, unilaterally, and unlawfully sentenced to terms of post-release supervision (“PRS”) by New York State corrections and parole officials. The Plaintiff class was certified by the Court in 2015 and the Court subsequently granted summary judgment on liability to Plaintiffs, holding the Defendant State corrections and parole officials personally liable for violating Plaintiffs’ due process rights.

In advance of trial, the Defendant State officials moved to decertify the Plaintiff class on the basis that Plaintiffs’ general damages—which stem from the liberty Plaintiffs lost while on PRS or incarcerated for violating PRS—cannot be determined on a class-wide basis. In a March 14, 2022 decision, United States Magistrate Judge Robert W. Lehrburger denied Defendants’ motion to decertify the class and ruled that “the class should be maintained for the purposes of trial to determine damages for loss of liberty.”

In denying the Defendants’ decertification motion, the Court held that Plaintiffs’ lost liberty “is inherent in any unlawful detention and is compensable as general damages” and “can be determined on a class-wide basis.” The Court further determined that these common injuries “predominate over other, individualized issues” and can therefore be determined on a class basis at trial.

ECBAWM attorneys Matthew D. Brinckerhoff, Nick Bourland, and Max Selver, and law clerk Julian Oppenheimer represent the Betances Plaintiff class.

Article

ECBAWM Achieves $1.5M Settlement for Developmentally Disabled Individual Abused in New York State-Run Group Home

ECBAWM has obtained a $1.5 million settlement from the State of New York on behalf of M.F., a developmentally disabled resident of a New York State-run group home who experienced serial abuse by caretakers.

As set forth in the lawsuit, for years, M.F. was subjected to constant abuse by staff members while in residence at the Union Avenue IRA in the Bronx, run by New York State’s Office for People with Developmental Disabilities (OPWDD). Union Avenue staff testified that M.F. was constantly covered in bruises throughout their stay, and staff also witnessed colleagues subjecting M.F. to physical abuse, inhumane confinement, and forced feedings. In spite of the heinous abuse they witnessed, not one staff member or supervisor reported the abuse to law enforcement, the state’s abuse hotline, or M.F.’s family.

The lawsuit also revealed that the State failed M.F. by turning a blind eye to reports showing systemic abuse at Union Avenue and failing to train staff and supervisors on incident reporting.

The New York Times previously reported on this case and the conditions at Union Avenue in Episode 27 (“The Promise”) of The Weekly.

M.F. is represented by Ilann Maazel and Max Selver.

Press
“NY To Pay $1.5M To End Group Home Resident Abuse Suit,” Law.com

Article

ECBAWM Obtains $8 Million Settlement for Wrongful Conviction Under Queens DA Richard Brown

ECBAWM, together with co-counsel Thomas Hoffman and Joel Rudin, has reached a settlement of $8 million with the City of New York on behalf of Kareem Bellamy, a man who was wrongfully convicted in 1995 and served more than 14 years in prison for a crime he did not commit.

Kareem Bellamy was an innocent man charged by the Queens District Attorney’s Office for a 1994 murder in Far Rockaway, NY. During the criminal investigation, the prosecution and/or police came into possession of exonerating evidence that they did not disclose to Mr. Bellamy and fabricated evidence to implicate Mr. Bellamy. The prosecution also engaged in misconduct during Mr. Bellamy’s trial by making inflammatory comments while speaking to the jury. These civil rights violations were part of a pattern of the Queens District Attorney’s Office under District Attorney Richard Brown that has recently come to light and has formed the basis for multiple wrongful conviction claims against the City of New York.

After the New York state court released Mr. Bellamy based on new evidence showing his innocence, Mr. Bellamy sued the City of New York for the constitutional violations that led to his wrongful imprisonment. During this lawsuit, ECBAWM and co-counsel uncovered a document from Richard Brown to top aide Jack Ryan stating, “Jack, I think we’ve been getting away with this sort of thing for a long time.”

Mr. Bellamy was represented by Earl Ward, Ilann M. Maazel, and Marissa Benavides, as well as co-counsel Thomas Hoffman and Joel Rudin.

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ECBAWM Partner Zoe Salzman Published in City & State: The Adult Survivors Act Is Needed Legislation

In an opinion piece published in City & State, ECBAWM partner Zoe Salzman draws on her experience representing sexual assault survivors to explain why the proposed Adult Survivors Act should become law. Under current New York law, the time to file a civil case for a sexual assault that happened before 2019 is usually very short.

Based on the previously enacted Child Victims Act, the Adult Survivors Act would create a new “lookback window” so that survivors whose sexual assault occurred prior to 2019 would be allowed a one-year window to revive any civil lawsuits that would otherwise be barred under the statute of limitations.

“The Adult Survivors Act passed the state Senate unanimously last spring but for unclear reasons failed to advance in the Assembly,” writes Salzman. “With a new governor at the helm and a new legislative session that began this month, New York’s leaders have another chance to pass this important law.”

Article

ECBAWM Defeats Detroit Police Officers’ Attempt to Avoid Trial in Wrongful Conviction Case

In a December 28, 2021 decision, United States District Judge Paul D. Borman rejected a motion for summary judgment filed by four Detroit Police Department (“DPD”) officers seeking to drastically narrow the scope of a lawsuit brought by Kendrick Scott, an innocent man who was wrongfully convicted of murder and spent nearly two decades in prison as a result of the DPD officers’ egregious misconduct.

The Court ruled that Mr. Scott’s case will proceed against all four DPD officers and held that each of Mr. Scott’s federal civil rights claims must be decided at a jury trial. Specifically, the Court found that, in light of the evidence presented by ECBAWM, a jury must decide whether the DPD officers violated Mr. Scott’s constitutional rights by suppressing exculpatory evidence and forcing witnesses to testify falsely.

“Mr. Scott endured almost 20 years in jail for a crime he did not commit. We look forward to showing all the evidence of this injustice to the jury at trial,” said ECBAWM partner Zoe Salzman.

“The Court’s decision makes clear that police officers who threaten witnesses and suppress exculpatory evidence—and do so without any regard for the rights and liberty of an innocent man—cannot escape liability on a technicality,” said ECBAWM attorney Nick Bourland. “Mr. Scott deserves to present his case to a jury and this victory guarantees that he will have his day in court.”

ECBAWM attorneys Zoe Salzman and Nick Bourland represent Mr. Scott.

Article

Class Action Lawsuit Against Aetna Filed by Emery Celli Brinckerhoff Abady Ward & Maazel and NWLC Alleges LGBTQ Discrimination

The suit alleges that Aetna’s fertility treatment reimbursement policy discriminates against LGBTQ individuals

ECBAWM and the National Women’s Law Center (NWLC) have filed a class action lawsuit against Aetna alleging discriminatory practices against LGBTQ policy-holders seeking fertility treatments. Emma Goidel, the plaintiff in the suit, and her spouse seek to end this discriminatory policy and to recoup a portion of the out-of-pocket costs they have incurred while undergoing IVF and IUI fertility treatments.

The suit alleges that Aetna’s policy for coverage of IVF and IUI fertility treatments unfairly discriminates against LGBTQ couples by requiring them to pay out of pocket for 12 cycles of IUI before Aetna will provide them with coverage. However, Aetna’s policy provides immediate coverage, without any out-of-pocket cost, to heterosexual couples who have not gotten pregnant after having unprotected sex for 12 months.

“Aetna’s policy is effectively a tax on LGBTQ policy-holders,” said Noel León, an ECBAWM attorney representing Ms. Goidel. “It prevents LGBTQ individuals who are unable to shoulder the considerable cost of fertility treatments — disproportionately those of color — from becoming pregnant and thus denies their equal rights to start families.”

Ms. Goidel and her spouse are enrolled in Aetna’s Student Health Plan for Columbia University, which provides broad coverage for IUI and IVF for heterosexual couples. As a result of Aetna’s policy, however, they have been forced to pay tens of thousands of dollars for fertility treatment. They estimate that they paid nearly $45,000 for one successful pregnancy. The plaintiff is suing on behalf of herself and other LGBTQ individuals to end this discriminatory policy enforced by Aetna.

“It is everyone’s right to create a family, and to try to biologically bear their own children if they so choose,” said Ms. Goidel. “Health insurance must protect that right by covering medical costs equally for those who need fertility treatment to reproduce—not discriminating against queer people.”

“Your insurance company should never be the reason you are denied the chance to start a family,” said Michelle Banker, Director of Reproductive Rights and Health Litigation at NWLC, who is representing the plaintiff. “Emma was forced to pay significantly more and prevented from equal access to care, simply because she is queer. Aetna must change its illegal policy immediately — for patients like Emma, and especially for those who cannot afford this care. Discrimination should have no place in health care and we will make sure insurance companies like Aetna are held accountable.”

Individuals whose insurance policies unfairly discriminate against LGBTQ individuals or couples seeking fertility treatments can provide the attorneys with more information in three ways: by phone at (202) 956-3077, by email to LGBTQFertilityLawsuit@nwlc.org, or by filling out this Google form: https://bit.ly/LGBTQFertilityLawsuit.

Plaintiffs are represented by ECBAWM attorneys Noel León and Zoe Salzman and NWLC attorneys Michelle Banker, Sunu Chandy, Lauren Gorodetsky, and Alison Tanner.

Press
“Aetna Accused of Denying Coverage of Fertility Treatments for LGBTQ+ Policyholders,”  NewYork Law Journal
“Aetna sued over fertility treatment coverage for LGBTQ+ people,” Reuters
“Aetna hit with lawsuit alleging discrimination against LGBTQ patients,” Modern Healthcare

Article

Second Circuit: Forensic Examiner Not Entitled to Qualified Immunity

In a significant qualified immunity ruling, the U.S. Court of Appeals for the Second Circuit denied a state ballistics examiner’s motion to dismiss a 42 U.S.C. § 1983 civil rights lawsuit.

ECBAWM client Vernon Horn was incarcerated for over 17 years for a crime he did not commit. His wrongful conviction stemmed from exculpatory evidence that was concealed before and during trial: New Haven Police detectives hid phone records in the basement of a detective’s house because they did not support the case against Horn, and the Connecticut State Police ballistics examiner failed to disclose that he prepared a second ballistics report that falsely implicated Mr. Horn because the original report would have exonerated him.

Following their release from prison in 2018, Mr. Horn and his co-defendant Marquis Jackson brought civil actions against the City of New Haven and certain law enforcement officials for violating their constitutional due process rights under Brady v. Maryland.

The state ballistics examiner, James Stephenson, filed a motion to dismiss the lawsuits against him on the grounds that he is entitled to (a) qualified immunity for failing to turn over exculpatory evidence and (b) absolute immunity for preparing the second false ballistics report because he did so at the prosecutor’s direction. The U.S. District Court for the District of Connecticut denied Stephenson’s motion to dismiss and he appealed to the Second Circuit.

In upholding the lower court’s ruling and denying Stephenson’s motion to dismiss, the Second Circuit wrote that “no reasonable forensic examiner in Stephenson’s position” would have concluded that Brady did not apply. The Court also concluded, “The allegations here are consistent with [Horn’s] theory that Stephenson independently decided to manipulate the margin of error upon learning that the memo … would weaken the state’s case against [Horn].”

Vernon Horn is represented by ECBAWM lawyers Ilann Maazel and Nick Bourland along with co-counsel Doug Lieb and Tamar Birckhead.

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