The Street Lawyer Project

If I do not have court, I can either go to the office, or, my preference is to go off and set up my "mobile office" with my partner Andy at 125th St. and Adam Clayton Powell Blvd. in Harlem.  We set up on the street, and answer questions from people who know us as the "Street Lawyers".  We answer questions from about 100 people every day, concerning their housing, welfare benefits, criminal cases, inheritance rights, landlord neglect, and every other kind of imaginable problem. 

I enjoy being able to solve problems.  In my younger days, I was too highfalutin to get involved in people's personal problems.  Now I enjoy it thoroughly, and like to see if they can "stump the lawyer" by presenting a problem that I cannot solve.  At a minimum, I try to send them off with something positive in their mind to focus on.

I also participate as a speaker in frequent symposiums in Harlem on various legal and political issues.  I am very involved in the political and social environment of Harlem, which is to me the capital of the black American. Often, I am the only or one of the only white people on a panel and in a room. 

My ancestors were among the first Quakers in America, in the 1600s, and that genetic strain is part of my disposition. 

 

The Diesel Particulate Matter Litigation

Diesel engines create diesel exhaust particles (diesel particulate matter). Working around harmful diesel fumes can be like unknowingly and unwillingly smoking cigarettes.

A questionnaire sent to retired members of the MTA surface division (buses) showed that 41.7% of the respondents suffered from cancer, though only 16.4% were smokers. 67% were exposed to diesel particulate matter more than 6 hours a day, thoughout their long careers.

The Court of Appeals of the District of Columbia performed a review of the studies on diesel fumes, and concluded that the overwhelming weight of the epidemiological evidence establishes that diesel particulate matter causes significant adverse health effects.

The Mine Safety Health Administration analyzed 47 epidemiological studies from 1957 to 1999, as well as two meta-analyses that aggregated data from the earlier studies.  An association between occupational Diesel Particulate Matter exposure and an excess prevalence of lung cancer was reported in 41 of the 47 studies reviewed by MSHA.

The Court of Appeals stated that:

"studies of both cohort and case-control design have quite consistently shown that chronic exposure to diesel exhaust, in a variety of occupational circumstances, is associated with an increased risk of lung cancer.  With only rare exceptions, involving too few workers and/or observational periods too short to have a good chance of detecting excess cancer risk, the human studies have shown a greater risk of lung cancer among exposed workers than among comparable unexposed workers."

There are also many studies proving an increased risk of cardiovascular disease, like heart disease and stroke; and respiratory diseases, like chronic obstructive pulmonary disease.

These NYC bus workers have not received workers compensatiton or disability benefits, and are entitled to compensation for their occupational injuries.

The manufacturers of the diesel bus engines that emit the fumes were told by the EPA, at least by 1988, that the diesel particulate matter from their engines was causing cancer.

They did nothing about it, and fought higher emissions standards, knowing that people were getting cancer from their products.

Children in the Bronx are getting asthma and other lung diseases at much higher rates than other counties, because of the diesel fumes from trucks and buses in their neighborhoods.

California is trying to force the manufacturers to retrofit their buses and trucks with filters to remove the harmful particles.

We are doing our part to help achieve that goal, here in New York. We have sued the manufacturers of diesel engines and diesel buses, on behalf of the workers using their products who got sick.

The issue of whether the case should be dismissed because it is preempted by the Clean Air Act will be argued before the US Court of Appeals for the Second Circuit soon.

Lawsuit Funding

We were asked to substitute an attorney who was handling a case over a 3 1/2 year period and had gotten nowhere. In reviewing the case, it was obvious that it was a case that should have been settled in a years time or so, so we agreed to take over the case.

We then settled the case over the next six months. A problem arose though because the prior attorney has allowed the client to sign an agreement with a lawsuit funding company, and now the funding company, in return for the $4800 loan to the client, demanded $32,000 in return. They charge 4% per month, that is, 48% interest per year, and because the attorney had taken so long, that interest-rate, which was a compound rate, was costing the client $1300 per month, increasing every month.

This is a real racket. The company was really an individual known to the attorney who agreed to loan tiny amounts of money to the client, knowing that he could get a big payoff if the attorney took a long time with case. I do not know whether the attorney received some kickback, but I do know the funding company is not licensed or approved by the state of New York, does not even have a website or contact information on the web, and is composed primarily of an individual who calls himself a funding company and lives in Brooklyn.

Legitimate funding companies have made agreements with the New York Atty. Gen. agreeing to tap the maximum amount they charge, so the amounts don't add up to the point that it makes it impossible to settle a case or for the client to anything from the settlement. Thus, Oasis Capital, Law Cash, companies like that, that originated the idea of lawsuit funding, never allow the amount owed to grow to more than three times the amount loaned. Thus, on a $5000 loan, the most that would be owed, even if the case  took years, would be $15,000.

It is unconscionable for a lawyer to permit a client to take out a lawsuit funding loan that is going to cost the client 48% interest per year with no cap of the amount owed. The attorney has an obligation to shop around, and to warn the client of the need to find a reputable company that will cap the amount owed.

If you have taken out a loan from a lawsuit funding company, make sure that the amount that you have to repay is capped at no more than three times the amount borrowed, regardless how long it takes to settle the case. Reputable companies will do that.

The Bronx Water Main Break

The MTD African Halal Supermarket is owned by Mr. Mamadou T. Dialo.  His family is from Guinea in Africa.  They are a large family of Africans who came to the United States, and they are almost entirely first generation Americans.  Their Supermarket is one of the main African food distributors in the United States.  They import a wide variety of African foods, and the retailers for African foods, certainly in the Northeast, depend upon the Supermarket for their merchandise.  They have a main floor where they sell retail items, and a basement where they stock large quantities of food for retail and wholesale distribution.

Then the flood occurred, Fatitima Barry, the Secretary for Mr. Dialo, was notified about 7 am.  When she got there, the street was flooded and no one could go on to the street.  They eventually were allowed to into their Supermarket.  The water had completely filled the basement, to the ceiling, and about 18 inches of the first floor were filled with water.  When the water was finally drained out, they went to the basement and began to do an inventory of the damaged goods.  

There were at least 8 men bagging the inventory at a time, often 12.  They would count the items, and Fatitima and her sister would write down the count, then bag it.  
That inventory started on Saturday, and continued Sunday, Monday, Tuesday and Wednesday, finally finishing the count on Wednesday evening.

They filled five 30 cubic yard dumpsters to the top.  When the dumpsters were weighed, the total weight came to 71 tons.  That doesn’t count any of the infrastructure, that’s just inventory itself. 

They then brought in a company that specializes in cleaning up flood damage, and they received an estimate of $99,000 from ServPro for the cleaning and rehabilitation of the place.

At the meeting at the Community Center, they learned that the City would pay for lost inventory and clean up costs if they filled out a claim form and provided all their receipts.  Their receipts were all in the basement that was flooded.  They have them, but most of them have such severe water damage that they cannot be read.  But the store is trying to restore them.  But they do have an accurate count of the items that were damaged, which is better than most of the stores in the neighborhood. 

John Durst, the attorney for the Supermarket, and Fatimata Berry, Secretary for the company, directed the inventory.  There were always 8-12 people in the basement, physically going through the piles of refuse, lifting, sorting and counting the products, with two females taking down the inventory and a videographer filming every count. 

When they had to remove the bags from the basement, they formed a human chain of two people each, who would pass a bag to the next two people, who would pass the bag to the next two people, up out of the basement, over the sidewalk to the dumpster.  There were at least 25 people in that line of people.  Many volunteers from the neighborhood joined in. 

It was Ramadan starting on Monday, and that was in the heaviest part of the inventory and removal process.  It was 91 degrees and humid, and because almost all of the workers were Muslim, no one was drinking, or eating any food.  Every worker there was drenched in sweat, and not drinking water, lifting bags that weighed 50-100 lbs each, on a nonstop basis for 8 hours. 

Mr. Durst says that “there was never one bad word or harsh expression exchanged between any of the workers, despite the tough conditions", to his astonishment.   He joined them in their fast, and was amazed at the difficulty of going all day without drinking, but by the third day of Ramadan, he had almost become accustomed to it, as they had.  They never stopped working until everything was out of the basement.  Their only break was at 1:00 pm, when they’d break to go to the mosque and pray.

They were visited by their insurance company’s representative on Wednesday.  They had hoped that their insurance would cover this.  They were told though that the business owners protection policy that they had, which was limited to 100,000 in property damage and business lost income, did not apply and would not provide any payment, because flood damage from a water main break was not a “Named Peril” under the policy.  So though they thought they were insured, they got the devastating news that they had no insurance coverage at all, despite their payment of premiums for the last 5 years.  So they thought they were covered when this happened, but they aren’t.  They like many other businesses in the neighborhood found out that a flood from a water main break was not covered by their insurance policy. 

Very few of the stores in the neighborhood ended up being covered by insurance, despite the fact that most of them had some type of insurance.

At the meeting with the representatives of the City of New York, the business owners were told that they should have foreseen something like this, and purchased insurance for it.  How many people foresee that the water main under the street is going to break and you are going to have a flood hit your premises, destroy all your inventory, in a business in the Bronx?

Anyway, the City of New York did ask the business owners to prepare claim forms, but the claim forms they were provided did not permit any recovery for lost business income, and many of the stores, unlike the Supermarket, did not have vast inventories that were damaged, but have been put out of business and will continue to be out of business until they completely rebuild their stores and are permitted to open again.  Right now, the DEP has told the storekeepers that have food, like restaurants and the Supermarket, that they cannot reopen without approval from the City.  That approval is going to require a Professional Engineer signing off that everything has been repaired properly and cleaned properly, and pass an inspection so that they are authorized to open again.

So that is the story.  The City of New York had a 106 year old water main that was tagged as having expired its useful life expectancy and should have been removed, or at a minimum should have been inspected and tested, and wasn’t.  It resulted in a flood which put 100 businesses out of business for the immediate present.  They at the meeting the governors office suggested that there would be loans available if you qualify at 5.5% interest. 

Another restaurant we represent was told that they did not qualify for the loan.  He was also told by his insurance company that there was a water exclusion which prevented him from recovering anything under his insurance policy.  Most of the storeowners have been told that if they had insurance policy, it won’t cover their loss, because of the nature of the disaster being a water main break.

There’s really only one alternative if the businesses want to be made whole again – and that is for the businesses to sue.  They have to first file a Notice of Claim setting forth each element of damages that they have suffered, which includes damage to the inventory, damage to the premises, lost profits for them and their workers, clean up costs – those are the basic elements of damage that each business has has suffered.  They have to set forth those in the Notice of Claim.  But the Notice of Claim that the City of New York distributed and was asking people to fill out did not permit any addition for lost business profit or income at all.  And other elements were not set forth on the form.  When asked about that, the representative from the city said that lost business income was something that they should have bought insurance for, and as entrepreneurs that means that they are entering risk, and they have to protect against that risk with an insurance policy.

These business did do that, and nevertheless aren’t getting any money from insurance, and the City is then claiming that they are not going to pay… unless – the City representative said – unless you “take it to the next level”.  Well the next level is the obvious level, that is making a claim for all of it, and then if they don’t pay it, suing.  So a large number of the stores have banded together to commence lawsuits.  John Durst and Andy Bersin represent 18 of them, and they're anxious to get these storekeepers what they deserve to get, which is everything they lost in the flood.