Author: MOWK

What is the Burden of Proof in a Civil Case?

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One way to help predict the likelihood of success in your case is by understanding the burden of proof. This is the legal requirement to determine who is responsible for producing evidence that proves or discredits a claim. The evidence is usually expressed through documents, objects, and witness testimony.

Who Has the Burden of Proof?

The law requires the party that has the burden of proof to present sufficient evidence that will support the claims. In most civil cases, the party that is putting forth the claim (the plaintiff) has the burden of proof. 

The Difference Between A Civil Case and a Criminal Case

The phrase “beyond a reasonable doubt” is familiar to most people. In a criminal case, this refers to the burden that the prosecution must satisfy, as the burden of proof lies with them. Here, the defendant doesn’t have to prove innocence; the defendant is viewed as being innocent until the prosecution establishes their guilt. However, there are scenarios where the defendant most likely wants to show that they are innocent, such as in cases of an insanity defense or self-defense. The standard is that the prosecution must show “beyond a reasonable doubt”that the defendant committed the crime and that there is no other possibility than what is presented to the court. 

In a civil lawsuit, the burden of proof is on the plaintiff. It’s up to them to prove that their contentions are true and that the other party caused them damages. For the civil case, the plaintiff’s burden is usually a “preponderance of evidence.” This means that it is more likely than not that the defendant caused harm to the plaintiff. In some civil cases, however, the burden is a different standard and it requires “clear and convincing evidence” or evidence that has a high probability of truth.

Standards of Proof

The standard of proof lays out what a party must do to meet their burden: The higher the stakes, the more difficult it is to satisfy. 

  • Preponderance of Evidence: This is the standard in most civil cases that requires plaintiffs to demonstrate to the jury or the judge that the defendant is more than 50% responsible for their damages, including property damage or loss of income.
  • Clear and Convincing Evidence: Sometimes plaintiffs seek more than money, namely things like civil liberties, and this demands a higher level. Here, you must prove that there is a high probability that the allegation happened.
  • Beyond a Reasonable Doubt: This is the highest standard and is used in criminal cases. It requires that no other reasonable explanation exists beyond the evidence presented.

Proving Negligence in a Civil Case

In claims involving negligence, (such as a personal injury lawsuit) you must establish first, that the defendant owed you a duty of care and that they breached that duty of care. Next, you need to show that the defendant acted in such a way that others in their same position would not have. Then, present proof that you were harmed by their behavior. 

Understand More about the Burden of Proof

Getting a handle on the burden of proof will give you an idea about your legal position and the possible outcome of your case. However, discussing this in detail with an experienced attorney will give you a better picture of what to expect. Contact one of our skilled MOWK Law attorneys to find out more information. Get started today. 

What You Should Know if You’re Accused of Domestic Violence

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Reports of cases of domestic violence have surged during the Covid-19 pandemic in New York and throughout the country. Unfortunately, these times of major stress and uncertainty are often accompanied by an increase in domestic disputes. Any accusation of committing a domestic violence crime can cause extreme damage to both your personal and professional worlds. Even without a conviction, it’s possible that you could end up losing your livelihood and/or friends and associates. That’s why it’s crucial to understand what you’re up against if you’ve been accused of domestic violence. Read on to learn about what you need to do if it happens to you.

Understand the Charges

Take a typical scenario. In many cases, a domestic violence incident may occur after an argument between partners or spouses gets physical. When the police arrive after a 911 call, (which sometimes are made in the heat of the moment) an arrest is made even times when the situation has calmed.

First, you need to understand the seriousness of the situation. Even if you’ve been falsely accused of committing domestic violence, you need to realize the trouble that you’re in and should do everything you can to defend yourself. 

Identify the actual charges. Domestic abuse or domestic violence itself is not a criminal charge per se here. However, in New York the charges that are considered under this category are assault, harassment, and stalking. For assault, the range of charges begins with a misdemeanor and goes all the way up to a B felony; the penalties can be probation for the lowest offense and potential jail time from up to 25 years for the high end.  

Seek Legal Representation

After realizing the seriousness of your charges, you should not hesitate to get an attorney experienced in criminal defense to represent you. Even if you’re facing charges based on false allegations or your accuser is flipping the script after abusing you, it’s critical that you hire counsel. You will need help mounting a solid defense and an attorney will also ensure that your rights are protected during this process.

Compile Evidence

After you have obtained a lawyer, they will help you gather and preserve evidence. An investigation can yield important information that can bolster your case. Documenting correspondence like text messages with the accuser can be especially helpful. In some cases, the only evidence comes from the domestic violence complainant who also serves as a witness. However, if there are witnesses, you can compile a list, complete with their names, contact information, and any other information that could be significant. It’s also a good idea to include everyone you can think of even if they end up not being relevant to your case; the attorney can sort out those details.   

Accused of Domestic Violence in New York? Contact an Experienced Lawyer

The importance of obtaining an experienced criminal lawyer can’t be overstated when you’ve been accused of a crime, especially of the domestic violence variety. Our MOWK Law criminal defense attorneys have countless experience and can help you fight your charges and increase your chances of keeping your freedom, livelihood, and reputation. Contact us today. 

What Happens if You Don’t Buy a Homeowner’s Title Policy?

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You’ve looked over the options and have made your choice: You’re ready to purchase that cozy condo or that attractive New York brownstone. Whenever you buy residential New York real estate, you aren’t merely paying the asking price. Rather, there are many other fees associated with it including a host of various closing costs. As a purchaser, you want to save money and may want to avoid a survey or an inspection as a way to keep down expenses. While some of these costs (including broker fees) aren’t negotiable, there are things that you can sidestep. 

However, many times mortgage lenders won’t allow buyers to do this. A close analysis of the financial information prior to closing indicates that you have to pay for title insurance not only for yourself but also for the mortgage lender. While there is usually no way to get out of buying a lender’s policy, you can opt out of a buyer’s policy. But is this something that you really want to do? Read on to learn more about making this choice and what’s at stake if you don’t buy a homeowner’s title policy.  

Types of Policies

There are two types of title insurance policies, an owner’s policy and a loan policy. The owner’s policy protects you in case there is a covered title defect in your right of ownership. If you need a mortgage to buy your home, the lender will probably require that you purchase a loan policy or lender’s policy. This policy protects the lender’s interest in the property until the mortgage has been paid in full.  

Title Insurance and Ownership Rights  

In order to get a title insurance policy, you will need to have a company carry out an exhaustive title search looking at the ownership history of the property, including any liens that require payment as part of the transaction. When you acquire a title insurance policy, it will protect you if another party eventually shows up claiming to be an owner or claiming to have the right to some other hold on the property’s title.  

First, the title insurance will pay for a lawyer to represent you in a title dispute in court. Next, if the person claiming title is successful and you lose possession of the property, then the title insurance will reimburse you for the investments that you’ve made in the property. 

However, if you don’t have a title policy and someone brings a claim against your property, you could lose out on not only the down payment that you made, but also on all of the accrued equity from payments since the closing, and the value of improvements that you’ve made to your home. 

Get Answers from an Experienced New York Real Estate Attorney

Buying a new home is one of the most fulfilling things that you can do. Ensuring that your right to own the property is secure can be equally satisfying. Understanding the aspects of a real estate transaction can assist you with making thoughtful choices prior to your closing. Get help with this by turning to one of our experienced MOWK Law attorneys who can guide you through this process. Contact us today for more information.  

Understanding the Difference Between Worker’s Comp and a Personal Injury Lawsuit

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If you’re an employee who was hurt on the job, you will want to know how you can be compensated for any injuries you suffered. It’s important to know when it’s appropriate to seek a worker’s compensation claim versus a personal injury claim. 

Worker’s Comp Factors and Personal Injury Factors

Although both a New York personal injury lawsuit and a worker’s compensation claim can arise from accidents that happen in the workplace, there are key differences when it comes to liability. Negligence occurs when someone is harmed as a direct result of a party’s carelessness. This is the primary basis of liability in a personal injury claim. 

However, in a worker’s compensation claim, the compensation is intended to cover certain injuries, regardless of who is at fault. Absent an exception, any employee who is injured on the job is entitled to worker’s comp benefits without having to prove fault; you don’t need to show proof that your employer, supervisor, or co-workers did anything wrong in order to receive these benefits. Additionally, even if you were negligent and that was the cause of your injury, you are still entitled to the benefits. 

Recovery in Worker’s Compensation Claims vs. Personal Injury Claims

In a personal injury lawsuit, the plaintiff is trying to recover any losses that came from the accident. The damages may include compensation for medical bills, future medical expenses, lost earnings, any future lost earnings, permanent impairment, loss of enjoyment of life (hedonic damages), future health care costs associated with the injury and damages for pain and suffering.

In a worker’s compensation claim, you’re only entitled to receive weekly compensation, permanent impairment benefits, health care bills, and vocational rehabilitation. However, unlike a personal injury lawsuit, you typically cannot get compensation for pain and suffering. 

Requirements for Worker’s Compensation

Generally, these are the requirements for worker’s compensation:

  • You are an employee
  • Your employer carries worker’s comp insurance
  • You suffered a work-related injury or illness
  • You must report your injury/illness and file for a worker’s comp claim within the deadline

Filing a Claim

As an injured worker you usually won’t be able to file for both worker’s compensation claims and a personal injury suit, but you may be able to recover compensation via a third-party lawsuit if your injuries were the result of a safety violation. In this situation, a third-party claim may be against a subcontractor or a property owner; this can assist with supplementing the funds coming in from a worker’s comp claim. Keep in mind that this is important because worker’s compensation only covers a small portion of your wages, generally about 2/3 of your wages. 

Speak to an Experienced Personal Injury Attorney

If you or your someone you know has been injured while on the job, you want to make sure that you get the compensation that you are entitled to receive. Don’t wait for the negligent party or the insurance company to step up. Act in your best interests and speak to an experienced personal injury attorney. Our MOWK Law New York personal injury attorneys have the know-how and dedication to assist you through these difficult times. Contact us today to learn about what you can do to get the compensation that you deserve.

Top 3 Concerns for First Time New York Home Buyers

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You’re excited because you’re about to become a homeowner for the very first time. This can also come with a lot of stress, in addition to excitement and anticipation since you’re new to the home buying process. However, don’t let your enthusiasm make you overlook key issues. Here are top concerns to watch out for when you’re making your first home purchase.

1. Title Concerns: At a given point when you’re in the home buying stage, you can receive a summary of the property. When you get this, be sure to examine the details of the title summary and look out for key information about things like easements, liens, and other encumbrances and exceptions that may restrict the way that you can use and enjoy the property. 

2. Repair Concerns: Repair work is a major area that can involve many red flags. It’s important to be vigilant when it comes to this aspect of purchasing a home.

  • Sometimes property owners make repairs and cosmetic fixes to up their asking price or to get a quicker turnaround for the home sale process. Pay special attention to the actual quality of the home and look beyond the superficial enhancements. 
  • You should carefully inspect all repairs and look for indicators of subpar repairs. Shoddy work doesn’t always indicate that there are major problems that the owner is trying to conceal, but it could mean that there are larger less obvious repair issues that need to be resolved.  
  • Inspect the building and the lot to make sure that everything is completely finished and well-made.
  • Reference all repair work with the seller’s disclosure. If there is information that doesn’t line up with the what’s in the title summary or what you see when you do the physical inspection, you may want to keep looking for other house purchase alternatives.

3. Negotiation Concerns: This is a pivotal part of the home buying process and there are a lot of things to think about before approaching the seller.  

  • Don’t make the mistake of taking it for granted that every house price is negotiable.
  • However, you also shouldn’t give too low an offer because it could turn-off the seller and make them not want to deal with you at all. This may close the door on negotiations even before you get started. 
  • Alternatively, you can just leave this to the brokers. After all, it is their job to attract clients and to work on your behalf.
  • Keep in mind that this may not be your “forever” home and that you may want to sell the house someday. Therefore, you should concentrate on the location and not just fixate on the price. 

Make Home Buying Easy with Help from an Experienced Lawyer

If you’ve followed these steps, you may be able to have a fairly smooth home buying experience. However, there are numerous situations where you can use the help of an experienced New York real estate lawyer. Contact us at MOWK Law for an attorney who is ready to assist you.

What You Need to Know about Pretrial Settlements

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A pretrial settlement is when the parties in a lawsuit meet before trial to figure out payment for losses and injuries. Instead of going through the entire trial process, the parties try to negotiate and resolve payment issues, rather than depending on the judge to determine the damages award. Keep reading for more information about this common dispute resolution approach.

When do pretrial settlements occur?

After receiving notice of the lawsuit, the defendant has the opportunity to work with the claimant/plaintiff outside of court to come to an agreement about liability and how to measure damages. 

The settlements can occur in any personal injury arena, but they are very popular in auto accident claims, which can be complicated due to the presence of other parties like insurance companies. Pretrial settlements are also common where business owners are trying to avoid taking time out for court appearances in cases like slip and falls or other claims that occur in business establishments. 

After the distribution of the facts of the case, the plaintiff can work with an attorney to draft a formal offer of settlement according to the outlined terms and send it to the defendant for consideration. Alternatively, another option is that both parties can have conversations to negotiate the offer together. 

What are the benefits of pretrial settlements?

If you go the settlement route, all parties may be able to save both time and money. Depending on the case, the costs of legal fees, securing and paying expert witnesses, and other costs associated with the lawsuit can really add up, so the settlement can be a way to reduce this.  

Additionally, under some circumstances, if a settlement agreement is reached, it may be a more accurate compared to the court’s calculation of compensation for damages. 

However, settlement isn’t always a possibility when the parties don’t agree on all of the terms. In such cases, a partial settlement can be reached, and then the disputed terms can be litigated in court.

Helpful hints on negotiation for claimants

There are certain things that claimants should consider when negotiating:

  • Envision a settlement range prior to the meeting
  • Don’t rush into the first offer. Insurance adjusters tend to start low because they expect that the other party doesn’t realize what their claim is worth
  • Get the settlement in writing 

How do pretrial settlements payouts work?

Generally, the parties can decide how the settlement payments are paid out. In some cases, a lump sum is paid to the injured party, but the plaintiff may instead choose to receive a structured settlement; many plaintiffs prefer this periodic schedule because they can avoid paying large amounts of taxes on the money that they get.  

Contact an Attorney for Pretrial Settlement Help

You might want to consult with an experienced personal injury lawyer if you’re considering settlement as an alternative to litigation. Your attorney can assist you in navigating the settlement process from beginning to end. Get in touch with a skilled MOWK Law attorney right away to find out about your options. 

What You Need to Know about NY’s Power of Attorney Law

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No amount of New York estate planning is complete without protecting yourself while you’re still alive. This is why a power of attorney is important. It’s recommended (in conjunction with a health care proxy) for anyone 18 and above. Here’s what you need to know about New York’s recently changed power of attorney (POA). 

What is a Power of Attorney? 

A power of attorney is a legal document that acts as a planning tool that is used during your lifetime. In a general sense, it allows an individual or multiple other people, the power to manage the financial affairs and make important decisions on another individual’s behalf if they can’t.

The Parties of a POA

The “principal” gives specific authority to others who are the “agent/agents.” The agent is the individual who is authorized to make decisions on your behalf and who agrees to follow the instructions that you have set up. In the absence of specific instructions, the agent is required to act in the best interests of the principal.

You probably want to consider choosing more than one agent in case your agent passes away or somehow becomes unavailable. Otherwise, your family will likely have to endure lengthy and costly court proceedings to handle your personal and financial affairs. They would have to replace the previous agent by having a guardian appointed. You can avoid this by appointing a successor agent or by assigning co-agents.  

What Changes were Made to the NY POA?

Because the old format was convoluted and lead to many invalid POAs, the aim of the new law was to simplify the process. Here are important changes:

  • You don’t have to use the “exact wording” anymore and instead it’s “substantial conformity” with the wording of the law 
  • There’s built-in forgiveness for making insignificant spelling or wording errors or for using language/formatting from prior law 
  • The POA must be signed, initialed, and dated
  • The POA form now requires two witnesses, in addition to notarization 
  • POA can now be signed at the direction of the principal, which had previously been a major issue if the person couldn’t sign independently due to illness or physical disability

Presumption of Validity

If a POA was validly executed before the effective date of June 13, 2021, it is enforceable under the new law. For all the POAs that are executed after the effective date, there’s a presumption of validity. A financial institution (or other third party) may agree to take a witnessed/notarized POA and may rely on the presumption that the signature is valid; this presumption prevents these third parties from rejecting the POA without cause. 

Effectiveness 

For the POA to be effective, the principal must have capacity at the time of the signing, and the DOA is durable if it remains in effect even after the Principal becomes incapacitated. The POA is effective when the agent has signed the POA in the presence of the notary. If there are two or more agents who are designated to act together, then the POA takes effect when all agents have signed in the presence of the notary. 

Get More Information about New York Power of Attorney

If you have an old POA, it should still be enforceable it was in compliance with the law at the time. However, you may still want an experienced attorney to go over it to ensure that it meets the legal requirements. If you don’t have a POA, you can get an attorney’s help with setting it up and taking care of all your estate planning needs. Connect with a MOWK Law estate planning attorney who can help you sort out your specific situation.   

How to Tell if your Employer’s Tip-Sharing Policy is Legal

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Whether you’re a barista or a bartender, a fast-food worker, or a server at a restaurant, you usually have to depend on tips for part of your earnings. This can be in the form of receiving individual tips or sharing contributions from the tip jar. Your employer may establish a tip pooling policy to distribute tips. They may try to use this to ensure fairness amongst employees, but the policies must comply with specific legal requirements. 

What are the NY Rules about Tip-Pool Participation?

In New York, employers are allowed to require their employees to share tips. The employees who perform (or assist in performing) personal service to customers as a regular and principal part of their job are permitted to be a part of the tip pool. Employees who are partial supervisors may participate if part of their regular and principal job is to perform personal services to patrons, but an employee with substantial supervisory control over other employees can’t participate. 

What is Considered a Tip?

When tipping is voluntary and a customer pays with cash, the leftover amount from the customer that isn’t the actual charge for the product or services (or the tax amount) is the tip. However, it can be more complicated when the customer pays with a card or there’s a mandatory service charge. 

What about Mandatory Service Charges?

Many restaurants will add on a mandatory service charge to the bill for larger parties or special events. The federal law makes it clear that this is not considered a tip. The employer can always keep anything designated as a “service charge” even if the customer doesn’t leave anything on the table and mistakenly thinks that the service charge goes to the server; many states also follow this. Not so in New York, where there is a rebuttable presumption that any additional charges apart from food, drinks, lodging, or other such things, is considered a gratuity that must be passed on to the employees.

If an employer wants to charge an administrative fee that’s not intended to be a tip, this must be spelled out so that the customer realizes that the charge isn’t a tip. Customers must also be informed when the employer distributes part of the administrative charge to their employees but retains the rest; they must be told specifics about what amount of money goes where. 

Are There Other Rules that Employers Must Follow?

New York employers must also comply with federal regulations: 

  • Employers must disclose the tip-sharing policy to employees
  • The disclosure must include any required amounts to be contributed to the pool, how the tips are to be distributed, and whether it’s based on their contribution to total work hours or on job role
  • The combined hourly pay and tips must give employees at least the state minimum wage
  • Employers can only control funds received through tips for the purpose of facilitating tip-sharing or quickly giving out these funds 

What if My Employer has Broken Tip-Sharing Laws?

If you suspect that your employer isn’t following New York’s tip-sharing requirements, then you will likely want to speak to an experienced MOWK Law employment law attorney with expertise in this subject area. They can guide through trying to get damages for the pay that you were denied. Contact us today. 

New York Employers are Prohibited from Discriminating Against Workers for Off-Duty Marijuana Use

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The New York Marihuana Regulation and Taxation Act (MRTA) was signed into law on March 31, 2021 which legalized the recreational use of marijuana by adults 21 years or older. The MRTA prohibits discrimination on the basis of legal use or possession of marijuana products. Additionally, the law gives employees the right to file a lawsuit if they have suffered such discrimination.

Before the MRTA

New York Labor Law (NYLL) predates the MRTA and safeguards employees’ off duty behavior, including engaging in the use of alcohol and tobacco. The MRTA effectively amends Section 201-d of the NYLL to incorporate cannabis.   

Rules Under the NY Marihuana Regulation and Taxation Act

The MRTA doesn’t allow employers to discriminate against their employees based on their use or possession of marijuana products while the employees are off-duty and are outside of the workplace. Under the Act, employers are still allowed to maintain a drug-free environment, similar to what was permitted prior to the MRTA’s enactment.

Use or Possession Can be Prohibited

Employers may ban the use or possession of marijuana during work hours, on the employer premises; they may also prohibit the use or possession while an employee is using the employer’s property or equipment.

Impaired Driving Not Protected

An employee can take action against an employee who drives while using marijuana because The MRTA doesn’t excuse someone from driving while impaired by marijuana under the state DUI laws. 

Right to File a Lawsuit

If a New York employer has violated Section 201-d of the MRTA, an employee can file a lawsuit for a recovery of damages and equitable relief. However, it is not considered to be a violation if the employer took adverse action related to the employee’s use of marijuana under these circumstances:

  • The employer’s actions were required by federal or state statute, regulation, ordinance or other state or federal government mandate
  • The employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law, or would result in the loss of a federal contract or federal funding
  • The employee is “impaired” by the use of the cannabis

An employee is “impaired” when they “manifest specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.”  Or that “interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law.” The law doesn’t define the “specific articulable symptoms” in this context. This means that it is somewhat unsettled how and when employers can use this aspect of the MRTA.

Talk to an Attorney about Cannabis Use Discrimination in the Workplace

Now that marijuana has been legalized for recreational use in New York, you can be assured that your off-duty use won’t get you into work trouble. If your employer is discriminating against you, you have a path to relief. Talk to a skilled MOWK Law New York employment attorney who can help you explore where you have a case against your employer. Contact us today to explore your options. 

Can You Recover Punitive Damages from a Car Accident in NY?

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You were involved in a car accident and were seriously injured. You know that you can receive compensation for your medical expenses. You can also recover for pain and suffering damages, but may wonder about punitive damages, which are damages used to punish the party at fault. Find out how you may be able to collect punitive damages after a New York auto wreck.

Establishing Liability: Negligence

New York has various standards for establishing liability in personal injury cases, including vehicle collision cases. Generally, the liability is based on a theory of negligence. This occurs when a party owes a duty to someone and they breach that duty. Here, a driver owes everyone on the road (other drivers and pedestrians) a duty to drive carefully. If they breach that duty by failing to stop at a stop sign or breaking the speed limit, and someone is injured as a result, then they can be held liable for their behavior. 

Strict Liability

Another standard for establishing liability in New York is strict liability. The strict liability standard doesn’t require proof of negligence. Rather, this occurs when the car accident stems from a vehicle defect. As long as a company sells a defective vehicle or part, and the defect leads to the accident or to the accident-related injuries, then the company can be held liable to the accident victim.

Standard for Punitive Damages

If you’re seeking a claim for punitive damages in New York, you must show that the wrongdoer’s actions were “extreme, egregious or immoral conduct” that is worthy of punishment.  

Circumstances that Can Support a Recovery of Punitive Damages

Because “extreme, egregious or immoral conduct” is a term of art, unfamiliar to most, it’s difficult to understand when this criterion is met. Here are examples of the type of conduct that may apply to the awarding of punitive damages:

  • Driving under the influence of drugs or alcohol: Because driving under the influence of alcohol is a known criminal offense with a proven track record of causing tremendous harm to victims, you can often file a claim for punitive damages in these cases. If a driver is on drugs like marijuana or other controlled substances, it’s treated similarly to alcohol.
  • Street racing or excessive speeding: Driving at high speeds creates a risk of harm to everyone on the road. This is also the case for street racing, a dangerous crime.
  • Knowingly selling defective vehicles or defective parts: When a company sells a product with the knowledge of the defect, juries have awarded punitive damages to the victims in those cases.

Seeking Punitive Damages After your Car Accident

When considering punitive damages, you will file a claim as you normally would, but there are some things to keep in mind like reporting the accident right away and following your doctor’s advice thoroughly. You don’t want to make your claim harder to prove. Even following this, you can’t do it alone: You need the experience of a knowledgeable personal injury lawyer. Get in touch with one of our MOW Law New York personal injury attorneys right away to determine where you stand.