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Jay Breakstone
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Equal Justice

Most of the time, we spout the wisdom of others. There is precedent, the wisdom of legal scholars, and the opinions of pundits, for example. However, every so often, rare as it might be, we actually have an original thought, one we believe to be wholly our own. That's the way we're beginning to feel about the West Pediment of the Supreme Court Building in Washington. The West Pediment sits atop what most people might call the public entrance. It's the sculpture above the front steps shown on your admission certificate; the one with images of all those people (including representations of Chief Justices Marshall, Taft and Hughes, the first two standing for "Research Past" and "Research Present", respectively.) Our proposed original thought for this morning, however, concerns the words below those pictures:  "Equal Justice Under Law."

The seeming internal contradiction in that phrase has puzzled those scholars and pundits since they were inscribed. The answer might be as simple as it has the right number of letters to fit. After all, the words were submitted to the Architect of the Capitol by the architect of the building, Cass Gilbert. Gilbert build the Woolworth Building (the "Cathedral of Commerce") where many of us, if not born there, were weaned into "this things of ours." Yet, history tells that it was not Gilbert who actually chose the words, but is son and a partner. The phrase was then approved by Chief Justice Hughes in 1932 and it is there, in that approval, that a critical clue lies. When suggested by a journalist of the time that the phrase was too narrow and that equity could simply be implied in the remaining words, Hughes refused to change it. Hughes wrote that he wanted to emphasize "impartiality." So then, there is "justice" under the law and then there is "equal justice" under the law and they are not the same. It's not about the scale; it's about the balance.

When we see the words "Equal Justice Under Law", they are a challenge to us, the lawyers. Legislators make laws, judges make decisions, and we -- the lawyers -- keep the scale balanced fairly, smack dab in the middle. We are the vigilant, the foot soldiers of justice no matter what side we're on, and the words below West Pediment are ours, even though our pictures appear nowhere above. Instead, we are the steps themselves, that lead to the courtroom, where we do our job. We mount those steps everyday, in every courthouse, in every state and territory, and we need no monument in Vermont marble. Our memorial is written neatly, in just four words: Equal Justice Under Law.  Keep the faith.

The decedent lived in an assisted living facility and was murdered there. Defendant US Security provided the security at the facility and the complaint alleged that decedent's death was due to their negligence in failing to do so. On its motion to dismiss, US Security claimed that they had not been retained to provide the security at the facility on the date of the murder, but another entity had been and (what a coincidence!) US Security had merely purchased the assets of that prior entity only six days after the murder. Plaintiff argued that US Security could be held liable as successor of the former company. Supreme Court, Kings Co. [Schack, J.] disagreed and dismissed the complaint as against US Security.

In Shea v. Salvation Army, 2019 NY Slip Op 01441 [2d Dep't 2/27/19], the Second Department reverses, setting down the general rule (a corporation acquiring the assets of another is not liable for the torts of its successor) and one of its exceptions (when the transaction was actually entered into fraudulently to escape such obligations.) On a motion to dismiss under CPLR 3211(a)(7), the motion can't be granted unless the movant, in this case US Security, can show that there is no material question of fact remaining in dispute. In cases such as this, that's a rare showing indeed. US Security failed to address the applicability of the exceptions to the general rule of a successor corporation's non-liability and will now have to do that at trial.       

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Jay L. T. Breakstone is one of the foremost appellate attorneys in the country in the field of personal injury. With over 30 years’ experience as a practicing attorney.

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