BLOG / 05.19.20 /Jacob E. Amir

COVID-19: Contractors . . . Get Ready to Get Back to Work

Construction is at the top of the list of the group of industries scheduled to reopen first under Governor Cuomo’s four-phase plan. That is good news for contractors, developers and owners. To enable a smooth transition back to work, interested parties should consider how an ongoing project may have been affected by the shutdown, and …

BLOG / 05.18.20 /Jacob E. Amir

COVID-19: State Authorizes Phased-in Reopening of Businesses. When Will New York City, LI and Westchester Qualify? Some Reopening Considerations.

New York State has implemented a four-phase plan to reopen businesses across the state based on seven benchmarks. The state is divided into ten regions: New York City and Long Island are each separate regions, and Westchester, Rockland, Orange, Dutchess and Putnam counties are part of the “Mid-Hudson Region.” As of now, none of these …

BLOG / 05.11.20 /Eric P. Blaha,Jeffrey D. Buss,Kenneth R. Jacobs,Emanuela Lupu-Ferrante,Thomas W. SmithandDomenick J. Tammaro

Coronavirus: EXECUTIVE ORDER RE SECURITY DEPOSITS AND EVICTIONS; PPP SAFE HARBOR EXTENSION; SAFE CONSTRUCTION PRACTICES; ARE YOU PREPARED FOR LOOSENED RESTRICTIONS?

Executive Order Allows Use of Security Deposits for Rent, Extends Moratorium on Evictions and Foreclosures. On May 7th Governor Cuomo issued Executive Order 202.28, which provides in part that (i) residential landlords and tenants can agree with each other to use security deposits to pay rent arrears; (ii) requires landlords to use a security deposit …

BLOG / 05.05.20 /Eric P. Blaha,Jeffrey D. Buss,Kenneth R. Jacobs,Emanuela Lupu-Ferrante,Thomas W. SmithandDomenick J. Tammaro

Coronavirus: PPP UPDATE; GLIMMERS OF HOPE FOR “BUSINESS INTERRUPTION” COVERAGE?

More Fun with PPP. The scramble by cooperatives and condominiums for a definitive decision about eligibility for Paycheck Protection Program loans has generated further confusion. The list of Frequently Asked Questions published by the SBA on April 24th included this one: “35. Question: Are agricultural and other forms of cooperatives eligible to receive PPP loans? …

BLOG / 04.27.20 /Kenneth R. Jacobs,Thomas W. SmithandTatiana A. Shestova

Coronavirus: Dealing with Commercial Tenants Seeking Rent Abatements

Many commercial tenants are asking their landlords for rent relief due to their business losses during the lockdown. How are landlords responding? Spoiler Alert: No Magic Bullet or Standard Formula. We have consulted with landlords with billion-dollar portfolios and with only a single tenant. All of them have advised us that they are dealing with …

BLOG / 04.23.20 /Eric P. Blaha,Kenneth R. Jacobs,Emanuela Lupu-Ferrante,Thomas W. SmithandDomenick J. Tammaro

Coronavirus: The latest on PPP Eligibility for Co-ops and Condos; Handling Visitation Issues during the Lockdown; Sales and Closings in the Virtual Market

Latest on PPP Eligibility for Co-ops and Condos. The SBA still hasn’t changed its official position under its “Interim Rule” that cooperatives are not eligible for the PPP. However, we have spoken with the managers for at least two cooperatives (one in NYC and one in Virginia, which also treats its co-ops as business corporations) …

BLOG / 04.16.20 /Eric P. BlahaandKenneth R. Jacobs

Coronavirus: CONDUCTING EFFECTIVE “VIRTUAL” ANNUAL MEETINGS

Spring Annual Meeting Season is Here! But how can associations run effective meetings without owners being physically present to participate? Even though “social distancing” seems to be slowing the spread of COVID-19, we expect that Governor Cuomo will extend the portions of Executive Order 202.8 that suspend longstanding legal requirements that ownership meetings must be …

BLOG / 04.15.20 /Kenneth R. Jacobs

Coronavirus: NEW EXECUTIVE ORDER – ONGOING ISSUES

Cooperatives and condominiums appear to be adjusting to the “new normal” – limited access, leaner staff, frustration at so many halted projects, etc. Below is a status report on current and upcoming issues that we see. Face Coverings for Building Employees. Executive Order No. 202.16, finalized yesterday, requires employers to provide “face coverings,” at employer …

BLOG / 04.13.20 /Jacob E. AmirandKenneth R. Jacobs

Coronavirus: BUSINESS TAX CREDITS, DEFERRALS AND DEDUCTIONS IN THE ‘CARES’ ACT

Although not given as much attention as the Payroll Protection Program, the Federal Coronavirus Aid, Relief and Economic Security (CARES) Act also provides new tax credit, deferral and net operating loss deductions which may be beneficial for your business. Section 2301 Employee Retention Credit Section 2301 gives eligible employers a tax credit against the 6.2% …

BLOG / 04.08.20 /Eric P. Blaha,Kenneth R. Jacobs,Emanuela Lupu-Ferrante,Thomas W. SmithandDomenick J. Tammaro

Coronavirus: CO-OP AND CONDO ELIGIBILITY FOR PPP UNDER REVIEW IN WASHINGTON, D.C.

On April 7th, one of our professional colleagues sent a well-worded request to the New York District Office for an “interpretation” of the SBA rules that initially denied eligibility to cooperatives and condominiums for loans under the Paycheck Protection Program (“PPP”). We are advised that their letter has been “kicked upstairs” to SBA headquarters in …

BLOG / 04.04.20 /Eric P. Blaha,Kenneth R. Jacobs,Emanuela Lupu-Ferrante,Thomas W. SmithandDomenick J. Tammaro

Coronavirus: CO-OP ELIGIBILITY FOR PPP LOANS QUESTIONED BY SBA. DOES A PPP LOAN MAKE SENSE FOR YOU?

A. SBA Questions Co-op Eligibility. In our earlier E-blast, we suggested that the SBA might take the position that Co-ops might not be eligible for PPP loans. So far that appears to be the case. The SBA appears to be basing its position on portions of its “Standard Operating Procedure” handbook for loans to businesses, …

BLOG / 04.03.20 /Eric P. Blaha,Kenneth R. Jacobs,Emanuela Lupu-Ferrante,Thomas W. SmithandDomenick J. Tammaro

Coronavirus: PPP FEVER- NEW APPLICATION FORMS!

PPP applications were made available on Tuesday night. By Wednesday, approved SBA lenders were overwhelmed with requests for assistance. This morning, Treasury issued new application forms that are completely different from the old ones! [CLICK HERE FOR APPLICATION] Meanwhile, we are getting the following feedback from lenders and asset managers: 1. They will give first …

BLOG / 04.01.20 /Kenneth R. Jacobs

Coronavirus: Paycheck Protection Program Application Form Out!

PPP APPLICATION FORM OUT! The Treasury Department has just issued the form of Application for Paycheck Protection Program applications. The form of application is attached to this E-Mail, together with guidance from Treasury for prospective Borrowers. Who to Believe? The Borrower’s Guidance accompanying the application states that loans will have a maturity of two years …

BLOG / 03.31.20 /Kenneth R. Jacobs

Coronavirus: State & Federal Updates – Who’s “Essential” Now?

STATE UPDATES The list of occupations deemed “essential” – which means that employers don’t have to close, and their employees don’t have to remain at home – is being refined daily. Doormen were excluded, only to be reinstated a day later. Landscapers have now been deemed “essential”, to the relief of many suburban communities. Property Managers are also considered essential to …

BLOG / 03.19.20 /Jacob E. Amir

Governor Cuomo Issues Executive Order Amending the Corporation Law to Permit Board Member Votes by E-mail

Business Corporation Law 708(b) permits corporate boards to take action upon written approval of its members without conducting a meeting, unless such action is prohibited by the entity’s articles of organization or by-laws. NYS Executive Order 202.5 issued on March 18, 2020, in response to the COVID-19 pandemic, amends BCL 708(b): “To the extent necessary …

BLOG / 03.19.20 /Jack Malley

Governor Cuomo Issues Executive Order Requiring 75% Reduction In On-Site Workforce At All Locations; Union and Real Estate Industry Assert that Building Service Personnel and Managing Agents Provide “Essential Services.”

Governor Cuomo has ordered that all New York businesses, including not-for-profit businesses, shall utilize to the extent possible all telecommuting and work from home procedures. Further, the Governor ordered that every employer in the state shall reduce its in person workforce at all locations by 75% no later than March 20 8 p.m. This Order …

BLOG / 03.18.20 /Jack Malley

What Penalties Can Employers Suffer for Denying Coronavirus-Based Paid Sick Leave Requests?

Many of our clients have been consulting us regarding paid leave requests they anticipate related to the coronavirus. Employers should be aware of the penalties for an unlawful denial of such requests under paid sick leave laws enacted by Westchester County and NYC. The penalties include fines, back pay, job reinstatement and the payment of …

BLOG / 03.12.20 /Kenneth R. Jacobs

Legal Issues Dealing with Coronavirus in Condos and Co-ops

Boards face new legal issues in dealing with the coronavirus epidemic, requiring them to balance the interests of the community against the rights of individual residents. What steps can Boards take to protect their residents against the spread of coronavirus in the building while avoiding liability for either acting too invasively or not doing enough? …

BLOG / 03.11.20 /Nancy Durand

Nonprofit Update: The New York SHIELD Act – The Top 5 Things You Need to Know

Nonprofit organizations are reminded that under the New York Stop Hacks and Improve Electronic Data Security (SHIELD) Act, they have until March 21, 2020 to develop and implement a data security program that contains reasonable administrative, technical and physical safeguards for protecting against unauthorized access to private information of New York residents. Here are five …

BLOG / 02.25.20 /Jacob E. Amir

Buyer deemed not “able” to purchase where seller fails to obtain short sale approval from seller’s bank

Buyers seeking to enforce their contractual rights by an action for “specific performance” to compel the sale of real property have to demonstrate that they are “ready, willing and able” to acquire the property. Apparently, the determination whether a buyer is “able” to complete the purchase does not refer simply to the buyer’s capabilities, but …

BLOG / 02.25.20 /Eric P. Blaha

NYS’s Latest “Guidance” Raises New Concerns Under the Tenant Protection Act

For real estate owners, managers and brokers seeking to make sense of (and engage in damage control from) the Housing Stability and Tenant Protection Act of 2019 (“TPA”) passed nearly 8 months ago, the clarity provided by the NY Department of State in its latest “Guidance for Real Estate Professionals” issued on January 31, 2020, …

BLOG / 02.25.20 /Jacob E. Amir

Tort and contract claims against Coop Board Member survive pre-answer dismissal motion

Members of a cooperative’s board of directors enjoy the protections of both the corporate shield and the business judgment rule, such that they may not be held personally liable for property damage or personal injury when a claim is made in connection with actions taken by directors in their official capacity as board members. But …

BLOG / 01.21.20 /Jacob E. Amir

In Leasing or Purchasing Real Estate from a Not-for-Profit, the Purchase Money Mortgage is Probably Not an Option

As a New York Times article from last October[1] described, religious institutions strapped for operating funds or wishing to utilize their real property as investment vehicles can enter into sales or long-term lease agreements with developers. However, New York State Religious Corporation Law requires religious institutions to obtain judicial and/or New York State Attorney General …

BLOG / 01.21.20 /Kenneth R. Jacobs

Are Cooperative Corporations Carrying Enough “Lost Business Income” Insurance?

Imagine that your 30-unit building suffers a catastrophic fire. Maintenance charges (rent) usually abates for the affected tenants after a casualty. How certain are you that your coverage for lost maintenance, known as “Business Income” coverage, will last through the full restoration? Coverage limits are expressed in terms of maximum coverage, time and allowed expenses.  …

BLOG / 01.21.20 /Jack Malley

A Three Month Checkup on Important Recent Changes You Need to Know as an Employer

Over the last year or so, New York State has passed significant new legislation on employment issues and labor rights, some of which have been effective since October 2019. Thus, a three month checkup is in order. Have you faced any harassment claims under the New York State Human Rights Law? Since October 2019, claims …

BLOG / 11.15.19 /Eric P. Blaha

New Law Allowing Remote Shareholder Attendance and Electronic Voting May Change … Everything!

Low attendance at Co-op annual or special shareholder meetings can result in a lack of a quorum and can delay or even prevent boards of directors from taking actions that require shareholder approval.  Thus, co-op boards and shareholders alike may welcome a new law authorizing boards to permit remote shareholder attendance and electronic voting at …

BLOG / 11.15.19 /Jack Malleyand

Medical Documentation Under the ADA: Consider Now or Pay Later

A client recently presented our firm with an interesting and complex question regarding employers’ rights to request medical documentation under the Americans with Disabilities Act (“ADA”). The inquiry gave us the opportunity to review the law on this subject and to offer two important points that all employers should consider when addressing ADA-related issues. First, …

BLOG / 11.15.19 /Jacob E. Amir

Criminality for Corporate Lien Law Diversion

Lien Law Section 79 criminalizes the diversion of trust funds from the purpose created by the trust. In layman’s terms, that basically means that a contractor who receives payments from a property owner for a project must use the payments for the purposes intended under the project (e.g., labor, subcontractors, vendors, etc.). Diverting those funds …

BLOG / 11.14.19 /Michael Coppa

New Transfer Tax Requirements for LLC’s

NY State and NYC transfer tax laws were recently amended to require that transfer tax returns filed by limited liability companies (“LLC’s”) for the sale or purchase of residential real property include the names, addresses and taxpayer ID numbers of all of the individual members of both the LLC itself and of its non-natural members.  …

BLOG / 10.29.19 /Nancy Durand

The Johnson Amendment Finds Refuge Under New York Law

On October 23, 2019, Governor Cuomo signed legislation that restricts the ability of certain nonprofit corporations to participate or intervene in any political campaign on behalf of or against a candidate for public office. The new legislation codifies the federal Johnson Amendment, which is a provision in the U.S. tax code that prohibits all 501(c)(3) …

BLOG / 10.23.19 /Jack Malley

Decision in Favor of Nike Highlights Factors that Defeat Retaliation Claims

Although the termination of an employee after he/she has complained to the employer about discrimination is often prohibitively risky, there are common factual scenarios that diminish that risk. Among these scenarios are a clear record of poor performance established prior to an employee’s discrimination complaint and a termination by a manager who is unaware of …

BLOG / 10.17.19 /Eric P. Blaha

Are Boards Always Protected by the “Business Judgment” Rule?

New board  members  in New York quickly learn that most of their decisions are protected under the “business judgment rule,” which states a court should defer to a co-op [or condo] board’s determination so long as the board is acting “for the purposes of the cooperative, within the scope of its authority, and in good …

BLOG / 10.17.19 /Jacob E. Amir

Contractors may have at least one way to sue members of limited liability companies personally for renovation work provided to the LLC

Members of New York State limited liability companies often form their entities with two thoughts in mind: an LLC provides favorable tax structuring and protection from personal liability. To the joy of contractors and chagrin of LLC members, that protection may not shield LLC members from claims of unjust enrichment, as a recent case in …

BLOG / 10.17.19 /Krista Halpin

Are the commercial properties in your municipality keeping PACE with energy efficiency?

New York State General Municipal Law Article 5-L granted authority to municipalities to offer Property Assessed Clean Energy (PACE) financing for property owners to fund energy efficiency and renewable energy projects on existing residential and commercial structures through a property owner’s voluntary agreement to have a special assessment or special tax charge placed on their …

BLOG / 10.15.19 /Emanuela Lupu-FerranteandJack Malley

Co-op and Condo Boards Must Pay Overtime to Live-In Supers

In our practice, we have seen an uptick in lawsuits by live-in superintendents and other full-time employees against cooperatives, condominiums, homeowners associations (HOAs), and even managing agents (who are defined as employees under federal regulations). These lawsuits are frequently commenced after the employee has been terminated, and they typically allege that the employer failed to pay overtime wages …

BLOG / 09.16.19 /Kenneth R. Jacobs

Department of State Issues Guidance Exempting Co-ops from Limits on “Application Fees”

The NYS Department of State has just issued “Guidance for Real Estate Professionals” regarding the Housing Stability Act. One of the Q&A’s reads as follows: “DOES THE ACT RESTRICT APPLICATION FEES FOR RENTALS? “Yes…. Under the Act a ‘landlord, lessor, sub-lessor or grantor’ is now prohibited from collecting an application fee greater than $20.00…[However,] the …

BLOG / 09.13.19 /Jack Malley

Why have a well-drafted handbook? Let a federal court answer that question . . .

A Third Circuit decision on August 22, 2019, which upheld FedEx’s termination of two employees, demonstrates the value of well-drafted employee handbook policies.[1] FedEx’s employee handbook included a code of conduct that prohibited workplace violence. Among other things, the code barred “gestures and expressions” and “oral and written statements” that communicate a direct or indirect …

BLOG / 08.22.19 /Jacob E. Amir

Subcontractors, Prevailing Wages and the Construction Fair Play Act

Jacob Amir contributed an article in Cornerstone, the semi-annual publication of the Associated General Contractors, New York State, a leading trade association representing contractors and related companies in the building and highway construction industry.

BLOG / 07.19.19 /Jack Malley

Judge’s Decision Shows Why HR Professionals Must Train Supervisors On FMLA Procedures

Last month, in Moore v. GPS Hospitality Partners [i] , an Alabama judge granted a Burger King restaurant shift supervisor partial summary judgment on her FMLA interference claim. Lashondra Moore prevailed because her supervisors did not recognize that her initial requests for leave triggered her FMLA rights and did not understand how FMLA claims should …

BLOG / 07.15.19 /Kenneth R. Jacobs

How the “Tenant Protection Act” Affects Co-ops and Condos: Limits on Late Fees; Recovery of Expenses in Evictions; Timetables to Cure Defaults; Ban on Escrows for Maintenance; Limits on Application Fees Charged by Managing Agents

The newly passed “Housing Stability and Tenant Protection Act of 2019” (the “ TP Act ”) makes sweeping changes expanding tenant rights in rental apartment buildings. However, since Co-op corporations also have a landlord-tenant relationship with their shareholders, many of these changes will significantly affect enforcement of the Cooperative’s rights as well. 1. TP Act …

BLOG / 07.12.19 /Kenneth R. Jacobs

Legislative Update: “Prevailing Wages” Required to Receive Co-op/Condo Tax Abatements; Mandatory Garage Inspections

Most of our attention has been focused on the effects of the newly passed “Housing Stability and Tenant Protection Act of 2019” (the “ TP Act ”) on rental apartment buildings. However, several other recently enacted state and local laws also affect cooperatives and condominiums in New York City and the surrounding counties. 1. “Prevailing …

BLOG / 06.26.19 /Jack Malley

New York State Joins The Trend Prohibiting Salary History Inquiries

Last week the New York State Legislature approved a bill prohibiting employers from soliciting prior salary information from job applicants. Governor Cuomo is expected to sign on. The new law continues a trend in the state as New York City, Albany County, Westchester County and Suffolk County have previously enacted similar laws. The New York …

BLOG / 05.09.19 /Jack Malley

Summer’s Almost Here! Welcome to the Unpaid Intern Conundrum

Summer is approaching and employers are now considering whether to bring on unpaid interns for the season. This article discusses the parameters that employers should follow to properly classify workers as unpaid interns instead of employees entitled to minimum-wage and overtime pay under the Fair Labor Standards Act (“FLSA”) and/or New York Labor Law (“NYLL”). …

BLOG / 03.21.19 /Jack Malley

U.S. Department of Labor Rejects New York Law Regarding Wages Paid To Live-In Superintendents

On March 14, 2019, the U.S. Department of Labor (the “U.S. DOL”) issued an opinion that resolves a conflict between federal law and the New York Department of Labor Building Service Industry Minimum Wage Order (the “NY Wage Order”). Although U.S. DOL opinion letters are not binding law that courts must follow, courts often give great weight to the guidance set forth in them, and employers can rely on such guidance as a good faith defense to a wage claim arising under the Fair Labor Standards Act (the “FLSA”).

BLOG / 03.15.19 /Kenneth R. Jacobs

Shareholder Meeting Requirements

SO YOU’VE CALLED your annual meeting, sent out proxies, put up reminders, and promised refreshments The big day comes – and you don’t have a quorum. What do you?

BLOG / 03.08.19 /Jack Malley

New Employment Laws Alert

Please be aware of the following new laws that are effective this month:
Westchester County Paid Sick Leave Law & NYC Mandates Workplace Lactation Rooms

BLOG / 02.22.19 /Jack Malley

Tiffany Beats Religious Discrimination Claim

On February 11, 2019, the United States District Court for the Southern District of New York dismissed an employee’s claim for religious discrimination against the world renowned luxury jewelry retailer, Tiffany and Company.

BLOG / 01.30.19 /Jack Malley

Jury Awards $21.5 Million To Dishwasher Who Was Fired For Requesting A Religious Accommodation

On January 14, 2019, a Florida federal court jury found a Hilton affiliated hotel liable for retaliation after it terminated the plaintiff dishwasher for seeking a religious accommodation, and awarded her $21,000,000 in punitive damages, $500,000 for emotional pain and mental anguish, and $36,000 in lost wages and benefits.

BLOG / 01.03.19 /Jack Malley

Subway Franchisee Called to Task by EEOC for Sexual Harassment of Job Applicants

On November 29, 2018, the EEOC and Draper Development, LLC, a Subway franchisee operating 24 Subway restaurants in the Albany area, entered into a Consent Decree arising from texts sent by a Schenectady store manager seeking sexual favors from two 17-year-old job applicants.

BLOG / 11.30.18 /Jack Malley

Ninth Circuit Finds Employer Not Liable For Employee’s Alleged Groping Of Co-Worker

In Robello v. Mandalay Corp. the plaintiff, Deborah Robello, a bartender employed by the Mandalay Bay Resort and Casino in Las Vegas, alleged that a male bartender, Jesse Estrada, groped her breast while Robello handed him several bottles of wine. Estrada denied Robello’s allegation. Robello subsequently sued the casino for creating and tolerating a hostile work environment based on sexual harassment. The U.S. District Court for the District of Nevada dismissed Robello’s claim against the casino and she appealed.

BLOG / 11.28.18 /Jacob E. Amir

Don’t rely strictly on a title report for disclosure of recorded zoning declarations affecting real property

A recent decision from the Suffolk County Supreme Court reiterated that zoning ordinances are not “defects” in title covered under policies of title insurance. Purchasers and developers are reminded to do their own due diligence, and go beyond the title report, to understand what existing and recorded zoning limitations might affect their prospective property interest.

BLOG / 11.15.18 /Kenneth R. Jacobs

Shareholder Meeting Requirements

A meeting of shareholders must be held annually for the election of directors and the transaction of other business on a date fixed under the bylaws. Special meetings of the shareholders may be called by the board and by such person or persons as may be so authorized by the certificate of incorporation or the bylaws.

BLOG / 10.26.18 /Jack Malley

Deadline For New York State Employers To Provide Sexual Harassment Training Extended To October 9, 2019

Please be advised that the state has announced that the deadline to provide the training has been extended to October 9, 2019.

BLOG / 10.05.18 /Jack Malley

Judge Dismisses Warner Wolf’s Age Discrimination Claim Against Imus

On September 27, 2018, Hon. James E. d’Auguste dismissed the age discrimination lawsuit that Warner Wolf commenced against Don Imus earlier this year in Supreme Court, New York County.

BLOG / 09.20.18 /Jack Malley

New York Employers Required To Provide Sexual Harassment Training By January 1, 2019

As we previously reported, the New York State Sexual Harassment Law passed in April 2018 required all employers to:

Adopt the policy prohibiting sexual harassment in the form promulgated by the New York State Department of Labor (the “NYSDOL”) in consultation with the New York State Division of Human Rights, or adopt another policy that equals or exceeds the standards set by NYSDOL; and
Provide annual sexual harassment training for all their employees.

BLOG / 08.10.18 /Jack Malley

Columbia U. Professor Awarded $1.25 Million For Retaliation After Her Report Of Sexual Harassment

On July 27, 2018, former Columbia University finance professor, Enrichetta Ravina, was awarded $750,000 by a SDNY jury to be paid by the University and Geert Bekaert, the professor who allegedly harassed her, and $500,000 in punitive damages to be paid by Bekaert only.

BLOG / 08.06.18 /Jacob E. Amir

Defining “Substantial Completion” for Lien Law and Contract Purposes

Jacob Amir contributed an article in Cornerstone, the semi-annual publication of the Associated General Contractors, New York State, a leading trade association representing contractors and related companies in the building and highway construction industry. Jacob’s article addresses the importance of defining “substantial completion” for purposes of Lien Law and general contract claims brought on behalf of contractors.

BLOG / 07.20.18 /Jack Malley

Third Circuit Decision Sustaining Sexual Harassment Claim Influenced By Impact Of #MeToo Movement

On July 3, 2018, the Third Circuit issued a decision indicating that the #MeToo Movement has caused judges to be more cognizant of the fear of retaliation that victims of sexual harassment frequently feel.

BLOG / 07.18.18 /Jacob E. Amir

Expiration of tenant’s license issued under the New York Conservation Law permits owner to remove tenant for engaging in “illegal activity” under the Real Property Law

Lease agreements typically contain a provision whereby the agreement is deemed breached and the tenant may be evicted for engaging in “illegal activities.” Eviction based upon an illegal activity is also codified in New York Real Property Law § 231(1), which sets forth that a lease agreement becomes void where an occupant or lessee uses a premises for any “illegal trade, manufacture or other business”, thereupon permitting the owner to seek an eviction.

BLOG / 07.02.18 /Jack Malley

Wal-Mart Prevails Against Sympathetic Reasonable Accommodation Plaintiff

Sophisticated employers are well-schooled in their obligations to engage in an interactive process to determine if a reasonable accommodation can be provided to an employee with a disability. And some employers will err on the side of providing an accommodation even if the employee cannot perform an essential function of the job.

BLOG / 06.08.18 /Jack Malley

Supreme Court Opens Door For Employers To Require Employee Class Action Waivers

In a long awaited and hotly contested case, the United States Supreme Court has upheld an employer’s right to require employees to waive their right to commence or join class and collective action lawsuits against their employer. This decision, in Epic Systems Corp. v. Lewis, provides a powerful mechanism for an employer to reduce the risk of costly and time-consuming multi-plaintiff litigation.

BLOG / 05.30.18 /Jack Malley

Employment Law Update

All employers should be concerned about the recently passed New York State Sexual Harassment Law. The law requires all employers to comply with the following new requirements by October 9, 2018…

BLOG / 05.16.18 /Jacob E. Amir

Tenant deemed successful party in landlord’s “action to recover possession” seeking to reform lease to exclude tenant’s use of backyard of demised premises

Standard lease agreements include a provision that the successful party is entitled to recover attorneys’ fees and costs incurred on any action or proceeding brought for non-payment of rent or recovery of possession of the subject premises. Where the contract limits the attorneys’ fees provision for the benefit of the landlord (e.g., that landlord is entitled to recover), the law gives the tenant a reciprocal right to recovery of attorneys’ fees and costs if the tenant is successful in the action.

BLOG / 04.19.18 /Jacob E. Amir

Court Rules that Non-Participating Brokers Do Not Owe a Fiduciary Duty to a Brokerage Firm’s Client

It is well-established that real estate brokers owe a fiduciary duty of loyalty and to act in the best interest of their clients. Where the brokerage firm is comprised of several brokers, the client may naturally assume that both the listing broker, and the firm at large, will work in the best interest of the client’s needs and desires. A recent decision from the Westchester County Supreme Court warns clients against making this assumption.

BLOG / 04.09.18 /Jack Malley

Jury Awards Age Discrimination Claimant $200,000 For Retaliation

The verdict last month in Konsavage v. Mondalez Global, LLC, Case No. 3:15-cv-01155 (M.D. Pa.) provides another example of the difficulty in predicting the outcome of a retaliation claim – even where the underlying discrimination claims appear to be weak.

BLOG / 04.01.18 /Kenneth R. Jacobs

Fine Alert!

Everybody’s talking about the new smoking regulation, Local Law 147. Ken Jacobs tackles the subject in Habitat Magazine’s April Toolkit.

BLOG / 03.13.18 /Jack Malley

Jury Hits Hospital With $3.8 Million Verdict For Failing To Protect Employee From Harassment

On March 2, 2018 a Hawaii jury awarded a nurse $3.8 million on her claim that her employer, a hospital, ignored her reports of racial discrimination and harassment. The incidents occurred after the nurse reported a coworker for failing to safely care for patients in the intensive care unit. The nurse received a retaliatory note that contained racially charged language, including the “N” word. After the two people suspected of planting the note were interviewed by the hospital, a picture of a noose was taped to the nurse’s locker.

BLOG / 02.16.18 /Jacob E. Amir

Attorney’s fees, an offer for liquidated damages and the “prevailing party” under a commercial lease dispute

Lease agreements may contain an attorneys’ fee provision whereby the “prevailing party” is entitled to recover attorney’s fees. When owner and tenant settle their disputes before trial, that provision is waived or factored into the terms of settlement. Additionally, the civil rules allow a defendant to offer a liquidated amount as damages in the event plaintiff prevails on liability (i.e., all plaintiff has to do is prove liability). If plaintiff rejects the offer and recovers an amount less than what defendant offered, the defendant is entitled to recover attorney’s fees for the damages portion of trial.

BLOG / 02.15.18 /Jack Malley

Spotlight on Hon. Robert A. Spolzino

The Westchester County Bar Association features Hon. Robert A. Spolzino in it’s February Member Spotlight.

BLOG / 02.01.18 /Jack Malley

Who Pays For Repairs?

A small Manhattan co-op was struggling with a question: “Who’s responsible for replacing an air-conditioner sleeve? The sleeve was in place when the unit was sold by the sponsor to the current owner. The owner is happy to split the replacement cost with the board, but the board wants the owner to pay the entire amount.”

BLOG / 02.01.18 /Jack Malley

The Money Vanishes

And Queens co-ops and condos are suing one another to get it back.

BLOG / 12.27.17 /Jack Malley

NLRB Announces New Standard Governing Workplace Rules

On December 14, 2017, the NLRB reversed the portion of an Administrative Law Judge’s 2014 decision that barred The Boeing Company’s rule prohibiting the use of cell phones to capture images or take video on company grounds. [1] In doing so, the NLRB overruled the standard set forth in the 2004 Lutheran Heritage decision [2], namely that a workplace rule is unlawful even if it does not explicitly restrict activity protected by Section 7 of the NLRA ( i.e. , employees’ right to self-organize), if “employees would reasonably construe the language to prohibit Section 7 activity.”

BLOG / 12.06.17 /Jack Malley

Spotlight on Jacob Amir

The Westchester County Bar Association features Jacob Amir in it’s November Member Spotlight.

BLOG / 11.21.17 /Jack Malley

Board Recoups Legal Costs After Evicting Smoker

Some co-op and condo boards are penny wise pound foolish. And then there’s the board at an 80-unit co-op in Wheatley Heights, Long Island, which decided to spare no expense when it set out to evict a shareholder who repeatedly flouted the co-op’s smoking ban. It was a gamble that came with no guarantees and could have cost the co-op a bundle in legal fees.

BLOG / 11.17.17 /Jack Malley

Effective Anti-Harassment Policies Must Start At The Top Of The Organization

The continuing public exposure of sexual harassment by powerful executives and celebrities has shed light on the need for effective policies to prevent sexual harassment in the workplace.

BLOG / 11.08.17 /Jack Malley

House of Representatives Passes Bill Narrowing Joint-Employer Definition

On November 7, 2017, the U.S. House of Representatives passed a bill narrowing the definition of “joint employer” issued in 2015 by the National Labor Relations Board in the well-publicized Brown-Ferris Industries matter.

BLOG / 10.31.17 /Jack Malley

Employers Beware: New York City’s New Salary History Law Is Effective As Of October 31

On October 31, 2017 New York City’s new salary history law goes into effect. The law, which applies to private employers of any size, bars employers from inquiring about a job applicant’s salary history, but permits employers to request an applicant’s compensation demands. The law also bars employers from seeking salary history information from an applicant’s current or former employers. New York City employers should review all job application forms to exclude questions about salary history, and train all interviewers to assure compliance with the law.

BLOG / 10.10.17 /Jack Malley

The Cooperator Expo 2017

Please join us at this year’s Co-op Expo on November 2, 2017. Partners Ken Jacobs & Domenick Tammaro are teaming up for a seminar at 2:30 to speak on the do’s and dont’s of dealing with problem residents.

BLOG / 10.10.17 /Jack Malley

Hon. Sylvia G. Ash Enforces Purchase Contract Executed by Attorney Only

In Yerushalmi Holdings, LLC v. Olumo Real Estate Corp., 2017 Slip Op. 30855(U) (Kings Cty. Sup. Ct.), Kings County Supreme Court recently enforced a contract signed by a party’s attorney that contained un-initialed handwritten changes.

BLOG / 09.14.17 /Jack Malley

Should I Get an Employment Attorney?

When it comes to your job, do you need the services of an employment attorney? There is a fine line when it comes to hiring legal guidance, but if you are still not sure after reading this article then it cannot hurt to consult an attorney. They will ultimately be able to give you the best information pertaining to your legal matters. While not every lawyer is created equal and not every lawyer you see is going to be on the same level, it is important to find a lawyer you can rely on and work with them when discussing employment issues. Read on to find out whether you should get an employment lawyer or at the very least go in for a consultation.

BLOG / 08.22.17 /Jack Malley

Consulting a Commercial Real Estate Attorney About Real Estate

The world of real estate can be complicated and even be intimidating for people who are new to it. Breaking down what’s going on in the field often involves figuring out where you stand in it. Zoning in on what type of real estate you would like to buy or sell will help you figure out where you’re going. Whether you’re going into residential real estate or commercial, real estate involves legal intricacies and details. When it comes to this, real estate lawyers might be very helpful.

BLOG / 07.12.17 /Jack Malley

Do You Need a Business Lawyer?

Do you need an experienced business lawyer on your side?

For many people, it can be tough to know when you need to call an attorney. However, just like with a medical issue, if you think that you might need a business attorney then you probably do. It’s better to consult with a lawyer and know for sure than to potentially face negative consequences because you needed one and didn’t get it.

BLOG / 06.16.17 /Jack Malley

Second Department Rejects Yellowstone Application where Tenant’s Default was not Curable

Real estate veterans are well familiar with the court order known as a Yellowstone injunction, which is sought by a commercial tenant to stop a landlord’s termination of its lease. In order to obtain the injunction, a tenant must demonstrate that: (1) it holds a lease, (2) its landlord served a notice to cure, (3) the tenant sought the Yellowstone injunction prior to the expiration of the cure period, and (4) the tenant has the ability and desire to cure the alleged default.

BLOG / 06.01.17 /Jack Malley

Appellate Division Rejects Finder’s Fee Claim

The recent decision issued by the First Department in Multi-Capital Group LLC v. Karasick, et al, 149 A.D.3d 437 (1st Dep’t April 6, 2017) provides a good set of facts to comprehend when a finder’s fee claim is viable. That case concerned the sale of the U.S. Steel Tower Building in Pittsburgh. The plaintiff submitted the winning bid to purchase the building via a letter of intent that included a $348 million purchase price. However, the plaintiff’s principal never actually intended to purchase the building. Rather, he intended to procure investors who would do so.

BLOG / 06.01.17 /Jack Malley

First Department Blesses Customary Rent Prove-Up Practice Utilized by Commercial Landlords

The recent decision in Moon 170 Mercer, Inc. v. Vella, 146 A.D.3d 537, 45 N.Y.S.2d 415 (1st Dep’t 2017) blesses the practice commercial landlords customarily utilize to prove-up the rent for which a tenant or guarantor is liable. In this case, the First Department granted summary judgment to the commercial landlord against the guarantor and held: “[t]he damages calculation spreadsheet on which plaintiff relies in its motion for summary judgment is a ledger maintained in the ordinary course of business…and plaintiff’s vice president’s affidavit explaining the calculations and the spreadsheet suffices to authenticate the document.”

BLOG / 06.01.17 /Jack Malley

Commercial Division Rejects Landlord’s Application to Vacate Arbitration Award Establishing Fair Market Rent to be Paid by McDonald’s Restaurant

The recent decision by Hon. Shirley Werner Kornreich in Broadway Retail Owner, LLC vs. McDonald’s Corp., No. 651884/2014, 2017 N.Y. Slip. Op. 50011(U), 54 Misc.3d 1206(A) (Supreme Court, New York County, Jan. 9, 2017) concerned a very common provision in commercial leases, which established future rent based upon a percentage of the fair market rent (“FMV”), and provided that if the parties could not agree on the FMV, the issue would be resolved by a binding arbitration. The FMV percentage amount in McDonald’s was 90%.

BLOG / 06.01.17 /Jack Malley

Hon. Sabrina B. Kraus Orders Seller to Return Purchaser’s Down Payment

The recent decision in Gonzalez v. Char & Herzberg, LLP, 2017 WL 1031941 (Bronx County Mar. 13, 2017) concerned a dispute that frequently arises after a deal blows up – whether or not the purchaser has the right to recover her down payment. The purchaser agreed to purchase a single-family home located in Bronx County and delivered a $20,000 down payment to the escrowee. The contract of sale included a mortgage commitment contingency, which conditioned the purchaser’s obligation to close on a lender’s commitment to issue a $495,000 loan for a term of at least 30 years within 45 days.

BLOG / 06.01.17 /Jack Malley

Appellate Division Kills Commercial Lease Guaranty Claim for Failure to Submit Original Agreement at Trial

In 76-82 St. Mark’s, LLC v. Gluck (Supreme Court, Kings County) a commercial tenant sought to recover damages for breach of a guaranty agreement. At trial, the landlord’s counsel attempted to enter into evidence a faxed copy of the agreement that was missing two lines on the second page. The trial judge denied admission of the copy and granted the tenant’s motion to dismiss the case on the ground that the landlord failed to meet its burden of proof.

BLOG / 05.18.17 /Jack Malley

3 Ways a Commercial Litigation Attorney Can Help Your Firm

When it comes to litigation, this area is growing by the day. This specialty of law is really beginning to drive not only revenue at law firms but their legal hiring as well. A survey by Robert Half Legal found that up to thirty percent of the hiring that legal departments and law firms do is in this area, filling crucial positions for commercial litigation.

BLOG / 04.17.17 /Jack Malley

Condos and Co-Ops: Taking on the Secondhand Issue?

When it comes to your housing, is prohibiting smoking in place? Many residential co-op and condo boards are finding that cigarette smoking regulations are a hot button issue. Whether they are able to impose bans on what residents are allowed to do in the privacy of their own home, and whether they should do so or pursue other ways to cut back on secondhand smoke affecting residents is another matter.

BLOG / 03.30.17 /Jack Malley

Civil Litigation Cases 101

When it comes to civil litigation cases, are you up to date? A civil litigation is the result of two or more parties that are involved in a legal dispute and are seeking something other than criminal sanctions, such as money. In these types of cases, they must be tried in a courtroom and a judge or jury will weigh in on the matter and ultimately decide the result. Read on to find out more about these types of cases.

BLOG / 03.20.17 /Jack Malley

The Implications of Trump Administration in Wage and Hour Litigation: What You Need to Know

Michael Mauro will be participating in a live webcast regarding The Implications of Trump Administration in Wage and Hour Litigation on March 27, 2017 from 3 pm – 4 pm.

BLOG / 02.28.17 /Jack Malley

All About Intellectual Property Law

When it comes to Intellectual Property Law, do you know your stuff? This is a law that outlines the rules when it comes to getting and enforcing the legal right to a variety of things such as art, design, inventions, and more. That’s because laws protect personal property, real estate, and also intangible assets and their control.

BLOG / 01.26.17 /Jack Malley

5 Real Estate Laws That Real Estate Owners Need to Know 

When it comes to commercial real estate law, there’s a lot to take in. With so many laws that exist on the books for federal, state, and local laws, it can be pretty confusing. Commercial real estate laws can be so befuddling and complicated that at the end of the day, you really require a lawyer to help you sort through everything. The average person isn’t going to know the ins and outs of the laws on real estate, and when it comes to real estate, when you’ve got money and time invested you really don’t want to get it wrong.

BLOG / 01.05.17 /Jack Malley

Board Business Through a Legal Lens

Watch Ken Jacobs give a lesson on Sexual Harassment featured in the HabitatU course Board Business Through a Legal Lens.

BLOG / 01.04.17 /Jack Malley

Court of Appeals Upholds Contractual Limitation on Co-op Board’s Power to Deny Transfer Applications

In most instances, decisions of a cooperative board are reviewed by courts under the business judgment rule. The business judgment rule provides that a court should defer to a cooperative board’s determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith.

BLOG / 01.04.17 /Jack Malley

SBJ And Jack Malley Obtain Unanimous First Impression Decision From The Court of Appeals Regarding A Co-op Board’s Duty To Act Reasonably Where The Proprietary Lease So Provides

In most instances, decisions of a cooperative board are reviewed by courts under the business judgment rule. The business judgment rule provides that a court should defer to a cooperative board’s determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith.

BLOG / 12.15.16 /Jack Malley

What to Do When You Need a Lawyer as an Employer 

Employment law is always changing. Unfortunately, that means that you’re going to have a harder time trying to understand laws on your own. Governments and courts constantly interpret the laws in different ways, so even when you think you have a good grasp of the law there is usually a precedent that has been set that makes everything more difficult. When you start to understand that even a weak case that is made strongly can result in damages awards and potentially bankrupt you, you see why taking legal action and hiring good defensive help is so necessary.

BLOG / 12.12.16 /Jack Malley

The Yellowstone Injunction, a Practical Application

Many commercial landlords and tenants are readily familiar with the term “Yellowstone injunction,” which enjoins a landlord’s termination of the subject lease until a lawsuit commenced by the tenant determines the merits of the alleged default. To obtain a Yellowstone injunction, a tenant must demonstrate that: (1) it holds a lease, (2) the landlord served a notice to cure, (3) the tenant sought the Yellowstone injunction prior to the expiration of the cure period, and (4) the tenant has the ability and desire to cure the alleged default.

BLOG / 12.12.16 /Jack Malley

Commercial Landlord Can Waive “No-Waiver” Clause In Lease

Commercial leases typically contain a “no-waiver” clause that provides, among other things, that no payment by the tenant of less than the full monthly rent shall constitute a waiver of the right of the landlord to collect the full rent amount, and that the receipt by the landlord of rent with knowledge of the tenant’s breach of any covenant within the lease shall not be deemed a waiver of such breach. However, landlords should be aware that the rights that are set forth in such “no-waiver” clauses can be waived. TSS-Seedman’s Inc. v. Elota Realty Company, 72 N.Y.2d 1024, 1027, 531 N.E.2d 646, 648, 534 N.Y.S.2d 925, 927 (1988).

BLOG / 10.13.16 /Jack Malley

Appellate Division Reinforces The Risks Of Filing A Defective Notice Of Pendency

Under CPLR § 6501, a party to an action may file a notice of pendency if the judgment she demands “would affect the title to, or the possession, use or enjoyment of, real property.” The filing of the notice constitutes constructive notice to future purchasers and lenders who are “bound by all proceedings taken in the action after [the] filing to the same extent as a party.” Pursuant to CPLR § 6514(b), a court may grant a motion cancelling a notice of pendency upon the application of an aggrieved defendant who demonstrates that the plaintiff did not commence or prosecute the action in good faith. A court may issue an order awarding a defendant her attorneys’ fees and costs where the court finds that the plaintiff frivolously clouded the defendant’s title or did so in bad faith.

BLOG / 10.06.16 /Jack Malley

Propose a “No Smoking” Amendment

Secondhand smoke has been deemed by the courts to create an automatic nuisance. Many co-op and condo boards have already passed regulations barring smoking within the common areas of the building (such as lobby and hallways). However, boards continue to have a hard time dealing with complaints about smoke escaping from individual units into hallways or infiltrating into other apartments.

BLOG / 10.05.16 /Jack Malley

SBJ And Jack Malley Obtain Impactful Decision In Hot Franchisor Liability Area

In Ocampo, et al v. 455 Hospitality LLC , Doubletree Franchise LLC, et al, SBJ represents approximately 100 plaintiffs who are current or former employees of a Doubletree franchise hotel located in Tarrytown, New York who allege that the franchisee and Doubletree Franchise LLC, the Doubletree franchisor entity, failed to pay plaintiffs minimum wage, overtime pay, gratuities and tips in violation of federal and state law.

BLOG / 10.04.16 /Jack Malley

Do You Need a Social Media Policy?

David Menken Interviewed in Habitat Magazine on a Coop’s Need for a Social Media Policy.

BLOG / 10.03.16 /Jack Malley

Navigating the Transition to Independent Owner Control

Ken Jacobs contributes to Community Association Institute article regarding transitioning condominiums from developer control to independent owner control.

BLOG / 10.01.16 /Jack Malley

David Menken Speaks To Fire Commissioners On Legal Implication of Fire Department Use of Social Media

David Menken spoke to the Westchester County Association of Fire Districts on August 26, 2015 on legal issues involving fire department use of social media.

BLOG / 05.25.16 /Jack Malley

Unveiling The Changes to Federal Overtime Exemption Rules

Michael Mauro will be participating in a live webcast regarding The Changes to Federal Overtime Exemption on May 25, 2016 from 3 pm – 5 pm.

BLOG / 05.12.16 /Jack Malley

David Menken To Present on Cyber Security for Lawyers and Law Firms

David Menken will be participating Thursday, May 12th in a seminar sponsored by the Westchester County Bar Association on “Cyber Security: How Confidential Is Your Confidential Information; Threats, Exposures & Solutions.” Information on the seminar, for which CLE credit will be offered, is at the Bar Association’s web site.

BLOG / 11.06.15 /Jack Malley

Enforce a Smoking Ban

Kenneth Jacobs explains how a condominium associations can enforce a smoking ban in the November 2015 issue of Habitat Magazine.

BLOG / 06.02.15 /Jack Malley

David Menken Presents in Albany on Legal Issues Involving Government Use of Social Media

David Menken gave a presentation on legal issues involving use of social media by local governments in Albany, New York on June 2, 2015 to government officials and information technology specialists at the New York State Office of Information Technology Services Cyber Security Conference His talk centered on two of the most important issues facing local governments which utilize social media: first amendment considerations and compliance with record retention, open meetings and freedom of information laws.

BLOG / 04.13.15 /Jack Malley

Welcome to the Firm!

Smith, Buss & Jacobs, LLP is proud to announce that Michael Mauro, who focuses his practice on labor and employment law, is now Of Counsel to the Firm. Michael has been recognized as a Super Lawyer in the field of Labor and Employment law in recognition of his accomplishments.

BLOG / 03.13.15 /Jack Malley

David Menken Joins the Board of the Hudson River Museum

David Menken has joined the Board of Trustees of the Hudson River Museum, one of the premiere art museums in the New York metropolitan area and Westchester County’s largest museum.

BLOG / 03.13.15 /Jack Malley

David Menken Presents on Data Security Awareness

David Menken, who specializes in information technology, privacy and data security at SBJ, today gave a seminar in data security awareness to the staff of a New York not-for-profit corporation which has access to private information of New York State residents.

BLOG / 02.13.15 /Jack Malley

SBJ Sponsors Habitat’s February Issue

Habitat Magazine’s February Issue features our new Smith, Buss & Jacobs, LLP video.

BLOG / 02.13.15 /Jack Malley

Becoming Proactive about Law Firm Cyber Security By David Menken

“During the early morning hours of June 27, 2014 a hard drive containing backup files for one of the firm’s servers was stolen from the locked trunk of an employee’s vehicle…. We have confirmed that the hard drive may have contained your name, birthday, Social Security number, driver’s license and contact information, such as your home address, email and phone number.”

BLOG / 01.13.15 /Jack Malley

Tarrytown Doubletree workers claim wage abuse

Smith, Buss & Jacobs partner Jack Malley commences $2 million lawsuit against Doubletree Hotel for failure to pay banquet waiters minimum wage, overtime wages, tips and gratuities.

BLOG / 01.13.15 /Jack Malley

Ryan Kaupelis joins SBJ

Ryan P. Kaupelis has joined the firm as an associate in the litigation department. Ryan’s practice focuses on commercial and real estate litigation.