Author: Mary Ann Zeolla

CLIENT ALERT: Landlord-Tenant Issues: Eviction Moratorium to be Extended

On May 7, 2020, Governor Cuomo announced that the prohibition on both residential and commercial evictions will be extended by sixty (60) days.

The initial moratorium on evictions that took effect on March 22, 2020 was imposed for ninety (90) days and was set to expire on June 20, 2020.  Recently however, the Governor has been under significant pressure from tenant advocacy groups to extend additional relief to tenants.  Phrases such as “tidal wave of evictions” have been used to describe what tenant advocacy groups see as a veritable sword of Damocles hanging over the heads of tenants who cannot, or do not, keep up with rent payments during the COVID-19 pandemic.  Conversely, most landlord advocacy groups have cautioned against drastic governmental actions that may endanger the ability of landlords to provide services to their tenants, many of those services being government mandated.  The moratorium on evictions will now expire on August 19, 2020.

The moratorium extension will also prohibit landlords from assessing late fees for non-payment by tenants. The Governor will also permit tenants to apply their security deposits to their current rent and pay back the security deposits over time.  Most security deposits are capped at one (1) month rent under the New York General Obligations Law.

Governor Cuomo also announced that his office is working on a financial relief package from banks to assist landlords.  No details about such landlord relief have been made available, and it is unclear as to whether the relief will be mortgage relief, grants, low interest loans or some other form of financial aid.  There was also no indication of the willingness on the part of the Governor’s office to assist landlords in obtaining relief from other financial obligations incurred by landlords, such as property taxes, utilities, providing heat or any other costs.

Please understand that the COVID-19 pandemic is an evolving situation.  Our best advice is to continue to monitor our website and government websites for new information.  We will continue to update our website as further information becomes available.

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Returning to Work: Reopening the Workplace in a COVID-19 World

Although the timing, scope, and conditions for New York businesses to reopen currently remain uncertain, there is no doubt that once Governor Cuomo rescinds Executive Order 202.8 (which ordered 100% on-site workforce reduction for all non-essential businesses in New York) all businesses that are able to do so will reopen. Moreover, it seems apparent that reopening will occur long before the general threat of COVID-19 infections has completely subsided. That being the case, employers across New York will be facing some significant new issues and challenges as they resume operations while taking steps necessary to protect the health and safety of their employees. This is a brief overview of what steps employers should consider taking now as they prepare to reopen their workplaces, and of information that is available to employers to assist them in doing so.

Employee Health and Safety Issues

Section 654 of Title 29 of the U.S. Code requires all employers to furnish to their workers “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” While the Occupational Safety and Health Administration (OSHA) has not adopted any regulations specific to addressing COVID-19-related risks, certain existing OSHA regulations may apply to employers who, by virtue of their workplace environments (e.g., white collar office spaces), have previously given little consideration to “hazards” that could affect the health and lives of their employees. To assist employers, OSHA has published a comprehensive guide entitled “Guidance on Preparing Workplaces for COVID-19”. The preface to this Guide makes it clear that it is “not a standard or regulation, and it creates no new legal obligations.” Its stated purpose is to provide “recommendations as well as descriptions of mandatory safety and health standards” that are “advisory in nature” and “informational in content” in order to “assist employers in providing a safe and healthful workplace.”

A full summary of OSHA’s Guide is beyond the scope of this Alert but, unlike formal regulations that can at times be difficult to digest, it is written in plain English and at 34 pages requires no herculean effort to review. We strongly recommend that all employers become familiar with OSHA’s Guide, in particular the section entitled “Steps All Employers Can Take to Reduce Workers’ Risk of Exposure to SARS-CoV-2” (SARS-CoV-2 is the virus that causes COVID-19 illness). That section of the Guide covers such topics as the necessity of considering where, how, and to what sources of the virus employees might be exposed; consideration of individual worker risk factors (e.g., age, chronic medical conditions); the need for social distancing, and potentially other steps such as staggered work shifts, downsizing operations, delivering services remotely, and other exposure-reducing measures; and the need to emphasize basic infection prevention and infection control practices.  The Guide also emphasizes the need for employers to develop policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19; to enable prompt identification and isolation of potentially infectious employees; and the need to inform and encourage employees to self-monitor for signs and symptoms of illness. The Guide notes that Personal Protection Equipment (“PPE”) (e.g., masks) “may also be needed to prevent certain exposures,” but cautions that “[w]hile correctly using PPE can help prevent some exposures, it should not take the place of other prevention strategies.” The attorneys at Bleakley Platt stand ready to assist employers in devising and implementing appropriate policies, procedures and practices for their individual workplace environments.

We also consider it highly advisable that employers, including those in OSHA partially-exempt industries, document their COVID-19 workplace policies and procedures, as well as their ongoing compliance with them. Such evidence, or the lack of it, may prove to be highly relevant in the event an employee suffers an illness and claims that his or her employer violated its legal duty to provide a hazard-free workplace.

Employers should also consider the effect of recent EEOC guidance on return-to-work issues that employers and employees will face during this transition, including the acceptability of medical examinations, the confidentiality of medical information, and reasonable accommodations under the Americans With Disabilities Act and the Rehabilitation Act.

A Final Thought: Accommodation of Requests to Work From Home

Even after restrictions concerning the presence of on-site employees are lifted, some employees may still request that they be permitted to work from home. Some of these requests will likely come from employees who by virtue of their individual medical conditions may have special fears of returning to the workplace until the risk of COVID-19 infection is more significantly reduced. When such a request comes from an employee with a documented condition that involves a recognized heightened risk to his or her health, there may be a greater burden on the employer to demonstrate why working from home is not a reasonable accommodation.

As the foregoing overview makes clear, employers should be planning now for the day when their workplaces reopen. Developing necessary policies and procedures in advance of reopening will ensure that once restrictions on employees in the workplace are lifted, employers will be ready on Day One to ensure that the health and safety of their employees are protected, and that working on site can resume with a minimum of confusion or disruption. The attorneys at Bleakley Platt welcome the opportunity to assist employers in devising and implementing their workplace practices in a COVID-19 world.

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Client Alert: Unique Estate Planning Opportunities Available Now

Certain aspects of the current economic environment allow for unique planning opportunities that are not available during more usual times.  The following factors combine to present these unprecedented estate planning opportunities:

1. Historically High Gift/Estate Tax Exemptions. Generally speaking, transfers to your loved ones (other than a spouse) during your life or at your death are subject to federal gift or estate taxes.  All US citizens have an exemption from these taxes, which is now at an historically high $11,580,000.  Importantly, this exemption amount is currently scheduled to be reduced by approximately half on January 1, 2026.  However, a change in political control of the federal government prior to 2026 would also likely result in reductions of these historically high exemptions, or they may be reduced in order to raise revenue for the federal government.  This means that making large gifts at this time may be desirable to use the current historically high exemption before it is no longer available.
2. Historically Low Interest Rates. The Federal Reserve has reduced interest rates to essentially zero.  Certain trusts work very well in low interest rate environments as discussed in more detail below.
3. Reduced Asset Values. The value of many financial assets (such as marketable securities) have declined from their February 2020 highs.  Because gifts of these assets are taxed on their values at the time of the transfer, it is now cheaper to transfer assets with a currently reduced value than it was before the pandemic.

In this Client Alert, we list ten estate planning techniques you may wish to consider during the current environment.  Not every technique may be helpful for you.  Our firm’s Trusts and Estates attorneys can review your and your family’s particular situation to see if you can benefit from these techniques, as well as others not listed here.  Every estate plan we draft is custom-tailored to our clients’ unique needs and goals, which may have changed in light of the current pandemic.

The estate planning opportunities discussed below should be built upon a well-drafted basic estate plan, which includes a Will and/or a Revocable Trust, a Power of Attorney, Health Care Proxy and Living Will.    A previous Client Alert, which can be found here, reviews the importance of a basic estate plan and how it can be implemented even while social distancing is required.

Ten Estate Planning Opportunities to Consider Now:

1. Grantor Retained Annuity Trusts (“GRATs”). GRATs are structured so that the creator of the GRAT transfers assets to a trust and retains the right to receive payments back from the trust over the trust term.  If the assets transferred to the trust appreciate in value beyond the amount of the payments back to the creator and an interest rate set by the IRS (the “hurdle rate”), this appreciation passes to your beneficiaries free of transfer tax.  GRATs are particularly attractive now because in this low interest rate environment the hurdle rate is very low and the expected economic recovery may lead to significant appreciation of assets above their current values.  There is currently political opposition to GRATs, which means that GRATs could be significantly curtailed in the future if there is a change in political control of the federal government.  This suggests proceeding now if it makes sense for your current situation.
2. Spousal Lifetime Access Trusts (“SLATs”). In this time of economic uncertainty, it is understandable that losing the ability to access gifted assets may be undesirable.  For married clients, SLATs couple the advantages of making gifts at this time (i.e., using your gift tax exemption before it is reduced) while retaining the ability to indirectly access the assets transferred to the SLATs.  SLATs accomplish this by providing that your spouse is the beneficiary of the SLAT and can receive assets from the SLAT during your lifetime.  Your spouse can also create a SLAT for you, although the SLATs established by you and your spouse cannot have identical provisions.
3. Domestic Asset Protection Trusts (“DAPTs”). Another way to take advantage of making gifts now without losing control of those assets is by creating a DAPT.  DAPTs allow you to set up a trust for your own benefit, while protecting the assets in the trust from your creditors and taking advantage of gifting during this time.  DAPTs must be established in one of the 19 states that currently allow them (New York is not one of these states), but DAPTs can be established by residents of other states.  There are many variations of DAPTs that can be used to address your specific needs.
4. Life Insurance Trusts. Life insurance is included in your estate for estate tax purposes at the face value of the policy.  Creating a trust to own any life insurance you may have can remove this amount from your estate, which may be prudent planning at this time because the estate tax exemption amount will be coming down (as discussed above).  It is preferable to transfer existing policies to such a trust as soon as possible because existing policies transferred to trusts are included in your estate for the three years following the transfer.
5. Annual Exclusion Gifts. Current law allows you to make gifts of $15,000 ($30,000 if you are married and your spouse consents to the gifts) to as many people as you choose without reducing your lifetime gift/estate tax exemption.  Making these gifts now will allow your beneficiaries to purchase assets with depressed asset values and receive the benefit of the appreciation of those assets going forward.  You can also make gifts of assets with currently depressed values that you believe will appreciate.
6. Gifts of Closely Held Businesses. If you own a closely held business that has recently experienced a decline in sales, this may be the right time to make gifts of ownership in that business, because the gifts are valued at the time of transfer and the value of your business may be significantly reduced at this time.  Also, if there is a change in political control in Washington it is likely to bring about restrictions on planning opportunities for transfers of closely held businesses.
7. Low Interest Loans. The tax code generally requires you to charge a minimum amount of interest on a loan.  Because of the low interest rate environment, the minimum required interest rate on a loan is historically low.  Therefore, it may be a great time to make a loan to a loved one, who could purchase investment or personal assets (such as a home) while prices are reduced.  This technique also applies to “selling” assets to a trust in exchange for a promissory note.  This technique usually involves a specialized trust called an Intentionally Defective Grantor Trust.
8. Maximizing Use of the Current GST Tax Exemption. The current economic environment also offers planning opportunities with respect to the generation-skipping transfer tax (the “GST tax”).  The GST tax is a federal wealth transfer tax in addition to the gift/estate tax on transfers to grandchildren or other persons more than one generation below you. Like the federal gift/estate tax, the current GST tax exemption is currently historically high and is slated to be reduced in 2026, if not before for the reasons mentioned above.  If you currently have trusts set up, you may be able to use your GST tax exemption without transferring any additional assets.  Accordingly, it is a good time to provide for your grandchildren by creating what is commonly known as a Dynasty Trust.
9. Roth Conversions. Withdrawals from “traditional” retirement accounts are generally subject to income tax, while withdrawals from Roth retirement accounts are not. Converting “traditional” retirement accounts to Roth accounts will result in inclusion of the converted amount in your taxable income for the year of the conversion, but later withdrawals from the converted Roth account will be income tax free.  Converting traditional retirement accounts to Roth accounts may be advantageous in the current environment because: (i) asset values are lower and conversions will be taxed on this lower amount; (ii) current income tax rates are historically low and are expected to rise in the future to meet the federal government’s revenue needs, and (iii) you may have reduced income in 2020.  When reviewing your estate planning for your retirement accounts, it is also important to keep in mind the recent changes as a result of the SECURE Act, which we have addressed in a previous client update which can be found here.
10. Charitable Donations. The recently passed CARES Act expands the availability of income tax deductions for charitable contributions in several ways.  You may wish to consider making charitable contributions at this time, which can result in additional tax benefits to you while providing a helping hand during the current crisis.  Clients with retirement accounts can also make Qualified Charitable Distributions directly from those accounts to charities, which can increase the tax benefits of doing so.

We look forward to assisting you with creating your estate plan or re-evaluating any estate planning you may have done. Please feel free contact any of our estate planning attorneys listed on our firm’s Trusts and Estates Department website to review your plan.

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The SECURE Act and Retirement Accounts

The retirement account has long been an advantageous tool for tax and estate planning. Workers could defer taxes on earnings by contributing to these accounts and deferring tax on distributions until they retired. Beneficiaries who inherited retirement accounts were able to “stretch” distributions over their lifetimes and therefore defer the income taxes resulting from such distributions. Well-drafted trusts which were named as beneficiaries of retirement accounts were also entitled to stretch distributions over the lifetime of the trust beneficiary. However, the Setting Every Community Up for Retirement Enhancement Act (the “SECURE Act”), enacted at the end of 2019 severely limits the ability of many individual and trust beneficiaries to defer distributions from inherited retirement accounts.

The SECURE Act was passed by an overwhelming majority of Congress on both sides of the aisle and many of its provisions are beneficial. Plan participants may now defer taking required minimum distributions until they reach of the age of 72 and may continue to make contributions throughout their lifetimes.

However, the SECURE Act contains a surprise tax hike for non-spouse beneficiaries of retirement accounts by requiring that most beneficiaries other than spouses withdraw all funds from an inherited retirement account within ten years after the death of the initial account holder. . These beneficiaries, which include children, grandchildren and most trusts, now lose the tax advantage of stretching distributions over their lifetime, which will usually result in additional income tax owed on the account distributions.

The SECURE Act contains exemptions from the ten-year payout requirement for “eligible designated beneficiaries”. These include:

• The spouse of the participant;
• The minor child of the participant (but the ten-year rule applies after the child achieves majority);
• Disabled or chronically ill beneficiaries, and
• Beneficiaries who are no more than ten years younger than the plan participant.

The effects of the SECURE Act on estate plans can be dramatic. We suggest you review your estate plan with your estate planning attorney if you have assets held in retirement accounts. This review is especially critical if your retirement accounts are to pass to trusts, which present unique issues. For example, although the SECURE Act preserves the lifetime payout for a spouse, certain trusts for the benefit of a spouse will lose the option for lifetime payout. Trusts for the benefit of disabled or chronically ill individual, including a spouse, may qualify for the lifetime payout but they must be carefully drafted to ensure compliance with SECURE Act requirements.

Our experienced Trusts & Estates attorneys can help you review your current estate plan and beneficiary designations and ensure that you maximize your ability to provide for your loved ones. Understanding the new rules imposed by the SECURE Act is even more critical at this time due to additional changes to retirement account rules contained in the CARES Act, the recent federal law designed to address the COVID-19 pandemic. We have covered the retirement account aspects of the CARES Act in a previous client update which can be found here.

During this time when social distancing is vitally important to prevent the spread of COVID-19, our attorneys can meet with you remotely via our videoconferencing technology. We can also assist you with executing any necessary estate planning documents remotely, which makes this time when New York and other states are on “pause” a great time to review your estate planning.

We extend our best wishes to you and your families during this very challenging time. Please do not hesitate to call us with any questions you may have.

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Client Alert: Landlord-Tenant Issues – New York Tenant Safe Harbor Act

On April 7, 2020, new tenant friendly legislation was introduced in the New York State Senate and Assembly.  Titled the “New York Tenant Safe Harbor Act,” it would prohibit a landlord from evicting a tenant due to that tenant’s failure to pay rent for a period (i) commencing with the Governor’s declaration of a State of Emergency on March 7, 2020 and (ii) ending on a date six (6) months after the Governor lifts the State of Emergency.

The Safe Harbor Act (“SFA”) is an attempt to complement the Governor’s and Chief Administrative Judge’s prohibition on evictions, which expires in June 2020, to avoid a potential “tidal wave of evictions” at that time.

Landlords, however, will still have a remedy.  The SFA would allow a landlord to sue for and obtain a money judgment for any unpaid rent which accrues between March 7, 2020 and six (6) months after the State of Emergency ends.  Presumably, the landlord knows the tenant’s banking information and can ultimately recover all or a portion of the unpaid rent from any assets the tenant may have.

The SFA is not the only pending legislation to assist tenants who may have suffered economic losses due to the COVID-19 pandemic.  In contrast, NY Senate Bill S8125A and Assembly Bill A10224A would waive rent payments for residential or commercial tenants for a period of 90 days from the effective date of the law.

Whether either bill will pass, or when, cannot be determined as of this writing.  Both bills will surely face opposition from landlord groups, commercial property owners, cooperatives, and owners of rented homes and condominium units.  But because the SFA has considerably less negative economic impact on landlords and property owners, and the SFA is sponsored by the Chair of the Judiciary Committees in both the Assembly and Senate, the SFA may be more likely to become a law.

Please understand that the COVID-19 pandemic is an evolving situation.  Our best advice is to continue to monitor our website and government websites for new information.  We will continue to update our website as further information becomes available.

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Client Alert: Business Interruption Insurance Coverage: Federal Legislation May Be On The Way

Insurance coverage for business interruption losses caused by the COVID-19 pandemic is the subject of proposed legislation in New York and a number of other states, as well as several lawsuits already commenced by insureds (see our other Client Alert about NY’s proposed legislation here). But whereas those efforts are largely directed at requiring insurers to provide coverage under existing business interruption insurance policy provisions – an uphill battle strongly resisted by the insurance industry – the US Congress is in the early stages of taking a different approach with proposed legislation that would create a new coverage mechanism specifically designed to address losses arising from a pandemic.

The proposed legislation, preliminarily called the Pandemic Risk Insurance Act of 2020 (“PRIA”), would create a Federal program of shared public and private compensation for business interruption losses resulting from any “pandemic or outbreak of communicable disease.” It would essentially consist of a reinsurance program administered by the Department of Treasury for commercial property and casualty insurers. The federal reinsurance coverage would be triggered when industry losses exceed a $250 million threshold, with aggregate losses capped at $500 billion per year for both insurers and the government. Insurers that participate in the program would be charged an annual premium for such reinsurance coverage. In return for this federal assistance for pandemic losses, insurers would agree to make business interruption insurance coverage available for insureds on terms that are not materially different from those applicable to existing business interruption coverage. Insurer groups maintain that most commercial property policies do not provide coverage for business interruption losses arising from the COVID-19 pandemic. If enacted, the PRIA would provide a public-private insurance scheme for needed coverage to businesses while limiting the exposure of insurers in unprecedented circumstances such as those currently being experienced during the COVID-19 pandemic. Although the PRIA is in only a preliminary stage in Congress, we will continue to report on its progress and its potentially significant implications for business owners in New York and across the country.

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Client Alert: Impossibility, Frustration of Purpose, and Impracticability: Doctrines that may excuse contractual performance during the COVID-19 pandemic

In a previous Alert, we discussed how the operation of a force majeure clause in a contract may excuse a party’s performance in whole or in part. But what if a contract does not contain a force majeure clause? Other legal doctrines may still come into play to excuse performance under the circumstances created by the current COVID-19 pandemic.

Impossibility of Performance: The doctrine of impossibility can excuse a party’s contract performance when an unforeseen event makes performance objectively impossible. As with force majeure, the doctrine of impossibility is applied narrowly.  Notably, New York law is more restrictive than the law of many other states because it requires that performance be objectively impossible. Proving objective impossibility due to the COVID-19 pandemic will likely be easiest for “non-essential” New York businesses that have been required by Gov. Cuomo’s Executive Order 202.8 to reduce their in-person workforces by 100%. But whereas proof of objective impossibility may be relatively easy for a manufacturer that has been forced to close down production due to that workplace restriction, it may be a far more difficult burden of proof for a service-oriented business whose employees are able to work remotely from their homes.  Other factors will also affect the analysis, including the temporary nature of current workplace restrictions, a party’s ability or inability to complete the performance of its obligations through alternative means, whether a party’s performance is made wholly or only partially impossible, and whether performance is rendered permanently or only temporarily impossible. Bearing in mind that the doctrine of impossibility is traditionally applied in a narrow fashion, businesses that wish to take advantage of it to excuse their contractual performance will need to marshal all relevant facts in order to make a persuasive case.

Frustration of Purpose: This is another common law doctrine that may excuse performance, but only in a narrow set of circumstances. It applies when a change in circumstances after a contract was entered into makes one party’s performance worthless to the other, frustrating his purpose in making the contract. To excuse non-performance, the frustrated purpose must be so fundamental and essential to the contract that, without it, the parties would have never entered into their transaction in the first place. The objective intent of the parties, as exhibited by the language of the contract itself, is typically the key to determining whether the frustration goes to the essential purpose of the contract. The event causing the frustration must also have been unforeseeable, as the non-occurrence of the frustrating event must have been a basic assumption on which the contract was made. Generally, a contract will not be deemed to have been frustrated to the point of invoking the doctrine if the event merely renders the contract more expensive or difficult to perform, if an alternative method of performance is available, or if the event is the fault of one of the contracting parties. Although the burden of proof for invoking the doctrine of frustration is high, the unprecedented nature of the COVID-19 pandemic and the government-mandated restrictions imposed on businesses as a result of it may present circumstances that support its application in specific cases.

Impracticability: Sale of Goods Under The Uniform Commercial Code: Section 2-615 of the Uniform Commercial Code (“UCC”) provides that a seller of goods may be able to excuse his inability to deliver all or some of the goods where performance has been made “impracticable.” This section of the UCC is essentially a codification of the doctrine of impossibility. It provides, in relevant part, that a seller is not in  breach of his obligations under a contract for sale of goods if performance “has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.” Section 2-615’s notable reference to performance being hindered by good faith compliance with “any applicable foreign or domestic governmental regulation or order” may have special relevance in the context of the COVID-19 pandemic, which we are seeing cause shortages and supply-chain interruptions in a host of different industries. Note that Section 2-615(c) requires that a seller whose performance has been made impracticable so notify the buyer promptly (“seasonably”) that there will be delay or non-delivery of the goods and, where partial performance is possible, allocate production in a way that is fair and reasonable.

The COVID-19 pandemic continues to disrupt commerce in innumerable ways, presenting many novel issues for businesses in New York and across the U.S. The attorneys at Bleakley Platt continue to monitor developments in the law as they occur, and welcome the opportunity to counsel our clients as they confront the challenges of doing business during this period of unprecedented uncertainty.

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Client Alert: Estate Planning and the Coronavirus

Due to the COVID-19 pandemic, it is more critical than ever for everyone to have updated estate planning documents in place, especially individuals who are at high risk from the virus or have jobs that require close interaction with the public, such as essential medical professionals, police officers and firefighters.  The attorneys in our Trusts and Estates practice group are able to meet with you to discuss and complete your estate planning, while observing social distancing protocols through the use of telephone and video conferencing technology.  There are numerous options available to supervise proper execution of documents including remote witnessing and notarization protocols which have been permitted by recent executive orders issued by Governor Cuomo.

The following documents should be considered in every estate plan:

1. Last Will and Testament.  A Will allows you to determine how and to whom your estate assets will be distributed, and to select who will administer your estate and carry out your wishes. A Will also may provide for the guardianship of any minor children you may have at your passing.

2. Trusts. Various types of trusts can be implemented, in addition to or in lieu of a Will. Trusts confer numerous benefits including estate tax savings, asset protection, avoidance of probate, maintenance of privacy, and the protection of disabled loved ones.

3. Power of Attorney.  This document appoints agent(s) to manage your financial affairs if you are unable to do so.

4. Health Care Proxy.  This document appoints agent(s) empowered to make medical decisions, including decisions about end of life care, if you become unable to make them yourself.

5. Living Will.  This provides specific instructions to your Health Care agent regarding end-of-life medical decisions.

6. Standby Guardian Designation. This document permits individuals who work in health care facilities or who reasonably believe that they may be otherwise exposed to COVID-19 to appoint individuals who will have custody and legal decision making authority for their minor children, in the event of their death or incapacity.

Our attorneys are ready to assist you or your loved ones to implement or update your estate planning documents while many other aspects of our lives are on pause.   If you need assistance, please contact (i) Nancy Rudolph at nrudolph@bpslaw.com, (ii) Frances M. Pantaleo at fpantaleo@bpslaw.com, or (iii) James Ausili at jausili@bpslaw.com.  These unprecedented times present other unique estate planning opportunities, which we will discuss in future client alerts.   In the meantime, we hope you and your loved ones stay safe and well.

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Client Alert: Is the COVID-19 Pandemic a Force Majeure Event?

The COVID-19 pandemic is causing businesses across the US to consider, many for the first time, the operation and effect of a mostly neglected provision in their contracts: the force majeure clause.

A force majeure clause allows a party to suspend or discontinue performance of its contractual obligations under specified circumstances. It may also limit a party’s liability. Often this clause is overlooked during contract negotiations as routine boilerplate, and covers generic events such as “disasters,” “acts of God,” “labor strikes,” “national emergencies,” or “circumstances beyond the control of the parties.” The question on the minds of many businesses now is whether the COVID-19 pandemic and the various workplace and other restrictions it has spawned qualifies as a force majeure event that will excuse a party’s performance of its contractual obligations in whole or in part. What follows is an introduction to the operation of force majeure clauses and how they may apply during the current COVID-19 public health emergency.

What constitutes a force majeure event in any particular circumstance depends first and foremost upon the terms of the parties’ contract. How the term is defined (what events are covered and/or excluded), who may exercise it, and under what circumstances — all subjects that may be covered in the parties’ agreement — are important threshold factors, as force majeure clauses are construed and applied narrowly by the courts. Not all contracts contain a force majeure clause, and in the absence of such a provision the courts will not imply one (note, however, that even in the absence of a force majeure clause other legal doctrines like impossibility of performance may be applicable, as discussed in a companion Client Alert here.)

Where a force majeure clause does not refer to a pandemic, epidemic, or similar circumstance as a basis for excusing performance (and many contracts do not contain such language), the question is whether more general phrases like “acts of God” and “events beyond the reasonable control of a party” may be construed to cover the downstream consequences of situation like the COVID-19 pandemic. The simple answer is “maybe,” as it requires both consideration of the contract’s terms as well as an analysis of the actual effects of the pandemic upon a party’s performance.

Impossibility of Performance vs. Mere Difficulty: if a party’s performance of a contract is simply rendered more difficult by an unforeseen situation like a pandemic, it likely will not qualify as a force majeure event to excuse performance altogether. On the other hand, if performance is rendered impossible, a stronger argument exists that the event is covered by the force majeure clause. Here again, the language in the contract can be crucial; where, for example, a manufacturer’s production is shut down by a government order prohibiting employees from working on site, making it impossible for the manufacturer to produce and deliver the goods it agreed to sell, a clause that specifically refers to “government act or regulation” will obviously provide a stronger foundation for claiming that performance is excused than will a clause that refers more generally to “unforeseen events.”

Linking the Force Majeure Event and Inability to Perform: there must be a link between the force majeure event and a party’s non-performance. For a business whose employees are able to work from home, the existence of a government mandate prohibiting employees from working on site will likely not qualify as a force majeure event. Likewise, if it can be shown that a party would not have performed regardless of the existence of the force majeure event, or is only using the existence of a force majeure event to avoid performance because the contract is no longer financially rewarding, performance will almost certainly not be excused.

Partial Performance: if a party is legitimately prevented from performing some but not all of its contractual obligations, a force majeure clause may be construed to excuse only so much of the performance as was actually impacted. Whether this is the case in any particular situation requires a careful consideration of all relevant facts. The important point is that a force majeure clause may excuse a portion of a party’s performance, but not necessarily all of it.

Suspension versus Termination of Performance: Even if a situation qualifies as a force majeure event under the parties’ contract, a question may arise as to whether that event entitles one or the other of the parties to terminate the contract, or whether instead performance is simply suspended until the force majeure event ends. There is no hard and fast rule in such a situation; the terms of the contract and all surrounding circumstances must be considered. As in the case of partial performance, a force majeure event may temporarily suspend a party’s contractual obligations, but it may not terminate them.

Notice and Mitigation: Any party seeking to take advantage of a force majeure clause should consult the terms of the contract concerning the requirements of giving notice to the other contracting party that a force majeure event as occurred. Some contracts contain detailed procedures and deadlines for such notice, and the courts have been known to require strict compliance with such provisions. Such a party should also take all reasonable and necessary steps to mitigate the effects of the force majeure event. The extent of the mitigation required is fact-specific and will depend on the language of the contract as well as the facts and applicable law.

The extent to which the COVID-19 pandemic and its effects constitute a qualifying force majeure event is extremely fact-specific and depends not only on the terms of the parties’ contract but on all of the facts and circumstances concerning its intended performance. We are likely to see considerable attention being given to force majeure clauses as the effects of the COVID-19 pandemic, and governments’ responses to it, continue to unfold. Please contact us to arrange a consultation to discuss your specific situation.

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Client Alert: Changes to Property Tax Grievance Procedures in Westchester County

On April 20, 2020, Gov. Cuomo signed Executive Order 202.22, making some important changes to property tax grievance procedures in New York State and Westchester County in particular.

EO 202.22 permits the Cities and Towns of Westchester County to move the date to file property tax grievance back one month, and allows Boards of Assessment Review to conduct their hearings remotely, if necessary.

In Westchester, the Tentative Assessment Roll for the Towns, and a number of Cities, is ordinarily published On June 1.  Any property owner in such a municipality then has until the third Tuesday of June to file a grievance asking the Board of Assessment Review (BAR) to reduce the Assessment (“Grievance Day”).  The filing of a grievance is a necessary prerequisite to filing a court challenge in the event the BAR does not reduce the assessment or if the property owner does not consider the reduction sufficient.

EO 202.22 now permits a Town to move back, by up to 30 days (i.e., from June 1 to July 1, 2020), the date on which the Tentative Assessment Roll is published, and to also move Grievance Day back up to one month as well.  Note, however, that the Cities and Towns are not required to move the dates back. It is therefore important for every property owner to be aware of the dates adopted in the Town or City in which their property is located.

In addition, the Governor’s Order mandates that municipalities take steps necessary to permit property owners to review the 2020 Tentative Assessment Roll without having to physically visit a town hall in order to conduct such a review.  The Order also permits the BARs to alter the rules governing their hearings, including conducting the hearings remotely to ensure that the hearings can be conducted fairly but safely.

If you have any questions about how EO 202.22 may affect you as a property owner, or concerning property taxes in general,  please contact the attorneys in our Tax Certiorari, Condemnation and Valuation Department.

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Client Alert: FAQ: Commercial Real Estate Leasing, Lending, and Related Issues During the COVID-19 Health Crisis

My company is unable to use its rented space during the 100% in-person workforce reduction mandated by Gov. Cuomo.  Are we still required to pay rent?

Currently there is no law or Executive Order relieving residential or commercial tenants of their obligation to pay rent during the COVID-19 outbreak. A bill currently being considered in the NY legislature, S8125A, would suspend for 90 days the rent obligation of any residential or small business (< 100 employees) commercial tenant in New York that has “lost income or has been forced to close their place of business as a result of government ordered restrictions in response to the outbreak of coronavirus disease.” The bill would not merely defer the obligation to pay rent; it would permanently relieve the tenant of that obligation for the prescribed 90-day period (it states that the tenant “shall not and shall never be required to pay any rent waived during such time period.”) The bill goes on to provide that landlords with mortgage obligations would similarly be relieved of their obligation to service their mortgage debt during the same period, in accordance with a formula stated in the bill (and like a tenant’s rent obligation, a landlord’s mortgage obligation during the time period in question would not simply be deferred). Note, however, that it remains uncertain whether this measure or one like it will ever become law. Certainly the financial implications of it provide ample grounds for doubting the likelihood of its passage, but the extraordinary circumstances created by the COVID-19 pandemic may prove to motivate lawmakers to enact extraordinary measures like this one.

If no new law relieves my business of its obligation to pay rent, are there any other grounds for withholding payment?

A typical commercial lease states that payment of rent is an obligation independent from a landlord’s obligations under the lease; a commercial tenant ordinarily has no right to offset rent unless such a right has been negotiated into the lease. Commercial leases commonly, but not always, state that landlords have no liability (and there shall be no rent offsets) for closure of the building or for failure to provide services, access and utilities in emergency situations, subject to the landlord using reasonable efforts to provide or reinstate same. So the first step would be to review the lease to see what specific provisions might provide grounds for relief from the obligation to pay rent due to the COVID-19 health emergency. Here are some issues to consider:

Force Majeure: Most leases include a force majeure clause stating that performance of a landlord’s (and sometimes a tenant’s) obligations are excused to the extent prevented or delayed by listed acts and other events not within the party’s reasonable control (but specifically excepting the obligation of a tenant to pay rent). Courts tend to read these force majeure clauses restrictively, so the language would need to be broad enough to capture delays and inability to perform due to disease. If the coronavirus pandemic constitutes a force majeure under a lease, close attention should be paid to how that might affect lease provisions relating to interruption of services, utilities and access, delays in delivery of a premises, and delays in completion of leasehold improvements. Depending on how these clauses are written, a lease might provide more time for remediation of interruptions of services, utilities and access, delivery of the premises and completion of work. This could impact both rent abatement remedies and lease termination rights.

Interruption or Suspension of Access and Services: A lease may provide that a landlord shall provide 24/7 access to the premises. If such a clause exists, are there exceptions to that obligation? Some leases explicitly allow the landlord to close the building or suspend services, utilities or access in the event of an emergency, if the landlord has a reasonable concern of damage to the building or personal injury to the occupants, and, in some instances, as a result of government orders or actions. The interpretation of a landlord’s obligations and tenant’s remedies may differ depending on who elects to close off the access – the government, the landlord or the tenant. Some leases provide remedies (from abatement to termination rights after particularly long periods of interruption) after a certain period of time (and in some cases subject to notice from tenant to landlord) if there are interruptions of certain services, access and utilities attributable to the landlord. Other leases go further to cover the tenant after a specified period of time if the interruption in access or services occurs for any reason other than the tenant’s fault, which may implicate situations where the government has interfered with access or use. Parties need to review their leases to see if those provisions cover interruption of access (and not just essential services and utilities).

Quiet Enjoyment:  Most leases include a covenant of quiet enjoyment, where a landlord agrees not to interfere with the tenant’s possession of the premises absent default. Some leases may address abatement due to temporary condemnation by the government.

Casualty: Damage to or destruction of leased premises that renders them wholly or partially unusable is usually addressed in the casualty provisions of a lease. Damage that renders the premises permanently unsuable may give the tenant the right to terminate the lease, whereas damage that renders the premises temporarily or partially unusable may give the tenant a right to a rent abatement. While tenants may try to argue that the actual or potential presence of COVID-19 within the demised premises constitutes damage from a casualty, this would represent a significant departure from the typical application of a standard casualty clause. Broader lease provisions that refer to “untenantability” of – rather than physical “damage” to – the leased premises could potentially support a different outcome, but it is far from certain that a tenant would be entitled to terminate its lease or obtain a rent abatement under such a provision. In interpreting statutes that allow a tenant (usually in the absence of a casualty provision in the applicable lease) to terminate its lease because a casualty has rendered the premises unfit for occupancy, courts are likely to resist claims that the presence of an epidemic constitutes adequate grounds for such a termination.

Impossibility of Performance or Frustration of Purpose: Looking beyond the written terms and conditions of a lease, a tenant may assert that the imposition of a 100% in-person workforce reduction renders performance of the lease by both parties impossible, and/or that the essential purpose of the lease has been frustrated as a matter of law.

The reality is that most leases are favorable to the landlord, and therefore may not protect a tenant for closures as a result of the COVID-19 pandemic. The widespread impact of the virus on business activity, however, has led to a groundswell of requests by tenants to seek some rent relief from landlords for a limited period of time. Landlords will need to determine if their cash reserves and lenders will allow them to negotiate short term rent relief, in particular for those tenants who cannot operate their business remotely.

What happens if we don’t pay rent?

In all commercial and residential leases we have reviewed or prepared, a tenant’s failure to pay rent constitutes a default under the lease unless the landlord has authorized the tenant to withhold payment of rent. Such default invokes the landlord’s rights in the event of a default under the lease. Those rights undoubtedly include the right to recover possession and the amount of unpaid rent, plus the landlord’s reasonable attorneys’ fees.

However, the landlord is prevented from exercising those rights until April 19, 2020 at the earliest. Under Governor Cuomo’s Executive Order 202.8, the filing or service of any legal action, notice, motion or demand is prohibited until April 19, 2020.  In addition, under an Administrative Order by the Chief Administrative Judge in New York, all evictions in New York are stayed for a period of 90 days retroactive to March 23, 2020.  Keep in mind that, if the pandemic continues to disrupt the economy, the possibility exists that these prohibition periods may be further extended.

When read together the two Orders prevent a landlord from serving a default notice until April 19, 2020 at the earliest and actually evicting a tenant until June 21, 2020 at the earliest.  So while there will be no immediate consequence resulting from a tenant’s failure to pay its rent, the two Orders do not relieve the tenant’s obligation to pay the rent at some future date.

Our lease says the landlord can serve a notice of default with a demand to cure, and that if we don’t cure within the time required the lease will be terminated without further notice. Can that still happen? Is there a way to stop it from happening?

As discussed above, the landlord is prohibited from serving a default notice until April 19, 2020 at the earliest.  In all residential or commercial leases we have reviewed, the cure period is calculated from the date the default notice is served.  So, until April 19, 2020, the landlord cannot issue a default notice and cannot start the cure period running.

After April 19, 2020, the tenant can still stop the cure period from running by commencing a lawsuit to declare that the tenant is not in default under the lease and seek a “Yellowstone” injunction to stop the cure period from running.  These actions must be commenced, and the injunction must be obtained, before the cure period expires so the tenant must be prepared to act quickly.  Please consult our firm for advice if you are interested in obtaining a “Yellowstone” injunction.

What are commercial mortgage lenders’ and borrowers’ rights and obligations?

Under Gov. Cuomo’s Executive Order 202.9, financial institutions in New York have been ordered to provide 90 days of “forbearance” on loans and mortgages to individuals and businesses who are experiencing hardship due to the COVID-19 pandemic. What “forbearance” means in any specific case depends upon the particular circumstances of the borrower and lender, but borrowers experiencing hardship should consider this an invitation to contact their bank or financial institution to initiate discussions.

What are commercial lenders’ and borrowers’ rights and obligations regarding (i) debt secured by something other than real property (Pledge of stock, LLC interests, life insurance etc.) and (ii) unsecured debt

As a general rule, absent specific relief issued by the State in an Executive Order of otherwise, lenders’ and borrowers’ rights and obligations under secured and unsecured lending agreements remain in effect and unaltered by the COVID-19 crisis.  No E.O. issued or legislation passed to date affects these rights and obligations. That said, to the extent the pandemic may provide grounds under existing provisions in lending agreements for avoidance of an obligation or enforcement of a right (e.g., force majeure, impossibility of performance, frustration of purpose), that analysis should be undertaken with a view to, in the first instance, communicating with one’s lender or borrower, as the case may be, to ascertain whether there is substantive disagreement and, if necessary, formally notifying the other party of one’s position so as to preserve one’s rights and make the appropriate record should the dispute mature into a future legal proceeding.

How is this affecting land use deadlines?  Approvals?

Most municipalities are continuing to hold their regularly scheduled land use meetings, remotely or otherwise in compliance with State guidelines. There are procedures in effect for the proper submission and review of the applications and the appropriate notice and conduct of the hearings necessary for most land use approvals to proceed.

Accordingly, existing land use deadlines should be followed and the Boards are available to hear applications for extensions or modifications, if necessary.  As always, circumstances in every municipality can be different, so make sure you confirm with the local municipalities how best to proceed in your case.

How are transactions deadlines, such as mortgage commitment periods, and lease extension deadlines, being affected?

As a general rule, absent specific relief issued by the State in an Executive Order or otherwise, the deadlines contained in private contracts, leases or agreements remain in effect.  No E.O. issued or legislation passed to date affects deadlines in private agreements.

However, this pandemic is uncharted territory for all.  Litigation over these issues is certain and the parties and the Courts will eventually resolve these questions.  In the interim, we feel it is best to keep the lines of communication open, so that the parties can understand where they stand and whether additional steps must be taken to protect your interests.

My business is currently leasing space and the lease is about to expire, but the construction of our new space in another building is being delayed because of COVID-19.  How does this affect my company’s holdover rights?

As noted above, Landlords are prohibited from evicting tenants for 90 days, commencing March 23, 2020.  Other than that prohibition on eviction, the rights and responsibilities of the parties is still governed by the terms of their lease.

As noted above, this pandemic has affected landlords and tenants alike, and we recommend staying in contact with your current and future landlords as well as the construction companies and other interested parties.  Understand how each of these parties is planning on moving forward help to determine how best to proceed under the circumstances.

What new lease/mortgage provisions do we need in documents going forward?

The obligations of the parties to pay rent are generally governed by the terms of the agreement, including the following clauses:  Force Majeure; Interruption or Suspension of Access and Services; Quiet Enjoyment and Impossibility of Performance or Frustration of Purpose. Consideration should be given to revising these and related standard lease provisions so as to anticipate circumstances like the COVID-19 pandemic which we now know can create considerable uncertainty concerning a landlord’s and tenant’s rights and obligations absent explicit provisions addressing them.

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Client Alert: Insurance, Construction & Deadlines

On March 29, 2020, Gov. Cuomo issued Executive Order 202.13 to provide further relief to individuals and small businesses coping with the COVID-9 pandemic health emergency, to clarify certain aspects of prior Executive Orders, and to temporarily modify certain existing laws. We provide highlights here of those portions of EO 202.13 that may be of particular interest to our clients.

Extension of the grace period for payment of insurance premiums

EO 202.13 modifies the NY Insurance Law to extend the grace period for the payment of premiums and fees for those individuals and small businesses (with fewer than 100 employees) facing financial hardship.  Specifically, it imposes a “moratorium” on “an insurer cancelling, non-renewing, or conditionally renewing any insurance policy issued to an individual or small business…for a period of 60 days, for any policyholder…facing financial hardship as a result of the COVID-19 pandemic.”   The moratorium also applies to group insurance policies and those who are insured under them.

In furtherance of EO 202.13, on March 30 the NYS Department of Financial Services (DFS) announced adoption of an emergency regulation giving consumers experiencing COVID-19 financial hardship 90 days to pay life insurance premiums. The DFS regulation requires life insurers to waive late payment fees, to not report late payments to credit rating agencies, and to allow premiums due but not paid during the 90-day period to be paid over the course of the following year in 12 equal monthly installments.  A full description of the DFS emergency regulation and guidance can be found here. 2020.13 also gives life insurance policyholders 90 days to exercise rights or benefits under a life insurance policy or annuity contract if they are unable to timely to exercise their rights or benefits as a result of the COVID-19 pandemic.

Clarification of “essential” construction activity

In EO 202.6, Gov. Cuomo exempted a variety of “essential businesses”, including various broadly-defined construction activities, from the 100% in-person workforce reduction mandate set forth in that Executive Order. EO 202.13 modifies EO 202.6 to make it clear that “only certain construction is considered exempt from the in-person restrictions as of March 28, 2020.” 202.13 authorizes the Empire State Development Corporation to determine which construction projects shall be essential and thereby exempt from the in-person workforce prohibition. The EDC has accordingly updated its guidance; a complete list of exempt “essential” businesses, including a more narrowly-defined list of exempt construction activities, can be found here. The EDC’s guidance makes it clear that “all non-essential construction must shut down.” Essential construction may continue, including work on “roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters.” Note however that at every site social distancing must be maintained, and that sites that cannot maintain distance and safety best practices must close.  Enforcement will be provided by the state in coordination with city/local governments, and may include fines of up to $10,000 per violation.

Alignment of expiration dates for restrictions on and
closures of private and public businesses and places of public accommodation

EO 202.13 also aligns the expiration dates contained in prior Executive Orders that created restrictions on or provided for closures of private and public businesses and places of public accommodation. 202.13 makes it clear that “all such Executive Orders shall be continued, provided that the expiration dates of such Executive Orders shall be aligned, such that all in-person business restrictions will be effective until 11:59 p.m. on April 15, 2020, unless later extended by future Executive Orders.”

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Client Alert: COVID-19 and Public Bidding Procedures

COVID-19 has forced us to change the way municipalities go about public bidding.  Here are three key points to consider.

I.  Is a Bid Required?

Some emergency procurements do not require competitive bidding.  N.Y. General Municipal Law § 103(4) provides that “in the case of a public emergency arising out of an accident or other unforeseen occurrence or condition whereby circumstances affecting public buildings, public property or the life, health, safety or property of the inhabitants of a political subdivision or district therein, require immediate action which cannot await competitive bidding or competitive offering, contracts for public work or the purchase of supplies, material or equipment may be let by the appropriate officer, board or agency of a political subdivision or district therein.”  What constitutes an appropriate emergency situation is left to the local municipality.

In Executive Order 202, Governor Cuomo did allow schools to procure and use cleaning and maintenance products in schools without following bidding requirements.

II.  Submission of Bids

In light of the COVID-19 pandemic, electronic submission of bid documents may be a preferable option.  However, such a manner of submission it is only authorized under N.Y. General Municipal Law § 103 if a municipality’s governing board has authorized it.

Also, with the exception of “technology contracts,” the submission of bids or offers in electronic format may not be required as the sole method, and paper bids or offers must still be accepted.

Any method used to receive electronic bids or offers must also comply with article three of the State Technology Law (the “Electronic Signatures and Records Act”), and related regulations. Also, the method used must, at a minimum:

1. Document the time and date of receipt of the bids or offers received electronically,
2. Authenticate the identity of the sender,
3. Ensure the security of the information transmitted and
4. Ensure the confidentiality of the bid or offer until the time and date established for the opening of bids or offers.

III.  Opening of Bids

Historically, all public bids received by a municipality had to be opened and read publicly at the time and place specified in the advertisement for the bid.  Not anymore.

Under Executive Order 202.11, bid openings do not have to be open to the public.  Section 103(2) of the General Municipal Law, Section 144(1) of the State Finance Law, Section 376(8)(a) of the Education Law, and Section 359(1) of the Public Authorities Law were modified by the Governor to allow the non-public opening of bids; provided, however, that, where practical, municipalities must record or live stream bid openings so that the public has the opportunity to view the openings.

So, for bids that have already been advertised, municipalities should provide a notice/addendum that in-person attendance at the bid opening will not be allowed and specify the means that will be used to allow public viewing.

For future bids, municipalities should be noting that in-person attendance at bid opening will not be allowed, and provide information on how the opening can be viewed by the public.

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Client Alert: I Tested Positive for COVID-19: When Can I Return To Work?

The New York State Department of Health (“DOH”) issued guidance that expressly sets forth the protocols for essential personnel to return to work after being exposed or infected with COVID-19.

According to DOH, “[p]ublic and private sector organizations that provide essential services or functions where personnel are needed to perform critical functions, including infrastructure, public safety, and other essential operations, may allow personnel who were exposed to or are recovering from COVI D-19 to work in the workplace setting, if needed to maintain essential operations.” “Essential services or functions include but are not limited to public health personnel, utility and water operators, skilled manufacturers and supporting supply chains, transportation infrastructure, law enforcement and emergency response personnel.”  New York Empire State Development has set forth specific guidance on what is essential, which is constantly being updated.

Here are the DOH protocols:

I.  Essential Personnel with Confirmed or Suspected COVID-19

May be permitted to work in the required workplace setting if all of the following conditions are met:

• Working from home would adversely impact essential services or functions, including critical public health and public works infrastructure in New York or the response to the COVID-19 public health emergency;
• Personnel have maintained isolation for at least 7 days after illness onset (i.e. symptoms first appeared) and have not had a fever for at least 72 hours, without the use of fever reducing medications, and with other symptoms improving;
• Personnel who are recovering from COVID-19 and return to work. must wear a facemask for 14 days following onset of illness.
• For the purposes of this guidance, a facemask is a well-secured mask that covers the mouth and nose. No personal fit testing is necessary for a facemask

II.  Essential Personnel Exposed to a Confirmed or Suspected Case of COVID-19

May be permitted to work in the required workplace setting if all of the following conditions are met:

• Working from home would not be feasible for job duties;
• Personnel are asymptomatic;
• Personnel quarantine themselves when not at work;
• Personnel undergo temperature monitoring and symptom checks upon arrival to work and at least every 12 hours while at work, and self-monitor (i.e. take temperature, assess for symptoms) twice a day when at home;
• Personnel required to interact with individuals within 6 feet should wear a facemask while working for 14 days following the last exposure;
• Personnel whose job duties permit a separation of greater than 6 feet should have environmental controls in place to ensure adequate separation is maintained, and do not need to wear a facemask;
• If personnel develop symptoms consistent with COVID-19 (e.g., fever, cough, or shortness of breath) while working, they should immediately stop work and isolate at home; and
• Testing should be prioritized for essential personnel with symptoms.

III.  Westchester County DOH Request for Release Letters

Conveniently, the Westchester County Department of Health has set up an online portal for those subject to mandatory quarantine or isolation by the County to request a COVID-19 release letter that can be provided to show an employee’s eligibility to return to school or work, after being exposed to or infected with COVID-19. Here is a link to that website.

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McGOWAN ELECTED TO ROCKLAND COUNTY LEGISLATURE

In November 2019, John W. McGowan was elected to a 4-year term on the Rockland County Legislature.  In his capacity as Legislator, Mr. McGowan, who took office on January 2, 2020, represents residents in District 15, that encompasses portions of Orangetown (Pearl River), Clarkstown (Nanuet, West Nyack), and Chestnut Ridge.

To read Mr. McGowan’s attorney profile, click here.

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Partner Jim Glatthaar to Speak at a Continuing Legal Education Seminar on Landlord-Tenant Law In New York: A New Paradigm – September 12, 2019

Bleakley Platt partner Jim Glatthaar will speak at a Continuing Legal Education Seminar sponsored by Judicial Title on Landlord-Tenant Law In New York:  A New Paradigm on Thursday, September 12, 2019 at CV Rich Mansion, 305 Ridgeway, White Plains, NY.  This seminar begins promptly at 6:00 and qualifies for 1 Professional Practice Credit and 1 Ethics Credit.

Mr. Glatthaar’s presentation will address the far-ranging legislation adopted in June 2019 which changed many long-standing rules of landlord-tenant law, including changes to rent increases in rent regulated apartments, new eviction notices, new time frames for eviction proceedings and post judgment relief available to tenants.

The program will also discuss ethical considerations in landlord tenant matters, including lease negotiation and litigation.

A member of the Litigation, Co-Operative and Condominium, Construction and Real Estate Practice Groups at Bleakley Platt, Mr. Glatthaar concentrates his practice in the areas of zoning and land use law and litigation, cooperative and condominium law, construction law and real estate litigation. He has represented landlords, tenants, developers, non-profit institutions, sellers, purchasers, realtors, cooperatives and condominiums in building, zoning, housing and disability-based discrimination claims, landlord-tenant and construction defect claims both in courts and before state and federal administrative agencies. He has also represented property owners and purchasers in complex real estate and financing transactions.

Learn more about Jim Glatthaar.

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Rodriguez Article Five Trademark Issues Every Business Owner Needs To Know Published by Council of Industry

A recent edition of the Council of Industry’s Newsletter contains an article written by Bleakley Platt Counsel Adam Rodriguez.  The article, entitled Five Trademark Issues Every Business Owner Needs To Know, addresses five things all business owners should know about their brands and intellectual property.

Some of the key topics in the article include:

1. What is a Trademark?
2. Trademark protection is not linked to your business name.
3. Trademark registrations never expire.
4. Trademarks are affordable.
5. Ignoring Trademarks can be expensive.

At Bleakley Platt, Mr. Rodriguez focuses his practice in the areas of litigation, intellectual property and real estate. Previously, he was the Director of Real Estate for Westchester County, where he negotiated commercial real estate transactions valued at over $100 million.  Prior to his appointment as Director of Real Estate, Mr. Rodriguez represented the County of Westchester in federal and state litigation and appeals.  He has also served as a law clerk to two federal judges, and worked as an intellectual property litigator at a large law firm in New York City.

To read Mr. Rodriguez’s complete biography, click here.

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Rodriguez Appointed by Chief Judge of S.D.N.Y. to U.S. Magistrate Judge Merit Selection Panel

On April 1, 2019, Mr. Rodriguez was appointed by Chief Judge Colleen McMahon of the U.S. District Court for the Southern District of New York as a member of the U.S. Magistrate Judges Merit Selection Panel.

The appointment of a U.S. Magistrate Judge is an important process.  The Merit Selection Panel is tasked with reviewing the selection, appointment, and reappointment of United States Magistrate Judges, in accordance with the Federal Magistrate Act of 1979.

In the case of the appointment of a new magistrate judge, the function of the Panel is to identify five members of the bar who are best qualified for appointment as magistrate judge. For a reappointment, the Panel appraises the performance of the incumbent magistrate judge and recommends to the court whether the judge should be reappointed to a new term.

Regulations require that scholarship, academic and professional achievement, civic engagement, legal experience, knowledge of the law and the federal courts, and the personal attributes of the candidates will be considered.

At Bleakley Platt, Mr. Rodriguez focuses his practice in the areas of litigation, intellectual property and real estate. Previously, he was the Director of Real Estate for Westchester County, where he negotiated commercial real estate transactions valued at over $100 million.  Prior to his appointment as Director of Real Estate, Mr. Rodriguez represented the County of Westchester in federal and state litigation and appeals.  He has also served as a law clerk to two federal judges, and worked as an intellectual property litigator at a large law firm in New York City.

To read Mr. Rodriguez’s complete biography, click here.

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William P. Harrington to Serve as Chairman of Two Merged Organizations: Westchester County Association and Hudson Valley Economic Development Corporation

Bleakley Platt Chairman William P. Harrington, who currently serves as chairman of the Westchester County Association, will become chairman of a new regional organization created by the merger of the Westchester County Association and the Hudson Valley Economic Development Corporation.

News of the merger was reported on Westfair Online in an article titled “Going regional: Westchester County Association and HVEDC plan merger.”

A strategic partnership had been announced by the two organizations in October, which then led to discussions about a merger. Details of the merger are still in process, as is the name of the organization.

The combined organizations will have more power to advocate on behalf of businesses and build a stronger business climate throughout the region.

To read Mr. Harrington’s complete biography, click here.

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Partner Jonathan A. Murphy Speaking on Interaction with the DEC for The Council of Industry – The Manufacturer’s Association of the Hudson Valley

Bleakley Platt partner Jonathan A. Murphy, co-chair of the firm’s Environmental practice and chair of its Construction practice, will speak on February 15 to the Environmental, Health and Safety (EHS) Network of The Council of Industry on topics of interest when dealing with the Department of Environmental Conservation (DEC).

Mr. Murphy’s program will provide an overview of New York administrative law principles, and will discuss DEC enforcement practices. His presentation will include:

• DEC Notices of Violation – The Process and What to Expect
• DEC Enforcement Process: Stipulations, Orders on Consent and Enforcement Hearings
• Peculiarities and Pitfalls in DEC Enforcement Policies and Expectations

Mr. Murphy handles environmental matters for both corporate and insurance clients, in litigated claims as well as direct administrative agency proceedings with federal, state, county and local environmental agencies. He counsels clients on environmental risks, enforcement implications and regulatory requirements in a variety of business and transactional settings. His substantive areas of practice include CERCLA/RCRA, TSCA, CWA, New York’s Navigation Law, and other environmental and regulatory enforcement exposures presented by federal, state and local environmental regulations.

Read Mr. Murphy’s complete biography here.

Learn more about The Council of Industry here.

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Partner Jonathan A. Murphy Presents Continuing Education Program on Contractual and Environmental Issues for Engineers

Bleakley Platt partner Jonathan A. Murphy, co-chair of the firm’s Environmental practice and chair of its Construction practice, will present to engineers during a full day program titled “Engineering Law and Ethics,” a continuing education class for professional engineers.

Mr. Murphy will present on two topics, basic contract law for engineers and issues faced by engineers in the environmental arena.

The environmental segment will examine relevant and recurring practice issues encountered by engineers working on environmental issues in New York. Areas of discussion include requirements for licensed engineers certifying submissions to DEC, water quality compliance and enforcement update, stormwater permitting update and emerging issues concerning the New York City watershed. He will also explore ethical issues faced when representing clients who are facing regulatory enforcement.

The contract law primer segment will cover basic contract law principles, statutes of limitation in New York applicable to engineers, as well as conduct, acts and omissions that can constitute a breach of contract.

Mr. Murphy is an experienced and skilled advisor to clients on environmental and construction matters. In the construction arena, Mr. Murphy represents construction clients (owners, general contractors, subcontractors and design professionals) – both as claimants and respondents – in litigation, at trial, and in arbitrations on controversies ranging from construction defect claims to delay damages, wrongful termination and payment disputes. He also drafts and negotiates contracts for clients involved in private and government projects and provides legal guidance throughout a project’s life.

Read his complete biography here.

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Partner Peter Bassano Represents Dominican Sisters of Hope on Creation of Mariandale Preservation Easement in Ossining

Bleakley Platt Partner Peter Bassano guided a recently-completed preservation effort for the Dominican Sisters of Hope that safeguards from development 34 acres of the Sisters’ 61-acre Mariandale property in Ossining, N.Y., through a conservation easement donated to the Westchester Land Trust.

The easement covers the undeveloped part of Mariandale and excludes the campus with the Sisters’ offices, chapel and the Mariandale Retreat and Conference Center, for which a renovation and redesign of buildings is planned. The Sisters will continue to own and manage the property.

“The goal of this easement is to protect this land in perpetuity, which is very important to the Sisters’ earthly mission,” said Mr. Bassano. “It took approximately three years for the Sisters’ vision of preservation to reach fruition,” Mr. Bassano noted.

“This land has been an oasis in the midst of development in Westchester County,” said Sister Lorelle Elcock, O.P., Prioress of the Dominican Sisters of Hope. “We have a responsibility to be in right relationship with Earth, not over it or owning it, but caring for it. We are protecting this land so that it will be a source of healing and refuge for both humans and wildlife.”

“We’re very appreciative of Peter’s work with us. He was very patient and really understood our values and what we were trying to achieve,” said Sister Lorelle, adding, “He’s worked with us on several things over the years. We’ve been very pleased with him.”

The protected property is adjacent to the Village of Ossining’s 30-acre Crawbuckie Nature Preserve. In addition to protecting significant ecological resources, the conservation easement means nearly one mile of Hudson River shoreline is now protected in perpetuity—honoring a priority in the 2016 New York State Open Space Conservation Plan.

“The conserved land consists of a variety of habitat types, including woodlands, meadow, wetlands, and a steep ravine through which flows a stream on its way to emptying into the Hudson River,” a press release on the easement said.

Lori Ensinger, president of the Land Trust, said in the release, “The preservation of this beautiful land holds special meaning for Westchester Land Trust. We have always known that this property is sacred to the Sisters, and we worked to ensure that they felt comfortable with their decision to preserve the property after they are gone. Every action they have taken demonstrates their clear stewardship ethic and a deep reverence for the land. This project has been one of the most inspirational we have ever been involved with.”

Peter Bassano is the Firm’s Managing Partner, a member of the firm’s Executive Committee and the head of the Real Estate and Commercial Finance Practice Groups. Mr. Bassano has more than 30 years’ experience in all aspects of commercial real estate.

Mr. Bassano’s Profile Page

More About The Dominican Sisters Of Hope

About Westchester Land Trust

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Frances M. Pantaleo Addresses the NYS Bar Association Trusts and Estates Law Section

Partner Frances M. Pantaleo presented at the 2018 Fall Meeting of the Trusts and Estates Law Section of the New York State Bar Association on October 19. The two-day program focused on real property issues that frequently arise in elder law and estate planning practices.

Ms. Pantaleo’s presentation emphasized that a primary residence, however modest, is often a client’s most valuable asset and one that the client is generally motivated to protect and preserve for his or her heirs. She addressed income tax, capital gains tax, estate tax and Medicaid consequences of real property ownership and transfers, including transfers to irrevocable and revocable trusts, life estate deeds and outright transfers.

Ms. Pantaleo leads the Elder Law and Special Needs Practice Group at Bleakley Platt. She is a former Chair of the Elder Law and Special Needs Section of the New York State Bar Association and a member of the Trusts and Estates Section. Ms. Pantaleo is a member of the National Academy of Elder Law Attorneys (NAELA).

Ms. Pantaleo serves on the Board of Directors of Legal Services of the Hudson Valley and is a frequent presenter on Elder Law and Special Needs topics for consumers at the request of community and service organizations including AARP, UJA-Federation, Pace Women’s Justice Center, Alzheimer’s Association, Westchester Arc, Public/Private Partnership for Aging Services and Westchester County Department of Senior Programs and Services.

Read her complete biography here.

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Partner Jim Glatthaar Speaking Again to Council of NYC Cooperatives & Condominium’s 38th Annual Housing Conference & Expo – November 11th

Bleakley Platt partner Jim Glatthaar has been asked to return to the Annual Housing Conference & Expo presented by the Council of New York City Cooperatives & Condominiums. Now in it’s 38^th year, the conference is designed to offer help to coop and condo owners and board members, multi-family management companies and real estate agents improve their knowledge and skills in address legal, financial and HR issues, managing buildings and planning for the present and the future.

Mr. Glatthaar’s presentation, “When Dissidents Are Elected To The Board,” addresses what happens when board members who have their own agendas are elected to a board of directors, how boards can work productively with “rogue” board members, and how to effectively minimize the chances of a dissident being elected in the first place.

A member of the Litigation, Co-Operative and Condominium, Construction and Real Estate Practice Groups at Bleakley Platt, Mr. Glatthaar concentrates his practice in the areas of zoning and land use law and litigation, cooperative and condominium law, construction law and real estate litigation. He has represented landlords, tenants, developers, non-profit institutions, sellers, purchasers, realtors, cooperatives and condominiums in building, zoning, housing and disability-based discrimination claims, landlord-tenant and construction defect claims both in courts and before state and federal administrative agencies. He has also represented property owners and purchasers in complex real estate and financing transactions.

 Learn more about the Council of NYC Cooperatives & Condominium and the conference.

Learn more about Jim Glatthaar.

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Bleakley Platt Attorneys Named To New York Metro Super Lawyers 2018 and New York Metro Rising Stars 2018 Lists

Ten Bleakley Platt attorneys have been selected to the New York Metro Super Lawyers list as top New York Metro area lawyers for 2018, and one Counsel and three associates were named New York Metro Rising Stars.

Each year, no more than five percent of the lawyers in the New York metro area are selected by the research team at Super Lawyers to receive this honor.

The attorneys receiving this honor are:

Joseph DeGiuseppe, Jr.

John P. Hannigan

William P. Harrington

Mary Ellen Manley

Robert D. Meade

Frances M. Pantaleo

Matthew G. Parisi

Raymond M. Planell

Nancy J. Rudolph

Mary Anne Wirth

Bleakley Platt Counsel Adam Rodriguez and associates Elizabeth C. Briand, Daniel P. Buckley and Justin M. Gardner were named to the 2018 New York Metro “Rising Star” List by Super Lawyers, an honor received by no more than 2.5 percent of lawyers in the state.

Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

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THREE BLEAKLEY PLATT PARTNERS RECOGNIZED BY THE BEST LAWYERS IN AMERICA© 2019

Bleakley Platt is pleased to announce that three partners at the firm have been selected by their peers for inclusion in The Best Lawyers in America 2019:

• Joseph DeGiuseppe in the field of Labor and Employment Law
• Frances Pantaleo for Elder Law, for the fifth consecutive year
• Nancy Rudolph in the practice area of Trusts and Estates (Litigation)

Joseph DeGiuseppe leads the Labor and Employment and Immigration Practice Groups. He has over 35 years experience in representing and advising Fortune 500 companies and other corporate clients in labor, employment and immigration law, including 14 years of experience at Skadden and more than six years of experience at Jackson Lewis.

Mr. DeGiuseppe advises clients on all aspects of labor and employment law, including employment terminations and discipline, reductions-in-force, personnel policies and practices, employee benefit cases and collective bargaining negotiations. He has acted as lead counsel on significant employment discrimination law cases, wage and hour cases and collective actions, non-competition cases and arbitration proceedings.

He is rated an AV® Preeminent (5.0 out of 5) from Martindale-Hubbell and has been included in New York Metro Super Lawyers lists since 2013.

Frances M. Pantaleo is the head of the Elder Law Practice Group.  She handles a broad range of matters with a particular emphasis on elder law, special needs planning, guardianship proceedings under Article 81 of the Mental Hygiene Law and Article 17A of the Surrogate’s Court Procedure Act, drafting and administration of special needs trusts, estate planning, drafting of wills and trusts, and estate administration.

Ms. Pantaleo is the former Chair of the Elder Law and Special Needs Section of the New York State Bar Association and a member of the Trusts and Estates Section.  She is a member of the National Academy of Elder Law Attorneys (NAELA) and is a member and has served as past-chair of the Elder Law Committees of the Westchester Women’s Bar Association and the Westchester County Bar Association.  She is co-author of a chapter on elder law in General Practice in New York, published by the West Publishing Company.

She is rated an AV® Preeminent (5.0 out of 5) from Martindale-Hubbell and has been included in New York Metro Super Lawyers lists since 2010.

Nancy J. Rudolph is a member of our Trusts and Estates and Real Estate Practice Groups. She has served in the public sector as an Assistant Attorney General in the New York State Office of the Special Prosecutor, handling white collar civil litigation related to Medicaid Fraud.

Ms. Rudolph concentrates her practice in the area of trusts and estates, estate administration, estate tax, and guardianship in the Surrogate’s Court, the Supreme Court, and before the United States Tax Court. Ms. Rudolph represents beneficiaries and fiduciaries, both individual and corporate, in judicial proceedings involving probate, administration, lost wills, construction, kinship, removal of fiduciaries, contested accountings, uncontested accountings, and in real estate transactions. Ms. Rudolph also represents individuals and corporate fiduciaries as trustees of supplemental or special needs trusts.

Ms. Rudolph has been included in the New York Metro Super Lawyers lists since 2013.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. 83,000 industry leading attorneys are eligible to vote (from around the world) and has received over 10 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2019 Edition of The Best Lawyers in America^©, 7.8 million votes were analyzed, which resulted in more than 60,000 leading lawyers being included in the new edition. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

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