Author: Niki Jones

OMIG’s Proposed Regulations Could Require Substantial Changes to Medicaid Providers’ Compliance Programs

Medicaid enrolled health care providers in New York should be aware that on July 13, 2022, the New York Office of Medicaid Inspector General (“OMIG”) published proposed regulations that would substantially alter the compliance program requirements for all Medicaid enrolled health care providers and Medicaid managed care organizations (“MMCO”) and codify OMIG’s self-disclosure program. The public comment period for the proposed regulations summarized below will end on Sunday, September 11, 2022.

The proposed regulations would require Medicaid providers to include a provision in their contracts to oblige vendors to comply with the compliance program and permit the provider to terminate the contract for failure to do so. The proposed Subpart 521-1 provides for the provision of additional requirements for an effective compliance program and amends the definition of a “Required Provider” obligated to adopt and implement effective compliance programs to now include Medicaid managed care organizations (“MMCO”) or Long-Term Care Providers (“MLTC”), in addition to any entity subject to Article 28 or 36 of the Public Health Law or Article 16 or 31 of the Mental Hygiene Law.

MMCO’s with 10,000 or more enrollees are currently required to incorporate a fraud, waste, and abuse prevention program into their compliance programs, but Subpart 521-2 would expand applicability to MMCO’s of all sizes, regardless of enrollment. The proposal also would require MMCO’s with 1,000 or more enrollees to establish a full-time Special Investigation Unit (“SIU”) comprised of one full-time investigator and one director. An additional investigator must be employed for each 60,000 enrollees for most MMCOs or for each 6,000 enrollees for MLTCs, unless OMIG gives prior approval for alternative staffing levels. The proposed regulations impose on MMCOs the obligation to audit, investigate, and report cases of fraud, waste, or abuse to OMIG, and further mandate the scope of such audits to encompass clinical and billing records to ensure services were provided and billed appropriately. The proposed regulations also provide OMIG the ability to conduct an independent review of provider/MMCO compliance programs and impose monetary penalties or terminate provider participation in the Medicaid program based on the results of such review. Medicaid enrolled providers should expect enhanced scrutiny of claims as a result of this requirement.

The proposed Subpart 521-3 would codify subsection 7 of Section 363-d of New York’s Social Services Law, which became effective on April 1, 2020. The proposed regulations governing Medicaid program overpayments would mandate that all identified overpayments must be returned exclusively through the self-disclosure process.

If the proposed regulations are adopted, the rules will require providers and plans to review and update their compliance program documents as well as their service agreements to ensure these new requirements are addressed.  For further information, contact Robert Braumuller at RBraumuller@bpslaw.com (914) 287-6185 or Zaina S. Khoury at ZKhoury@bpslaw.com (914) 287-6187.

Employers Should Evaluate Self-Insured Health Plans for Employees in States Banning Abortions After Supreme Court’s Decision in Dobbs v. Jackson Women’s Health Organization

Background

On June 24, 2022, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. ___ (2022) was decided by the United States Supreme Court upholding the Mississippi law banning abortions after 15 weeks of gestation. The decision was sweeping, overturning Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 and Roe v. Wade, 410 U.S. 113, to hold that the United States Constitution does not prohibit State legislatures from banning or limiting abortion services.

Self-Insured (ERISA) Health Plans Versus Fully Insured Health Plans

Large employers that offer self-funded health plans are largely unaffected by the Dobbs decision. State law cannot impact these plans because they are governed by Employee Retirement Income Security Act of 1974 (ERISA), which pre-empts states from adopting requirements that “relate to” employer-sponsored health plans. Courts have for decades interpreted that language to bar state laws that dictate what health plans can and cannot cover.

If, however, your health plan is a fully or partially insured group health plan (“Non-ERISA plan”), it is governed by state insurance regulation. Non-ERISA plans offered in pro-life states may soon be prohibited from covering some abortion services as their states pass legislation, or their previously passed “trigger laws” go into effect, to restrict or prohibit abortion after the Dobbs Decision.

Any Medicaid or even marketplace products with federal funding already ban abortion services under the Hyde Amendment unless they are in certain pro-choice states that have decided to use state funds to cover the services. The New York State Medicaid program, for instance, covers abortion services. It lists on its website entities that assist women in other states banning abortion with travel, housing, and other costs.

Healthcare providers in states like New York may be reimbursed by the ERISA plan or potentially by the state Medicaid program if eligible patients are enrolled upon entry into the state. Patients who are not eligible and have non-ERISA health benefits, may need to self-fund the medical services, or look for other resources, including their employers to cover abortion services.

Employers in states that have banned abortion and offer non-ERISA plans may be motivated by their leadership, their Boards, and their employees to assist employees with abortion services. They may begin by considering if they want to adopt a self-funded ERISA Plan so that they have control over the benefits protected from restrictive state laws.

Travel Reimbursement

ERISA Plans often already fund medical travel for various services and typically encourage travel to facilities designated as “centers of excellence”. Consequently, expanding covered travel to include travel expenses for medical services related to abortion services should be protected by ERISA from any state law restrictions. If a state sued an employer that sponsored a health plan offering coverage for abortion services out of state on the basis of the state’s restrictions on abortion services, the employer could rely on ERISA’s pre-emption terms as a defense to the law suit. If travel expenses are not part of the employer’s ERISA group health plan, it may offer other types of reimbursement plans like flexible spending accounts (FSAs) that may be used, assuming the IRS permits the expansion of travel for abortion services as a qualified expense, federal reimbursement programs preempt state law.

However, employers that offer non-ERISA plans and seek to fund coverage for their employees to travel out of state for abortion services could not do so under their health plan if their states impose abortion restrictions. Employers located in states that have passed “trigger laws” (restrictive laws that automatically go into effect in the event Roe v. Wade is overturned) and wish to offer coverage for abortion services, should retain competent legal counsel to review their state laws to determine if there is criminal or civil liability for aiding and abetting the evasion of the laws.

Another potential risk that such employers may face is enforcement initiatives seeking to use laws that prohibit crossing state lines for unlawful purposes, such as the Mann Act. The Mann Act from 1910 makes it a felony to engage in interstate commerce by crossing state lines “for the purpose of prostitution or for any other immoral purpose”. Although unlikely that the current administration would use the Mann Act to prohibit funding state travel to circumvent home state prohibitions on abortion services, future administrations may seek to do so.

Also, some states, such as Missouri, are considering the adoption of state laws that would allow private citizens to sue persons who help a Missouri state resident obtain an abortion by assisting in the travel to an out of state physician for that purpose. This could mean a lawsuit against the employer that assists the employee. As stated, ERISA may be a defense if the travel is under the ERISA Plan or related federal reimbursement plans.

Out of State Providers

ERISA Plans typically use large national networks of providers through their third-party administrators making it likely that network providers will be located in states permitting abortion services. Accordingly, if the Plan is restrictive regarding its use of out of network providers, the plan sponsor may want to consider expanding the use of out-of-network providers for certain services such as abortion-related services or defining the out-of-network emergency exception to include use of providers for abortion related services in exigent circumstances.

Telemedicine

Most abortions today are provided using medication abortion, which can and has been delivered through telehealth. The procedure involves the use of certain medications after a pregnancy is established. These drugs are different from Plan B, morning after pills, which are used soon after the act of intercourse but before a pregnancy is established.

Certain pro-life states (19 to date) require that these services only be provided in the medical office of a health care provider who is licensed in those states, making it impossible to use telehealth within these 19 states for abortions. It is uncertain if the telemedicine modality is available to individuals living in pro-life states using out-of-state providers in pro-choice states without those health care providers running afoul of many laws and regulations including practicing medicine without a state license. Providers in that situation put their medical license at risk for violating the state law where the patient sought the telemedicine services or could become liable for criminal or civil penalties for violating such state laws. As a result, this method of providing pregnancy termination services could be at risk for individuals located in pro-life states, making travel a better option even if just to obtain the medication abortion. It is possible that the federal government through CMS or the FDA may find a way to provide access to telemedicine for medication abortion or simply find another way to provide these medications.

Salary Transparency and Legal Ramifications for New York City Businesses

The New York City Council recently passed Local Law 32, a salary transparency law, which amends the New York City Human Rights Law to require employers to list the minimum and maximum salary range when publicizing new positions. The law applies not only when advertising a job in public media, but also in internal postings regarding promotion or transfer opportunities. The effective date of the law, originally slated to go into effect on May 15, 2022, has been delayed by the New York City Council and will now go into effect November 1, 2022. The delay will allow additional time for compliance by companies. Given that employers could face substantial penalties under this new law for non-compliance, the delay should be viewed as an opportunity to assess hiring procedures and make any necessary changes ahead of its implementation.

The new law applies to all companies with four or more employees, where at least one is located in New York City. Independent contractors are included in the count. Temporary staffing agencies are exempted, as they are already required to disclose wages in compliance with the New York Wage Theft Prevention Act. When this new law goes into effect, it will be considered an “unlawful discriminatory practice” under the NYCHRL if a company does not provide the minimum and maximum salary or hourly range for a position. The range of compensation publicized must be what the employer in good faith believes it would pay at the time the information is posted. It’s important for employers to note that for compliance purposes “salary” refers to base annual pay or hourly wages but does not include employee benefits such as insurance coverage, time off from work, or other forms of indirect compensation. To learn more about the law and its status, you can visit the New York City Council website by clicking here. While there are no fines for first-time violators if the issue is corrected to the satisfaction of the New York City Commission on Human Rights within 30 days, employers deemed to have violated the pay transparency law can be subject to civil penalties of up to $250,000.

We strongly recommend that NYC employers take advantage of the additional time and review current job postings to ensure compliance once the law takes effect. Adherence may require updates to internal and external job advertisements.

The New York employment attorneys of our Labor and Employment Practice Group are available for consultation if you have any questions regarding salary information and transparency. To learn more about the services Bleakley Platt & Schmidt’s Labor and Employment Practice Group has to offer, please click here or contact our office at (914) 287-6144.

Bleakley Platt & Schmidt’s Litigation & Appellate Teams Continue their Success

Bleakley Platt & Schmidt’s litigation and appellate attorneys have been successfully arguing cases since 1937. As a general practice law firm with more than 25 practice areas, our litigation and appellate attorneys can call on the expertise of other practice groups to provide first-rate legal guidance to clients.

Our clientele include local, national, and international companies, as well as sophisticated individuals and several municipalities. We engage in matters ranging from commercial, construction, medical, real estate, intellectual property, product liability, toxic tort and beyond.

The firm also handles civil and criminal appeals at all levels of federal and state practice. Our extensive appellate experience provides a critical edge at each stage of litigation.

Our recent results speak for themselves.

In February 2022, partner Lino Sciarretta and associate Daniel Fix prevailed in a construction/land use dispute. New York’s Appellate Division, Second Department, issued a trio of rulings that cleared the way for construction of an assisted living facility that was being challenged by local civic associations. Our team successfully argued all three appeals.

Also in February, partner Robert Meade secured victory in the New York State Court of Appeals, the State’s highest court. The Court affirmed a favorable decision of the Appellate Division, First Department, for our client, in a dispute involving a $1 million life insurance policy. The trial court had ruled against our client, but Mr. Meade successfully argued for a reversal at the Appellate Division, and the Court of Appeals majority affirmed, over a two judge dissent. Read the opinion here.

In December of 2021, Chairman William P. Harrington and partner Adam Rodriguez successfully obtained the dismissal of a $2 million defamation case amongst rival cell phone companies. We argued among other things that the complaint against our client should be barred on account of New York’s single instance rule. The New York Supreme Court, Commercial Division, agreed with our arguments and dismissed the plaintiff’s complaint against our clients in its entirety.

In November 2021, Harrington and Rodriguez also successfully defended in federal court the dismissal of a $50 million fraud case among former partners in an international shipping company. The District Court granted our motion to dismiss, but the plaintiff appealed to the U.S. Court of Appeals for the Second Circuit. After appellate briefing and oral argument, the Second Circuit affirmed the District Court’s Order. You can read the decision here.

Bleakley Platt & Schmidt continues to provide litigation and appellate guidance and services to clients and communities as we have done for more than 85 years. Click here to learn more about the services our Firm offers or contact our offices at (914) 949-2700.

What Employers Need to Know about New York’s Employee Monitoring Law

In accordance with new Section 52-c of the New York Civil Rights Law, which went into effect on May 7, 2022, New York employers must now notify their employees if they are electronically monitoring workers’ phones, emails, and internet access or usage.  

The new law mandates that all private employers must provide notice of their electronic monitoring practices to new employees upon hiring and obtain written acknowledgement of the monitoring. While employers are not required to obtain written acknowledgement from existing employees, they are required to post the notice in a conspicuous place viewable by all employees.  

The new law applies to any employer with a place of business in New York State, regardless of size, that monitors or intercepts employees’ email, telephone conversations, or internet access or usage. 

Language for the Required Notice: 

There is specific language provided in the new law that employers can utilize as a model to meet the notice requirement: “An employee shall be advised that any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.” 

Enforcement and Potential Fines 

The New York State Attorney General assumes the authority of enforcing the new law by imposing penalties on employers not in compliance. There is no private right of action. Violators are subject to a maximum fine of $500 for the first offense, $2,000 for the second offense, and $3,000 for the third and subsequent violations.  

Potential Steps Employers Should Consider 

With the new electronic monitoring law, New York employers are strongly encouraged to review their current practices to ensure adherence to the new law. While some employers may already provide some form of notice of electronic monitoring, the changes with the new law may require updates to current onboarding processes for new and recently hired employees as well as revisions to existing employment policies.   

Companies should consider the following in order to avoid penalties: (1) review and analyze existing electronic monitoring practices to evaluate whether there are any activities within the scope of the notice requirements; (2) draft notice language that complies with the new law and update company handbooks as well as access or login portals; (3) institute a process for employees that join the company to receive the notice and provide the required acknowledgement as part of new hire paperwork; (3) post a notice for all company employees in a place that is readily viewable for all employees subject to electronic monitoring regardless of hiring date – perhaps on the company’s internal website for remote/hybrid employees and in a common office space for employees on-site; (4) consider implementing a system to collect and store acknowledgement paperwork so that the notice requirement is adequately documented. 

Exceptions 

Employers should note that the new law does have a few important exceptions to existing processes (1) that manage the volume of inbound or outbound emails, voicemails, or internet usage; (2) which are not targeted to monitor or intercept the electronic mail or telephone voicemail or internet usage of a particular individual; and (3) are performed solely for the purpose of computer system maintenance and/or protection. As a result, the law creates a potential gray area for employers who use employee monitoring systems to achieve multiple goals. 

Movement in Other States  

It is important to note that local, state and federal laws govern the scope of an employer’s monitoring of an employee’s activities and whether employers are required to inform employees that they are being monitored and obtain acknowledgement of the same. For example, other states, like Connecticut and Delaware, have also enacted laws to require written notice to employees about electronic monitoring. Connecticut Gen. Stat.§ 31-48d;  Delaware Del. 6 Code § 19-7-705.  After a current employee-related exemption expires in January 2023, the California Consumer Privacy Act will broaden the requirement to provide notice, and grant employees in California the right to request details of private information that has been collected and how it will be used. Recent movement at the New York State level perhaps signals an even greater movement toward transparency in the workplace.  

Importantly, the employee monitoring law in New York and other states should be considered in conjunction with unionized worker’s rights established in the National Labor Relations Act. 

Questions 

If you have any questions regarding the disclosure of electronic monitoring practices, please consult with our Labor and Employment Practice Group. Click here to learn more about the services Bleakley Platt & Schmidt’s Labor and Employment Practice Group has to offer. 

Bleakley Platt & Schmidt, LLP Announces Kathryn L. Barcroft as Newest Partner 

Bleakley Platt & Schmidt, LLP Announces Kathryn L. Barcroft as Newest Partner 

WHITE PLAINS, NY—Bleakley Platt & Schmidt, LLP is happy to announce Kathryn L. Barcroft, Esq. as the Firm’s newest Partner. Barcroft joins the Firm’s Labor & Employment and Discrimination practice groups. 

Barcroft brings to Bleakley Platt more than 20 years of experience and expertise in counseling clients regarding civil rights and employment matters, including policies and trainings on sexual harassment and discrimination; hiring, firing and discipline; separation agreements; non-compete and trade secrets; family and medical leave; equal pay; internal investigations; and whistleblower claims.  Barcroft has been recognized as a Super Lawyer in labor and employment law in 2021 and 2022. She was recently selected as a panel presenter at the Presidential Summit, the marquee event of the New York State Bar Association’s 2022 Annual Meeting, which focused on critical social justice and civil rights issues that society continues to grapple with, including a reevaluation of the #MeToo Movement, with nationally recognized sexual harassment litigators and NYS Attorney General Letitia James.  She is a member of the New York State Bar Association’s Labor and Employment Law Section, Workplace Rights and Responsibilities Committee. 

Barcroft graduated from Colgate University before later earning her law degree from the University of Virginia School of Law and is admitted to practice law in the State of New York. She has authored numerous articles on a variety of labor and employment issues and has appeared on various news outlets about legal issues, such as sexual harassment and discrimination, leave restrictions, vaccine mandates and exemptions, and investigations related to alleged misconduct in the workplace. She is also a frequent lecturer to attorneys, supervisors, human resource professionals, and organizations concerning discrimination in the workplace.  

Barcroft’s considerable experience strengthens Bleakley Platt’s labor and employment and discrimination practices and enhances the Firm’s continued growth to meet its clients’ needs. 

BLEAKLEY PLATT & SCHMIDT, LLP 

Bleakley Platt & Schmidt, LLP is Westchester’s preeminent law firm, with a more than 85-year legacy of providing superior legal counsel to residents and businesses of Westchester and Rockland Counties, as well as the entire Hudson Valley and Fairfield County, CT. To learn more about the Firm’s services, visit www.bpslaw.com, or contact its offices at (914) 949-2700.

Bleakley Platt & Schmidt, LLP Announces Sara Keating as New Partner

Bleakley Platt & Schmidt, LLP Announces Sara Keating as New Partner 

WHITE PLAINS, NY—Bleakley Platt & Schmidt is proud to announce Sara L. Keating, Esq. as as the Firm’s newest partner.  Keating will be a member of the Elder Law and Trusts and Estates Practice Groups. 

Prior to joining Bleakley Platt & Schmidt, Keating served as a partner and the principal attorney at her own law firm. Her achievements include being a former Co-Chair of the Elder Law Committee of the Westchester Bar Association and former Vice-Chair of the Medicaid and Guardianship Committees for the New York State Bar Association Elder Law and Special Needs Section. She’s also delivered several presentations in her field of expertise and serves as a personal and property needs guardian for several wards. 

Keating achieved Magna Cum Laude honors while earning her law degree from Quinnipiac College School of Law and is admitted to practice law in New York, Connecticut, and the U.S. District Court Southern District of New York. Sara has previously worked with clients in New York City as well as Westchester, Rockland, Orange, and Putnam counties in New York. She is a member of several professional organizations including the New York State Bar Association and the bar associations of both Westchester and Rockland Counties. She also serves as treasurer for the New York Chapter of the National Association of Elder Law Attorneys and is a member of the Elder Law and Special Needs Section and the Trusts and Estate Section. 

Sara brings an extensive professional background to BPS, enhancing the Firm’s growth trajectory in the New York Metropolitan Area. 

Bleakley Platt & Schmidt, LLP 

Bleakley Platt & Schmidt, LLP is Westchester’s preeminent law firm, with a more than 85-year legacy of providing superior legal counsel to residents and businesses of Westchester and Rockland Counties, as well as the entire Hudson Valley and Fairfield County, CT. To learn more about the Firm’s services, visit www.bpslaw.com, or contact its offices at (914) 949-2700. 

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The Americans with Disabilities Act: Does your website need to comply?

By Adam Rodriguez, Esq.

Should you care if your business’ website is ADA compliant?

Absolutely. Litigating a website accessibility case can be expensive, even if you are ultimately successful on the merits. This is particularly true because the ADA provides for an award of attorneys’ fees to a prevailing party. It may be best to proactively address your website’s accessibility to ensure meaningful access for persons with disabilities. But, if you are sued, there are strong arguments that can be marshalled to defeat the claim or negotiate a favorable settlement. The lawyers at Bleakley Platt can help.

What does the ADA say?

The ADA states that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases . . . or operates a place of public accommodation.” 42 U.S.C. § 12182(a). The statute provides several examples of public accommodations, all of which are physical places, including an inn, a restaurant, a movie theater, etc. 42 U.S.C. § 12181(7).

Does the phrase “place of public accommodation” include your website?

Unfortunately, the answer may depend on what court you are in.

Notwithstanding the plain text of the ADA, Courts are split on this issue. For example, the Third Circuit has interpreted “places of public accommodation” narrowly, concluding that the ADA only applies to physical locations. In Peoples v. Discover Financial Services, Inc., 387 F. App’x 179 (3d Cir. 2010), the plaintiff—a blind man—sued a credit card company alleging fraud after he used his credit card for a prostitute’s services at her in-home business, resulting in her allegedly overcharging him and the card company refusing to credit his account for the disputed amounts. The Third Circuit held that, because the alleged discrimination did not happen on the defendant’s physical property, the claim was not cognizable.

Whereas the First Circuit, in Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, 37 F.3d 12, 19 (1st Cir. 1994), held that public accommodations are not “limited to actual physical structures.” In Carparts, the plaintiff brought an action against the defendant health plan, alleging that a lifetime cap on health benefits for individuals with AIDS instituted by the health plan represented illegal disability discrimination. The First Circuit reversed the district court, holding that Congress did not intend for the ADA to apply only to physical structures.

The recent trend of federal caselaw seems to favor the defendants. For example, the Eleventh Circuit recently held in Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021), vacated as moot, No. 17-13467 (11th Cir. December 28, 2021), that the definition of “public accommodation” does not include websites, but instead only includes physical places. In that case, the plaintiff had a visual impairment, and used screen reading software to browse websites. But plaintiff’s screen reader software didn’t work with Winn-Dixie’s website’s prescription refill functionality.

The Second Circuit Court of Appeals has not squarely addressed the issue, and the district courts are split. For example, in Winegard v. Newsday LLC, 2021 U.S. Dist. LEXIS 153995, at *2 (E.D.N.Y. Aug. 16, 2021), Judge Komitee concluded that the “ADA excludes, by its plain language, the websites of businesses with no public-facing, physical retail operations” from the definition of “public accommodations.” But a few months later, Judge Wood held that “that websites qualify as places of ‘public accommodation,’ albeit electronic ones, and, as such, are required to provide equal services to visually impaired and sighted people.” Romero v. 88 Acres Foods, Inc., 2022 U.S. Dist. LEXIS 9040, at *16 (S.D.N.Y. Jan. 18, 2022).

If the ADA Applies, Does Your Website Comply?

Maybe. If the ADA does apply to your website, it does not require conformity with any specific standard. In fact, the U.S. Department of Justice (“DOJ”) has made it very clear that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” Letter from Stephen E. Boyd, Asst. Atty. General, to Hon. Ted Budd, U.S. House of Representatives (Sep. 28, 2018).

Some courts have used the Web Content Accessibility Guidelines (“WCAG”) version 2.0 and 2.1 Level AA standards as a remedial measure for non-compliance. For example, in Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 907 (9th Cir. 2019), the Ninth Circuit held that “the district court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.” The consensus is that if a website adheres to this standard, it is sufficiently accessible to individuals with disabilities.

In addition, DOJ has taken the position that covered entities with inaccessible websites may comply with the ADA “by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their Web site.” Nondiscrimination on the Basis of Disability, 75 Fed. Reg. at 43466. So, if your website provides keyboard accessible 24-hour chat and phone lines, for example, to address any accessibility issues that arise, you can mitigate the risk of potential non-compliance.

Adam Rodriguez focuses his practice in the areas of commercial litigation, municipal law, intellectual property and real estate. He currently serves as the Yorktown Town Attorney, acting as legal counsel to the Town, its elected officials, department heads, and its various boards. Before joining Bleakley Platt, Mr. Rodriguez was the Director of Real Estate for Westchester County, where he negotiated complex commercial real estate transactions valued at over $100 million. Prior to his appointment as Director of Real Estate, Mr. Rodriguez defended the County of Westchester in one of the highest-profile HUD enforcement actions in United States history. He has also served as a law clerk to two federal judges, and has worked as a litigator at a large law firm in New York City.

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

Bleakley Platt & Schmidt Proud to Support Return of AOH St. Patrick’s Day Parade to Rockland County

After two years of canceled events due to the COVID-19 pandemic, the Rockland County Ancient Order of Hibernians (AOH) helped bring joy back to the Hudson Valley on Sunday, March 20th with the return of its St. Patrick’s Day parade – the second-largest in New York State!

Bleakley Platt & Schmidt, LLP Announces David S. Handsman as Newest Partner

Bleakley Platt & Schmidt, LLP Announces David S. Handsman as Newest Partner

WHITE PLAINS, NY—Bleakley Platt & Schmidt, LLP is happy to announce David S. Handsman, Esq. as the Firm’s newest Partner. Handsman joins the Firm’s Real Estate and Commercial Finance practice groups.

Handsman’s field of expertise lies in commercial office and retail leasing, real estate financing, acquisitions, divestitures, and operating agreements. Handsman was recognized as a Super Lawyer in 2020 and 2021, showcasing his high degree of peer recognition and professional achievement. He is a member of the New York State Bar Association’s Commercial Leasing Section.

Handsman graduated from George Washington University before later earning his law degree from the New York Law School and is admitted to practice law in the state of New York. Prior to joining the Firm, Handsman represented real estate developers, owners, not-for-profit companies and operators of real property in various parts of the Northeastern region of the United States.

David brings more than 30 years of experience and knowledge to Bleakley Platt & Schmidt, strengthening the firm’s real estate practice and boosting the Firm’s growth.

Bleakley Platt & Schmidt, LLP

Bleakley Platt & Schmidt, LLP is Westchester’s preeminent law firm, with a more than 85-year legacy of providing superior legal counsel to residents and businesses of Westchester and Rockland Counties, as well as the entire Hudson Valley and Fairfield County, CT. To learn more about the Firm’s services, visit www.bpslaw.com, or contact its offices at (914) 949-2700.

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Bleakley Platt & Schmidt, LLP Opens New Rockland County Office

Bleakley Platt & Schmidt, LLP, a Westchester-based law firm with a history spanning more than eight decades, has opened its first Rockland County office.

Frequency of Pay Issues for “Manual Workers” Continue to Present Significant Liability Risks for New York Employers

New York Labor Law (NYLL) Section 191 mandates that employers must pay “manual workers” on a weekly basis within seven calendar days of the week during which the wages are earned. If manual workers are not paid on this weekly basis, recent cases continue to confirm that these employees have a private right of action under Section 191 to seek to recover liquidated damages, which are now mandatory under Section 198(1-a) even though the “manual workers” were paid in full the following week.

Bleakley Platt Partner Lino Sciarretta Obtains Significant Land Use Rulings in New York’s Appellate Division

Good things come to those who persevere.

Since 2014, BPS partner Lino Sciarretta has represented Formation-Shelbourne Senior Living Services in connection with its plan to construct an assisted living facility in the Town of Greenburgh, New York. The plan was met with fierce opposition by various civic associations, as well as by the Greenburgh Fire District (“GFD”), but after an approval process that spanned more than three years the necessary permits and approvals were obtained. Then came the litigation.

Can the Law Regulate the Internet? How Government Agencies Seek to Regulate Big Tech

In comparison to radio, television, and telephone, newer technologies – particularly those involving the internet and social media – have remained largely unregulated by federal or state governments, with the tech industry relying on self-governance even as their influence has significantly expanded. As tech plays an increasingly large role in daily life and tech companies grow in size and number, however, a legal framework to curb such power is taking shape. Can the government regulate an industry famous for rapid change? The federal government has now turned its attention to answering that question.

How Medical Testing Laboratories Must Comply with the Federal Ban on “Surprise Billing”

The “No Surprises Act” (“NSA”), which became effective on January 1, 2022, is federal legislation designed to protect patients from “surprise medical billing” that occurs when a patient receives services from a facility or provider which, unknown to the patient, is outside of his or her health plan’s network, resulting in unexpected out-of-network charges. Much of the discussion surrounding surprise medical billing has been focused on emergency services/treatment where the patient is unable to choose the medical provider.

What to Know About New York’s Green Amendment  

On November 2, 2021, New York residents voted to amend the State’s constitution to enshrine into law each person’s “right to clean air and water, and a healthful environment.” N.Y. Const., Art. 1, Sec. 19. With the adoption of this amendment, New York becomes the third state in the nation to include environmental rights in its Bill of Rights, following Pennsylvania (1971) and Montana (1972. Four other states – Hawaii, Illinois, Massachusetts and Rhode Island – have constitutional provisions regarding environmental protections, although not in their Bill of Rights.

Baffling Issues that Arise in Insurance Mediations (and How to Get Past Them!)

Partner John Diaconis will be a panelist on this informative program presented by the Insurance Dispute Resolution Committee of the New York State Bar Association, to be held at 5:30 PM on December 15, via Zoom.

The No Surprises Act and How Medical Providers Must Comply with the Federal Ban on Surprise Billing

The “No Surprises Act” (“NSA”), new federal legislation intended to protect patients from “surprise medical billing”, goes into effect on January 1, 2022. While most states have already enacted laws to address surprise billing, limited protections and various loopholes permitting balance billing at the state level compelled federal action to address the need for greater consumer protection.

As Deadline Looms, New York Municipalities Decide Whether To Prohibit Retail Cannabis Dispensaries and On-Site Consumption Sites

Under New York’s Marijuana Regulation and Taxation Act (MRTA), which became law on March 31, 2021, the State’s cities, towns and villages have until December 31, 2021 to decide whether to “opt out” of allowing retail marijuana dispensaries and on-site consumption sites within their jurisdictions. The deadline has prompted considerable public debate as residents of Westchester County and across the State make their views known to their local government leaders and representatives. The Rockefeller Institute for Government has created a searchable online “Marijuana Opt-Out Tracker,” showing the current status in each municipality.

Partner Susan Galvão Joins Board of Visitors at Elisabeth Haub School of Law

Bleakley Platt & Schmidt congratulates managing partner Susan Galvão on joining the Board of Visitors of her alma mater, Elisabeth Haub School of Law at Pace University, where she is also a member of the Women & the Law planning committee. To read more about Susan’s involvement with the Law School and to learn about its Board of Visitors, click here.

Partner Jim Glatthaar Presenter at Well-Attended Landlord-Tenant Law CLE

Last month, Bleakley Platt partner Jim Glatthaar was one of two presenters of a 2-hour CLE webinar sponsored by Judicial Title Insurance Agency LLC, entitled “The Everchanging State of Landlord-Tenant Law: Where Do We Stand Today?”

Partner Jim Glatthaar Featured in Habitat Magazine

Bleakley Platt partner Jim Glatthaar is featured in the November 2021 issue of Habitat Magazine, a print and on-line magazine for the members of cooperative and condominium boards.  In the November issue, Jim discusses the importance of boards being proactive when addressing property repairs which cause damage to residents’ property and which cause the residents to vacate their apartments for extended periods.

Harrington & Rodriguez Obtain Dismissal of $50 Million Fraud Case

Chairman William P. Harrington and Partner Adam Rodriguez recently upheld a dismissal in a fraud case among former partners in an international shipping company.

New York Enacts Mandatory Retirement Savings Program Participation for Employers

On October 21, 2021, Governor Hochul signed legislation requiring all private sector employers who meet certain threshold criteria to participate in New York State’s Secure Choice Savings Program (SCSP). The legislation applies to all for-profit and non-profit employers who employed 10 or more employees in 2020, have been in business for at least two years, and do not already offer a qualified retirement plan to their employees.

Investigating Employee Misconduct and Defending Claims of Wrongful Termination

With wrongful termination lawsuits on the rise across many industries, it has become more important than ever for employers to conduct thorough and well-documented investigations of alleged employee misconduct before deciding whether to impose disciplinary measures against an employee. This point was recently confirmed by the Second Department’s decision in Daniel Hutting v. Independent Living, Inc., _ A.D.3d _ (2d Dep’t Oct. 13, 2021), an appeal successfully argued on behalf of the defendant employer by Bleakley Platt partner Joseph DeGiuseppe, Jr.

Update: New York’s Governor Extends to October 31, 2021 Employers’ Obligation to Implement Their Exposure Prevention Plans under NY’s HERO Act

On September 30, 2021, Governor Kathy Hochul extended, until October 31, 2021, her prior designation of COVID-19 as a highly contagious communicable disease, thereby requiring employers to continue to implement their infectious disease prevention plans under New York’s HERO Act.

The Intersection of NYS and Westchester County Sick and Safe Leave Laws-One Year Later

New York State’s paid sick leave law (“PSLL”), which went into effect on September 30, 2020, mandates the payment of both sick and safe time leave to employees effective January 1, 2021. Also included within the purview of the PSLL is the availability of paid leave for “safe time” which includes absences from work when an employee or his/her “family member” has been the victim of domestic violence as defined by the State Human Rights Law (“SHRL”), a family offense, sexual offense, stalking, or human trafficking. As discussed below, the Westchester County Safe and Sick Leave Law, which went into effect on October 30, 2019, already required sick and “safe time” for Westchester County employees. As of September 30, 2020, Westchester County adopted the sick leave provisions of the NYS law but made it clear that it did not preempt the County’s Safe Time Leave Law (“STLL”). Unfortunately for employers, Westchester County has not issued any further guidance on the intersection of the two laws which differ in certain material respects as to the use of paid leave and the definitions of certain key terms under the respective laws.

Bleakley Platt & Schmidt Sponsors GAA Golf Outing and Supports Gaelic Heritage

Bleakley Platt & Schmidt LLP is proud to support our client, the Rockland Gaelic Athletic Association (the “GAA”), and to have served as a sponsor at their golf outing held on September 22, 2021, at the Blue Hill Golf Course in Pearl River, New York. The GAA is well-known in Rockland County, as well as internationally, for its tremendous work promoting Irish culture and heritage through the teaching and playing of traditional Gaelic games and hosting community events showcasing traditional Irish music, song, and dance. The GAA began operating in Rockland in 1972 and is home to over 850 playing members from ages 6 to adult and fields over 20 teams playing football, hurling, ladies’ football, and camogie. In 2017, the GAA opened its state-of-the-art clubhouse and pavilion next to its playing fields in Orangeburg, New York. In addition, the GAA and its members routinely give back to the local community and can be counted upon to support those in need through their various charitable endeavors.

Pictured below are photos of the sponsorship signs from the golf outing, the GAA clubhouse, and Bleakley Platt attorney John W. McGowan, who serves as general counsel to the GAA, along with other participants in the golf outing (last photo courtesy of the GAA).

Extending The Eviction Moratorium and More: New Changes In Commercial Eviction Procedures in New York

Effective September 2, 2021, a new law extended New York’s moratorium on commercial and residential evictions to January 15, 2022, while also enacting several other significant measures of which all commercial landlords and managing agents should be aware.

Employers’ Obligation to Implement Their Exposure Prevention Plans Triggered by Formal Designation of COVID-19 as a “Highly Contagious Communicable Disease” under NY’s HERO ACT

On September 6, 2021, New York Governor Kathy Hochul announced that the NYS Department of Health has designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health” under New York’s HERO Act. This formal designation has immediate significance for all New York employers.

Harrington & Rodriguez Secure Dismissal of Defamation Case

Chairman William P. Harrington and Partner Adam Rodriguez recently secured a complete victory in a defamation case among rival cell phone companies.

The plaintiff, Red Pocket Inc., alleged that our clients US Mobile and its founder/CEO made defamatory comments about Red Pocket on a mobile phone services podcast, and sought $2.5 million in damages.

We filed a motion to dismiss, arguing that the Complaint should be dismissed because Red Pocket failed to plead a statement that is defamatory on its face. In addition, we argued that the Complaint was barred under New York’s single instance rule. Under the rule, language charging a plaintiff with ignorance or mistake on a single occasion only, and not accusing general incompetence, or lack of basic integrity or creditworthiness, cannot be considered defamatory on its face and so is not actionable unless special damages are pleaded.

In a thorough decision, Judge Linda S. Jamieson of the N.Y. Supreme Court Commercial division agreed with our arguments, and dismissed the complaint filed against our clients in its entirety.

Mr. Harrington

Mr. Harrington is Chairman of the Firm’s Executive Committee. He is the head of the Litigation and Toxic Tort/Complex Litigation Practice Groups. Mr. Harrington is an experienced trial attorney who has represented Fortune 500 companies in criminal, commercial, environmental, civil rights, real estate, gaming and employment discrimination matters. His clients have included major oil companies, pharmaceutical companies, hospitals, racetracks/casinos, financial institutions and significant regional companies in all aspects of complex environmental, toxic tort and commercial litigation. Mr. Harrington also represents both municipalities and developers in all phases of land use development and related litigation.

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

Mr. Rodriguez

Mr. Rodriguez focuses his practice in the areas of commercial litigation, municipal law, intellectual property and real estate. He currently serves as the Yorktown Town Attorney, acting as legal counsel to the Town, its elected officials, department heads, and its various boards. Before joining Bleakley Platt, Mr. Rodriguez was the Director of Real Estate for Westchester County, where he negotiated complex commercial real estate transactions valued at over $100 million. Prior to his appointment as Director of Real Estate, Mr. Rodriguez defended the County of Westchester in one of the highest-profile HUD enforcement actions in United States history. He has also served as a law clerk to two federal judges, and worked as a litigator at a large law firm in New York City.

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

New York’s Construction Industry Wage Theft Bill: Prime Contractors in New York Now Liable for Unpaid Wages Owed To Subcontractors’ Employees

On September 6, 2021, NY Governor Hochul signed into law the Construction Industry Wage Theft bill (S2766C), imposing joint and several liability on prime contractors for the wage and benefit claims of their subcontractors’ employees. Effective January 4, 2022, the new law covers claims for unpaid wages, benefits and wage supplements as defined by NY Labor Law § 198, and thus covers not only wages but also reimbursable expenses, health and retirement benefits, and vacation, separation and holiday pay.  

The law also incorporates and applies to prime contractors all other remedies available to employees under NYLL § 198, including liability for an additional amount, up to 100% of the unpaid wages, as liquidated damages (and up to 300% where a willful violation is shown); attorneys’ fees; prejudgment interest; and other potential penalties. It bears noting that contractors may contract for indemnification by subcontractors and may maintain an action against a subcontractor to recover owed wages that are paid by the contractor. The law applies to all non-union contracts and employees. 

The obligations imposed by this new law may already exist for those general contractors who are deemed to be a “joint employer” under applicable federal and NYS wage and hour laws. However it effectively expands “joint employer” liability to include employers beyond those currently recognized under these wage and hour laws, and provides remedies which may not in any event be available under federal law.  

In light of the risks of liability created by this new law, prime contractors in New York would be well advised to develop strong indemnification provisions for their subcontracts, as well as auditing and other contract management practices to ensure that their subcontractors’ non-union employees are receiving all wages and benefits to which they are entitled. 

Bleakley Platt’s employment and construction law attorneys are continuously monitoring legal developments relevant to their clients’ interests. If you have any questions regarding this alert, please contact Joseph DeGiuseppe at jdegiuseppe@bpslaw.com | 914-287-6144, or Jonathan Murphy at jamurphy@bpslaw.com | 914-287-6165. 

Emergency Regulation on Mandatory Vaccinations for Health Facility Workers

The Public Health and Health Planning Council and the Commissioner of Health approved emergency regulations on August 26, 2021 to help combat the increasing circulation of the SARS-CoV-2 Delta variant. When filed, the new regulations will supersede the order announced August 16 by Governor Andrew M. Cuomo for hospital and nursing home workers, but without any religious exemption from the vaccination requirement.

Trademark Modernization Act Signed Into Law for Federal Trademark Owners in New York and Beyond

The United States Patent and Trademark Office signed the Trademark Modernization Act (“TMA”) into law last year, prompting future changes for federal trademark owners in New York state and nationally. The Act will formally be implemented on December 27th, 2021. Although the TMA offers trademark owners additional tools, it also expands trademark cancellation mechanisms that might cause some trademark holders to lose their federal trademark.

How Biden’s Executive Order Could Impact Healthcare Law in New York

On July 9th President Biden signed an expansive executive order aimed at promoting competition in the American economy, prompting possible changes to healthcare laws in New York. This order established 72 initiatives involving more than a dozen federal agencies to tackle some of the most pressing competition problems in the US economy, with a specific focus on medical and pharmaceutical companies.

New York’s Marijuana Legalization from the Perspective of DWI Attorneys

With Governor Cuomo recently signing the Marijuana Regulation and Taxation Act into law, many legal professionals speculate whether New York will see an increase in impaired driving arrests following the legalization of recreational marijuana. Although possession of a small amount of marijuana for recreational use in now legal, a person can still face criminal prosecution for operating a motor vehicle while his or her ability to do so is impaired by the use of marijuana pursuant to New York’s Driving While Ability Impaired by Drugs (DWAI Drugs) statute. The team of attorneys at Bleakley Platt & Schmidt is experienced in defending clients charged with driving under the influence of alcohol or drugs (such as marijuana). Please read below for the possible charges a person could face in New York for driving a car after consuming alcohol or drugs.

NY HERO ACT INFECTIOUS DISEASE PREVENTION PLANS: WHAT ALL PRIVATE EMPLOYERS NEED TO KNOW

The New York Health and Essential Rights Act (HERO Act) was signed into law by Governor Andrew Cuomo on May 5, 2021. The HERO Act added two new sections to the New York Labor Law: Section 218-b, requiring all private employers to adopt airborne infectious disease prevention plans and standards; and Section 27-D, requiring private employers with 10 or more employees to allow the creation and administration of joint labor-management workforce safety committees. Governor Cuomo approved clarifying amendments (the Amendments) to the HERO Act on June 14, 2021. The HERO Act and its Amendments impose significant workplace health and safety obligations on New York employers.

Special Needs Planning and Guardianship for Persons with Intellectual and Developmental Disabilities

Wednesday, July 21st

10:00 – 11:00

Register for this FREE webinar for Seniors & their Families

Registration URL http://bit.ly/WestSpecialNeeds

(Dial-in by phone also available; numbers obtained on registration or by calling and leaving a message for Paul at 914.231.3227)

Are you the parent or grandparent of a child with an intellectual or developmental disability such as autism? This workshop will provide an overview of the legal and financial steps to access critical supports and government benefits. Topics covered will include guardianship proceedings in Surrogate’s Court, government benefits for individuals with disabilities and the estate planning that must be done to protect an inheritance or lawsuit settlement for people with disabilities.

Planning is empowerment. Learn about the steps that will provide you with peace of mind that you have done everything in your power to secure for your loved one’s future needs.

Speaker: Frances M. Pantaleo, Esq., Bleakley Platt & Schmidt, LLP Limited to first 100 participantsContact: bruce@marketingsense2.com

Click here to view/download the PDF with the information for this event.

Bleakley Platt & Schmidt, LLP Pleased to Announce the Hiring of Two Associates

WHITE PLAINS, NY—Bleakley Platt & Schmidt is happy to announce that Kadeen Wong, Esq. and Gina Nicotera, Esq. have joined the Firm as associates. Kadeen Wong is part of the Firm’s Elder Law and Special Needs Practice Group as well as its Trusts and Estates Practice Group. Gina Nicotera is a member of the Firm’s Labor and Employment Practice Group.

Prior to joining the Firm, Kadeen Wong worked in law firms located in White Plains and New York City. She earned her law degree from Elisabeth Huab School of Law at Pace University and is admitted to practice law in both New York and New Jersey. Her accomplishments include various publications and a wealth of speaking engagements in her field of expertise. She is also rated a Super Lawyers Rising Star.

Gina Nicotera worked in law firms located in New York City and White Plains, where she focused her practice in employment litigation and counseling. Gina earned her law degree from Pace University School of Law and is admitted to practice in New York, New Jersey, U.S. District Courts for the Southern, Eastern and Western Districts of New York and U.S. Court of Appeals for the Second Circuit. She is a member of several professional organizations, including the Federal Bar Council: Section on Labor and Employment, New York State Bar Association: Section on Labor and Employment, Columbian Lawyer’s Association and Young Professionals Business Network. Nicotera is also a member of the non-profit America Needs You: New York Associate Board, an organization that fights for economic mobility for first-generation college students.

Gina and Kadeen have outstanding professional backgrounds, which advance the Firm’s growth trajectory in the Westchester County business community.

Bleakley Platt & Schmidt, LLP

Bleakley Platt & Schmidt, LLP is Westchester’s preeminent law firm, with a more than 85-year legacy of providing superior legal counsel to residents and businesses of Westchester and Rockland Counties, as well as the entire Hudson Valley and Fairfield County, CT. To learn more about the Firm’s services, visit www.bpslaw.com, or contact its offices at (914) 949-2700.

OSHA Issues Emergency Temporary Standard for Healthcare Employers

On June 21, 2021, the Occupational Safety and Health Administration (OSHA) adopted its COVID-19 Healthcare Emergency Temporary Standard (ETS). Employers providing health care services will be required to comply with new COVID-19 specific standards to protect their workforces. The ETS focuses on protections for unvaccinated or otherwise “at-risk” workers, who are described as those that “cannot be protected through vaccination, cannot get vaccinated, or cannot use face coverings.” The ETS encourages vaccination by requiring employers to provide reasonable time and paid leave for employees to receive vaccinations and recovery from any side effects.

Legalization of Cannabis: What This Means for Employment Law in New York

Several years after legislation was first introduced, New York Governor Andrew Cuomo signed the Marijuana Regulation and Taxation Act into law on March 31st, 2021, making New York the state to have most recently legalized recreational marijuana use by individuals who are at least 21 years old. This act has been several years in the making, with medical cannabis use having been legalized in 2014 and minor marijuana related offences having been decriminalized in 2019. The Marijuana Regulation and Taxation Act goes into effect immediately, raising crucial questions about its implications for employment law in New York.

How Our Litigation Attorneys Serve the Greater New York Area

Since 1937, Bleakley Platt & Schmidt has provided our clients and the community quality legal services. We represent clients from New York City through the Hudson Valley and beyond, leveraging decades of experience to achieve first-rate results.

Our years of experience and success speak for themselves, particularly in litigation practice for both local and national businesses. Our litigation practice areas include commercial litigation, construction, environmental, personal injury, product liability, toxic tort, and more. We also provide counsel on litigation avoidance as well as pre-litigation advice. We have supervised and managed a wide array of complex cases and can call upon other practice groups in our organization for their expertise.

Bleakley Platt & Schmidt Partner Frances Pantaleo to Talk on Special Needs Planning

Bleakley Platt & Schmidt is proud to announce that partner Frances Pantaleo will give a presentation on special needs planning this Tuesday, April 27th at noon. The program will be hosted by Women in Wealth of Stamford and can be accessed by Zoom Meeting ID: 982 0435 4472 or joined by Phone: US: 929-436-2866.

Women in Wealth of Stamford is a group of Morgan Stanley female financial advisors who have come together to help other women achieve their financial goals through education and engagement. Frances Pantaleo, as head of Bleakley Platt & Schmidt’s Elder Law and Special Needs Practice Group, will be providing a wealth of education on special needs planning that can benefit both children and adults with special needs. Pantaleo is a former law professor and former Chair of the Elder Law and Special Needs Section of the New York State Bar Association. She handles a broad range of estate planning with a special emphasis on Medicaid planning, supplemental needs trusts, and guardianship proceedings.

Bleakley Platt & Schmidt Advances SUEZ Water New York to Site Development Plan Review

Bleakley Platt & Schmidt’s Lino Sciaretta represents SUEZ Water New York Inc. (SWNY) as land use counsel in connection with the relocation of its headquarters from 360 West Nyack Road, West Nyack, NY to 162 Old Mill Road in Rockland County. SWNY currently occupies 162 Old Mill Road as its operations center. The operations center houses construction, administration, management, and customer support staff. Further, the site accommodates customers and developers seeking to pay their bills, apply for service, or modify water services. Additional construction employees and materials are located at 360 West Nyack Road. SWNY is advancing this operations consolidation project to allow for greater efficiency in its daily operations by improving and optimizing the operations center to house all employees, vehicles, and standard infrastructure materials (piping, hydrants, valves, etc.) at the 162 Old Mill site. Sciaretta has appeared before the Town of Clarkstown Technical Advisory Committee and received approval to proceed to the Planning Board for site development plan review. To read Rockland County Business Journal’s full story on this project, click here.

Commercial Finance Law and New York’s Truth in Lending Act

In July 2020, the State of New York passed the Truth in Lending Act, designed to improve transparency in borrowing costs. The bill requires clearer language from lenders so that businesses can more easily compare financing offers. According to the Responsible Business Lending Coalition, the bill requires all lenders to disclose annual percentage rate and repayment terms for loans. This law has important ramifications for lenders and has triggered further changes to State law regarding commercial finance.

Vincent Crowe Wins Appeal on Behalf of Commodore Maintenance Corp.

On February 4, 2021, Vincent W. Crowe prevailed on appeal following the lower Court’s denial of Summary Judgment to the firm’s longstanding client, Commodore Maintenance Corp. See Pastorino v. New York City, Commodore Maintenance, 2021 N.Y. Slip Op. 00634 (App. Div. 1st Dept.). In Pastorino, plaintiff, a dock builder working on the Broadway Bridge connecting Manhattan and the Bronx was injured while climbing from a tug onto a barge. Plaintiff asserted a Longshore and Harbor Workers’ Compensation Act (LHWCA) claim against Commodore and Labor Law claims against the City of New York.

The Appellate Division reversed the Supreme Court, New York County Decision and determined that Commodore Maintenance Corp. was not liable to plaintiff under the LHWCA (33 U.S.C. §905) as it did not qualify as a “bareboat” charterer. The Court determined that the charter agreement between Commodore and third-party defendant Ocean Marine did not provide for the complete and exclusive relinquishment of possession and control to Commodore of the tug involved in plaintiff’s accident. In addition, all crossclaims against the City of New York were dismissed under the “anti-subrogation” rule and third-party defendant Ocean Marine’s counterclaims were dismissed.

Diaconis and Rodriguez Successfully Defend Summary Judgment Attack – Paving Way for Multi Million Dollar Recovery, Including Attorneys Fees for Prosecution of Action

Partners John Diaconis and Adam Rodriguez successfully defended a summary judgment decision they procured on behalf of Westchester County against Unity Mechanical Corp., in a defense and indemnity case brought in Westchester County Supreme Court.

The lawsuit arose out of injuries sustained by a Unity employee on May 30, 2013. The Unity employee was injured while performing work in the Westchester County Courthouse under a boiler repair contract with the County. The employee was standing on an A-frame ladder and fell to the floor, causing him to sustain significant injuries.

Unity agreed in the boiler repair contract with the County to defend and indemnify the County for “all” liability arising out of the performance under the Contract.
However, after the Unity employee sued the County in 2013, Unity refused to honor its contractual commitments to defend the County in the underlying action. So, the County defended itself. Years later, after a finding of “strict” liability against the County under the N.Y. Labor Law.

Unity ignored the County’s repeated offers to participate in settlement discussions, and the underlying action ultimately settled for $2.875 million. Unity then refused to indemnify the County for the settlement amount, so the County initiated a lawsuit.

The Court granted the County’s motion for summary judgment and held that Unity breached its duties to defend and indemnify the County. The Court also held that the County was entitled to attorneys’ fees for defending the underlying action, as well as the action-in-chief to recover the settlement proceeds.

Unity moved for reargument, arguing that the Court: (1) misapprehended the scope of Unity’s duty to defend and indemnify the County; (2) failed to address whether the County’s alleged negligence should preclude contractual indemnification to the County; and (3) failed to address the County’s alleged spoliation of evidence.
On December 31, 2020, in a thorough decision, the Court rejected Unity’s arguments and sustained its prior holdings, paving the way to a potential recovery of over $3 million for the County.

Here is a link to the decision.

Partner Robert Meade Secures Litigation Win for William Penn Life Insurance Company

Our Partner, Robert D. Meade, secured a litigation win on appeal of a case he argued at trial for the firm’s long-standing client William Penn Life Insurance Company of New York. See, Bonem v. William Penn Life Ins. Co. of N.Y., 2021 NY Slip Op 00227 (App. Div. 1st Dept.) The Appellate Division, First Department vacated the judgment of the Supreme Court, New York County (Justice Arthur F. Engoron) entered on August 17, 2020 which had awarded plaintiff $1 million on a life insurance policy. The lower court decision was unanimously overturned, with the Appellate Division directing the Clerk to enter judgment for William Penn, finding that the plaintiff was not entitled to coverage under the subject insurance policy because it had lapsed before the insured’s death.

How Biden’s Labor Department Pick Could Affect Construction Law in New York

Amidst many changes in the transition from a Trump to Biden presidency, one that stands out in particular is the nomination of Boston Mayor Marty Walsh as labor secretary. Mayor Walsh, a former leader of the Boston Building and Construction Trades Council and former head of the Laborer’s Union, boasts widespread union support and mirrors Biden’s agenda for a worker-friendly labor department. This nomination could have widespread impact on current construction law standards for New York builders.

Bleakley Platt & Schmidt, LLP Announces Adam Rodriguez as Partner

Mr. Rodriguez, a native of Yonkers, focuses his practice in the areas of commercial litigation, municipal law, intellectual property and real estate. He currently serves as the Yorktown Town Attorney, acting as legal counsel to the Town, its elected officials, department heads, and its various boards. He is also a Director of Lifting Up Westchester, a non-profit that helps Westchester residents overcome the challenges of poverty, homelessness, hunger, health and education, and Friends of Miller House/Washington’s Headquarters, a non-profit committed to sustaining the legacy of George Washington.