Author: Niki Jones

Attorney John Diaconis Featured in Successful Mediation & ADR Panel Discussion

John Diaconis, Esq., a member of Bleakley Platt & Schmidt’s Insurance and Employment practice groups, mediated a successful July 29 online panel discussion, Mediation & ADR Alternatives in Westchester County Supreme Court. Among the panel members were Hon. Linda S. Jamieson of the Supreme Court of State of New York and Hon. Gretchen Walsh of NYS Supreme Court, Westchester County.

The discussion addressed Westchester County’s Alternative Dispute Resolution (ADR) programs, with special attention paid to presumptive ADR and its application to commercial, civil, and matrimonial division mediations. The panel also gave an overview of Westchester County Supreme Court’s ADR rules and the process for utilizing ADR programs, including virtual meditations. Additionally, attendees learned topics to consider and discuss with clients.

Mr. Diaconis counsels clients in the insurance and reinsurance industry and acts as defense and coverage counsel, mediator and arbitrator in the investigation and resolution of fidelity, commercial crime and financial institution bond claims, insurance company errors and omissions, employment, insurance agents and brokers, specified medical professions and medical benefits claims, and directors’ and officers’ claims. He also serves as an arbitrator and mediator in insurance and reinsurance arbitrations and mediations. He can be reached at jdiaconis@bpslaw.com.

Read More

Client Alert: Virus claims are here: A range of policies may be impacted.

Many U.S. businesses are experiencing large financial losses due to the coronavirus pandemic.  Last month, governments imposed severe restrictions and businesses curtailed their customary operations in response to the crisis.  The loss of business income due to these events will result in significant first-party property insurance claims. The availability and scope of coverage available to businesses is likely to be disputed between insureds and insurers and litigated for years to come. Policy details and careful analysis will determine the success or failure of these claims.

First-Party Business Claims for Coverage:  Many “all-risk” policies afford coverage for “all risks of direct physical loss or damage by a covered cause of loss to a covered property.”  Policyholders will argue that the inability to use property for its intended purpose – to generate income – constitutes direct physical loss or damage to such property.  “Stay at home” orders may prevent customers from visiting the policyholder’s places of business or fully utilizing their services.  Some property  policies contain “interruption by civil authority” clauses that may afford coverage for those losses.

On March 27, the New York Legislature introduced Assembly Bill No. A10226, which provides:

[E]very policy of insurance insuring against loss or damage to property, which includes the loss of use and occupancy and business interruption, shall be construed to include among the covered perils under that policy, coverage for business interruption during a period of a declared state emergency due to the coronavirus disease 2019 (COVID-19) pandemic.

This proposed bill applies to policies issued to policyholders with fewer than 100 full-time employees who work at least 25 hours or more.  The bill could require coverage even for policies that specifically exclude virus-related claims. The bill is currently in the Assembly Committee. If passed, it is possible the insurance industry will question the constitutionality of the bill under Article 1 of the contract clause of the Constitution.

Exclusions and Defenses Against Coverage:  Insurers are likely to claim that no coverage exists because the existence of the virus in an office or community does not establish a necessary prerequisite for coverage—physical damage to property. Property insurance policies afford coverage to insureds for property damage and lost business income as a direct result of such property damage. The lost income can result from damage to the insured’s property, damage to the property of a customer or supplier, or government actions.

In addition to the issue of property damage, a range of defenses may be available to insurers to bar or limit payment.  These defenses may be in the form of exclusions, sub-limits or waiting periods for coverage, and time limitations for coverage.  The policies also require loss mitigation by insureds.  Thus, efforts to contain the virus and limit damages will be important.

Property owners should fully understand the scope of their coverage, keep records of the loss and promptly notify insurers. This will enhance proper claims investigation and adjustment such that resolution can be effectuated by both insureds and insurers.

Bleakley Platt stands ready to assist clients as they navigate the inevitable disputes that lie ahead over claims for coverage for lost business income, liability and employee safety losses from the pandemic.

Read More

Client Alert: Sweeping Changes to Medicaid Home Care, Effective 10/01/2020

While the Department of Health provided temporary relief to Medicaid recipients and applicants during the COVID-19 pandemic, the New York legislature has enacted new restrictions on Medicaid home care applications that are slated to go into effect on October 1, 2020.  These restrictions were recommended by the Governor’s Medicaid Redesign Team in an effort to reduce New York State’s rapidly expanding Medicaid budget.  Although applicants who seek Medicaid payments for nursing home care have long been subject to imposition of transfer penalties for gifts made in the five-year (60-month) “look back” period prior to the submission of the application,  New York has not previously penalized transfers of assets made by applicants for services in the home.  However, as of October 1, 2020, gifts made in the 30-months prior to submission of a Medicaid home care application will be penalized unless qualified as an exempt transfer.  Additionally, the legislation authorizes changes to the home care assessment and delivery process.

There are many unanswered questions about the full extent of the changes to the Medicaid home care program which will result from this new legislation.  Our Elder Law and Special Needs Practice Group can help you prepare for these changes.  It may be advisable to apply for Medicaid home care before the October 1, 2020 effective date.  We can help you take advantage of the exemptions from the Medicaid transfer penalties and explore whether it is advisable to prepare an irrevocable trust and transfer assets to the Trust now.  We are able to work with you and still maintain social distancing during this difficult time, as we have videoconferencing technology both for remote meetings and remote execution of necessary documents.

Read More

Client Alert: Medicaid Updates

Temporary Easing of Medicaid Documentation Requirements

The COVID-19 pandemic has been a cataclysmic event for our nation’s most vulnerable, particularly the elderly.  Nursing homes and assisted living facilities are on lockdown, and home care patients struggle to find and maintain care as the number of available home health aides has dropped precipitously.  New Yorkers who rely on the Medicaid program to finance their home care services face all these same challenges, with the added pressures of limited means.

In order to alleviate some of these pressures on New York’s most vulnerable, on April 2, 2020 the New York State Department of Health issued General Information System (“GIS”) 20 MA/04, directing Departments of Social Services throughout New York State to temporarily accept and process  Medicaid applications without submission of much of the paperwork which  is normally required.   In addition, local Departments have been ordered to automatically recertify eligibility during the COVID crisis and are prohibited from terminating eligibility due to failure to submit documentation.  The GIS also addresses social distancing concerns by allowing applications to be signed by a representative of the applicant.   Our Elder Law and Special Needs Practice Group can assist you or your loved one to complete the Medicaid application and get necessary care in place during this pandemic.  In addition, through the use of video and telephone conferencing, we can maintain social distancing throughout the process and can sign the paperwork as the applicant’s representative.

Read More

Client Alert: COVID-19 Estate Planning Update

With the COVID-19 pandemic currently ravaging New York State and the nation, there has never been a more critical time to review and update your estate planning documents.  Yet, until now, the social distancing rules currently in place have made it very difficult, if not impossible, for clients to execute some of the most important estate planning documents (like wills) because applicable law required witnesses to be physically present when these documents were signed.  However, just this past Tuesday, April 7, 2020, New York Governor Andrew M. Cuomo issued Executive Order 202.14, which allows for remote witnessing of these crucial estate planning documents via videoconferencing technology.  In a previous Executive Order, Governor Cuomo allowed a Notary Public to take an acknowledgment or oath remotely over videoconferencing software as well.

With these Executive Orders now in place, our firm can assist you with creating or updating any estate planning documents you or your loved ones may need while you remain in the comfort and safety of your own home and observe all social distancing guidelines.  Our firm provides videoconferencing technology which allows us to remotely meet with you and assist you with executing your documents via a computer, smartphone or tablet.

At a minimum, we recommend that you should have the following estate planning documents in place:

1. Health Care Proxy.  This document appoints a Health Care Agent, and Successor Health Care Agent, who can make medical decisions for you if you become unable to make them yourself.
2. Living Will.  This provides specific instructions to your Health Care Agent regarding end-of-life medical decisions.
3. Power of Attorney.  This document appoints an Agent who can manage your financial affairs on your behalf if you are unable to do so yourself.
4. Last Will and Testament.  A Will allows you (not the state’s default statutes) 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.
5. Trusts. Various types of trusts can also be implemented, in addition to or in lieu of a Will, to be a part of an estate plan and these instruments can offer numerous benefits, including estate tax savings, asset protection, avoidance of probate, maintenance of privacy, and the protection of disabled loved ones.

We are happy to assist you or your loved ones with reviewing and updating your estate planning documents while many other aspects of our lives are on pause.  All of our firm’s Trusts and Estates attorneys are available to assist you during these difficult times.  If you have any questions about your existing estate plan or putting one into place, please feel free to contact us and we will be happy to assist you. These unprecedented times are also presenting other unique estate planning opportunities, which we will bring to you soon in future client updates.  In the meantime, we hope you and your loved ones stay safe and well.

Read More

COVID-19 CLIENT ALERT – LANDLORD-TENANT ISSUES

While the Governor has mandated that banks provide homeowners with “forbearance” regarding their home mortgage payments if the homeowner is facing financial hardships due to the COVID-19 pandemic, to date there has not been any corresponding requirement that landlords provide “forbearance” to tenants with respect to their rent obligations.  The rights available to tenants may well be determined by two considerations:  whether they are residential or commercial tenants; and the language in their leases.

Most residential leases are printed forms, prepared by the landlord, who generally does not negotiate the language of their lease.  Most leases for residential premises contain clauses which excuse a tenant from paying rent if the premises become uninhabitable due to “fire or other casualty” and a “covenant of quiet enjoyment”, which excuses payment of rent if a tenant is “constructively evicted.”  There is also a law which declares that all residential leases contain an implied warranty that residential premises shall be “fit for human habitation” and authorizes a rent abatement if the landlord does not meet this standard.

Such provisions will be of little benefit to a residential tenant who faces financial hardships due to the COVID-19 pandemic.  A residential tenant would be hard-pressed to argue that they are “constructively evicted” from premises when they are living in, and possibly working remotely from, their residence.

In contrast, commercial leases are extensively negotiated and the language sometimes ends up a blend of drafting styles between the landlord’s and tenant’s attorneys.  Commercial leases frequently contain a “covenant of quiet enjoyment,” but also provisions regarding business interruption due to fire, casualty, landlord disruption and a variety of other reasons.  These clauses can sometimes be used by a commercial tenant in situations where they are, in effect, locked out of their business premises.  At the moment, there is no judicial guidance about whether the COVID-19 pandemic constitutes a “casualty” or whether a landlord’s performance of a lease obligation is hampered by a “force majeure” or act of government.

All tenants will benefit from a recent Administrative Order issued by New York’s Chief Administrative Judge.  AO/87/20 banned eviction of tenants, both residential and commercial, for 90 days, effective March 22, 2020.  The same order banned the commencement of any new action or proceeding, or the filing of papers in connection with any pending action or proceeding.  As a result, any pending eviction is stayed and no new eviction actions or proceedings can be filed.

Additional help may be on the way.  NY State Senate Bill S8125A would waive rent payments for residential or commercial tenants for a period of 90 days from the effective date of the law.  Whether the law will pass, or when, cannot be determined as of this writing.  The bill will surely face opposition from landlord groups, commercial property owners, cooperatives, and owners of rented homes and condominium units.  But it will be a significant piece of legislation with wide ranging impacts if it were to become law.

Help may be on the way for landlords also.  Congress passed, and the President signed into law, the CARES Act, a $2.3 trillion dollar COVID-19 related financial relief act.  The CARES Act creates a fund for small business losses, which can possibly turn into grants, when the losses result from the COVID-19 pandemic.  Landlords who experience losses due to their tenants’ non-payment of rent are advised to apply for such small business loan to cover some or all of their losses.

Residential or commercial tenants who experience financial hardship due to the COVID-19 pandemic and who wish to maintain a good relationship with their landlord are advised to discuss with their landlord their need for short term relief from rent and other financial obligations.

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.

Read More

COVID-19 CLIENT ALERT – Summary of the Coronavirus Aid, Relief and Economic Security (CARES) Act

On March 27, President Trump signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a stimulus package of unprecedented proportions intended to provide economic relief and assistance to American individuals and businesses impacted by the COVID-19 pandemic.

The CARES Act is principally intended to address the significant disruptions in income being experienced by individuals and companies during the pandemic crisis, while also providing incentives for businesses to remain open and financial assistance for certain industries facing especially severe economic hardship.

Highlights:

• Direct payments to individuals: Most Americans will receive a one-time direct deposit of up to $1,200, and married couples will get $2,400, plus an additional $500 per dependent child. The payments will be available for incomes up to $75,000 for individuals and $150,000 for married couples.
• Waiver of early withdrawal penalties for retirement accounts: The bill waives the 10% early withdrawal penalty for distributions up to $100,000 for coronavirus-related purposes, retroactive to Jan. 1.
• Small businesses incentives: $350 billion is devoted to preventing layoffs and business closures while workers stay home during the COVID-19 pandemic. Businesses with 500 employees or fewer that maintain their payroll during the outbreak can receive up to 8 weeks of cash-flow assistance in the form of loans. If employers maintain payroll, the portion of the loans used for covered payroll costs (as well as interest on mortgages, rent, and utilities) will be forgiven.
• Enhanced unemployment benefits: $250 billion will be used to enhance unemployment insurance benefits by expanding eligibility and offering workers an additional $600 per week for four months, in addition to what state programs pay.  Unemployment benefits will extend through December 31 for eligible workers. Self-employed, independent contractors, and “gig” economy workers like Uber drivers all benefit from these provisions.
• Funding for hospitals and health care: The Act provides over $140 billion to support the U.S. health system, $100 billion of which is for the benefit of hospitals. The balance will be dedicated to providing personal and protective equipment for health care workers, testing supplies, increased workforce and training, accelerated Medicare payments, and supporting the CDC, among other things.
• Coronavirus testing: All testing and potential vaccines for COVID-19 will be covered at no cost to patients.
• Loans and other financial benefits for large corporations: $500 billion will be used to provide loans, loan guarantees, and other investments for large corporations, overseen by a Treasury Department inspector general. These loans will not exceed five years and cannot be forgiven.

In a future Client Alert, we will be providing more details concerning specific features of the CARES Act. In the meantime, we welcome your questions concerning how this measure affects your business and how we might assist you in taking advantage of the financial benefits and incentives it provides.

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.

Read More

COVID-19 CLIENT ALERT

The COVID-19 pandemic is causing all New York businesses to face unprecedented uncertainties and challenges in a host of areas central to their operations. The landscape of state and federal laws being passed, and regulations and executive orders being issued, is changing almost daily. We are monitoring these changes in federal and state laws, and are continuing to provide guidance and advice to our clients as they navigate these ever-changing and uncharted waters.  Although not comprehensive, below we provide some highlights of important changes that may affect your business.

1. Federal Stimulus

As of this writing the U.S. Senate has passed, and the House is considering, a major federal stimulus package that will include a variety of benefits for employers and employees alike. We are monitoring that and will be providing updates concerning significant features of it once enacted into law.

2. Loans and Mortgages

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.

3. Suspension of Time Limits for Legal Proceedings

Gov. Cuomo’s Executive Order 202.8 suspended until April 19, 2020 any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding. This tolling of time limits applies to all criminal, civil, family court, surrogate’s court, and Court of Claims proceedings.  Filing of papers with all court clerk offices has also been suspended state-wide, with certain exceptions, and no new criminal or civil jury trials are being conducted until further notice. We expect the April 19 date will be subject to further extension if circumstances warrant.

4. In-Person Workforce Reduction

Pursant to Executive Order (“EO”) 202.8, all “non-essential” businesses and not-for-profit entities in New York were required to reduce their in-person workforces by 100% no later than March 22 at 8 p.m.  An entity providing “essential” services or functions, whether to an essential business or a non-essential business, are not be subject to this in-person work restriction, but may operate at the level necessary to provide such service or function.

The list of “essential” businesses not affected by this mandatory in-person workforce reduction is lengthy; a complete list can be found here. In general, it exempts essential health care, infrastructure, manufacturing, and retail businesses, services such as trash and recycling, mail, auto repair, and cleaning services, news media, and financial institutions. We welcome clients’ questions concerning whether they qualify as essential businesses or how they may apply to qualify if not currently on the list of essential businesses and services.

5. Hospitals, Medical Personnel and Services

The Governor’s Executive Order 202.10 contains a number of important provisions concerning hospitals and medical services, all of which are designed to maximize available facilities and increase the number of personnel permitted to provide medical services in New York. Our Healthcare Law attorneys would be happy to discuss your questions.

6. Employment Law

Many of the most significant changes brought about by the COVID-19 pandemic are happening in employment law, at both the state and federal levels. For example, the recently-enacted Families First Coronavirus Response Act (FFCRA) creates new obligations for employers with respect to paid sick leave and paid family leave. New York likewise recently passed legislation imposing new obligations on employers with respect to paid leave and providing new or enhanced state benefits to employees.  The details of these laws are beyond the scope of this Client Alert, but our Labor and Employment Law professionals are ready to help you navigate through these new laws and any that may hereafter be enacted. For a helpful summary of the FFCRA, please see Adam Rodriguez’s article here.

7. Evictions and Foreclosures

Gov. Cuomo’s Executive Order 202.8 suspends enforcement of all residential and commercial tenant evictions, and all residential and commercial property foreclosures, for a period of ninety days as of March 20, 2020. Note too that with the temporary state-wide suspension of new court filings ordered by New York’s Chief Administrative Judge, no new eviction or foreclosure proceedings can be commenced for the time being.

8. Real Property Tax

While numerous requests have been made to extend the deadline for the payment of Town and Westchester County taxes beyond April 30, 2020, to date no such action has been taken.  As of today, the Town and County tax remain due by the end of April.

Additionally, for property tax assessment purposes, in New York State, commercial property is valued using an income-based approach.  Vacancies and rent abatements or other decreases in income will have a profound effect on the market value of properties.  Similarly, market-wide vacancies and decreases in rent may also result in lower market values across the board. If the current assessment on a property reflects a value above the proper market value, you may be entitled to reduced assessment, resulting in a lower property tax bill. Keep in mind that tax assessments must be challenged each year and strict deadlines apply to filing these challenges.

9. Land Use Approvals

Under Executive Order 202.1, New York State suspended the Open Meeting Law.  This permits Town Boards and other approving agencies to meet remotely, allowing the land use process to proceed in many localities.  Local Building departments remain open for the most part, to issue non-discretionary permits and permits in compliance with the still-functioning Boards.

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.

 

Read More

Bleakley Platt & Schmidt’s John McGowan Begins First Term on County Legislature

Bleakley Platt & Schmidt, LLP associate John W. McGowan, Esq, was recently sworn in as Rockland County’s District 15 Legislator, joining the County Legislature, comprised of 17 representatives from throughout Rockland.

A lifelong resident of Rockland County, McGowan’s victory in District 15 was his first run for elected office and is the culmination of an extensive record of public service and community involvement. As an attorney at Bleakley Platt & Schmidt, McGowan, who is admitted to practice in both New York State and federal courts, is a member of the Litigation Practice Group, where he specializes in general liability defense, construction law, and criminal defense. He is a former Senior Assistant District Attorney of the Rockland County District Attorney’s Office, where he was assigned to the Special Victims’ Unit.

Appointed by Rockland County Executive Ed Day in 2018, McGowan is a board member of the Rockland County Solid Waste Management Authority. He is also president of the Rockland Ancient Order of Hibernians, as well a member of the Rockland Friendly Sons of St. Patrick, Pearl River Elks Lodge 2041, St. Dominic Knights of Columbus, and a volunteer with the Lourdes Kids of Rockland and Pearl River American Legion, Post 329. He is an adjunct professor at St. Thomas Aquinas College and a faculty instructor with the Orangetown Police Youth Court.

McGowan began his four-year term on January 2, 2020, replacing outgoing District 15 legislator, Patrick Moroney.

Bleakley Platt & Schmidt, LLP is Westchester’s preeminent law firm, with a more than 80-year legacy of providing superior legal counsel to the residents and businesses of Westchester County and Greenwhich, CT. To learn more about the firm’s services, visit https://www.bpslaw.com/, or contact its offices at (914) 949-2700. To learn more about John W. McGowan, his practice areas, and services offered, email him at jmcgowan@bpslaw.com.

Read More

The Need for an Elder Lawyer While Caring for a Loved One

Bleakley Platt & Schmidt partner Frances M. Pantaleo, Esq. and her team of elder law specialists understand that caring for an aging family member is a responsibility that tests the endurance of even the most devoted relatives. Fortunate families might find their loved one a room and specialized care at a retirement home or memory unit, but such a move brings its own stressors, like Medicare/Medicaid requirements and policies, on top of the inherent emotional strain. Few are prepared to navigate the intricacies of the system. Fortunately, Ms. Pantaleo leads the firm’s Elder Law and Special Needs Practice Group, dedicated to addressing the needs of the elderly, the differently abled, and their families.

A member of the National Academy of Elder Law Attorneys (NAELA) and Co-Chair of the New York State Bar Association’s Committee on the Elderly and Disabled, Frances Pantaleo, Esq. was recently named Best Lawyers’ 2020 Lawyer of the Year in White Plains for the field of Elder Law. Additionally, the Thomson Reuters publication Super Lawyers Magazine has recognized her as one of the Top 25: 2019 Westchester County Super Lawyers, and the publication has also named her as one of the top 50 Women Lawyers in the Metro Area. She has also been honored with an award from the New York State Bar Association Elder Law & Special Needs Section for her work “in furtherance of the rights of the elderly and persons with disabilities.” An educator, as well as an attorney, Ms. Pantaleo has taught law at the Benjamin N. Cardozo School of Law in New York City and Pace Law School in White Plains.

Under Frances Pantaleo’s leadership, the Elder Law and Special Needs Practice Group works closely with clients’ family advisors, including family offices, financial advisors, CPAs, social workers, and healthcare professionals, providing counsel in the areas of health care, long-term care planning, estate planning (including preparation of wills, trusts, and advance directives), asset preservation and protection, Medicaid applications, and guardianship.

If you or a loved on are in need of elder law services, don’t wait to find out how Bleakley Platt & Schmidt can help. Contact Frances Pantaleo, Esq. to begin fighting for the care you need and the security your family deserves.

Read More

Frances Pantaleo, Esq. of Bleakley Platt & Schmidt, Named 2020 Lawyer of the Year

White Plains, NY – Bleakley Platt & Schmidt, LLP, Westchester County’s preeminent law firm, is pleased to announce that partner Frances Pantaleo, Esq. received several accolades in 2019, for her work in her practice area of elder law. She has been named as White Plains’ 2020 Lawyer of the Year in her field by Best Lawyers, regarded nationally as the most credible measure of legal integrity for more than three decades, and will be listed in the 26th Edition of The Best Lawyers in America.

Additionally, the Thomson Reuters publication Super Lawyers Magazine has once again recognized Ms. Pantaleo as one of the top 50 Women Lawyers in the Metro Area and once again as one of the Top 25: 2019 Westchester County Super Lawyers.
As partner, Pantaleo draws on her expertise in elder law, special needs planning, and guardianship proceedings to further the firm’s 80-year legacy of providing superior legal counsel to Westchester residents and businesses. A member of the National Academy of Elder Law Attorneys (NAELA), she heads the firm’s Elder Law and Special Needs Practice Group, a team dedicated to helping elderly individuals and their families handle the legalities of long-term care, estate planning (including preparation of wills, trusts and advance directives), asset preservation, Medicaid applications, guardianship, and other concerns that come with aging and disability.

Ms. Pantaleo is a graduate of New York University School of Law, and has taught elder law at the Benjamin N. Cardozo School of Law in New York City and Pace Law School.

Pantaleo has served as Chair of the New York State Bar Association’s Elder Law and Special Needs Section and is currently Co-Chair of the Committee on the Elderly and Disabled of its Trusts and Estates Section.

This breadth of knowledge and passion for her practice areas has earned Pantaleo numerous honors. Earlier this year, Pantaleo was presented with an award from the New York State Bar Association’s Elder Law & Special Needs Section for her work “in furtherance of the rights of the elderly and persons with disabilities.”

Read More

Join Us – NYS Employment Law Updates

Human Resources Network at Dutchess Community College

Join us for a review of the changes to New York State Employment law over the last year. See topics covered below.

• GENDA – the Gender Expression Non-Discrimination Act
• Discrimination based on Reproductive Health Decision
• Equal Pay / Salary History Ban
• Workplace Harassment Protections
• New York State Paid Family Leave Act

When: Thursday, December 12, 2019
Time: 9 am – 10:30 am
Where: The Council of Industry Office, Newburgh, NY
Free for Council of Industry Members
To register, click here to send an email to Alison Butler

Read More

Partner Joe DeGiuseppe Speaking at 91st Annual NYSAC Fall Conference

Bleakley Platt partner Joe DeGiuseppe, chair of the firm’s Employment and Immigration Law practices, will speak on Monday, September 16^th at the 91^st Annual Fall Conference of the NYS Cemetery Association on the topic of “Recent Developments in NYS Paid Family Leave Laws.”  Mr. DeGiuseppe’s presentation will provide an overview of various leave issues under this NYS law and its interaction with similar federal, state and local employee leave laws, including FMLA, the NYS Human Rights Law and the NYC and Westchester County Earned Sick Leave Laws.

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 also advises corporations, business executives, professional employees and individual clients with respect to immigrant visa (green cards) applications, U.S. citizenship applications, nonimmigrant work visa petitions, and employment verification and discrimination issues.

More information on the 91^st Annual NYSAC Fall Conference can be found at the following link:  http://nysac.com/upcoming-events/

 

Read More

Courts Can Now Use Google Maps: N.Y. Law Amended to Allow Courts to Take Judicial Notice of Information from Web-mapping Services

I often use Google Maps, the Westchester County Geographic Information Systems, and other web-based mapping services in my cases to find visual information about specific locations around the world that are relevant. Using those maps during depositions is easy. But getting those maps admitted into evidence at a trial or hearing would require an evidentiary certification from the custodian of the image that could be difficult and time consuming. Not anymore.

The New York State Legislature recently amended § 4511 of the Civil Law and Practice Rules (“C.P.L.R.”) to require courts to take “judicial notice” of digital mapping images and related information. Courts can take judicial notice of a fact when it is a well-known or indisputable, proven fact.

The new § 4511(c) reads:

“Every court shall take judicial notice of an image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool, when requested by a party to the action, subject to a rebuttable presumption that such image, map, location, distance, calculation, or other information fairly and accurately depicts the evidence presented. The presumption established by this subdivision shall be rebutted by credible and reliable evidence that the image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool does not fairly and accurately portray that which it is being offered to prove. A party intending to offer such image or information at a trial or hearing shall, at least thirty days before the trial or hearing, give notice of such intent, providing a copy or specifying the internet address at which such image or information may be inspected. No later than ten days before the trial or hearing, a party upon whom such notice is served may object to the request for judicial notice of such image or information, stating the grounds for the objection. Unless objection is made pursuant to this subdivision, or is made at trial based upon evidence which could not have been discovered by the exercise of due diligence prior to the time for objection otherwise required by this subdivision, the court shall take judicial notice of such image or information.”

So, § 4511(c) creates a rebuttable presumption. Any party can ask a court to take judicial notice of the web mapping service images or information. No evidentiary showing is required, but requesting parties must notify their adversaries at least thirty (30) days before a trial or hearing. The adversary must then object no later than ten days before the trial or hearing, stating the grounds for the objection, which must include “credible and reliable evidence” that the image or information “does not fairly and accurately portray that which it is being offered to prove.” If the adversary fails to make a timely objection (unless new facts are learned after the objection deadline), the court must take judicial notice of the image or information.

This is a very practical amendment to the C.P.L.R. that will promote efficiency by saving time. We all rely on these web mapping services in our everyday lives. There is no reason that the courts should be any different.

 

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 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 an intellectual property litigator at a large law firm in New York City.

Visit Mr. Rodriguez’s Facebook page “Trademark Tales,” Twitter feed, Instagram feed and LinkedIn for more thoughts on the law.

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

Read More

Supreme Court Strengthens Rights of Trademark Licensees: Holds that bankruptcy debtors cannot terminate trademark license agreements under section 365 of the U.S. Bankruptcy Code

In the United States, the Bankruptcy Code allows individuals and entities (“debtor”) who cannot repay their debts to seek relief from some or all of those debts.

One of the peculiar aspects of the Bankruptcy Code is that 11 U.S.C. § 365(a) enables a debtor to reject “executory contracts,” which are contracts that neither party has finished performing. Examples of executory contracts are a real estate lease and an intellectual property licensing agreement.

The question before the Supreme Court in Mission Product Holdings, Inc. v. Tempnology, LLC., was whether the “rejection” of a trademark licensing agreement under § 365(a) also terminated the rights of the licensee to use the trademark.

The Court agreed to hear the case to resolve a split among the circuit courts. The Court of Appeals for the First Circuit held in In re Tempnology, LLC, 879 F. 3d 389 (2018) that a debtor’s rejection of trademark licensing agreement terminated the licensing agreement. The Seventh Circuit, however, had ruled the other way in Sunbeam Products, Inc. v. Chicago Am. Mfg., LLC, 686 F. 3d 372 (7th Cir. 2012).

The Supreme Court agreed with the Seventh Circuit, holding that a debtor’s rejection of trademark license under Section 365 of the Bankruptcy Code has the same effect as a breach of that license agreement outside bankruptcy. Rejection does not rescind rights that the contract previously granted.

“A rejection breaches a contract but does not rescind it. And that means all the rights that would ordinarily survive a contract breach, including those conveyed here, remain in place.” The debtor “can stop performing its remaining obligations under the agreement. But the debtor cannot rescind the license already conveyed. So the licensee can continue to do whatever the license authorizes.”

The Court’s holding is a victory for trademark licensees. It strengthens the rights of licensees by making clear that rejection of a trademark license during bankruptcy does not rescind the license. It will also give trademark licensees greater power and leverage during the bankruptcy reorganization process.

 

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 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 an intellectual property litigator at a large law firm in New York City.

Visit Mr. Rodriguez’s Facebook page “Trademark Tales,” Twitter feed, Instagram feed and LinkedIn for more thoughts on the law.

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

Read More

Brendan H. Buschman Presents a CLE Seminar on Supplemental Needs Trusts

Brendan H. Buschman, a member of the firm’s Elder Law and Special Needs Practice Group, will give a CLE seminar on Supplemental Needs Trusts for the Mamaroneck Harrison Larchmont Bar Association in conjunction with Benchmark Title on Friday, June 7, 2019 at Emilio’s Ristorante, Harrison, NY.

The presentation will review such topics as Self-Settled Supplemental Needs Trusts, Third Party and Trigger Supplemental Needs Trusts in Wills and/as Testamentary Substitutes, and ABLE Accounts.

Mr. Buschman has experience in elder law, special needs planning and guardianship proceedings under Article 81 of the Mental Health 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.

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

Read More

Bleakley Platt attorneys, William P. Harrington and John W. McGowan, to sue New York State Parole Board over release of Judith Clark

On Monday, May 13^th, Bleakley Platt attorneys William P. Harrington and John W. McGowan, in conjunction with co-counsel Mark Blanchard and Dennis Lynch of Blanchard and Wilson, commenced an action in New York State Supreme Court on behalf of clients Arthur G. Keenen Jr. and Michael Paige against the New York State Parole Board (the “Board”) and Commissioners Tana Agostini, Ellen Alexander, and William Smith Jr. based on the Board’s decision to grant parole to and release murderer, Judith Clark, who was convicted for her role in the infamous 1981 Brinks robbery which claimed the lives of three innocent men: Sgt. Edward O’Grady (Nyack Police Department); Officer Waverly “Chipper” Brown (Nyack Police Department); and Brinks Security Officer Peter Paige. Arthur Keenen is a retired Nyack Police Officer who was injured during the Brinks robbery and Michael Paige is the son of the late Peter Paige, slain during the robbery.

Through this action, our clients/plaintiffs contend that the Board acted improperly and failed to follow the statutory and regulatory guidelines in making its decision to grant parole to the convicted murderer Judith Clark. Ultimately, our clients seek a reversal of the Board’s decision and that Judith Clark be remanded back to state prison to serve the remainder of her sentence.

This matter garnered media coverage from many local outlets, including News12, the Journal News, Fios1 News, the New York Post, and 1010 WINS among others.

A link to an article covering the press conference and announcement of the suit: https://www.lohud.com/story/news/local/rockland/2019/05/13/brinks-victims-seek-new-parole-hearing-freed-judith-clark/1186735001/

Read More

Partner Jim Glatthaar & Counsel Adam Rodriguez Quoted by The Verge on Facebook Housing Discrimination Case

Bleakley Platt Partner Jim Glatthaar and Counsel Adam Rodriguez were key sources for a recent article in The Verge that examines the U.S. Department of Housing and Urban Development’s claim that Facebook violated the Fair Housing Act by letting ad buyers use Facebook algorithms to target audiences that included or excluded certain races, religions, or genders.

According to Mr. Glatthaar, the case is unusual for a variety of reasons.  “Something like this is a national practice, whereas most housing discrimination is fairly local,” he says. “The federal government is one of the few entities that can handle something of this scope.”

According to Mr. Rodriguez, HUD doesn’t have to establish that these targeting algorithms are purposefully designed to avoid showing ads to certain protected classes. It just has to demonstrate that the system effectively makes housing less accessible to these people — a concept known as disparate impact. “If there is an algorithm that just happens to discriminate against racial minorities or gender minorities or whatever, I think it would still be problematic,” says Rodriguez.  He compares the move to a zoning restriction whose text and intent is race-neutral but that directly results in fewer black residents, which would likely still be considered discriminatory.

To read the entire article, click here.

Mr. Glatthaar is a member of the Litigation, Co-Operative and Condominium, Construction and Real Estate Practice Groups at Bleakley Platt. 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.

Click here to view his complete attorney profile.

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 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 an intellectual property litigator at a large law firm in New York City.

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

Read More

Attorneys for child abuse victim call for Court appointed Special Master to ensure records are protected

Attorneys for child abuse victim call for Court appointed Special Master to ensure records are protected.

New York’s new landmark child abuse act creates a long waiting period before victims can file.

This waiting period must not become an opportunity for new abuse.

Only a Court appointed neutral Special Master can protect the new rights granted to those who have waited decades for their day in Court.

Today, on behalf of our client, and at least one thousand young boys of first- and second-generation American families victimized and abused by Dr. Reginald Archibald of Rockefeller University Hospital, we have filed an action asking the Court to appoint a Special Master to ensure that the newly granted litigation rights of childhood sexual abuse victims are protected.

This neutral Special Master must direct that all records, photos, X-Rays, mail correspondence, and email, if any exists, be preserved. Further, the Special Master must also direct that the Hospital, its officers and employees, and its law firm cease contacting former patients of Dr. Archibald, and that any notes, transcriptions, letters, questionnaires or other materials gathered on behalf of the Hospital be preserved and made available to any patient who is preparing possible litigation under the new statute. In the case of the Victim we represent, these same orders should apply to Madison Square Boys Club, and any other organizations that may have been involved in the actions of Dr. Archibald.

John Corcoran, a retired NYPD Special Assignment Sergeant, was swept into Archibald’s abuse after a swim at Madison Boys Club. With a fake diagnosis, the prestige of Rockefeller University Hospital and the assistance of Madison Boys Club and others, the pre-adolescent Corcoran was exposed to Archibald’s sexual abuse, which Rockefeller University has admitted was “reprehensible.”

“The legislature may have had a very good reason for to delay the implementation of this law by 6 months after passage, but that time period must not become an opportunity to re-victimize our client,” said Barbara Hart of Lowey Dannenberg.

“We have seen how our client was contacted by the Hospital’s law firm and interviewed without informing him of the possibility that he could sue under the new law or that they were acting on behalf of the Hospital,” added William Harrington, of Bleakley Platt.

The new law grants victims, who were barred from pursuing their abusers by the statute of limitations, an opportunity to file legal cases for a period of one year. That year commences in August 2019, but no provision was made to preserve and protect possible evidence on the 6-month period before the law takes effect.

Today’s action seeks to remedy that for Mr. Corcoran and all other victims that may seek relief.

Read More