• Employers: Beware of the Cat’s Paw

    On March 1, 2011, the US Supreme Court issued an important decision affirming the viability of the “cat’s paw” theory of liability against employers in employment discrimination cases. Under the cat’s paw theory, an employer may be liable for discrimination against an employee when a supervisor is motivated by bias against the specific employee; performs an act that is intended to cause an adverse employment action (i.e. demotion, termination, write-up, etc.); and ultimately and that supervisor’s bias act is the proximate cause for the adverse employment action against that employee. In Staub v. Proctor Hospital, Vincent Staub sued Proctor Hospital under ...

    cmandm

    Monday, April 11th, 2011

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  • Failure to Timely Obtain Yellowstone Injunction Results in Lease Termination

    Yellowstone injunctions — an injunction to stay the available cure period provided in a commercial lease and in the landlord’s notice to cure while the merits of the alleged default are litigated — have been commonplace since the Court of Appeals’ decision in First Nat. Stores v. Yellowstone Shopping Center, 21N.Y.2d 630, 290 N.Y.S.2d 721 (1968). Two recent Appellate Division cases from the First and Second Departments remind us of the consequences of failing to promptly seek and obtain a Yellowstone injunction. In Goldcrest Realty Company v. 61 Bronx River Owners, Inc., 2011 WL 1206171 (2d Dep’t 2011) the plaintiff sponsor of ...

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    Sunday, April 10th, 2011

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  • Intro to the Wonderful World of Wills, Trusts & Estates

    In case you didn’t know, this is my first foray into the world of blogging. That being the case, I thought that I’d spend this month just explaining some of the more general concepts of Elder Law and Estate Planning; a general introduction to begin. Although they are pretty basic (at least to me), I’ve found that there are a large percentage of people that don’t know anything about these primary ideas. The first concept is “What are Elder Law, Estate Planning, and Trusts and Estates?” Unlike tax law or criminal law or motor vehicle law, there is no one body ...

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    Friday, April 01st, 2011

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  • Security Deposits – A Cautionary Tale

    Landlords routinely collect a security deposit from tenants at the commencement of a lease term with the deposit generally to be used to ensure the tenant’s compliance with its lease obligations. These obligations typically include the payment of rent or additional rent and payment for any damage to the leased premises caused by the tenant. While most experienced landlords understand and comply with GOL §7-103 as it relates to security deposits, some do not. As demonstrated by the following case, the failure to comply with GOL §7-103 can have harsh results. Pritzker v. Park South Lofts LLC, 117192/09, NYLJ 1202475879547, at ...

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    Tuesday, March 15th, 2011

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  • New York Wage Theft Prevention Act

    The Wage Theft Prevention Act (“Act”) was recently signed into law and becomes effective April 11, 2011. The Act significantly modifies employer requirements regarding wage notices, wage statements and payroll records, and posting requirements. Additionally, the Act includes more stringent anti-retaliation provisions and criminal and civil penalties against noncooperating employers. Below, we highlight some of the new changes and expectations. First, there are considerable changes to wage notice requirements to new and current employees. Prior to this act the law required that employers provide every new hire a written notice that included information such as regular wage rate, the overtime rate, ...

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    Friday, March 11th, 2011

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  • New Rules for Contractors Classifying Workers as Employees v. Independent Contractors

    New York government recently enacted the New York State Construction Industry Fair Play Act (“New Act”). The intent behind this new law is to address misclassification of construction workers as independent contractors instead of employees. This law created a new standard for determining whether a construction worker is an employee or independent contractor. Additionally, it provides new penalties for employers who fail to properly classify their employees. The law is likely to have an ongoing impact on the construction industry and the costs associated with a construction work force. Under this law, which became effective on October 26, 2010, a construction ...

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    Friday, February 11th, 2011

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  • Mistakes = Dismissal of Summary Proceedings

    Two recent cases, one from Bronx Civil Court and the other from Nassau County District Court, remind us of the harsh reality that avoidable mistakes made in the preparation of predicate notices and the pleadings will result in the dismissal of your summary proceeding. The Court in 3414 KNOS LLC v. Bryant, L&T 014058/10, NYLJ 1202477575221, at *1 (Civ., BX, Decided December 30, 2010) dismissed a nonpayment proceeding after Respondent defaulted, the warrant of eviction was issued and after Respondent defaulted in appearing on the initial return date of his motion to vacate the default judgment and warrant. Respondent, represented by ...

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    Thursday, February 10th, 2011

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  • 2011: National Labor Relations Board Issues Final Ruling

    By Arthur Yermash, Esq. The National Labor Relations Board has issued a Final Rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act by posting a notice. Employers should begin posting the notice on January 31, 2012. The notice, in English and other applicable languages, can be found online at https://www.nlrb.gov/poster. Private-sector union and nonunion employers are required to post this government notice informing employees of their legal rights under the NLRA. The notice states that employees have the right to act together to improve wages and working conditions, to form, join and assist a ...

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    Thursday, November 11th, 2010

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  • Self Help and Unlawful Evictions

    This month’s blog will begin to discuss a topic that will be revisited in future installments: Is a commercial landlord entitled to engage in self-help to recover possession of demised premises and, if so, under what circumstances and what are the potential damages available to a tenant if the landlord acts improperly? Two recent decisions, the first from the Supreme Court, Appellate Term, First Department and the second from the Supreme Court, Suffolk County (Spinner, J.) are a good starting point. In Sol De Ibiza, LLC v. Panjo Realty, Inc., 570805/09, NYLJ 1202472860256, at *1 (App. Term, 1st Dep’t, decided September 22, ...

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    Wednesday, November 10th, 2010

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  • Service of Process

    We know that the failure to comply with the rules governing service of predicate notices and pleadings can result in the dismissal of your proceeding. Similarly, knowing the intricacies of the rules regarding service can save what might appear to be defective service and result in unexpected benefits. An often overlooked decision by the Supreme Court, Appellate Term, supports an award of a default money judgment where service of the notice of petition and petition was accomplished by affixing the papers to the door of the subject premises and mailing the papers by certified and first class mail. Avgush v. Berrahu, ...

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    Sunday, October 10th, 2010

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Fred Eisenbud