Category: blogs

New York’s third-party practices in civil litigation will look a lot different beginning next month. The “AVOID” (“Avoiding Vexatious Overuse of Impleading Delay”) Act, which substantially limits the time in which a defendant can implead a third party, goes into effect April 18, 2026.

New York State’s Civil Practice Law and Rules (“CPLR”) Section 1007 allows defendants to bring new parties into a lawsuit under certain circumstances. The procedural mechanism is called “impleader,” which occurs when a defendant commences a lawsuit against a third party that the defendant thinks may be liable to the defendant for the plaintiff’s alleged injuries or damages. For example, assume that a car accident involves three cars in single file. The plaintiff (in the first car) sues the defendant, the driver of the car behind her. However, the defendant believes that the accident was caused by the rear car which struck the defendant (who in turn struck the plaintiff). In that case the defendant (in the middle car) would likely implead the driver of the rear car and claim that the driver of the rear car is liable (either in part or in full) for the plaintiff’s injuries.

Historically, CPLR 1007 did not state that a defendant had to implead a third party within a certain period of time—until now. Under the AVOID Act, a defendant seeking to implead a thirdparty must file and serve a third-party summons and complaint within 60 days of the date that the defendant answers the complaint if there is a contractual relationship between the defendant and the party to be impleaded. If there is no contractual relationship between the two, the defendant must file and serve the summons and complaint within 60 days of the date that the defendant becomes aware that the person to be impleaded is or may be liable to the defendant. In cases where successive impleaded party seeks to commence their own third-party actions, the time frame becomes shorter with each new impleaded party. The shortest applicable time period pursuant to the statute is 20 days.

An exception exists in actions in actions where an employee sues for on-the-job injuries. If the defendant in an employee accident suit is seeking contribution or indemnification for a “grave injury,” the time to file and serve a summons and complaint is longer. According to the Act, the defendant has 120 days to commence such an action however, it is unclear when that time begins to run in cases where the employer’s identity is initially known to the impleading party. Based upon the remainder of the new statute, it appears that the period will begin to run when the defendant files its answer. If the name of the employer is initially unknown to the defendant, the 120 day period begins to run when the defendant learns the identity of the employer.

Client and practitioners should be aware of the impact of the Act on stipulations extending a defendant’s time to answer. The time periods set forth in the statute cannot be extended for more than 30 days absent a court order.

Additionally, the law applies to cases in suit on the effective date, but does not apply to any third-party summons and complaint filed and served prior to the effective date of the act. The statute does not provide a grace period for cases in which the applicable period has expired as of the effective date, and cases involving such facts will likely be the subject of litigation in the near future.

This new legislation represents a marked shift in third party practice, impacting litigants and practitioners. When seeking representation, defendants should inform prospective attorneys about the identity of relevant third parties as early as possible. Likewise, practitioners representing defendants should ask for such information as soon as possible upon taking on new matters.

Learn more about CMM’s litigation practice here.

Non-compete agreements between businesses and their employees are often the subject of intense scrutiny when enforcement is sought in the courts. As someone who has litigated dozens of these cases on behalf of businesses, they can often be difficult to navigate for a host of reasons, typically because the non-compete language is too broad, the company terminated the employee and gave no consideration for the non-compete, proof of loss to the company is lacking or the court flat out does not want to deny employment.

An exception to the courts’ usual reluctance to enforce non-competes is when a business is acquired and, as part of the transaction, the prior owner(s) of the acquired company is subject to a non-compete. It makes sense that the company that just paid potentially millions to acquire a business would not want the prior owner going back to the marketplace to start a competing business. Courts typically look favorably on these non-compete agreements for that reason and because the prior owner was presumably well-compensated for the agreement not to compete.

However, a recent decision from a case in Delaware may have thrown this concept into flux. In the DE case, BluSky Restoration Contractors acquired Sharp, Robbins & Popwell (SRP), a general contracting firm, in early 2020. The two co-founders of SRP worked at BluSky after the acquisition until 2024 but then left and formed a competing entity. Litigation ensued with BluSky claiming the SRP founders were in breach of their employment agreements with BluSky, which were part of the original acquisition.

In a surprising decision, Magistrate Hume IV dismissed BluSky’s case in favor of the SRP founders, holding that even though this type of non-compete was subject to less scrutiny, and BluSky had a legitimate interest in protecting its business, the language in the non-compete was too broad because it was for a five-year period and covered the entire U.S. and worldwide geographically.

The fact that the SRP founders acknowledged the reasonableness of the terms in the agreement did not matter. Additionally, the Judge noted that the millions paid to acquire SRP was not sufficient to adequately compensate the SRP founders for the overly broad non-compete.

The Judge also rejected the idea of modifying (or blue-penciling) the non-compete language because he said it would not help businesses properly tailor non-compete language in the future if they essentially could just rely on the courts to fix them when there is overreach.

This decision presents a warning shot for all business owners, especially those that have or are looking to acquire other businesses. Even if you are spending millions to acquire a business, you still need to be careful to not overstep the bounds of protecting the company’s legitimate business interests.

On June 10, 2025, Senate Bill 8432 (the “Bill”) [1]  was introduced in the New York State Senate to amend certain definitions of the New York LLC Transparency Act (NYLTA). The purpose of this bill was to make “technical” changes to the definitions of Section 1106 of the Limited Liability Company Law (“LLCL”) after the FinCEN issued its Interim Final Rule and  removed beneficial ownership information (BOI) from reporting under the Corporate Transparency Act (CTA) for U.S. entities (by redefining a reporting company to mean only entities that were formed outside of the U.S. and which are registered to do business within any U.S. State or Tribal jurisdiction by filing a document with the secretary of state or similar office).[2] As a result, all entities created in the United States became exempt from the requirement to report BOI to FinCEN.[3]

The Bill aimed to revise the definitions of “beneficial owner,” “reporting company,” and “exempt company” to ensure they function independently of the CTA, since the current wording of  Section 1106 of the LLCL cross-references the CTA and any federal regulations, i.e., the Interim Final Rule.[4] The Bill would have removed these references and required limited liability companies created or authorized to do business in the New York to file beneficial ownership disclosure statements.

However, on December 19, 2025, Governor Hochul vetoed the Bill. In her veto message, the Governor stated that the NYLTA was enacted to receive reporting similar to what was required by the CTA and that the Bill would “create a mandate for businesses in New York that is not required under federal law.”[5] She further explained that it was not in the “interest of New York State” to impose additional requirements on limited liability companies.[6]

Beginning January 1, 2026, only non-exempt foreign limited liability companies formed outside of the U.S. and authorized to do business in New York must file beneficial ownership disclosure statements with the New York Department of State (“Department of State”).[7] Certain foreign limited liability companies (“Foreign LLC(s)”) may be exempt if they meet a condition of exemption under 31 U.S.C. §5336(a)(11)(B).[8] These exemptions include banking organizations, federal or state credit unions, and large operating companies. Exempt Foreign LLCs must file an attestation of exemption with the Department of State, which must include a statement of the specific exemption claimed and the facts on which the exemption is based. [9]  All Foreign LLCs must submit an initial filing and provide annual updates. Filing deadlines are as follows:

• Foreign LLCs that were authorized to do business within New York prior to January 1, 2026, must file either a beneficial ownership disclosure statement or an attestation of exemption by December 31, 2026.[10]
• Foreign LLCs authorized to do business within New York after January 1, 2026, must file a beneficial owner disclosure statement or an attestation of exemption within thirty (30) days of filing an application for authority with the Department of State.[11]

For non-exempt Foreign LLCs required to file a beneficial ownership statement, the filing must include information identifying each beneficial owner of the Foreign LLC. The required information includes:

• Full legal name;
• Date of birth;
• Current home or business street address; and
• A unique identifying number from one of the following:
  • (i) an unexpired passport;
  • (ii) an unexpired state driver’s license; or
  • (iii) an unexpired identification card or document issued by a state or local government agency or tribal authority.[12]

A beneficial owner is an individual that exercises “substantial control” over or who owns 25% or more of a Foreign LLC authorized to do business in New York.[13] Non-exempt Foreign LLCs are not required to include beneficial ownership information for owners that are U.S. persons, including citizens of Puerto Rico and other U.S. territories.[14]

Domestic limited liability companies formed in New York and limited liability companies formed in another U.S. state or U.S. territory are not required to file any disclosure statements at this time. The Department of State, however, has noted that the laws are subject to change.^[15]

[1] Senate Bill S8432, The New York State Senate, https://www.nysenate.gov/legislation/bills/2025/S8432.

[2]FinCEN Removes Beneficial Ownership Reporting Requirements for U.S. Companies and U.S. Persons, Sets New Deadlines for Foreign Companies, Financial Crimes Enforcement Network, https://www.fincen.gov/news/news-releases/fincen-removes-beneficial-ownership-reporting-requirements-us-companies-and-us (Mar. 21, 2025).

[3] Id.

[4] N.Y. Ltd. Liab. Co. § 1106.

[5]  See Veto Memo 164 (https://f.datasrvr.com/fr1/225/34450/Veto_164.pdf).

[6] Id.

[7] Beneficial Ownership Disclosure Frequently Asked Questions, Department of State, https://dos.ny.gov/beneficial-ownership-disclosure-frequently-asked-questions.

[8] Id.§ 1106(c).

[9] Id. § 1107(b).

[10] Id. § 1107(e).

[11] Id. § 1107(d).

[12] Id. § 1107(a).

[13] Id. § 1106(a). See also 31 U.S.C. § 5336(a)(3)(A).

[14] Beneficial Ownership Disclosure Frequently Asked Questions, Department of State, https://dos.ny.gov/beneficial-ownership-disclosure-frequently-asked-questions.

[15] Id.                                                                

If you are working at a law firm implementing AI protocols, you have likely been warned not to share sensitive client/case details on public AI platforms like ChatGPT or Claude because of the potential of waiving attorney-client privilege. While attorney-client privilege is intended to protect all communications between attorney and client involving legal advice or guidance, sharing information on a third-party public platform becomes a risky proposition. Two federal cases recently dealt with this issue and were split in their respective outcomes.

The first case, U.S. v. Heppner, close to home in the Southern District of New York, was a criminal case in which the client, a CEO accused of securities fraud, used AI to find out details about the government’s investigation and then shared the prompts he used and resulting outputs with his attorneys. After the FBI seized those documents, the defense sought to suppress the evidence as privileged. The Court denied the motion, finding that the privilege was waived through third-party disclosure – the third party being the AI software. The Court specifically found that the AI software was an independent entity to which this CEO disclosed sensitive information.

The second case arrived at a different result. In Warner v. Gilbarco out of the Eastern District of Michigan, the Court again grappled with what to do with AI prompts and whether that information shared with a public AI platform, ChatGPT in this instance, waives work-product protection. The Judge here held that sharing prompts with ChatGPT does not waive work-product protection of the attorney and is not discoverable. Specifically, unlike in Heppner, the Judge here found that ChatGPT and the like are tools, not persons, and disclosure to a software tool, as opposed to an adversary or other third party does not waive protection. The Court drew an interesting comparison of AI software to a modern day word processor or legal research database, not an actual third-party recipient. It’s worth noting here that no confidential case information was shared with ChatGPT, although based on the Judge’s decision, it’s unlikely the result would have been different.

Given the differing views of how these courts view and interpret what AI platforms are – a tool vs. independent third-party entity – this seems like it will be a continually evolving situation.

The best guidance at this point is to avoid the risk and not share sensitive case information with any public AI platform. Contact Jeff Basso at jbasso@cmmllp.com for guidance.

When I started my career 30 years ago, the economic viability of Long Island was not a consideration. Known for its beaches, wineries and proximity to New York City, Long Island made it possible to have the best of both worlds – you could work with the best and brightest in the city and spend the weekends at your kids‘ sporting events in the “burbs.” Like the recent changes to the Food Pyramid, that calculus has now been turned upside down.

Over the last 20 years, Long Island has transformed itself into an international economic powerhouse. Home to the second-largest industrial park in the country (Silicon Valley being the largest), Nassau and Suffolk counties combined have a higher population and gross domestic product (GDP) than 16 states. Its high percentage of tradable sector jobs lifts the entire region to higher than the national average. Brookhaven National Lab was chosen—over fierce international competition—to build and operate the only Electro-Ion Collider in the world, making it a hub for the most brilliant minds worldwide. MacArthur Airport has recreated itself as a critical transportation hub for the region, and soon billions of dollars will be invested to connect it to the Long Island Railroad. Shopping malls decimated by COVID are being transformed by brilliant architects and builders, and cutting-edge technology companies are incorporating AI into critical verticals like health care. And the list goes on and on.

A region, however, cannot sustain itself with just leadership in the private sector; it must also have leadership in the public sector, and it is here where Long Island has completely transformed itself as well. For too many years, Long Island was governed by fear and NIMBYism, with local leaders refusing to invest in critical infrastructure for expansion. This fear-based policy resulted in crushing taxes and a housing and talent crisis. The current slate of elected officials—for the most part—have seen the iceberg Long Island was heading for and have had the political courage needed to correct the planning sins of the past. Whew!

All of this has given Long Island an incredible opportunity to not just grow but thrive for many years into the future. While words like shortage and crisis can be scary to investors, they are great opportunities when great minds in business and government are partnering together to find the solutions, which is what we have here on Long Island today.  We should all be proud of the work we have done over the years to build this Island into the powerhouse it is today, and I couldn’t think of a better place to invest time and dollars as we continue to move forward.

Slippery commutes, delayed deliveries, school closings, and a host of HR complications: a child’s winter wonderland can be an employer’s nightmare if you’re not prepared. With temperatures dropping and the risk of snowstorms looming, employers should take the opportunity to brush up on the employment laws relating to winter weather closures. Whether you plan to keep your office open, close early, or shut down on the next snowy day, read on for answers to some common issues employers face during winter storms.

Non-Exempt Employees

Your non-exempt employees should be paid only for hours they have worked; the Fair Labor Standards Act (FLSA) does not require employers to compensate non-exempt employees who cannot work due to inclement weather. This applies whether the employee decides to stay home or if the employer closes; in both cases, the employee must be paid only for the hours worked. Note, non-exempt employees must be paid for work completed remotely even if the employer did not give permission for the non-exempt employee to do so, so it’s critical to communicate your expectations ahead of time.

An exception to this rule is “Call-In Pay.”  CRR-NY 142-2.3 states, “An employee who by request or permission of the employer reports for work on any day shall be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.” This would mean that an employee who is called into work and is sent home less than 4 hours after his/her arrival must be compensated for at least 4 hours at the basic minimum hourly wage.

There is also an exception for “on call” time; for example, if your office has lost power due to a storm and your employees are required wait and see if the power comes back on, non-exempt employees must be paid for the time spent waiting, regardless of their ability to be productive during that period.

Exempt Employees

Exempt employees must be paid their full salary if the office closes due to inclement weather for less than a week. Additionally, if the office closes early, exempt employees must be paid for the full day. If the office is open, however, and the exempt employee chooses to stay home due to snowy conditions, the employee must use paid time off. (Are you sure that your exempt employees are classified correctly? Read this article on the 2026 changes to overtime exempt salary threshold.)

Both exempt and non-exempt employees may be able to perform their jobs from home in cases of office closures, but employers may need to rely on self-reporting to monitor how much time was worked. To minimize issues that may arise, it’s important to share your expectations with your staff in advance of a storm. Do you expect them to work from home if the office is closed? Should they refrain from working at home? How should they track their time? These questions are best answered before the office closure.

Employers should be proactive about their inclement weather policy, put it in writing, and remind employees of the policy as storms approach. Communicate with your staff about how your leadership team determines and communicates office closures and whether employees are expected to work from home.

If you have any questions regarding your inclement weather policy, please contact us at 631-738-9100.

With the arrival of the 2026 Winter Olympics Games, a friendly reminder to all Olympic enthusiasts that any unauthorized commercial use of the Olympic trademarks, logos, images, or symbols is prohibited. Because the United States Olympic & Paralympic Committee (“USOPC”) does not receive government funding to support its athletes, the USOPC has broad discretion to vigorously enforce its intellectual property.

Federal law gives the USOC exclusive rights to the symbol of the five interlocking rings, the Olympic flame and torch, and to the words, inter alia, “Olympic,” “Olympiad,” “Team USA,” “Milano Cortina 2026,” “Los Angeles 2028” and future logos and word marks, such as photographs or other images from the Games that include Team USA athletes or USOPC Intellectual Property. The statute is further extended to prohibit any advertising that tends to suggest a connection with the Olympics or the USOPC. The USOPC’s rights, however, are limited to situations where these words or symbols are used (1) to offer goods or services for sale; or (2) to promote a theatrical exhibition, athletic performance, or competition. In addition, it does not include trademarks or logos owned by the National Governing Body for specific sports.

Moreover, the USOPC holds trademark rights to Olympic-related words, images, and symbols. Section 43(a) of the Lanham Act prohibits the use of trademarks when they (1) are likely to deceive or create a false impression of affiliation or endorsement; or (2) misrepresent in advertising certain aspects of the product. Unauthorized use of the trademarks could subject a user to possible claims of false endorsement or affiliation, which operate separately from USOPC’s exclusive statutory rights. Although there are certain exceptions to infringement based on fair use, news reporting, news commentary, or any noncommercial use, the USOPC is not afraid to object to the use of its trademarks by a non-licensed party.

Creative marketers have attempted by “ambush marketing” to find a route around USOPC’s rights by creating advertising materials with some Olympic flavors without using the protected marks. For example, by taking photographs of national flags or competing athletes; by advertising near event locations; adopting themes and color palettes similar to the event; and real-time social media marketing. Such imagery could be eye-catching to consumers; however it is only acceptable if the attempts are not in violation of any anti-ambush marketing laws.

One instance of piggybacking off Olympic sponsors was when Prime Hydration ran an advertisement with Kevin Durant right before the start of the Paris 2024 Olympics, using terms like “Going for Gold,” “Team USA,” “Olympic,” and “Olympian”. The USOPC sued Prime, alleging that consumers could mistakenly believe Prime Hydration was a sponsor of or had a marketing agreement with the Olympics.  Another popular example is when Michael Phelps, the face of the Olympics, began appearing in Subway commercials. Subway, not an Olympic sponsor, ran a commercial featuring Michael Phelps swimming to “where action is this winter.” The USOPC characterized the ad as “ambush marketing” and an attempt to falsely associate Subway with the Olympics as a sponsor. Another famous example of capitalizing on real-time events with media marketing arose during the 2013 Super Bowl, when after a power outage at the Superdome, OREO cookies seized the opportunity by tweeting the message “Power Out? No problem” which was accompanied by an ad showing a single, starkly lit OREO cookie beside the caption, “You can still dunk in the dark”. The tweet quickly went viral allowing OREO to capitalize on the event without being an official sponsor.

In short, the USOPC has a reputation for aggressively policing their exclusive rights to certain words, phrases and symbols, and they have a special federal law to back them up. Be cautious of the use of Olympic trademarks by knowing and understanding where the boundaries are. If you’re thinking of advertising your business with an Olympic-themed promotion, you might want to find another Gold Medal-winning strategy.

Click here for additional information on the USOPC’s logos.

1.15 U.S.C.S. § 1125

New year, new electronic reporting requirements for contractors in New York. As of January 1, 2026, contractors and subcontractors providing services in connection with public work projects and certain private construction projects receiving public funds must electronically submit payroll records through the Department of Labor’s Electronic Certified Payroll Submissions system every 30 days for the length of the covered project. Failure to submit on time may result in penalties of up to $100 per day following a 14-day grace period.

To submit records, contractors must provide the business employer identification number (FEIN) from the IRS, New York State contractor registration number, prevailing rate case number for each project, and (for public improvement projects only) a copy of the payment bond. In addition, contractors must furnish personal employee details, schedules, and wage and benefit information for each employee. 

The Department of Labor has published a step-by-step user guide to assist contractors during this transition period. The guide details how to create a new project and how to submit a payroll report in the portal. In addition, frequently asked questions are accessible on the Department of Labor’s website: https://dol.ny.gov/system/files/documents/2026/01/certified-payroll-first-submission-tutorial.pdf