Category: Uncategorized

By Bernadette Starzee

By Oct. 9, employers throughout New York State must provide anti-sexual harassment training to all of their employees. But as the deadline looms, many companies have not started the training yet.

Many small businesses don’t have counsel, and they might not be cognizant of all of their responsibilities as an employer. But under New York law, all employers who operate in the state were required to have a sexual harassment prevention policy in place by last October. They were given a year after that to complete the training (though all workers in New York City had to be trained by April 1, 2019). The training must be repeated on an annual basis, and new employees must be trained shortly after they are hired.

Many attorneys with a concentration in employment law have been conducting training to help their clients comply with the new requirement.

Campolo, Middleton & McCormick, a law firm based in Ronkonkoma, will offer training sessions for employees of multiple companies in its training room next month.

“A lot of businesses have not complied yet, and there are many companies with just a few employees who don’t want to spend the extra funds to have a private training session,” said Christine Malafi, senior partner and chair of the firm’s corporate department. “This is a more economical way for them to do it.”

New York State also makes online resources available for employers to provide training. But while training can be completed online, in-person training has certain advantages.

In these live sessions, managers and employees are able to hone in on the questions that are relevant to them and address concerns that are uppermost in their minds.

Over the last several months, Malafi has been engaged by several chambers of commerce to provide anti-sexual harassment training to groups made up of their member businesses.

At these sessions, several participants recounted incidents that had happened to them in the workplace and asked if they should report them, Malafi said.

“The sessions made people more aware of what constitutes proper behavior and improper behavior in the workplace,” Malafi said. “In most of the complaints, in my opinion, the employee who is doing the offensive conduct is not aware that it is offensive to the other person, because the two individuals don’t take it the same way.”

The sessions provide a lot of back and forth on issues such as physical contact in the workplace.

“Someone might say, ‘What’s the big deal if I put a hand on someone’s shoulder?’” Malafi said. “I say you shouldn’t do it. You have to be cognizant about how the other person feels, and rather than make a mistake about how they would feel about it, it’s better to just not do it.”

With the diverse pool of people in the workforce – who come from a wide range of backgrounds and generations – different actions can be interpreted in many different ways.

“You might have people ranging in age from 19 to 80 in a workplace, and the age difference can make a gigantic difference in how people act,” Malafi said. “They might not realize how what they’re doing is offending people. With these sessions, there is a dialog back and forth. People feel comfortable because I’m not their supervisor or employer, so they feel more comfortable having an open discussion.”

Campolo, Middleton & McCormick offers two types of training sessions – one for managers and supervisors, and one for non-management employees.

The session for management has an extra component. “New York State does not require separate training for managers, but we feel it is extremely important that they receive extra training because the new law places responsibilities on managers and supervisors that did not exist before,” Malafi said.

Read more here.

Register for our sexual harassment prevention training sessions here.

By Christine Malafi

The Internet has become a necessity for the marketing and promotion of businesses, services, and merchandise. An evolving legal issue is website accessibility for those with disabilities and the applicability of Title III of the Americans with Disabilities Act (“ADA”). Accessibility of public websites and compliance with the ADA in connection with public websites may cause issues for some time to come, especially given the lack of governmental regulations and guidance in this area. Nevertheless, it’s important for businesses to know where the law currently stands, as well as any potential liabilities which may arise from a failure to be in compliance.

The rise in legal cases brought on by allegations of the failure to provide ADA accessibility for websites has risen drastically. So far in 2019, over 350 New York area businesses have been impacted. Additionally, from 2017 to 2018, ADA website lawsuits increased a staggering 177%, rising from 814 in 2017 to 2,258 in 2018. It was New York State that led the nation in this increase, with 1,564 ADA website lawsuits made in New York during 2018.

The purpose of the ADA is to provide equal opportunity to individuals with disabilities, as well as to stimulate business by increasing the purchasing power of those with disabilities. Title III of the ADA specifically prohibits discrimination of individuals with disabilities “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 leases to), or operates a place of public accommodation.” While the ADA is silent on the specific issue of website accessibility, case law has made it clear that the ADA applies to public websites, and businesses must accommodate individuals with disabilities and make their websites ADA accessible. Yet the extent to which websites must be made accessible has not been definitively determined. In December 2015, the Department of Justice (“DOJ”) announced that it would issue private sector website ADA accessibility regulations during fiscal year 2018. However, a 2018 Presidential Executive Order cut regulatory resources and subsequently froze the DOJ’s public accommodations website rulemaking, leaving many businesses unsure what the regulations will be. Questions remain as to whether all websites fall under the ADA and whether a website must also be tied to a physical location before it falls under the ADA, among others. However, recent Court decisions may help to shed some light on a company’s responsibilities.

In Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (2019), the 9^th Circuit Court of Appeals decided that the ADA applied to Domino’s Pizza’s website, that they had received fair notice they were not in compliance with the ADA, and that due process did not require the DOJ to issue specific guidelines for ADA compliance for Domino’s to be liable for failure to comply. In this specific case, the Plaintiff was unable to order online using the Domino’s website due to inaccessibility for screen readers, although a live person was available by phone to assist in the placement of an order; but, since the website facilitated access to a place of public accommodation, Domino’s was required to follow ADA guidelines. The 9^th Circuit further stated that both websites and mobile applications had to satisfy a business’s obligations under the ADA. This case is significant because the Court considered, but rejected, the defense that the alternate option of a telephone hotline was sufficient to satisfy a company’s obligations under the ADA.

The 9^th Circuit took a stricter position on the application of ADA guidelines to a website or mobile app, which is tied to a physical location, than the more expansive positions taken by Courts in Massachusetts, New York, and Vermont, holding that as a “place of public accommodation,” the alleged inaccessibility of Domino’s website and mobile app unlawfully prevented customers from accessing goods and/or services at their physical locations. This decision reversed the district court’s dismissal of the lawsuit and, although considered an outlier among similar Court decisions, could set precedent in determining similar lawsuits in the future.

Therefore, in the continued absence of DOJ regulations, and in light of the 9^th Circuit’s decision, what should businesses do? Many settlements approved by the DOJ have implemented the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (WCAG) on how to make a website more accessible. At the most basic level, an ADA accessible website should provide these (and other) types of features:

• Text alternatives for any
  non-text content;
• Alternatives for time-based
  media;
• Content that can be presented
  in different ways (for example simpler layout) without losing information
  or structure;
• Be easy to see and hear,
  including separating foreground from background;
• Permit all functionality from a
  keyboard if needed (as opposed to a cursor);
• Permit sufficient time to read
  and use content;
• Not be designed in a way that
  is known to cause seizures or physical reactions;
• Include ways to help users
  navigate, find content, and determine where they are;
• Allow users to operate
  functionality through various inputs beyond the keyboard;
• Provide text content that is
  readable and understandable;
• Have web pages operate and
  appear in predictable ways;
• Help users avoid and correct
  mistakes; and
• Maximize compatibility with
  current and future user agents, including assistive web technologies.

The best option for business owners to not fall victim to a successful Title III suit is to comply with these WCAG guidelines.

However, it may not always be deemed “reasonable” for businesses to create a fully ADA compliant website. As is stated in the ADA: “A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. “ 28 C.F.R. § 36.302 (2012).

If making your website fully compliant with the WCAG is too costly for your company, other options may be available. Although New York courts have yet to address this specific issue, others have. In National Federation of the Blind v. Target Corp., Target was sued because its website did not enable visually impaired persons to directly purchase products, redeem gift cards, or find stores.  The court ruled against Target, as Target failed to show that the information on its website was available in another reasonable format. The court acknowledged ADA defines discrimination to include a failure to take such steps “as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the goods, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C.S. § 12182(b)(2)(A)(iii). The court specifically noted the following examples of accessibility: “if a menu cannot be read by a blind person, the restaurant need not make the menu available in Braille; the restaurant could ensure that waiters are available to explain the menu”; and “while a bookstore must ensure that it communicates with its customers in formats which accommodate the disabled, a bookstore is not required to stock books in Braille.” Courts therefore recognize that there may be significant limitations on the possibility of making a website completely or fully ADA accessible.

The Court in Robles v. Domino’s Pizza, LLC, held that an alternative means of access to a website has to be proven sufficient and effective in assisting customers who are disabled. This could prove to be a costlier endeavor than making the website itself accessible, and businesses should take this into consideration when they are deciding how best to make their websites compliant with ADA guidelines.

Absent further guidance, businesses and individuals with public business websites are urged to ensure accessibility. At CMM, we are available to assist and guide you on this issue.

Suffolk County employers, take note: effective June 30, 2019, employers in the county will be barred from asking about a job applicant’s salary history during the hiring process or relying on any such information to determine compensation.

The change is the result of the Restricting Information on Salaries and Earnings (“RISE”) Act, which amends the Suffolk County Human Rights Law and applies to employers with four or more employees (read more here). Under the new legislation, inquiring about a candidate’s salary history (including compensation and benefits), whether orally, in writing, on an application, or otherwise, or conducting research into the candidate’s salary history, is prohibited. The law also bars employers from relying on a candidate’s salary history in determining his or her compensation at the new company at any stage of the hiring process – including at the offer or contract stage.

Penalties for violating this law will include compensatory damages to the individual as well as payments to Suffolk County, up to $50,000. Fines could reach $100,000 if the violation is found to be willful, wanton, or malicious.

The intended purpose of the legislation is to help eliminate the gender wage gap, as well as wage inequity for employees from minority groups. In other words, the law is intended to give employees coming from lower paying jobs an opportunity to not be weighed down at their new positions.  The belief is that employers will focus more on the local job market to determine the appropriate wages.

While a salary history ban has not been implemented statewide, Suffolk County joins a number of areas in the state, including Westchester County, Albany, and New York City, that have already passed such legislation. (Please contact us for additional guidance if your business operates in any of these regions.) A statewide bill may go to the State Senate for a vote during 2019.

Employers should update their employment practices as soon as possible to comply with the new law, which takes effect at the end of this month. Removing any references to salary history on your application forms is a critical first step. All employees who conduct interviews and participate in the hiring process should also be trained in compliance with the new policy.

This law comes on the heels of the new sexual harassment laws passed in New York State during 2018. This updated legislation now requires employers to have both a sexual harassment prevention policy, as well as annual sexual harassment training for all employees which starts no later than October 9, 2019.

If you have questions about the RISE Act, or about your sexual harassment policy and training, please contact us.

Thank you to Michelle Toscano for her assistance with this article.

Arguably the hardest-working man in Long Island innovation, former New York State Assemblyman Marc Alessi enjoys a singular socioeconomic viewpoint. The entrepreneur and champion of 5G connectivity has had a productive year as both executive director of the Business Incubator Association of New York State and executive director of Shoreham’s Tesla Science Center at Wardenclyffe, all while leading his 2014 advanced-scanning startup SynchroPET to the edge of commercialization and chairing Campolo, Middleton & McCormick’s Economic Development Practice Group. The innovation buffet keeps the forward-thinker on the front lines – but his marquee moment may be 2018’s “Goosebumps 2: Haunted Halloween,” a big-screen sequel featuring characters based on the Alessi family. The father, fundraiser and industrious innovator takes a breath to share his unique perspectives:  

Open house: We’re hiring our architect and engineering firm and filing for permits this year to begin the next stage of construction at the Tesla Science Center – destruction, actually, then reconstruction. First, we’ll file the permits for our Visitor Center, which involves rehabilitating an old house on the site, the easiest to open to the public.

Lab work: We’re doing a full site plan with the county and the DEC and that’s going to take more time. Depending on how long that process takes, we can start taking down the buildings that need to come down and concentrate on shoring up the laboratory. We’re very anxious to raise all the capital we need to complete the project, but we have enough on hand to get started. We need to raise at least another $10 million to complete the lab building.

Big-name backers: We’ve raised a total of $7 million on a $20 million capital campaign. At least half of that has come from the innovation ecosystem, some from the local ecosystem, including Eugene Sayan, the CEO of Softheon, who’s a major benefactor. Elon Musk was another benefactor with a seven-figure gift, and we got a million-dollar commitment from a venture capitalist out of Princeton.

Spread the word: The Tesla center has an exhibit in a 5,000-square-foot loft in the Jack London District in Oakland, where we’ve done a number of VIP events. We’ve held events for Tesla Motors and we’re planning a series of events for Google employees. The purpose is to raise awareness of what we’re doing at Wardenclyffe in different tech hotbeds, where a good part of our support comes from. Another example was the South by Southwest Conference in March; we went down and now a number of those folks are contributors and advisors.

A-list advisors: We have an incredible group of advisors. We have venture capitalist Greg Olsen, the founder of GHO Ventures, and Vin Cerf, the inventor of the Internet and one of the most amazing people ever. And there’s John Cohn, an MIT professor who heads up artificial intelligence at IBM, and Joe Campolo, who’s really helped us raise capital.

Adding muscle: Having advisors like these, and Peter Klein of the Claire Friedlander Family Foundation and Richard Moxley from Blackbird Technologies, adds credibility to the project. When folks of this substance add their name, people know it’s going to happen and they invest. We need to continue to get people in this demographic interested, and having a board with connections to Silicon Valley executives at the highest levels really helps.

Incubating the Incubator Association: We’ve grown a great deal over the last two years. Our membership is now a little over 90 business accelerators and incubators across the state. Our annual meeting in Syracuse has now grown to a two-day conference (June 10 and 11) because of all the additional programming.

Techstars tutorial: We’ll be talking to incubator managers (at the conference) about mentorship and preparing their companies to pitch early-stage investors – what investors are looking for this year, in terms of technologies and trends. And a number of our upstate accelerators have become Techstars chapters, so we’ll be talking to the larger membership about that mentorship methodology.

Welcome to New York: The next program the Incubator Association will be bringing forward is a “soft landings” program. We get contacted often by foreign economic-development offices with startups that want to do business in New York State, and need help navigating. We’re going to create a curriculum for incoming companies that will match them with our accelerators and incubators and get them the opportunities they need to do business in New York.

SynchroPET your watches: We’re ending the beta process for our preclinical small-animal devices and moving those to commercial sales this year. We have our first human data coming from Cornell University and we’re in the process of setting up our (human trial) beta site.

Anticipating approvals: That next beta site is a big milestone for us – our noninvasive arterial PET scanner has created a lot of interest in the industry. We can sell it for research purposes to R&D companies, but in order to sell it to hospitals, we have to go through the FDA 510(K) process, and we’re planning for that now.

Serious series: SynchroPET is also looking to raise our Series A by the end of the summer. We’re looking to raise $2 million to $3 million, which will help us get through our first commercial sales and get us through the FDA process once the arterial PET scanner comes out of beta. 

Opportunity knocks: The whole “Goosebumps” thing has been pretty surreal. My two young boys caught my entrepreneurial bug and went knocking on doors on our street, offering to move garbage cans up and down driveways for $2 a week. They knocked on my neighbor’s door, and he’s a screenwriter and film writer who was working on this script and had about a month to finish it.

Family flick: They inspired the “junk brothers” in the movie. My daughter Sarah and my sons Sonny and Sammy are all characters in the movie, and my wife, whose name is changed to “Kathy Quinn,” played by the mother from “The Goldbergs.” My character was cut from the movie; they couldn’t find an actor dynamic enough to play Marc Alessi.

Giving ‘Goosebumps’: We went down (to Atlanta) to watch the filming last February, and met all of the actors and actresses playing my children and my wife. And it was amazing watching it on the big screen. I wound up buying tons of all of the books and DVDs – it’s the only gift people will be getting from me for the next 10 years.

Interview by Gregory Zeller.

By Patrick McCormick

On May 7, 2019, the Court of Appeals in 159 MP Corp. v Redbridge Bedford, LLC, 2019 WL 1995526, agreed that a tenant’s waiver of the right to bring a declaratory judgment action based upon the specific terms of the commercial lease is enforceable. This waiver effectively precluded the tenant from obtaining a Yellowstone injunction, and could now allow commercial landlords to limit their tenants’ litigation options when landlords allege lease violations by their tenants.

In a split decision, the Court of Appeals ruled in favor of the right to freedom of contract so long as no laws are violated. Notably, the dissent reasoned that the tenant’s ability to litigate in summary proceedings was not sufficient to deny the tenant’s ability to commence a declaratory judgment action. Although the dissent noted that New York’s legislative history consistently sustained the right to declaratory judgment action, in keeping with other common-law decisions and with precedent dating back to England, both sides agreed that freedom of contract would be upheld in the interests of the safety, stability and the betterment of society, not as an individual right. But, the majority and minority disagreed as to whether this particular clause furthered that public policy.

The case concerned two commercial leases which granted Plaintiffs a twenty-year lease to operate a Foodtown supermarket, with an associated storage space, on a property in Brooklyn. Within each lease, Paragraph 67(H) stated: “Tenant waives its right to bring a declaratory judgment action with respect to any provision of this Lease or with respect to any notice sent pursuant to the provisions of this Lease…” In March 2014, Defendant (landlord) served Plaintiffs (tenant) with a default notice and demanded Plaintiffs cure the violations or their leases would be terminated. Tenant subsequently commenced an action seeking a declaratory judgment that they hadn’t defaulted and sought a Yellowstone injunction to toll the cure period and prohibit the landlord from terminating the leases while the matter was before the Court.

In upholding the lease waiver provision, the Court of Appeals affirmed the lower Court’s observation that absent “violation of law or transgression of strong public policy,” both parties were free to execute whatever agreement they deemed acceptable (see 159 MP Corp. v. Redbridge Bedford LLC, 2015 NY Slip Op 32817(U) and Rowe v. Great Atlantic & Pacific Tea Co., 46 N.Y.2d 62 (1978)) and held that “there [was] no reason to relieve them of the consequences of their bargain” (see Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685 (1995)). The Court further assessed that the waiver did not prevent Plaintiffs from seeking all legal redress, that they had access to legal counsel, and that the terms of the agreement were very clear and precise and thus should be enforced “according to its terms” (see Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470 (2004)). The Court further held that “in light of strong public policy favoring freedom of contract [(see New England Mut. Life Ins. Co. v. Caruso, 73 N.Y.2d 74 (1989)) and as a right granted in the Constitution (see U.S. Const. art. I, § 10[1])], [the] parties may waive a wide range of rights.”

In this case, public policy was upheld in favor of the landlords’ right to evict due to the specific language agreed to in the lease. This decision has the potential to alter landlord-tenant law in New York State for years to come, as commercial landlords will surely include a waiver of declaratory and Yellowstone relief in their leases going forward. Therefore, commercial tenants and their counsel should carefully review all draft agreements for explicit waivers of their right to seek Yellowstone relief, injunctive relief or declaratory judgments, and think carefully about whether the costs outweigh the benefits before giving up such legal recourse.

Campolo, Middleton & McCormick, LLP, a premier law firm with offices in Westbury, Ronkonkoma, and Bridgehampton, is proud to announce that Counsel Donald Rassiger has been recognized by Super Lawyers in 2019. The rigorous selection process is based on evaluation of 12 indicators including peer recognition and professional achievement in legal practice.

Rassiger leads CMM’s Construction practice group, where he has represented clients on all sides of the table including owners, developers, general contractors, subcontractors, engineers, architects, construction managers, and program managers. Rassiger also manages the firm’s Corporate department, where he has successfully closed dozens of M&A deals. His corporate work also includes numerous financing transactions including sale/leaseback, lines of credit, and debt/equity financing.

Learn more about CMM’s outstanding legal professionals here.

By Patrick McCormick

In an article published in last year’s Suffolk Lawyer, I discussed decisions that upheld the confidentiality of attorney-client communications, one of our oldest common law evidentiary privileges. The two cases in question – Stock v. Schnader Harrison Segal & Lewis LLP, 142 A.D.3d 210 (1st Dep’t 2016), regarding intra-firm communications by attorneys seeking ethical advice, and Rossi v. Blue
Cross and Blue Shield of Greater N.Y., 73 N.Y.2d 588 (1989), which provided protection to corporate communications that are predominantly legal in character – helped expand and develop attorney-client privilege into a robust doctrine. Now in two recent decisions by the First and Third Departments, the Appellate Division provided clarification regarding the limits of attorney-client privilege. 

In January 2019, the First Department, in Metropolitan Bridge & Scaffolds Corp. v. New York City Hous. Auth., 168 A.D.3d 569 (1st Dep’t 2019), held that the New York City Housing Authority (NYCHA) waived attorney-client privilege when it placed the knowledge of its counsel at issue with respect to documents that were the subject of a discovery dispute. Namely as NYCHA alleged the third-party defendants defrauded their Law Department, they were required to establish reasonable reliance on third-party defendants’ “alleged misrepresentation.” The Court further held that NYCHA could not rely on attorney-client privilege to redact or withhold documents while selectively disclosing other privileged communications in support of their own interests. (See Deutsche Bank Trust Co. of Ams. v. Tri-Links Inv. Trust, 43 A.D.3d 56, 64 (1st Dep’t 2007); Orco Bank v. Proteinas Del Pacifico, 179 A.D.2d 390, 390 (1st Dep’t 1992)).

The case concerned NYCHA’s alleged nonpayment to Metropolitan for equipment and services provided at various NYCHA residences. In response, NYCHA filed a third-party complaint alleging that the third-party defendants (Liberty Architectural Products, et. al.) had conspired to deceive NYCHA by submitting fraudulent certifications attesting that Metropolitan’s former owners had never been convicted of a crime (a conviction would have resulted in disqualification). Following a discovery dispute concerning NYCHA’s failure to produce documents regarding the alleged conspiracy and its reliance on the false certifications, NYCHA eventually produced over 700 heavily redacted documents, and withheld another group of over 400 documents as privileged. Another late production of documents followed depositions. Plaintiff and Third-Party Defendants moved to compel NYCHA to comply with prior discovery orders, and the Court granted the motion, taking issue with NYCHA’s claims of attorney-client privilege.

On appeal, the First Department affirmed the motion court’s decision, holding that “the court correctly found that having placed the knowledge of its law department at issue, NYCHA waived attorney-client privilege with respect to the subject documents” and further that “NYCHA may not rely on attorney-client privilege while selectively disclosing other self-serving privileged communications.” 168 A.D.3d at 571-572.

In a similar context, in February 2019, the Third Department echoed the First Department’s clarification regarding which material does not fall under attorney-client privilege. In Galasso v. Cobleskill Stone Prods., Inc., 169 A.D.3d 1344 (3rd Dep’t 2019), Plaintiff, a shareholder of Cobleskill Stone Products, Inc. (Defendant), alleged that pursuant to Business Corporation Law §§ 706(d) and 716(c), the Defendant squandered corporate assets and “engaged in self-dealing,” acting in self-interest rather than in the interests of the corporate shareholders. In the course of discovery, Defendant requested a valuation of stock report, which was prepared for Plaintiff by an independent business valuation and advisory firm. Plaintiff refused to provide the report on the grounds that the report was not material and necessary, and that it was furthermore privileged information, at which time the Defendant moved to compel discovery. The Supreme Court granted Defendant’s motion to compel discovery, after which the Plaintiff appealed.

On appeal, the Third Department unanimously upheld the lower court’s decision, holding that the Supreme Court was vested with the discretion to determine whether discovery was “material and necessary in the prosecution or defense of an action” (CPLR § 3101(a)). Key to the Court’s analysis in determining the validity of the valuation report falling under attorney-client privilege was Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 NY3d 616, 623 (2016), which held that the party asserting attorney-client privilege was required to establish that the communication in question was between an attorney and client “for the purpose of facilitating the rendition of legal advice or services” and was “predominantly of a legal character.” As the valuation report was not initially created for litigation purposes, contained no legal information and was originally for estate tax purposes, the Court judged it not to be “of a legal character.”

Most importantly, the Court specified that because the valuation report expressed “serious and substantial concerns” to Plaintiff based on its appraisal of Plaintiff’s stocks in Defendant, the valuation report played a role in the commencement of legal action in this matter. Thus, the court declared it “probative,” stating that it provided proof or evidence for why Plaintiff brought allegations of gross malfeasance against Defendant in the first place. Applying that logic, the Appellate Division agreed with the lower court’s determination that the valuation report offered a standard allowing the court to evaluate Plaintiff’s damages.

These recent decisions show that attorney-client privilege can be inapplicable in instances where the communications in question are the basis for bringing a legal action before the court. Due to their very nature as intrinsic to the legal action in question, the Court and all parties involved in the action must be allowed access to information which may be classified as “privileged” in other instances. Although the privilege offers vast protection, litigants and their counsel are warned that they should not automatically assume attorney-client privilege provides exemptions from disclosure for material and necessary information upon which a legal claim is asserted. 

By Christine Malafi

The New York Election Law has been updated for 2020. Click here to read more.

Employers, take note: New York State’s Election Law was recently amended as part of the state’s fiscal year 2020 budget amendments, and the changes have important, immediate implications for employers.   

As of April 12, 2019, Election Law § 3–110 requires that employees in New York who are registered voters may request and receive up to three hours paid time off to vote, regardless of their work schedule and without loss of pay. (Previously, the law allowed for an employee to request up to two hours of paid time off to vote, but only if the employee didn’t have four or more consecutive hours off between either the time the polls opened and the start of their shift, or the end of their shift and the time the polls closed.) Every employer must post the new Election Law requirements in a noticeable place, accessible to all employees and on company grounds, at least 10 days prior to every election, and leave the notice up through at least the close of the polls on Election Day. Additionally, employee handbooks need to be updated to reflect the new Election Law requirements.

Employees are allowed time off to vote only at the beginning or at the end of their work shift, at the employer’s discretion, unless another time is agreed upon between employee and employer. Employees must also notify their employer at least two days prior to an election if they require time off to vote. Notably, the time off is “up to” three hours, not three hours.

This law applies to all elections under the Election Law in its entirety—including primary and special elections. Specifically, the Election Law covers federal, state, county, city, town, or village office elections, as well as elections on ballot questions that are submitted to voters either state, county, city, town, or village-wide.  It does not apply to school district, fire district, or library district elections and budget votes, as these are generally governed by laws other than the Election Law.

The amended law does not indicate whether an employer is permitted to request proof of voter registration or require a voting receipt or other proof that the employee actually used their time off to vote. The law is also silent as to whether an employer may deduct paid time off to vote from an employee’s established paid time off (PTO) or if employers may instead create a separate category of time off specifically for voting. Please contact us to discuss your specific situation.

Changes such as this one can leave businesses, especially small businesses, scrambling to stay on top of the requirements and at increased risk for non-compliance. For any questions about how to implement these changes at your organization in the least disruptive way possible, please contact our office.