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Suffolk County Historical Society (SCHS), through the cooperation of the Suffolk County Court Administrative Judge Randall Hinrichs, is pleased to announce that SCHS will be celebrating women from New York State who have left an indelible mark on the court system. A Photography Portrait Exhibition will be displayed at Touro Law Center in honor of Women’s History Month. This exhibition was created by the Suffolk County Judicial Women in the Courts and the Suffolk County Historical Society.

An opening reception will be held at Touro Law Center
Monday, March 10, 2014, 5:30-7:30 PM
225 Eastview Dr., Central Islip, NY

Honorees represented with images and biographies include:
· Hon. Judith Kaye – First Woman appointed to the N.Y.S Court of Appeals; First Woman chief Judge of the N.Y.S Court of Appeals
· Hon. Gail Prudenti – First Woman Presiding Justice, Appellate Division, 2nd Department *
· Hon. Birdie Amsterdam – First Woman elected to N.Y.S. Supreme Court
· Hon. Jane M. Bolin – First African-American Woman Judge in both N.Y.S. and the United States
· Sonia Sotomayor – First Latina Supreme Court Justice in the United States
· Kate Stoneman, Esq. – First Woman to pass the N.Y.S. Bar
· Charlotte Smallwood, Esq. – First Woman District Attorney elected in N.Y.S.
· Hon. Ruth Bader Ginsberg – First N.Y.S. Woman appointed to the U.S. Supreme Court
· Hon. Syrena Stackpole – First N.Y.S. Woman elected to public office*
· Judith Lewis Meggesto, Esq. – First female Native-American attorney in N.Y.S.

Suffolk County Firsts*:
· Christine Malafi, Esq. – First female Suffolk County Attorney *
· Hon. Catherine T. England – First female president of the Suffolk County Bar Association; First female justice to sit in Suffolk
County Supreme Court; First female judge to sit in Suffolk County Family Court.*
· Hon. Anne Mead – First female District Court judge in Suffolk County.*
· Hon. Mary M. Werner – First female District Administrative Judge in Suffolk County.*
· Valerie S. Manzo, Esq. – Co-founder and first president of Suffolk County Women’s Bar Association.*
· Rita Adler, Esq. – First female Assistant District Attorney in Suffolk County *
· Marguerite A. Smith, Esq. – First female Native-American attorney in Suffolk County (Shinnecock Nation.) *
· Patricia E. Salkin, Esq. – First female law school Dean in Suffolk County *

By Patrick McCormick

Who is responsible for the damages that result when a commercial sub-tenant holds over past the expiration of its term causing the tenant to incur damages under its lease? In what appears to be a case of first impression in the Second Department,

in PHH Mtge. Corp. v. Ferro, Kuba, Mangano, Sklyar, Gacovino Lake, P.C.1 the Appellate Division has confirmed that, with appropriate lease clauses, the sub-tenant is liable for the damages incurred by the tenant resulting from the sub-tenant’s failure timely to vacate the premises it occupied.

The facts in PHH are simple enough: Owner/Landlord leased certain premises to Tenant. Tenant sublet the entire premises to PHH. PHH then sub-sublet a portion of the premises to Sub-subtenant Ferro Kuba. The rent Ferro Kuba was obligated to pay to PHH was about one-half the amount of rent paid by PHH to the Tenant and about one-quarter the amount of rent paid by the Tenant to the Landlord. The Master Lease between the Landlord and the Tenant provided for holdover damages to be paid to the Landlord in the amount of one and one-half the amount of base rent for each month of the holdover. The Sublease between the Tenant and PHH and the Sub-sublease between PHH and Ferro Kuba each incorporated by reference all the terms of the Master Lease, which included the holdover damages clause.

The Master Lease, the Sublease and the Sub-sublease terms ended; Ferro Kuba failed to vacate the premises it occupied and held over for 25 days thus precluding PHH and, in turn, the Tenant, from tendering vacant possession of the entire demised premises to the Landlord. The Landlord sought holdover damages from Tenant who in turn sought those damages from PHH. PHH paid $60,489.17 in holdover damages and sought to recover those damages from Ferro Kuba. When Ferro Kuba refused to reimburse PHH for the damages it caused, PHH commenced an action in Supreme Court, Suffolk County, which ultimately denied PHH’s motion for summary judgment.

The Appellate Division, Second Department reversed and granted PHH judgment on liability and remitted the matter to Supreme Court “for a determination of the amount of the plaintiff’s liquidated damages, interest, and counsel fees pursuant to the terms of the master lease and sub-sublease.” The Appellate Division based its determination on the terms of the master lease and sub-sublease finding specifically that “As a sub-subtenant, the defendant had expressly agreed to be bound by all of the provisions and restriction in the master lease for the premises, which included the payment of liquidated damages in the event of a holdover occupancy of part or all of the premises. Therefore, based upon the provisions of the master lease and the sub-sublease, the defendant is liable for holdover damages for the entire leasehold premises during the period at issue.”

In response to Ferro Kuba’s claim that Landlord could have rented the vacant portion of the premises and that landlord may have accepted a surrender of a portion of the premises, the Appellate Division held, “In this regard, a lessor is under no duty to rearrange its leasing of space in a commercial building to mitigate the damages caused by a subtenant who holds over.”

This case points out that, from the tenant’s perspective, it is critical that any sublease incorporate relevant terms, especially those under which tenant may be found liable for damages, to ensure the tenant has a viable remedy against the subtenant for damages caused by its holding over. When representing the subtenant, counsel needs to make sure that, in the face of such “incorporation by reference” clauses, the subtenant is made aware of the potential exposure.

¹ 113 A.D.3d 831, 979 N.Y.S.2d 536 (2d Dep’t 2014).

By Scott Middleton, Esq.

In addition to being an attorney here on Long Island, I’m an avid CrossFit Athlete and have been participating in CrossFit for over 18 months now. The benefits from this type of fitness regime have had a tremendous impact on me: overall better fitness and nutrition, coupled with a sense of camaraderie among fellow CrossFitters and especially in one’s own gym. It has helped me both personally and professionally.

With the rising popularity of CrossFit here on Long Island and across the country it’s important to understand the risks to gyms and fitness centers that host these high intensity exercises. As a business owner or operator it is imperative to know how to protect yourself. Therefore, the question becomes how a CrossFit business can protect itself and its employees from potential lawsuits.

In New York, General Obligations Law §5 – 326 was enacted to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications.

The cases that followed the enactment of §5 – 326 have focused on several factors to determine whether a facility is instructional or recreational, including: the organization’s name, its certificate of incorporation, its statement of purpose and whether the money charged is tuition or a fee for use of the facility. If training sessions are instructional in nature but are ancillary to the recreational activities offered by the facility, GOL §5 – 326 will apply in the waiver/release will be unenforceable as it will be considered to be against public policy.

Anyone who participates in a CrossFit, at a reputable facility knows that most offer rather strenuous but free introductory class. These are generally small and under the instruction of the coach/trainer. This is followed by the “on-ramp” where would be cross-fitters are introduced to many of the basic exercises, under the supervision and close instructional scrutiny of a trainer. Once you “graduate” from the “on-ramp” you’re ready (or maybe not) for regular CrossFit classes. During the short but grueling workouts, coaches are present to instruct on both basic and complex exercises. They continuously critique and teach.

The common thread here is that instruction is present throughout all aspects of CrossFit. The level of involvement of the coaches/trainers in continually correcting movements during the workout creates an atmosphere that is instructional and cannot be considered to be recreational or an ancillary service of a recreational facility. Thus, New York’s General Obligations Law §5 – 326 would not apply to CrossFit facilities and the waiver is completely enforceable. This affords CrossFit gyms a level of protection not present in “big box” gyms.

As a courtesy, I’d happily review your waivers to avoid making unnecessary mistakes in their enforceability.

Effective April 1, 2014, private sector New York City employers with five or more employees must provide paid sick time to all employees who work at least 80 hours in a calendar year.1

Accrual and Use
Mayor Bill de Blasio signed the City Council’s expanded sick leave bill earlier this year. The New York City Earned Sick Time Act (the “Act”) provides that these private sector employees will now earn up to 40 hours of paid sick time per year, accruing at a rate of one hour for every 30 hours worked. The Act covers both full-time and parttime workers.

Employees may use sick time for three purposes:

1. The employee’s mental or physical illness, injury or health condition or need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or need for preventive medical care; and/or
2. Care of a family member2 who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care; and/or
3. Closure of the employee’s place of business by order of a public official due to a public health emergency or such employee’s need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.

Employees will begin accruing sick time at the start of employment or on April 1, 2014, whichever is later, but cannot begin using the sick time until July 30, 2014 or 120 days after the start of employment, whichever is later.

Unused sick time carries over to the following year, but the Act does not require employers to offer more than 40 hours of paid sick time to an employee per year. The Act does not require any payment to employees for accrued but unused sick time.

Notice and Documentation by Employees
An employer may require reasonable notice from the employee of the need to use sick time. When the need to use sick time is foreseeable, an employee may be required to provide notice of up to seven days; when the need is unforeseeable, an employee may be required to provide notice to the employer as soon as is practicable. An employer may require documentation signed by a licensed health care provider, but only for absences of three or more consecutive work days. The Act restricts employers from seeking information about the nature of the illness or absence.

Employer Obligations
Employers who provide sick leave must provide a Notice to new employees when they begin employment and to existing employees by May 1, 2014. (A copy of the Notice prepared by the New York City Department of Consumer Affairs can be accessed at http://www.nyc.gov/html/dca/downloads/pdf/Mand atoryNotice.pdf.) The Notice describes the accrual and use of sick time, defines the employer’s “calendar year,” and advises employees of their right to be free from retaliation for using sick time and the right to file a complaint with the Department of Consumer Affairs in connection with violations of the Act.  in English and any other primary language spoken by the employee, if the Department has posted a form in that language on its website (the Department plans to provide the Notice in Spanish, Chinese, French-Creole, Italian, Korean, and Russian).

Employers must maintain sick-time compliance records for at least three years.

Next Steps
Employers with New York City locations who already offer paid leave that can be used as sick time should evaluate their existing policies and update them to comply with the Act’s requirements. Those employers whose existing policies do not comply with the Act must draft new policies that meet the minimum requirements of the Act.

Please contact us with questions and for guidance in ensuring your company’s policies comply with the new legislation.

1 The Act does not cover independent contractors, work-study students, government employees, and certain hourly physical, speech, and occupational therapists. In addition, union agreements in certain industries may opt their workers out of the Act. Domestic workers are also subject to different regulations.

2 A “family member” is defined as an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, or the child or parent of an employee’s spouse or domestic partner.