News (All)

CMM Prevails on Behalf of St. James Fire District in Appeal

Posted: January 28th, 2022

In 2018, we reported that CMM litigators Patrick McCormick and Richard DeMaio, representing the St. James Fire District, successfully defended a petition that sought to punish the District for allegedly not complying with a multitude of conflicting F.O.I.L. requests – a victory that saved the District significant funds. In yet another victory, we are pleased to report that the 2018 decision was affirmed on appeal by the Appellate Division, Second Department more than three years later thanks to CMM’s hard work.

Between December 2017 and January 2018, Petitioner and his counsel, Cory Morris, Esq., made a series of requests to the Fire District pursuant to the Freedom of Information Law (F.O.I.L.) for over 40 categories of records spanning years. The claimed purpose of the requests was to provide the public with information concerning a proposal to sell the Fire District’s 100-year-old firehouse on Route 25A to the St. James Fire Department. In March 2018, Petitioner commenced a special proceeding pursuant to CPLR Article 78 seeking to compel the Fire District to comply with the requests, as well as pay him costs and fees.

In lieu of answering the petition, CMM’s litigation team moved to dismiss the proceeding, contending that the petition was moot because the Fire District responded timely to the voluminous requests – and that it did so notwithstanding that Petitioner had made multiple overlapping and duplicative requests with conflicting instructions and modifications. After a hearing and upon review of CMM’s detailed motion papers, the Supreme Court found that the Fire District responded timely, “notwithstanding the confusion and inconsistencies of position engendered by [Petitioner] and his counsel.”

Petitioner appealed, and the Appellate Division, Second Department, ultimately heard oral argument in October 2021. DeMaio’s oral argument, as well as McCormick and DeMaio’s appellate brief, demonstrated to the Court that the lower court decision should be affirmed. Indeed, the Court noted in its decision that (1) the Supreme Court properly determined that the branch of the petition seeking to compel production of the subject documents was rendered moot by the Fire District’s eventual disclosure; (2) the petitioner was not entitled to attorneys’ fees and costs; and (3) the Supreme Court had properly denied the branch of the petition seeking to retrain certain employees of the Fire District with respect to their F.O.I.L. obligations.

CMM has become a go-to appellate team for clients and trial lawyers alike. Learn more about our appeals practice here or contact us.

What Employers Should Know About Employee Non-Compete Agreements in 2022

Posted: January 28th, 2022

Employers want to know: will 2022 mark the end of the employee non-compete agreement?

Federal Efforts

In July 2021, President Biden signed an executive order aimed at promoting competition in the U.S. economy. The executive order encourages the Federal Trade Commission (FTC) to ban or limit employee non-compete agreements. According to the Biden administration, this FTC-directed crackdown on non-competes is meant to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” In his remarks last summer, President Biden noted that non-competes not only affect highly paid executives but also tend to unfairly target low-wage earners who should be free to take a better job if given the opportunity.

A non-compete agreement is essentially a contract wherein an employee agrees not to work for or otherwise engage with competing businesses, and/or not to use information learned during employment, when their current employment ends. The purpose of these types of agreements (also known as restrictive covenants) is to avoid competition for an agreed-upon period of time after an employee leaves.

Since the executive order in July 2021, the FTC has not initiated any action or rule regarding non-compete agreements. Part of this delay involves a vacancy on the FTC Committee, which is required to have five members. President Biden recently resubmitted a nomination for Georgetown University Law Professor Alvaro Bedoya, but until the vacancy is filled and a fifth Committee member confirmed, the FTC is unlikely to take concrete action on non-compete agreements.

Besides the Biden administration’s executive order, there have been other federal efforts to prohibit non-compete agreements. First introduced in January 2019, Congress’s Freedom to Compete Act amends the Fair Labor Standards Act of 1938 to prohibit an employer from enforcing or threatening to enforce any non-compete agreement in employment contracts with certain entry-level, lower wage workers. The Act is currently stalled in the Senate Health, Education, Labor and Pensions Committee. 

New York State Efforts

As the law currently stands in New York, non-compete agreements are generally permitted as long as they (1) are necessary to protect the employer’s legitimate business interests, (2) do not pose an undue hardship on the employee, (3) do not harm the public, and (4) are reasonable in time period and geographic scope.

Even if the federal rule change does not come to pass, the future of non-compete agreements in New York could soon change regardless. During her first State of the State address in January 2022, Governor Hochul pledged to ban non-compete agreements in New York State for workers making below the median wage in the state.

Several other states have already amended their own laws pertaining to non-compete agreements. Oregon and Illinois recently prohibited non-competes for certain employees earning less than a certain salary per year. The District of Columbia has completely banned employee non-compete agreements – a law that will go into effect on April 1, 2022.

While federal and state changes remain uncertain, it’s still important for employers to make sure that all agreements, including non-competes, are tailored to best meet their goals within the law’s limits. Please contact our labor and employment team for guidance.

Campolo Moderates Panel at HIA-LI’s “Future of LI MacArthur Airport and Tourism”

Event Date: March 2nd, 2022

Long Island MacArthur Airport is a critical part of Long Island’s ecosystem and, with Joe Campolo on the airport’s advisory board, is poised to see significant growth in the future. Join us and HIA-LI as Joe leads a discussion with industry leaders about exciting new updates and projects related to travel and tourism on Long Island and how this will impact local businesses and our economy.

Opening Remarks:

Angie Carpenter – Town of Islip Supervisor

Panelists:

Shelley LaRose-Arken – Commissioner, Long Island MacArthur Airport

Bryan Deluca – Executive Director, Atlantis Holdings, LLC. & Board Chairman of Discover Long Island

Date/Time: Wednesday, March 2, 2022 / 8:00 – 10:00 A.M.

Location: MacArthur Airport – 100 Arrival Avenue, Ronkonkoma, NY 11779 with Virtual Option

Yermash Presents Cannabis Law with Miller Business Center

Event Date: February 10th, 2022

The Marijuana Regulation and Taxation Act (MRTA) legalizes cannabis for adults 21 years of age or older in New York State. This legislation brings questions regarding cultivation, licensing, and employment policies. Join the Miller Business Center for a program led by Arthur Yermash, CMM Partner and head of our Cannabis Law practice, where he will examine the regulations surrounding the cultivation of cannabis plants for personal use and the different cannabis licenses that exist.

Additionally, this program will discuss employment law issues and policies surrounding cannabis and the workplace such as hiring and firing concerns, what actions regarding cannabis employers can and cannot prohibit, as well as drug testing and cannabis impairment.

Details

Date: Thursday, February 10, 2022

Time: 9 A.M. – 10 A.M.

Place: Zoom

Malafi Presents at CLE: Mergers & Acquisitions

Event Date: January 27th, 2022

Join Christine Malafi for an attorney-only CLE by Suffolk County Bar Association Academy of Law as she demonstrates the ins and outs of buying and selling a business. Christine has led the CMM legal team in closing countless M&A deals worth billions of dollars. She has vast experience advising on both buy-side and sell-side M&A transactions in a variety of industries, including technology, manufacturing, education, healthcare, and professional service sectors. 

In this virtual presentation, you will learn about:

● Steps needed to grow a thriving business
● What are your business value drivers
● Why exit planning is important
● How to grow a business that will sell for maximum value
● How does the current pandemic affect the value of your business
● What a seller can do in advance to plan for the sale of their company (to obtain maximum value)
● The process of buying or selling a business

Details

Faculty: Kyle Griffith, CBI, DM, AP; Christine Malafi, Esq. and Ken Pischel, Fractional CFO

Date: January 27, 2022

Time: 1 PM – 2:15 PM

Where: Zoom

Price: SCBA Members $45; Non-Members $60

The program will provide you with 1.5 CLE credits in Professional Practice.

CMM Closes Multimillion-Dollar Sale of Leading NY Veterinary Practice

Posted: January 18th, 2022

Pets are family, and one of the reasons our client’s veterinary hospital is so successful is the atmosphere of compassion that their animal-loving staff provides. This type of care has helped the family-oriented practice build their reputation in a NY suburb just north of the city and establish themselves as a leader not only in the surrounding community, but in the veterinary field. Their passion and dedication over two decades in business caught the attention of a larger veterinary group looking to expand, and CMM was thrilled to help our client navigate the multimillion-dollar sale.

Our client expressed their gratitude for CMM’s team, led by Senior Partner and Corporate Department Chair Christine Malafi, with the hard work of Paralegal Kat Campolo, and Legal Assistant Cailey McByrne. The client was particularly appreciative of CMM’s ability to close the deal within a tight timeframe, keeping everything moving smoothly.

This business deal among animal lovers shows that anything is paw-sible when CMM’s M&A team is involved. Visit our M&A practice page to learn more or contact us for your next merger or acquisition.

Campolo Leads Panel of Elected Officials at HIA-LI’s Annual Meeting

Posted: January 14th, 2022

HIA-LI Board Member Joe Campolo moderated the 44th HIA-LI Annual Meeting and Legislative Program held virtually on January 14, 2022. Joe reported on the tremendous work of the business community, elected officials, and HIA-LI to push Long Island forward as we enter the third calendar year of the pandemic. The event began with opening remarks by Acting Commissioner and President and CEO Designate of Empire State Development Hope Knight and Suffolk County Executive Steve Bellone. Joe then led a discussion with elected officials about building back our economy and other issues most affecting the business community. Panelists included New York State Senator Mario Mattera, State Assemblyman Mike Fitzpatrick, Town of Smithtown Supervisor Ed Wehrheim, and Town of Islip Supervisor Angie Carpenter.

CMM Secures Dismissal of Engineering-Related Lawsuit Against Suffolk County Town

Posted: January 11th, 2022

Fed up with flooding on their land during rainstorms, Suffolk County property owners filed suit against the owners and developers of the neighboring golf club, whose water drainage system they alleged was causing the flooding. They also named various Town defendants in their lawsuit, including the Highway Department, the Planning Department, and the Town itself, for their roles in approving the allegedly faulty drainage system. With holes in the plaintiffs’ case immediately apparent to the CMM Municipal Liability team, we got to work.

CMM’s team, led by Senior Partner and Municipal Liability Chair Scott Middleton and Associate  Richard DeMaio, with support from Paralegal Dominique Berberich, moved for summary judgment (essentially, a request that the Court dismiss the case because there are no facts at issue). CMM successfully presented evidence and testimony from a Town consulting engineer that the drainage plan met the standards of the Town Code. Furthermore, the team demonstrated that the plaintiffs did not timely file notices of claim (required to be filed prior to bringing a lawsuit against a municipal entity in New York) for each instance of flooding, nor did the plaintiffs allege any specific date to identify when the flooding occurred.  

Thanks to CMM’s hard work, the Court granted the Town’s motion for dismissal of the complaint. Learn more about our municipal liability practice group here.