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Posted: November 17th, 2021
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CMM Prevails on Behalf of Suffolk County Town in First Amendment Lawsuit
Posted: November 8th, 2021
Tags: municipal
Contrary to popular belief, the First Amendment doesn’t protect your right to say whatever you want, whenever you want, in any context. We won’t get into a constitutional lesson here, but suffice it to say that there’s a difference between protected and unprotected speech. For instance, you might be able to air your concerns about a municipal workplace policy and be protected under the First Amendment. However, attacking the person in charge of that policy with a few colorful curse words and some threats thrown in for good measure? Good luck convincing a court that your speech is protected.
CMM’s latest municipal liability success involved just that, the plaintiff being a disgruntled former animal shelter volunteer who brought an action against the Town (CMM’s client), on the basis that his First Amendment rights were violated when he was dismissed.
As a volunteer, the plaintiff had signed a Volunteer Policy and Procedure Manual that he was required to adhere to. But throughout his time at the shelter, the Town received several complaints about the plaintiff and conducted at least six investigations into his actions. These investigations ranged from allegations of possible harassment, multiple Workplace Violence Incident Report Forms, and disturbing text messages and social media posts. The plaintiff made multiple threats on Facebook using profanity aimed at employees, wrote offensive comments about Town investigators in large letters on the side of his truck, and shouted inside the shelter that he wished an employee would have a heart attack.
Following three years of investigations into these actions and the continued harassment of shelter and Town employees, a Town investigator recommended terminating the plaintiff as a volunteer. The plaintiff then filed suit against the Town, contending that his termination was retaliation for speaking publicly on shelter misconduct.
To prevail, the plaintiff needed to establish that, among other things, (1) the speech was protected by the First Amendment, and (2) there was a causal connection between the protected speech and the Town’s adverse action against him.
CMM’s team, led by Senior Partner and Chair of our Municipal Liability practice group Scott Middleton, along with Associate Richard DeMaio, moved for summary judgment (essentially, a request that the Court dismiss the case because there are no facts at issue).
Protected speech is speech in which the plaintiff engaged as a citizen on a matter of public concern. While the court found that some of the plaintiff’s speech was protected, such as speaking at public meetings and writing letters to the newspaper about shelter conditions, other forms of speech such as sending private messages to shelter employees and shouting that he hoped an employee would have a heart attack were not protected.
After parsing through the complex facts, years of investigations, and dozens of instances of speech made by the plaintiff online and at the shelter, CMM’s team was able to show that the threatening speech made in text messages and at the shelter itself were not protected under the First Amendment as the plaintiff claimed.
Thanks to CMM’s work, the court granted the motion for summary judgment, noting that CMM had established that the Town had terminated the plaintiff as a volunteer because he harassed shelter employees and violated the terms of his volunteer agreement, not because he engaged in protected speech regarding the shelter’s treatment of the animals.
Visit our Municipal Liability page to read more about other successful cases.
NYSDOL Issues New Guidance on Adult Use Cannabis and the Workplace
Posted: November 8th, 2021
By: Arthur Yermash, Esq. email
Tags: cannabis, labor & employment
Can an employer take action against an employee for using cannabis on the job, prohibit cannabis possession in the workplace, or drug test for cannabis? These are just some of the many questions that employers and employees have been wondering since the legalization of adult-use marijuana in New York State on March 31 via the Marijuana Regulation and Taxation Act (MRTA).
CMM previously reported on the legalization of marijuana in April, taking a look at the new legislation and the workplace concerns of many employers and employees. Now, the New York State Department of Labor (NYSDOL) has issued an FAQ addressing some of these concerns with concrete answers for common situations and questions regarding adult-use cannabis and the workplace. Here are some highlights.
Discrimination
The FAQ reiterates that the MRTA prohibits employers from discriminating against employees based on the use of cannabis outside of the workplace and outside of work hours. However, it’s important to note that employees are only protected if they are over the age of 21 since the sale, use, or transportation of cannabis by individuals under the age of 21 is still illegal in New York State. The law does not explicitly require employers to report or fire employees under the age of 21 using cannabis on the job or discipline them in any way, but an employer can take action if they choose to.
An employer is also permitted to take action against an employee if an employer would be in violation of federal law, lose a federal contract or federal funding, or be unable to provide a safe and healthy workplace as required by state and federal workplace safety laws.
Articulable Symptoms of Impairment
Employers are also permitted to take employment action if an employee has “articulable symptoms” of cannabis impairment that impacts their performance on the job. The FAQ does not provide a list of what “articulable symptoms” of cannabis impairment are, instead describing the symptoms as “observable indications” that an employee’s performance has decreased or lessened. However, the FAQ cautions employers that articulable symptoms should not be confused with a disability protected by federal and state law.
Drug Testing of Employees
The FAQ states that employers are not permitted to test for cannabis unless federal or state law requires drug testing as a mandatory requirement of the position (for example: mandatory drug testing for drivers of commercial motor vehicles).
Also, when it comes to drug testing as a basis for an “articulable symptom” of impairment, a test for cannabis usage “cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis, since such tests do not currently demonstrate impairment.” Additionally, employers cannot fire employees for the smell of cannabis alone.
Use at Work or During Work Hours
The FAQ makes it clear that employers are allowed to prohibit cannabis during work hours including paid and unpaid breaks such as lunchtime or when an employee leaves the worksite and then returns. Employers can also prohibit employees from bringing cannabis onto the property including at an employee’s desk or in a locker. If an employee is caught using cannabis on the job, it’s the employer’s decision whether to permit the employee to keep working or to take employment action. For more guidance as the NYDOL continues to develop its Office of Cannabis Management (OCM) and the rules and regulations surrounding the adult-use industry, please contact our Cannabis Law practice area chair, CMM Partner Arthur Yermash.
Malafi Recognized with Leadership in Law Lifetime Achievement Award
Posted: October 19th, 2021
Campolo, Middleton & McCormick, LLP is delighted to announce that Senior Partner and Corporate Department Chair Christine Malafi has been honored with a 2021 Leadership in Law Lifetime Achievement Award. The Lifetime Achievement Award recognizes a senior-level attorney who has honorably represented the legal profession by exemplifying performance, leadership, integrity, and mentorship throughout their career while bettering the legal profession overall.
An advocate for both her clients and her community, Malafi earned the Lifetime Achievement Award through her dedication to the legal profession and positive impact on Long Island. As CMM’s Corporate Chair, Malafi 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 services. Malafi is particularly adept at working closely and strategically with clients’ other professional advisors, including accountants, bankers, and M&A advisors, as well as forging those critical relationships for clients based on the deep network of relationships she has cultivated over years in the business.
Malafi’s practice also includes advising clients on business divorce matters and a wide variety of routine and complex corporate transactions. Prior to joining the firm, Malafi was senior corporate counsel to Leviton Manufacturing Co., Inc., where she handled a variety of national and international corporate and business matters, including business expansion and acquisitions. Prior to that, in 2004, she was appointed as the Suffolk County Attorney, serving as the chief legal officer of the County for eight years. In that role, Malafi supervised a team of over 65 attorneys and 50 support staff and managed a budget of $15 million. The first woman and youngest person ever to serve in the position, Malafi focused on streamlining processes, obtaining jury verdicts in favor of the County, making fewer settlements, enforcing anti-discrimination laws, and protecting children from harm.
Malafi has the unique perspective of being a corporate lawyer who spent the first half of her career as a litigator with extensive experience in municipal, insurance coverage, and fraud issues. She brings her deep understanding of litigation and the court system to all aspects of her corporate work and uses this experience to help protect clients from a variety of critical angles.
Malafi’s achievement will be featured in the November 19, 2021 special publication of Long Island Business News. Congratulations to all the honorees!
Campolo Details Economic Development Initiatives at HIA-LI Trade Show and Executive Breakfast
Posted: October 15th, 2021
Joe Campolo, CMM Managing Partner and Chairman of HIA-LI’s Long Island Innovation Park at Hauppauge Task Force (LI-IPH), spoke as a panelist at the 33rd annual HIA-LI Trade Show Executive Breakfast on October 14, 2021. Campolo spoke about the critical economic development initiatives the Task Force is tackling, including:
- taking advantage of the LI-IPH’s “Edge City” characteristics to maximize economic development;
- challenges and opportunities in the LI-IPH, including school district enrollment concerns and wastewater challenges;
- the tremendous untapped economic potential of MacArthur Airport – including the $1.1 billion the airport stands to make by adding more nonstop flights for the business community. The study was spearheaded and conducted by CMM on behalf of HIA-LI.
Campolo was joined by moderator Mitch Pally, CEO of Long Island Builders Institute, and panelists Kelley Coughlan-Heck, Executive Vice Principal of TRITEC; Scott Burman, Principal of Engel Burman; and Michael Brod, Managing Director of Canoe Place Inn and Rechler Equity Partners.
CMM’s LI MacArthur Airport Survey Featured on WSHU
Posted: October 15th, 2021
By J.D. Allen
Some companies retreated from New York City to the suburbs due to the pandemic. Now, a survey of about 500 companies found there are big business opportunities to add more nonstop flights at Long Island MacArthur Airport in Islip.
For Bob Isaksen, a Melville native and market executive for business banking at Bank of America, that means more ways to bring business to Long Island.
“Business travelers much prefer nonstop air travel,” Isaksen said.
The MacArthur has three major U.S. domestic air carriers that currently provide service to 11 cities nonstop and connect to hundreds of destinations worldwide: American Airlines, Frontier Airlines and Southwest Airlines. The survey found there is appetite to expand those offerings.
The survey was conducted in August and September by HIA-LI, one of Long Island’s largest business advocacy organizations. Terri Alessi-Miceli, the group’s president and CEO, said it found corporate travel budgets could potentially expand if MacArthur airport had more flights, which could generate more than $1 billion in new airport revenue annually.
“The dynamic has changed considerably,” Alessi-Miceli said. “Many people are working from home, others getting back to work in some sort of work setting, whatever that looks like. They’re actually itching to get back [into] travel.”
“It’s really: the consumer wins,” said Joe Campolo, the group’s immediate past chair and managing partner at the Ronkonkoma-based law firm Campolo, Middleton & McCormick, LLP, which ran the survey. He said Long Island businesses would be willing to pay more to fly direct out of Islip and avoid the inconvenience of driving to LaGuardia or Kennedy airports. “There will be ancillary economic advantages to the town and the airlines for sure.”
Campolo said the goal of the survey is to make sure that the region’s business community remains viable. He said the businesses relied heavily on travel pre-COVID, especially for trade shows, and weren’t able to fly out of Islip as their airport of choice.
“One of the indicators right now, I think in a post-COVID world, is how much business travel is there actually going to be?” he said. “Zoom can only take you so far with clients, but meeting face to face is still an important part of business development.”
The survey said increased corporate travel to and from Long Island would generate…. Continue Reading
Allen, J., 2021. Long Island businesses see an opportunity to expand flights to Islip's MacArthur Airport. [online] Wshu.org. Available at: https://www.wshu.org/post/long-island-businesses-see-opportunity-expand-flights-islips-macarthur-airport#stream/0 [Accessed 15 October 2021].
LIBN: MacArthur could generate $1B more revenue by adding nonstop flights
Posted: October 15th, 2021
By Adina Genn
By adding more nonstop flights, Long Island MacArthur Airport in Islip could more than double business air travel, generating more than $1 billion in new revenue each year, according to a new survey.
That’s according to an analysis of an HIA-LI-sponsored survey issued to assess the current and future travel needs of Long Island’s business community. The survey of 504 Long Island businesses was conducted between Aug. 3 and Sept. 6 by Campolo, Middleton & McCormick, a law firm headquartered in Ronkonkoma.
Now, as more people are traveling amid the pandemic, leaders in the business community are broadcasting the analysis as part of an effort to get more airlines to understand the additional revenue opportunity they would have by bringing nonstop flights to MacArthur. The airport is owned and operated by the Town of Islip, and serves about 2 million people a year. Commercial airlines at MacArthur include Southwest, American and Frontier Airlines.
In the recent HIA-LI survey, firms reported annual travel budgets ranging from under $5,000 to more than $20,000. Currently, the firms spend an average of 36.2 percent of their overall travel budgets at MacArthur Airport. This amounts to about $1.9 million out of their average, full-year, travel budgets of $5.2 million, according to the analysis.
The survey found that with more nonstop flights at the airport, businesses travelers would increase travel out of Islip, increasing their budgets at MacArthur to 78.8 percent, a 218 percent increase. That projected annual spending would then increase to $4.1 million.
The survey conductors than applied those results to Long Island’s business sector as a whole. It projected that there were about 61,076 businesses in Suffolk County with travel budgets, and would boost their spending at the airport to as much as $532.2 million, if more nonstop flights were added. And Nassau County’s estimated businesses with travel budgets would spend up to $530.8 million additional at MacArthur.
Those projections showed the additional $1 billion in revenue, prompting the business community to join in on a call for more nonstop flights.
“This survey clearly demonstrates Long Island MacArthur Airport’s significant untapped value,” HIA-LI President and CEO Terri Alessi-Miceli said in a statement. “Long Island business, government, and civic leaders need to join forces to expand the number of nonstop flights offered by the airport.”
“Long Island MacArthur Airport already stands as an important economic development asset for Long Island,” Richard Humann, president and CEO of H2M architects + engineers and chairperson of the HIA-LI board, said in a statement. “A key goal of this survey is to help the airport build momentum toward expanding its schedule of nonstop offerings, and that’s how we’ll put it to use.”
“The potential revenue that stands to be made from adding more nonstop flights at MacArthur Airport is staggering,” Joe Campolo said in a statement.
Campolo is the immediate past chair of HIA-LI, and managing partner at Campolo, Middleton & McCormick, and a member of the Town of Islip’s Long Island MacArthur Airport Advisory Board. He said that with his team, he “spearheaded this survey to demonstrate the power and cohesiveness of the Long Island business community. Together, we can effectuate this monumental step forward for our region and economy.”
The airport’s leadership seemed to appreciate the call for more nonstop flights.
“HIA-LI is a tremendous positive force and advocate for economic prosperity for all of Long Island,” Town of Islip Supervisor Angie Carpenter said in a statement. “They understand that Long Island MacArthur Airport represents an important asset and an economic engine for our entire region both now and in the future.”
That kind of support from the business community is taking place elsewhere in the United States.
“Around the country we see chambers of commerce, convention and visitors’ bureaus, local governments, regional economic development associations, universities, and elected officials coordinating with their airports in a cooperative and unified manner, pledging support and frequently marketing dollars to ensure the success of new airline service and the ‘Fly Local’ use of airport assets,” Airport Commissioner Shelley LaRose-Arken said in a statement.
“Business travelers much prefer nonstop air travel,” Bob Isaksen, market executive for business banking at Bank of America and an HIA-LI board member, said in a statement. “We want this survey to send a strong message to airlines about the payoff they’ll receive by deepening their commitment to Long Island MacArthur Airport.”
CMM’s Survey Shows LI MacArthur Airport Could Generate $1.1 Billion
Posted: October 13th, 2021
The addition of more nonstop flights at Long Island MacArthur Airport in Islip holds the potential to generate more than $1 billion in new airport revenue annually, according to the analysis of a new survey of 504 Long Island businesses.
The Long Island MacArthur Airport Survey was designed to examine the current and future travel needs of the Long Island business community. Conducted between August 3, 2021 and September 6, 2021, the survey was sponsored by Hauppauge-based HIA-LI, one of Long Island’s largest business advocacy organizations. The survey was conducted by Campolo, Middleton & McCormick, LLP, a law firm headquartered in Ronkonkoma.
The surveyed firms reported annual travel budgets ranging from under $5,000 to more than $20,000. These companies currently spend an average of 36.2 percent of their overall travel budgets at Long Island MacArthur Airport. In dollar terms, this equals about $1.9 million out of their average, full-year, travel budgets of $5.2 million.
If the airport were to add additional nonstop flights, however, respondents said that this percentage would go up to 78.8 percent, a 218-percent increase. Their projected annual spending at the airport would rise to $4.1 million.
Grouping these businesses together as representative of Long Island’s business sector as a whole, an analysis of the survey results also looked at the potential for increased usage of Long Island MacArthur Airport by Nassau and Suffolk firms.
The analysis projected that Suffolk County has some 61,076 businesses with travel budgets. Applying the conclusions reached from the survey, these Suffolk firms would boost their spending at the airport by up to $532.2 million if more nonstop flights were added.
Nassau County is home to as many as 60,919 companies with business travel budgets. Applying the responses of surveyed companies to the Nassau business sector as a whole, firms in the county would spend up to $530.8 million more at Long Island MacArthur Airport if the airport were to add additional nonstop destinations.
Taken together, if the airport expanded its number of nonstop flights, the two counties hold the potential to generate as much as $1.1 billion in revenue.
“This survey clearly demonstrates Long Island MacArthur Airport’s significant untapped value,” said HIA-LI President and CEO Terri Alessi-Miceli. “Long Island business, government, and civic leaders need to join forces to expand the number of nonstop flights offered by the airport.”
“Long Island MacArthur Airport already stands as an important economic development asset for Long Island,” said Richard Humann, PE, who is President and CEO of H2M architects + engineers and serves as Chairperson of the HIA-LI board. “A key goal of this survey is to help the airport build momentum toward expanding its schedule of nonstop offerings, and that’s how we’ll put it to use.”
“The potential revenue that stands to be made from adding more nonstop flights at MacArthur Airport is staggering,” said Joe Campolo, Immediate Past Chair of HIA-LI, Managing Partner at Campolo, Middleton & McCormick, LLP, and a member of the Town of Islip’s Long Island MacArthur Airport Advisory Board. “My team and I spearheaded this survey to demonstrate the power and cohesiveness of the Long Island business community. Together, we can effectuate this monumental step forward for our region and economy.”
“HIA-LI is a tremendous positive force and advocate for economic prosperity for all of Long Island,” said Town of Islip Supervisor Angie Carpenter. “They understand that Long Island MacArthur Airport represents an important asset and an economic engine for our entire region both now and in the future. We are so grateful to HIA-LI members, HIA-LI President and CEO Terri Alessi-Miceli, and the organization’s Immediate Past Board Chair Joe Campolo, Managing Partner at Campolo, Middleton & McCormick, LLP,” she stated.
“Around the country we see chambers of commerce, convention and visitors’ bureaus, local governments, regional economic development associations, universities, and elected officials coordinating with their airports in a cooperative and unified manner, pledging support and frequently marketing dollars to ensure the success of new airline service and the ‘Fly Local’ use of airport assets,” said Airport Commissioner Shelley LaRose-Arken.
“Business travelers much prefer nonstop air travel,” said Bob Isaksen, Market Executive for Business Banking at Bank of America and an HIA-LI board member. “We want this survey to send a strong message to airlines about the payoff they’ll receive by deepening their commitment to Long Island MacArthur Airport.”
The Town of Islip owns and operates Long Island MacArthur Airport, which serves about two million airline passengers a year.
For a copy of the survey and an executive summary of the results, click below:
ABOUT LONG ISLAND MACARTHUR AIRPORT
Long Island MacArthur Airport customers enjoy flights on three major US domestic air carriers: American Airlines, Frontier Airlines, and Southwest Airlines. Together these carriers currently provide service to eleven cities nonstop and connect to hundreds of destinations worldwide. The airport serves 1.3M passengers annually and employs 6000 people, with a $16.1M annual operating budget and an economic impact of $600M to the region and local economy. For more information, go to https://MacArthurAirport.com.
HIA-LI. (2021, October 12). SURVEY OF OVER 500 LONG ISLAND FIRMS SHOWS THAT LONG ISLAND MACARTHUR AIRPORT COULD MORE THAN DOUBLE BUSINESS AIR TRAVEL BY ADDING MORE NONSTOP FLIGHTS. PROJECTING SURVEY RESULTS ISLAND-WIDE, AIRPORT COULD GENERAT $1.1 BILLION IN ADDED ANNUAL REVENUE [Press release].
Navigating COVID-Related Commercial Lease Disputes
Posted: October 13th, 2021
By Patrick McCormick
While the COVID-19 pandemic has not been kind to many business owners who had to comply with temporary closures and declining revenues, commercial tenants have nevertheless faced an uphill battle in Court trying to walk away from their rent payment obligations. While tenants seeking to be completely absolved from paying rent have not met much success in the court system, we have assisted many clients in successfully renegotiating their lease terms without resorting to litigation. Here, a look at the arguments that haven’t worked in Court, illustrating that negotiation is often a better strategy for landlords and tenants alike.
The unprecedented pandemic led to many commercial landlords and tenants finding themselves in the position of landlord Bay Plaza Community Center and tenant Vistasite Eye Care.[1] This commercial landlord-tenant case stemmed from the tenant’s failure to pay rent from April 1, 2020 (the height of the pandemic) and after. Bay Plaza commenced a suit for back rent and moved for summary judgment. In opposition, Bronx Vistasite sought cover under the doctrines of impossibility and frustration of purpose to excuse its failure to pay rent. The tenant also argued that then-Governor Cuomo’s various orders relating to the pandemic devastated its business, and that the temporary closure of the business due to these orders constituted a “taking” under the lease.[2]
The Supreme Court, New York County (Bluth, J.) disagreed. In granting the landlord’s summary judgment motion, the Court found that Governor Cuomo’s executive orders did not constitute a taking since the case did not involve the government condemning the building or invoking the doctrine of eminent domain. Further, the Court found that the doctrines of frustration of purpose and impossibility “have no place in this case.” The Court contended that a temporary hardship like the one described by the defendant does not excuse a tenant’s obligation to pay rent and therefore ruled in favor of the landlord and plaintiff in the case: Bay Plaza Community Center.
A similar scenario played out between landlord 695 Fifth Owner and tenant Valentino U.S.A.[3]Here, luxury retail and fashion brand Valentino brought suit, contending that the lease of its four-story Valentino Fifth Avenue New York boutique should be terminated, and seeking a determination that Valentino should be entitled to an abatement of any rent claimed due.
The lease had clearly stated that Valentino would be able to operate as a boutique retail store for customers to view and sample their merchandise in a luxurious setting, in addition to experiencing high-quality service and amenities. The lease also provided that Valentino was required to be open for business and continuously operate under the Valentino brand. Because of the COVID-19 pandemic, including the restrictions, social-distancing measures, a lack of consumer confidence, and a prevailing fear of “non-essential” luxury retail boutiques, Valentino claimed that its business had been “substantially hindered, rendered impractical, unfeasible, and no longer workable.”
Given the continuing business restrictions even as the shutdown orders eased, Valentino argued that it would be impossible to operate its boutique as initially envisioned under the Lease. Thus, Valentino contended that their continued operation at that location was impracticable, infeasible, unworkable, and/or impossible. Valentino then gave notice to the defendant landlord that they would vacate and surrender the premises by December 31, 2020.
Despite Valentino’s complaint, the New York County Supreme Court (Borrok, J.) dismissed the case because pursuant to the lease, the parties expressly allocated the risk that Valentino would not be able to operate its business and that Valentino is therefore not forgiven from its performance, including its obligation to pay rent by virtue of a state law.
The fact that the COVID-19 pandemic was not specifically enumerated by the parties does not change the result because the lease was drafted broadly and did not provide that government regulations and events beyond the reasonable control of the party “delayed in performing work” shall excuse the payment of rent. Furthermore, Valentino’s general allegation that the landlord failed to maintain the premises lacks causation since it appears Valentino continued to operate in the store as of July 22, 2020.
The challenges faced by the tenants trying to get out of their obligations in these cases – as well as the challenges faced by the landlords spending time and money in Court – illustrate that commercial landlords and tenants are often better served by negotiating their disputes rather than litigating them. CMM has successfully negotiated countless commercial lease issues since the start of the pandemic.
Please contact us to discuss the path forward.
[1] Bay Plaza Community Ctr. v Bronx Vistasite Eyecare, Inc., 2021 NY Slip Op 31568(U) May 5, 2021 Supreme Court, New York County
[2] Under the COVID-19 Emergency Eviction and Foreclosure Act of 2020, a residential or commercial tenant has the option to submit a “hardship declaration” stating that due to COVID-19, they are unable to pay rent. In that case, a landlord would not be able to evict the tenant until the moratorium is lifted (former Governor Cuomo signed an extension of the act in May, extending the moratorium until August 31, 2021; however, in September, Governor Hochul signed into law a new moratorium which is in effect until January 15, 2022). In the Bay Plaza Community Ctr. v Bronx Vistasite Eyecare, Inc., no such declaration was filed.
[3] Valentino USA v. 693 Fifth Owner LLC, 70 Misc.3d 1218(A) (Sup. Ct. N.Y. Cnty. Jan 27, 2021)