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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)

CMM Closes Multiple High-Value Transactions in Complex Family Business Deal

Posted: October 13th, 2021

CMM’s Corporate team has closed a large multimillion-dollar deal involving a host of coordinated transactions as part of a multi-step process to separate family members from being in business together, one of them being our client. The deal involved over 15 different companies, with over 70 documents signed in two days. The transactions also involved keeping meticulous track of over 40 parcels of land connected to the deal. Overall, over $100 million changed hands.

While the coordinated transactions were complicated, Senior Partner and Corporate Department Chair Christine Malafi led the CMM team, including Senior Associate Vincent Costa, to close the deal successfully. Paralegal Katharine Campolo’s efforts were essential in keeping track of the numerous documents throughout the deal. Even CMM’s administrative team played a role, helping work out some technical issues that arose in connection with the document-heavy transactions, to keep the deal moving smoothly toward closing.

The success of the complicated deal demonstrates CMM’s ability to handle large and complex matters, doing what it takes to make sure the deal is done right. These efforts are why Forbes has recognized CMM as a Top Corporate Law Firm in America. Please contact us for your next business deal.

OPINION: How Municipalities Can Expand Public Engagement by Going Hybrid

Posted: October 13th, 2021

By: Scott Middleton, Esq. email

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For those who hoped never to hear the phrase “new normal” again… we’re not there yet.

Yes, we are getting back to a “new normal” as the pandemic continues on. And while the Delta variant is posing continued challenges, many in-person activities have resumed. But for municipalities, with new updates to the New York State Open Meetings Law, maybe a hybrid style model is the best way to expand public engagement and follow the new guidelines.

New York Open Meetings Law

Governing state and local government meetings is a piece of legislation that covers public bodies such as municipalities. Known as the New York Open Meetings Law, or OML, Section 103 of the Public Officer’s Law states that public bodies at the state and local level in New York must give notice of meetings and allow the general public to attend at a facility that permits barrier-free physical access.

According to Section 102 of the OML, public bodies are defined as any entity that requires a quorum to “conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof.” Therefore, a public body is any state, county, or municipal government. And a quorum means a majority of body members needed to take formal action of matters of public business.

Essentially, the OML gives citizens the right to attend and listen to the deliberations and decisions that go into the making of public policy in an open and public manner, enabling them to educate themselves on current legislation and observe the performance of public officials.

New York State Response to COVID-19 and the OML

On March 12, 2020, former Governor Cuomo issued Executive Order 202.1. The order suspended the requirement that members of a public body physically convene; now, teleconferencing was permitted. Therefore, instead of providing a meeting location where the public could gather, if a municipality wanted to host a meeting, the Executive Order mandated that the municipality had to provide remote access to the general public.

In addition to suspending certain requirements such as an in-person and physical location, some new requirements were also established for the duration of the Executive Order 202.1 such as recording and transcribing meetings.

OML Fully Functioning Again?

On June 25, 2021, the State Disaster Emergency ended, removing the provision that suspended the Open Meetings Law. So this summer, the aspects of the OML related to in-person attendance (that were previously suspended) went back in effect.

Many municipalities found the shift back to in-person meetings startling. When the pandemic began, it had been a challenge for many municipal and state boards to gain familiarity with platforms such as Zoom. However, many members of the general public attending the meetings virtually quickly became accustomed to the ability to watch and participate in municipal meetings from the comfort of their own home. As more municipalities and the public became used to hosting and attending virtual meetings, it quickly became commonplace and convenient. The many positive outcomes of these meetings included that people who had never participated in the municipal process in the past were able to watch, listen and comment – estimates suggesting that public engagement actually increased during an otherwise dark time.

Virtual Access Extended

So with the Open Meetings Law fully functioning again, that means all government meetings need to be held in-person again, right?

Not so fast. Earlier this September, Governor Hochul signed legislation extending virtual access to public meetings. This means that meetings can be held remotely again as long as the public has the ability to view or listen to the meetings, and as long as the meeting is recorded and later transcribed.

For municipalities who were hoping for in-person meetings again but enjoyed the increased engagement of virtual meetings, perhaps a compromise with a hybrid style model is the best option.

What Would a Hybrid Style Look Like?

If a municipality were to host a board meeting implementing a hybrid style model, then the meeting could be held in the usual physical meeting spot in addition to on Zoom or another video platform. This way, public engagement could be maximized to its full potential and follow Governor Hochul’s legislation at the same time.[1]

A hybrid style could also address the matter of accessibility and inclusivity. People that don’t have cars or access to transportation could continue to attend virtual meetings and stay in the loop. After all, communities work best when the people living in them and the people leading them work together. Therefore, hybrid-style meetings are a solution to improve outreach, participation, and inclusivity. While the pandemic disrupted most of our lives, municipalities should capitalize on the opportunity to collaborate with the public and find more ways to include everyone.

Questions on how to navigate the Open Meetings Law now that virtual meetings have been extended? Contact us at 631-738-9100.


[1] If a municipality wishes to host a virtual meeting only (without a physical location tied to it), then Governor Hochul’s legislation allows this option.

The information contained in this article is provided for informational purposes only and is not and should not be construed as legal advice on any subject matter. The firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship.

NYS Appoints Cannabis Regulators, Moving Closer to Licensing Regulations

Posted: October 5th, 2021

By: Arthur Yermash, Esq. email

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Following the legalization of recreational marijuana and Governor Hochul being sworn in, the ball is finally rolling on establishing an Office of Cannabis Management (OCM) in New York State.

The OCM is the regulatory agency that will oversee New York’s legal cannabis industry. On September 1, the New York State Senate convened a special session to confirm Governor Hochul’s nominations: Chris Alexander as Executive Director of the OCM and Tremaine Wright as the Chair of the Cannabis Control Board (CCB). Alexander is a former policymaker for the Drug Policy Alliance and was involved in the creation of the Marijuana Regulation & Taxation Act. Wright is a former Assemblywoman and current Director of the Office of Financial Inclusion and Empowerment in the NYS Department of Financial Services.

OCM Executive Director Alexander’s role will be to oversee applications for licensing and permits for manufacturing, cultivating, processing, settling, storing and distributing cannabis. CCB Chair Wright will be responsible for the number of registrations, licenses and permits to be issued.

The approval of Governor Hochul’s picks means that New York State is moving closer to establishing regulations on cannabis licensing. The state legalized recreational marijuana this past spring after the issue took a backseat to the COVID-19 pandemic. Governor Hochul ordered the special session by saying she wanted “to jumpstart the long-overdue decisions pertaining to establishing cannabis in the state of New York.”

Following the NYS Senate’s special session to appoint New York’s cannabis regulators, on September 22, Governor Hochul announced her Cannabis Control Board member appointments: Ruben R. McDaniel, III and Jessica Garcia. As board members, McDaniel and Garcia will help create and implement the regulatory framework for New York’s cannabis industry. McDaniel is the President and CEO of the Dormitory Authority of the State of New York which provides construction, financing, and allied services. Garcia is Assistant to the President of the Retail, Wholesale Department Store Union, a national labor union representing workers along the food supply chain, as well as workers in non-food retail and healthcare.

The final two members of the five-person Cannabis Control Board include Adam W. Perry, Speaker Carl Heastie’s appointment, and Jen Metzger, Senate Majority Leader Andrea Stewart-Cousins’s appointment. Perry is an employment attorney, while Metzger is a former New York State Senator from the 42nd District.

Now that New York’s Cannabis Control Board is officially complete, and the Office of Cannabis Management has a director, that means that the regulatory process of legal marijuana can start to move forward with steps towards licensing, cultivation, production, distribution, sale, and taxation.

Visit our Cannabis Law practice area page to learn more about cannabis regulations, compliance, and licensing. 

The information contained in this article is provided for informational purposes only and is not and should not be construed as legal advice on any subject matter. The firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship.

Eisenbud Featured in The New York Environmental Lawyer, 2021 Vol. 41, No. 1

Posted: September 30th, 2021

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This article by Frederick Eisenbud, head of CMM’s Environmental & Land Use practice, was originally published in The New York Environmental Lawyer (2021 Vol 41, No. 1), a publication of the Environmental and Energy Section of the New York State Bar Association, under the title, “A Better Solution Was in Plain Sight: Amend CPLR 214-c to Conform to the Requirements of CERCLA’s Federally Required Commencement Date.”

The Virtual Elimination of the Statute of Limitations Applicable to Damage Claims by Public Water Providers by the Legislature Will Cause More Harm Than Good – a Better Solution Was in Plain Sight*

By Frederick Eisenbud

I. Introduction

On November 4, 2019, Governor Andrew Cuomo signed into law New York Civil Practice Law and Rules (CPLR) 214-h, which appears to provide an open-ended statute of limitations for providers of public water claiming injury to their water source from contamination.1 This article (1) outlines the scope of CPLR 214-c which was enacted in 1986, and how it was applied to water suppliers prior to the adoption of CPLR 214-h; (2) outlines New York State Department of Health (DOH) regulations applicable to water providers and how they impact the running of the applicable statute of limitations; (3) shows that, pursuant to CPLR 214-c, DOH limits for contaminants in potable water do not have to be exceeded in order for the CPLR 214-c statute of limitations to be triggered; (4) discusses the expanded statute of limitations for water suppliers created by CPLR 214-h; (5) analyzes whether CPLR 214-h is to be retroactively applied and if it is, whether it will apply if the statute of limitations in CPLR 214-c otherwise would bar a claim prior to the adoption of CPLR 214-h; (6) argues that the provisions of CPLR 214-h which provide virtually open-ended time for water suppliers to commence an action for damages arising from contamination are inconsistent with sound public policy and may have unintentional adverse consequences for water purveyors; (7) concludes that CPLR 214-h should be rescinded and CPLR 214-c amended to provide a proper balance of rights that will further the goal of permitting water districts to recover their costs from responsible parties without undermining the purpose of having a statute of limitations; and (8) provides, as an Appendix, a proposed amendment to CPLR 214-c that will address the concerns of water providers without the potential adverse impacts created by CPLR 214-h.

CMM Attorneys Recognized as 2021 “Super Lawyers” and “Rising Stars”

Posted: September 30th, 2021

Campolo, Middleton & McCormick, LLP is proud to announce that ten attorneys at the firm, in multiple practice areas, have been named to the 2021 Super Lawyers list, three of them as a “Rising Star.” The CMM attorneys recognized this year, in practice areas including Business and Corporate, Personal Injury, Real Estate, Business Litigation, Mergers & Acquisitions, Construction Litigation, Employment Litigation, Civil Litigation, and Appeals, are:

The rigorous Super Lawyers selection process is based on peer evaluations, independent research, and professional achievement in legal practice. The “Rising Stars” recognition denotes superior professional achievement by attorneys who have been in practice for under 10 years or are under age 40. No more than 2.5 percent of lawyers in New York State are named to the Rising Stars list.

Learn more about CMM’s outstanding legal professionals here.

CMM Closes Sale of Long Island Dance Studio

Posted: September 15th, 2021

Demonstrating the breadth of our industries served, CMM’s M&A team recently closed a deal in the performing arts space, representing our client in the sale of her dance studio. The innovative studio, a staple of the community for decades, specializes in various styles of dance including tap, ballet, jazz, lyrical, hip hop, and contemporary. The Suffolk County-based dance school brought their classes to Zoom during the pandemic and left a hybrid model in place after reopening for in-person classes, seeking to bring the art of dance to clients in a variety of settings.

CMM’s team, led by Partner Don Rassiger, worked diligently to push the deal to closing despite pandemic-related delays and a last-minute issue regarding the client’s PPP loan. The sale will allow the business to remain an important part of the local community for generations to come.

Innovative businesses need innovative lawyers, and the successful sale of the dance studio demonstrates CMM’s versatility and experience in handling M&A transactions across a wide variety of industries. Call us at (631) 738-9100 for guidance on your next sale, purchase, or restructuring. 

Hochul Activates NY HERO Act: What Should Employers Do Now?

Posted: September 13th, 2021

By: Arthur Yermash, Esq. email

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This month, Governor Hochul announced that the Commissioner of Health has designated COVID-19 as a “highly contagious communicable disease that presents a serious risk of harm to the public health under New York State’s HERO Act.”

Former Governor Cuomo had previously signed the NY HERO Act into law on May 5, later amending the legislation in three main areas on June 11. The NY HERO Act requires employers to develop airborne exposure prevention plans and communicate them to employees. Under Governor Cuomo, the plans were required to be adopted by August 5 but were not required to be in effect. Now, Governor Hochul’s designation requires that the airborne infectious disease exposure prevention plans be activated by employers and abided by employees.

What Do Employers Need to Do Now?

  1. Employers should understand what the New York State HERO Act entails. As we previously reported, the HERO Act has two main sections governing (1) the development and adoption of a workplace prevention policy for airborne infectious diseases, and (2) the creation of workplace safety committees.
  2. Review the industry-specific templates posted by the New York State Department of Labor in consultation with the New York State Department of Health. 
  3. Ensure their airborne infectious disease exposure prevention plans meet  the NYS DOL and NYS Department of Health minimum standards and model plans.
  4. Communicate the plan to all employees. The prevention plan should be posted in the workplace in a visible location and distributed to all employees.
  5. Lastly, employers and employees should follow their prevention plans and look out for any new guidance from the state.

CMM will continue to provide updates. For guidance on the NY HERO Act or adopting your own prevention plan now that plans must be activated, please contact us. 

For more information on the NY HERO Act, read CMM’s “What Employers Need to Know about HERO Act Obligations” article here.

The information contained in this article is provided for informational purposes only and is not and should not be construed as legal advice on any subject matter. The firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship.