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Information about NYS Executive Order Addressing Financial Institutions and Financial Hardship

Posted: March 22nd, 2020

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On March 21, Governor Cuomo issued an Executive Order stating that banks (those subject to the jurisdiction of the NYS Department of Financial Services) must grant a forbearance to any person or business facing financial hardship as a result of the COVID-19 pandemic for 90 days. If they do not, it would be deemed “an unsafe and unsound business practice.”

The Department of Financial Services has been ordered to “ensure under reasonable and prudent circumstances that any licensed or regulated entities provide to any consumer in the State of New York an opportunity for a forbearance of payments for a mortgage for any person or entity facing a financial hardship due to the COVID-19 pandemic.”

An application will be created to be made available to consumers, and applications “shall be granted in all reasonable and prudent circumstances solely for the period of such emergency.” The Superintendent may issue rules regarding ATM fees, overdraft fees, and credit card late fees to be restricted or modified in light of the pandemic as well.

We will continue to report on this Executive Order as more information becomes available.

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.

HIA-LI Leading Efforts to Address PPE Shortage By Keeping Business Community Moving

Posted: March 21st, 2020

HIA-LI is leading the effort to address the statewide shortage of personal protective equipment (PPE) for healthcare workers battling the COVID-19 pandemic by coordinating directly with state and federal officials to engage Long Island manufacturers. Terri Alessi-Miceli, HIA-LI President & CEO, and Joe Campolo, HIA-LI Board Chairman and Managing Partner of Campolo, Middleton & McCormick, hosted an all-hands-on-deck conference call today with Congressman Lee Zeldin and his key staff, who has pledged his resources to aid in this critical effort.

“Our local medical professionals are giving their all, putting themselves at risk to care for our communities’ most vulnerable. Every level of government and every Long Islander has a responsibility to do everything to keep them safe, and I applaud HIA-LI for leading by example,” Zeldin stated. “I look forward to working with them to leverage the force of Long Island’s manufacturing and its unparalleled ingenuity to rise to meet the demand for vital protective equipment for those on the front lines of this battle against coronavirus.”

The idea is to have manufacturers pause their current manufacturing – if it isn’t paused already – and go back to work to manufacture PPE. This shift would not only help ameliorate the PPE crisis, but also help these manufacturers keep their businesses afloat and their people employed. New York State is willing to provide funding for companies manufacturing the proper equipment.

“As the recognized voice for Long Island business and the steward of the economic powerhouse that is the Long Island Innovation Park at Hauppauge, HIA-LI is focused entirely on helping the business community get through this unprecedented time,” said HIA-LI’s Alessi-Miceli. “By working directly with the Governor’s office and with Congressman Zeldin to help local manufacturers join PPE relief efforts, we can help businesses weather this storm while also helping to protect our first responders.”

“Our call today shows that we are all working relentlessly to help coordinate bipartisan efforts to assist Long Island business,” said Board Chairman Campolo. “The solution is not to panic, but to work together through this crisis.”

PPE includes gloves, masks, gowns, respirators, and additional equipment critical to protect those on the front lines. Businesses interested in receiving state funding to manufacture PPE products should directly contact Eric Gertler at (212) 803-3100 or covid19supplies@exec.ny.gov.

The Governor’s office is also asking that all PPE product providers sell to the state directly through this pandemic, including any products that are nonessential or not currently used. Businesses interested in selling products to the state should directly contact Simonida Subotic at (646) 522-8477 or covid19supplies@exec.ny.gov.

New York State on PAUSE: What You Need to Know

Posted: March 21st, 2020

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The following information is from the New York State Department of Health as of March 21, 2020. Learn more here.

  • New York State on PAUSE: In New York we know that Policies Assure Uniform Safety for Everyone.
  • 100% of the workforce must stay home beginning Sunday, March 22 at 8PM, excluding essential services. 
  • All non-essential gatherings of individuals of any size for any reason are temporarily banned.
  • New York State has has identified two million N95 masks for purchase and will send one million to New York City and 500,000 to Long Island.
  • Department of Motor Vehicles offices are temporarily closed for in-office visits. Online transactions, including for license renewals, are still be available. License and permit expirations will be extended.
  • Governor Cuomo is visiting four sites that have been identified by the Army Corps of Engineers for temporary hospitals.
  • Enacting Matilda’s Law to protect New Yorkers age 70+ and those with compromised immune systems 
    • Remain indoors
    • Can go outside for solitary exercise
    • Pre-screen all visitors by taking their temperature
    • Wear a mask in the company of others
    • Stay at least 6 feet from others
    • Do not take public transportation unless urgent and absolutely necessary
  • All barbershops, hair salons, tattoo or piercing salons, nail salons, hair removal services and related personal care services will be closed to the public effective Saturday, March 21 at 8:00PM.
  • Casinos, gyms, theaters, retail shopping malls, amusement parks and bowling alleys are closed until further notice. Bars and restaurants are closed, but takeout can be ordered during the period of closure.
  • Testing is free for all eligible New Yorkers as ordered by a health care provider.
  • Your local health department is your community contact for COVID-19 concerns.  

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.

Coronavirus-Related Suspension of NYS Laws – March 21, 2020

Posted: March 21st, 2020

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NOTE: Please see our updated post dated April 7, 2020.

Under Executive Order 202.8, Governor Cuomo has suspended and tolled through April 19, 2020 any specific time limit for the commencement, filing of or service of any legal action, including time limits in the Criminal Procedure Law, Family Court Act, Civil Practice Law, Court of Claims Act, Surrogates Court Procedure Act and Uniform Courts Act.

The Governor also suspended sections of the vehicle and traffic law related to the expiration of driver’s licenses, non-driver IDs and vehicle registrations that expired on or after March 1, 2020.

A provision requiring shareholder meetings to be noticed and held in person has been suspended.

Finally, the Governor expanded the authority of the Commissioner of Taxation and Finance to abate interest for a period of 60 days for taxpayers required to file returns for sales and use taxes for the period that ended February 29, 2020.

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.

What Businesses Should Know About the Federal Families First Coronavirus Response Act

Posted: March 20th, 2020

The federal Families First Coronavirus Response Act (FFCRA), signed into law on Wednesday, March 18, goes into effect on April 2 and focuses on emergency paid sick leave and expansion of the Family and Medical Leave Act.

The Emergency Paid Sick Leave provisions affect employers with fewer than 500 employees. All such employees, regardless of their tenure with their employer, are eligible for paid sick leave if they cannot work (including remotely) because they are subject to a federal, state, or local quarantine or isolation due to COVID-19; their healthcare provider advised self-quarantine; they are seeking a diagnosis after experiencing COVID-19 symptoms; they are caring for someone subject to quarantine; they are caring for their child for whom school or caregiving locations are closed; and a sort of “catchall” provision to be clarified by the Secretary of Health and Human Services.

Full-time employees receive 80 hours of paid sick leave; part-time employees receive the equivalent of the number of hours they would ordinarily work during a two-week period. For leave due to the above reasons regarding the employee’s own health, eligible employees would receive paid sick leave at their usual rate, capped at $511 per day and $5,110 total. For the other qualifying reasons, the rate is two-thirds their regular rate of pay, capped at $200 per day and $2,000 total.

Additional guidance from the Secretary of Labor is anticipated soon regarding guidelines for calculating leave benefits as well as employee posting requirements.

The FMLA Expansion Act, included in the legislation, addresses employees whose children’s school or childcare location has closed due to the pandemic. The emergency FMLA expansion temporarily does away with some of the FMLA’s limitations. In general, FMLA applies only to those employers with 50 or more employees and only to those employees who worked for at least a year and 1,250 hours (and only for specific reasons). Under this expansion, the FMLA temporarily now includes all employers with fewer than 500 employees, and the employee needs to have worked for only 30 days prior.

Employees may take up to 12 weeks of leave if they cannot work, including remotely, due to having to care for their children whose schools/childcare locations are closed due to the pandemic. The initial 10 days are unpaid, but employees may use accrued PTO time at their election. After the 10 days, employees are entitled to receive two-thirds of their normal wages for the number of hours they would ordinarily be working, up to $200 per day and $10,000 total.

Those employers with 25 or more employees must reinstate the covered employee to the same or equivalent position upon return; for those employers with fewer than 25 employees, the employee must be reinstated unless the position no longer exists due to economic issues caused by the pandemic.

Please contact us to discuss how this law intersects with New York’s new paid sick leave requirements and the next steps to move forward.

UPDATED March 26, 2020 – Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements.

See additional information here.

NYS Passes Law for Emergency Paid Sick Leave in the Wake of COVID-19

Posted: March 20th, 2020

By Christine Malafi

Updated guidance was issued by New York State on January 20, 2021. Learn more here.

New York State has enacted emergency paid sick leave legislation addressing how businesses should respond to employees with COVID-19 or those employees under government-ordered quarantine.

Effective immediately, with respect to employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 by New York State, the Department of Health, a local board of health, or any government entity duly authorized to impose such a quarantine, the new legislation requires that:

Employers with 10 or fewer employees as of January 1, 2020 and a net income of less than $1 million in the last fiscal year must provide job protection during quarantine. Employees immediately qualify for Paid Family Leave and short-term disability benefits, with New York State insurance covering the cost (capped at benefits coverage equal to annual salaries of $150,000).
Employers with 11 to 99 employees as of January 1, 2020 (or 10 or fewer employees but a net income greater than $1 million last fiscal year) must provide five days of paid sick leave and job protection during quarantine. After the five days, the employee qualifies for Paid Family Leave and short-term disability, with New York State insurance covering the cost (capped at benefits coverage equal to annual salaries of $150,000).
Employers with 100 or more employees as of January 1, 2020 (and all public employers) must provide 14 days of paid sick leave and job protection during quarantine.

Please contact us with any questions about how this legislation impacts your business.

Piercing the Corporate Veil: When Are a Business Owner’s Personal Assets on the Line?

Posted: March 19th, 2020

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As the COVID-19 pandemic continues to wreak havoc across the globe, business owners are consumed with keeping their businesses, employees, and their own families afloat. With the economy grinding to a halt, business owners are understandably concerned about whether the legal obligations of their business can shift to them personally during these uncertain times. An individual business owner’s insulation from the liabilities of his or her business is a basic premise of corporate law, but when can the “corporate veil” be lifted?

In short: the bar is extremely high. Only sufficient allegation of facts showing that the owner abused the privilege of doing business through his or her domination and control of the entity would result in personal liability. The fact that a business is short on cash to pay a vendor, for example, is not enough on its own to extend the company’s liability to its shareholders. Here, more specifics that prudent business owners should know.

THE BAR IS HIGH

While courts are empowered to pierce the corporate veil in appropriate circumstances, they often yield to the well-established principle that businesses incorporate precisely for the purpose of insulating their owners from personal liability. As such, efforts to disregard the corporate form are not taken lightly. A party seeking to “pierce the corporate veil” bears a heavy burden: in a lawsuit, the party must set forth very specific facts demonstrating that (1) “the owners of a corporation, through their domination and control of the corporation, (2) abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against a party such that a court in equity will intervene.”[1] What does “abusing the privilege of doing business in the corporate form” look like? A court will consider (1) the absence of the formalities or failure to follow corporate formalities; (2) inadequate capitalization; (3) commingling of assets, and (4) use of corporate funds for personal use.[2]  

SPECIFICS, NOT GENERALITIES

A lawsuit merely claiming in a conclusory matter, without specifics, that a corporation is “dominated” or “controlled” by a shareholder will not succeed. Simply because corporate officers participate in day-to-day operations of a corporation does not warrant that the corporate veil be pierced (indeed, that’s precisely what owners and corporate officers should be doing). Even allegations of bad faith aren’t enough: the party seeking to pierce the corporate veil must articulate that the abuse of privilege by the corporate owner creates a nexus between the abuse of corporate form and the transactions or occurrences at issue.

THE TAKEAWAY

The current business climate is raising questions and challenges no one has experienced before. Piercing the corporate veil to impose personal liability on an owner is not a decision any court would make lightly. Absent abusing the privilege of doing business as an incorporated entity before this crisis hit, and absent taking such abusive steps to shield oneself from personal liability after the fact, business owners can focus on the many other issues demanding their attention right now – not worrying about their own personal liability with respect to the obligations of their business.


[1] Morris v. New York State Department of Taxation and Finance, 603 N.Y.S.2d 807, 811 (1993); East Hampton Union Free School District v. Sandpebble Builders, Inc., 66 A.D.3d 122, 126 (2d Dep’t 2008).

[2] See, e.g., Peery v. United Capital Corp., 924 N.Y.S.2d 470, 473 (2d Dep’t. App. Div. 2011)