CMM February/March Newsletter: Are You In Our Negotiation Video?
Posted: February 21st, 2018
News (All)
Campolo Graduates from Energeia Partnership, Long Island’s Premier Leadership Academy
Posted: February 20th, 2018
Campolo, Middleton & McCormick is proud to recognize Managing Partner Joe Campolo on his “graduation” from the Energeia Partnership on February 7, 2018, joining an esteemed group of Long Island leaders who face the region’s challenges head-on.
Energeia, named for a Greek word used to describe the demonstration of inner character in deeds, is a leadership academy focused on identifying and addressing the issues that challenge Long Island. Each “class” of Long Island leaders participates in a two-year academy based at Molloy College featuring a series of programs, each focusing on a particular issue impacting the region.
“When I started with Energeia two years ago, I wasn’t sure what to expect. But I soon found myself exploring and becoming educated on the challenges facing Long Island, and vastly improved my 
perspective on key issues such as education, racism, energy, healthcare, and transportation,” Campolo said. “It was a terrific beginning down a path designed to help Long Island leaders become more thoughtful about different perspectives before making decisions that impact people and society at large.”
Campolo has also been elected to the Energeia Board of Advisors, where he will develop programming to educate the next generation of Long Island leaders.
How to Lower the Cost of Construction in New York? Demolish New York’s Scaffold Law
Posted: February 20th, 2018
It is absolutely time to revisit and revise New York State’s absolute liability standard imposed upon contractors and owners for construction-related accidents. New York Labor Law Sections 240 and 241, colloquially referred to as the “Scaffold Law,” impose a strict liability standard on contractors and owners for elevation/gravity related accidents. Unlike other personal injury matters, the Scaffold Law does not allow for any consideration of the comparative fault of the injured worker for causing and/or contributing to his/her accident. As a result, facts such as the injured worker’s decision not to wear personal protective equipment (“PPE”) that is provided by his/her employer and readily available at the jobsite are not considered in evaluating liability or the award of damages.
Having worked in the construction industry for the past twenty years, and having overseen the Safety, Risk Management, and Loss Control Departments for contractors with a New York (as well as a national and international) presence, I’ve seen beyond dispute that New York’s Scaffold Law is among the primary reasons for the soaring cost of construction. It drives up the value of settlements and verdicts which, in turn, increases the cost of insurance. In fact, many insurance carriers have stopped writing policies in New York as a result of this antiquated and imbalanced law. And those carriers that have kept writing programs in New York have dramatically increased their premiums as well as the deductibles and self-insured retentions that the insured contractors are required to carry.
The net effect is an ever-increasing cost to build. Further, it has forced many contractors and subcontractors to seek projects outside of New York, price shop insurance programs with carriers that are not admitted in New York State, and purchase policies that contain numerous exclusions that do not provide any actual coverage. These increased costs are then passed along to consumers on private sector projects and taxpayers on public sector projects.
This is not to say that injured workers should not be compensated for elevation-related accidents on construction sites. Nor is it intended to endorse contractors that curtail spending on training, safety, PPE, and supervision that the workforce needs to perform their work. But, when the Occupational Safety and Health Administration (“OSHA”) investigates an elevation-related accident and determines that the injured worker caused or contributed to his/her accident by not using available PPE, rushing/cutting corners, failing to follow proper procedures and/or the employee’s own training, but the contractor/employer cannot use OSHA’s findings to mitigate or cut off the worker’s entitlement to compensation for his/her own negligence, which is precisely what the Scaffold Law does, then it is time for some major reform.
Until New York State addresses this inequity, contractors and subcontractors should do the following:
- Read your insurance policies very carefully. Be careful of endorsements that exclude coverage for elevation-related work.
- Engage experienced insurance brokers, advisors, and other professionals who specialize in the construction industry. With insurance premiums being among the top three annual expenses for most contractors (along with payroll and brick & mortar costs), it is imperative to work with specialists who understand your business, the types of coverage that are needed, and how to put together a program that provides real coverage.
- Spend money on training, upgrading PPE, and supervision. In this era of increasing deductibles, think about how much it costs to proactively address safety issues vs. how much you spend on claims within your insurance deductibles.
New York’s construction industry cannot move forward and realize its full potential if antiquated laws keep it tethered to the past.
Mastering the Psychology of Negotiation
Posted: February 20th, 2018
Tags: negotiation
Anyone can learn the mechanics of negotiation – preparation, active listening, and knowing your BATNA, to name a few – to become a good negotiator. But it’s not enough to be good. Mastering emotions is the key to effective negotiation and involves not only understanding and taking control of your own emotions, but also those of your adversary. Are you willing to make an investment into the emotional realm to become a truly great negotiator?
Negotiation is an exercise in simultaneously obtaining value and managing risk. As Elroy Dimson, Emeritus Professor of Finance at London Business School, famously observed: “Risk means more things can happen than will happen.” Indeed, emotions pose risks in every negotiation. Unchecked emotions can both enhance a relationship or destroy it beyond repair; emotions can open up new solutions and possibilities or be used against you.
I highly recommend Roger Fisher and Daniel Shapiro’s fantastic book, Beyond Reason: Using Emotions as You Negotiate, which distills some of the many tools that help negotiators master the emotional tension that threatens every negotiation. Below are a few of the critical tools I use:
- Focus on each party’s interests, not positions. If you focus exclusively on the end game you have envisioned for the negotiation (“I won’t accept a purchase price of less than $5 million”), rather than interests (“I want to receive adequate compensation for my hard work and I don’t want to worry about money in retirement”), you’ll miss win-win solutions (perhaps a lower purchase price can be more than made up by a package of other benefits such as continued rental income, lifetime health insurance payments, etc.). Same goes for your adversary – consider what their interests truly are.
- Build affiliation. In my early years practicing law, I was fortunate to have a mentor who did something practically unheard of in today’s business world. When a client was on the receiving end of a lawsuit or had a difficult transaction to be negotiated, my mentor would pick up the phone, call the attorney for the other side, introduce himself and say, “It seems we have some issues to work out. Why don’t we meet for dinner, get to know each other, and talk things through?”
It’s too easy to let social norms dictate how we should act in a negotiation – “I need to come in guns blazing” – that we completely miss important opportunities to build connections that will help us negotiate to win. Don’t belittle your adversary (or, on the flip side, don’t be intimidated by someone who “outranks” you in experience and prestige); instead, strive to connect on a personal level. And once you do get talking, discuss things you care about – don’t be another in a long list of people who commiserate about LIE traffic or the weather.
- Respect autonomy. Hurt feelings over being left out aren’t limited to the middle school cafeteria: negotiations often break down because someone feels slighted. If you show up to a negotiation and see a first-year associate on the other side of the table, don’t assume he’s there just to take notes. Build a connection with him (“I see you won a research award in law school – nice job”) and be respectful. And if his boss shows up too, don’t act like the associate is invisible. There are enough moving parts in a negotiation to manage – don’t blow it by making an easy-to-avoid mistake like this.
Mastering the psychology at play during a negotiation is critical, whether you’re negotiating the release of hostages or negotiating with your two-year-old to try a new food. If you invest the effort into managing the emotional tension, I guarantee you will achieve better results at your next negotiation.
Renting on Airbnb, HomeAway or VRBO? Important Info You Should Know
Posted: February 20th, 2018
Tags: real estate
In recent years, many Long Islanders have been earning extra income by renting their homes as short-term vacation rentals through services like Airbnb, HomeAway, and VRBO. However, many are unaware that these rentals are subject to New York State Hotel and Motel Tax, and that Suffolk County in particular has been cracking down on homeowners who are renting through these sites but have not registered with or remitted the tax to the county. County compliance units have been researching properties listed on these sites and issuing letters of violation to the homeowners. The good news is, it’s not too late to get in compliance.
The Hotel and Motel Tax applies to all short-term rentals of less than 30 days and is three percent (3%) of the per diem rent, payable to the county in which the property is located. The theory is that if a homeowner is renting out a room or even an entire house, he or she is acting like a hotel, and therefore needs to collect the same taxes hotels do. While short-term rentals certainly pre-date the digital economy (especially in the Hamptons and other local areas), websites such as Airbnb make it easier for municipalities to track these rentals and convert them into a revenue opportunity.
If you are engaging in short-term rentals of your real property, if you have not done so already, you should file a Registration for Certificate of Authority to Collect Hotel and Motel Tax with your county. Once you have registered, you will need to fill out a simple Hotel/Motel Tax Return indicating the amount collected and the tax due. The form must be filed quarterly.
If you have engaged in such short-term rentals without paying the tax and receive a letter from the Tax Enforcement and Compliance Unit, do not ignore it. Failure to pay the lodging tax to the county can result in a criminal misdemeanor charge with the punishment being a fine of up to $1,000 or a year in prison. To get into compliance, you will need to complete a form showing back amounts collected and submit same along with your Registration for Certificate of Authority.
With its influx of tourists/visitors and high cost of living, Long Island can be a particularly appealing place for homeowners to bring in some extra cash by offering their homes and properties as short-term rentals. However, tax compliance is key. We’re here to help if you need assistance.
The New Tax Law and Your Estate Planning
Posted: February 19th, 2018
Tags: estate planning
Have you heard? There has been a major change in the Federal Tax Code as of January 1, 2018. But what does it mean as far as estate planning goes?
The only real change in this regard was that the exemption for the Federal Uniform Gift and Estate Tax approximately doubled from $5,490,000 to $11,180,000 per person. With the use of portability, married couples can now pass up to $22,360,000 estate tax-free during their lives or at death. But beware, this is only temporary. It drops back down to the prior level (indexed for inflation) in 2025. Believe it or not, that’s less than eight years away.
So, if you want, you can now gift an additional $11,180,000 during your lifetime (or the next eight years, whichever comes first). New York does not have any gift tax, but you do need to stay alive for the next three years after the gift; otherwise it is brought back into your estate for New York estate tax purposes.
For those who do not want to gift and give away their assets while they’re alive (or those who do not have that kind of wealth), there’s really very little that’s changed. That’s because New York is not following the federal doubling of the exemption. Currently the New York exemption is $5,250,000 and is not due to increase until 2019 to approximately $5,600,000. That’s because it’s based on $5,000,000 in 2014 indexed for inflation. Also keep in mind that there is no portability in New York. This means that it takes planning to make sure that both spouses’ exemptions are used.
So, is it better now? Of course. If you have an estate between the $5,250,000 and the $11,180,000, you now only have to worry about New York estate tax and not Federal estate tax. But the New York estate tax rate is still 18%. And if you’re more than 105% over the exemption, you lose the entire exemption and have to pay the 18% on all of your estate.
The only other change for estate tax purposes is that the annual exclusion went from $14,000 to $15,000 per person per year. That means that you do not have to tell the IRS about any gift you give that’s not over $15,000. Anything over, you have to fill out a gift tax form so they can keep tabs on it and take it off of your lifetime exemption. There’s no actual tax unless you surpass the lifetime exemption of $11,180,000. As a side note, this has nothing to do with long-term care planning. That $15,000 gift would still be considered an uncompensated transfer and subject to a penalty period in terms of Medicaid eligibility.
The takeaway? Estate planning requires just that: planning, with the help of a qualified professional. Please reach out to us to review your particular situation.
Eisenbud Elected At-Large Member of NYSBA Environmental Section Executive Committee
Posted: February 19th, 2018
Frederick Eisenbud, Esq., chair of the Environmental and Land Use practice group at Campolo, Middleton & McCormick, LLP, a premier law firm with offices in Ronkonkoma and Bridgehampton, has been elected to a three-year term as an At-Large Member of the Executive Committee of the New York State Bar Association’s Environmental Section.
The Environmental Section brings together NYSBA members interested in environmental law for furtherance of the public interest in an effective and fair legal framework for protection of the human and natural environment. For over 135 years, NYSBA – the largest voluntary state bar organization in the nation – has shaped the development of the law, educated and informed the profession and the public, and responded to the demands of a changing society.
Eisenbud has a depth of experience that provides him with a comprehensive understanding of environmental law. For over four decades, he has focused on providing responsive, smart and cost-effective solutions for the environmental law and litigation concerns of individuals, companies, municipalities, and community groups. Learn more about his career highlights, including serving in the Peace Corps in Liberia, starting the Suffolk County Environmental Crime Unit, and obtaining the first two jail sentences arising out of environmental crimes in New York State history here.
A Word of Caution with Use of Olympic Marks
Posted: July 25th, 2024
Tags: intellectual property
With the upcoming arrival of the 2024 Summer Olympics Games, a friendly reminder to all Olympic enthusiasts that any unauthorized commercial use of the Olympic trademarks, logos, images, or symbols is prohibited. Because the United States Olympic & Paralympic Committee (“USOPC”) does not receive government funding to support its athletes, the USOPC has broad discretion to vigorously enforce its intellectual property.
Federal law gives the USOC exclusive rights to the symbol of the five interlocking rings, the Olympic flame and torch, and to the words, inter alia, “Olympic,” “Olympiad,” “Team USA,” “Paris 2024,” “Los Angeles 2028.” The statute is further extended to prohibit any advertising that tends to suggest a connection with the Olympics or the USOPC. The USOPC’s rights, however, are limited to situations where these words or symbols are used (1) to offer goods or services for sale; or (2) to promote a theatrical exhibition, athletic performance, or competition. In addition, it does not include trademarks or logos owned by the National Governing Body for specific sports.
Moreover, the USOPC holds trademark rights to Olympic-related words, images, and symbols. Section 43(a) of the Lanham Act prohibits the use of trademarks when they (1) are likely to deceive or create a false impression of affiliation or endorsement; or (2) misrepresent in advertising certain aspects of the product.1 Unauthorized use of the trademarks could subject a user to possible claims of false endorsement or affiliation, which operate separately from USOPC’s exclusive statutory rights. Although there are certain exceptions to infringement based on fair use, news reporting, news commentary, or any noncommercial use, the USOPC is not afraid to object to the use of its trademarks by a non-licensed party.
Creative marketers have attempted by “ambush marketing” to find a route around USOPC’s rights by creating advertising materials with some Olympic flavors without using the protected marks. For example, by taking photographs of national flags or competing athletes; by advertising near event locations; adopting themes and color palettes similar to the event; and real-time social media marketing. Such imagery could be eye-catching to consumers; however it is only acceptable if the attempts are not in violation of any anti-ambush marketing laws.
One instance of piggybacking off Olympic sponsors was when Michael Phelps, the face of the Olympics, began appearing in Subway commercials. Subway, not an Olympic sponsor, ran a commercial featuring Michael Phelps swimming to “where action is this winter.” The USOPC characterized the ad as “ambush marketing” and an attempt to falsely associate Subway with the Olympics as a sponsor. Another famous example of capitalizing on real-time events with media marketing arose during the 2013 Super Bowl, when after a power outage at the Superdome, OREO cookies seized the opportunity by tweeting the message “Power Out? No problem” which was accompanied by an ad showing a single, starkly lit OREO cookie beside the caption, “You can still dunk in the dark”. The tweet quickly went viral allowing OREO to capitalize on the event without being an official sponsor.
In short, the USOPC has a reputation for aggressively policing their exclusive rights to certain words, phrases and symbols, and they have a special federal law to back them up. Be cautious of the use of Olympic trademarks by knowing and understanding where the boundaries are. If you’re thinking of advertising your business with an Olympic-themed promotion, you might want to find another Gold Medal-winning strategy.
Click here for additional information on the USOPC’s logos.
1.15 U.S.C.S. § 1125
March 15 – Cocktails, Conversation & Contracts: Understanding Risks In Construction Contracts
Posted: February 3rd, 2018
Event Date: March 15th, 2018
What are the key provisions to look out for in any construction contract? Please join us on Thursday, March 15 to hear insights from a corporate attorney with decades of experience in the construction industry and insurance executives with a focus on construction clients.
This talk will walk you through agreements with contractors, subcontractors, vendors, and other parties to provide guidance on what significant provisions should look like including indemnification and mitigation of risk, how to analyze your insurance obligations, what to look for when procuring insurance, and understanding the impact of riders and endorsements.
Gain valuable tools and knowledge to prepare you for your next contract negotiation.
Panelists:
– Donald J. Rassiger, Chair of Construction Practice and Managing Attorney of Corporate Department, Campolo, Middleton & McCormick, LLP
– Thomas Gilmore, Risk Management Consultant, Industrial Coverage
– Rick Caputo, Risk Management Consultant, Industrial Coverage
Agenda:
6-7 PM: Networking, cocktails and appetizers
7-8 PM: Program and Q&A
Location: Cosentino
35 Engel Street, #102
Hicksville, NY 11801
Register here.
Sponsored by:
