The New York State Election Law was amended by adding a new section to § 14-116 and incorporating Limited Liability Companies (LLCs) in the definitions in that statute which limits the amount of monies an LLC can expand for political contributions.

Historically, corporations were proscribed from giving political contributions amounting to more than $5000 in the aggregate in any calendar year. Exceeding that limit subjected the corporation and its officers, directors, and stockholders to a criminal misdemeanor charge.

The changes in the law extend that $5000 dollar limitation to LLCs with members and managers being liable for the same misdemeanor criminal charge.

Additionally, the newly added § 14-116(3) of the statute, requires annual filings by an LLC that set forth all political contributions made on or after January 31, 2019. The annual statement specifies what contributions were made by the LLC and who the beneficial owners of the LLC were during that year. This form filing is available on the New York State Board of Elections’ (“NYSBOE”) website and is required to be submitted to the NYSBOE by December 31st of each year. Failure to file this statement is a misdemeanor.

Nothing in the amended law prohibits an owner of an entity from making contributions in excess of the $5,000 aggregate limit in his or her own name, subject to the individual campaign contribution limits for a candidate or a political committee. The individual campaign limits are set forth each year in regulations promulgated the NYSBOE and can range up to $70,000 per candidate for statewide offices with a primary component.

Jaspan Schlesinger is proud to celebrate Women’s History Month. March is designated Women’s History Month by Presidential proclamation.[1] “Every March, Women’s History Month provides an opportunity to honor the generations of trailblazing women and girls who have built our Nation, shaped our progress, and strengthened our character as a people.”[2]

“Women’s History Month had its origins as a national celebration in 1981 when Congress passed Pub. L. 97-28 which authorized and requested the President to proclaim the week beginning March 7, 1982 as ‘Women’s History Week.”’[3]   In 1987, “Congress passed Pub. L. 100-9 which designated the month of March 1987 as ‘Women’s History Month.’ Between 1988 and 1994, Congress passed additional resolutions requesting and authorizing the President to proclaim March of each year as Women’s History Month.”[4]  These proclamations celebrate the contributions women have made to the United States and recognize the specific achievements women have made over the course of American history in a variety of fields.[5]

President Biden, in issuing this year’s Proclamation, stated that: “[t]his Women’s History Month, as we reflect on the achievements of women and girls across the centuries and pay tribute to the pioneers who paved the way, let us recommit to the fight and help realize the deeply American vision of a more equal society where every person has a shot at pursuing the American dream.  In doing so, we will advance economic growth, our health and safety, and the security of our Nation and the world.”[6]

Governor Hochul in signing legislature addressing women’s issues stated: “New York must continue to break down barriers for women and fight inequality throughout our state.”[7] “These laws will address a variety of important issues, supporting STEM [ Science, Technology, Engineering, and Mathematics fields] careers and helping to ensure equity and access in women’s health.”[8]

Despite progress being made, women still face obstacles in many endeavors and further progress is needed to ensure that women have the same opportunities as men and are treated equally. Jaspan Schlesinger proudly joins the Nation in recognizing March as Women’s History Month.  As we recognize Women’s History Month, we will be updating our blog with relevant and timely information and resources regarding laws which address and highlight women’s issues.

Christopher E. Vatter cvatter@jaspanllp.com / Samantha M. Guido sguido@jaspanllp.com.

 

[1] Pub. L. 100-9.

[2] https://www.whitehouse.gov/briefing-room/presidential-actions/2022/02/28/a-proclamation-on-womens-history-month-2022/#:~:text=NOW%2C%20THEREFORE%2C%20I%2C%20JOSEPH,2022%20as%20Women’s%20History%20Month.

[3] https://womenshistorymonth.gov/about/

[4] Id.

[5] Id.

[6] https://www.whitehouse.gov/briefing-room/presidential-actions/2022/02/28/a-proclamation-on-womens-history-month-2022/#:~:text=NOW%2C%20THEREFORE%2C%20I%2C%20JOSEPH,2022%20as%20Women’s%20History%20Month.

[7] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[8] Id.

The Governor signed a bill on January 25, 2021 (the “Bill”), “to back New York’s construction workers in their fight against wage theft and help those seeking justice to navigate their claims against such crimes.”[1]  The Bill takes effect on January 4, 2022, “and shall apply to construction contracts entered into, renewed, modified or amended on or after such date.”[2]

“The purpose of this bill is to amend the existing wage theft law to increase the likelihood that exploited workers in the construction industry will be able to secure payment and collect unpaid wages and benefits for work that has already been performed.”[3]  The Bill provides that:

“a contractor making or taking a construction contract shall assume liability for any debt resulting from making a wage claim, owed to a wage claimant or third party on the wage claimant’s behalf, incurred by a subcontractor at any tier acting under, by, or for the contractor for the wage claimant’s performance of labor; provides for wage theft prevention and enforcement.”[4]

Before the enactment of this Bill, a construction worker could file “a private lawsuit against his/her direct employer to collect any unpaid wages, including overtime and fringe benefits.”[5] Notwithstanding, despite a worker’s ability to file a lawsuit against its direct employer, often that employer was judgment proof.[6]  This Bill now “amends existing wage theft law to require general contractors to assume joint and several liability for any debt resulting from making a wage claim, owed to a wage claimant or third party on the wage claimant’s behalf.”[7]

The hope of this Bill is that by holding the general contractor liable for all subcontractors that it chooses to utilize on a jobsite, the general contractor will monitor its subcontractors more carefully to ensure that they are properly paying their employees.  Essentially, the Bill is intended to create an “incentive for the construction industry to better self-police itself in turn, this will hopefully lead to a decreased burden on State and City Agencies, including the Department of Labor and Workers’ Compensation Board, in terms of enforcement resources.”[8]

The Bill permits general contractors the “authority to oversee the books of subcontractors in order to better ensure that workers are being paid all owed wages.”[9]  In particular, General Business Law was amended, and section 756-f was added which provides, in pertinent part, that:

“Upon request of a contractor, or a contractor’s subcontractor, to any subcontractor which performs any portion of work within the scope of the contractor’s construction contract with an owner, such subcontractor shall provide certified payroll records which, at a minimum, contain all lawfully required information required for all employees providing labor on the project. Such payroll records shall contain sufficient information to apprise the contractor or subcontractor of such subcontractor’s payment status in paying wages and making any applicable fringe or other benefit payments or contributions to a third party on its employee’s behalf.”[10]

“[A] contractor may withhold payment to a subcontractor or lower tier subcontractor for failure to provide certain payroll records.”[11]

What is the impact of this Bill? Essentially, it has now made the general contractor liable in the event that its subcontractor does not properly pay their workers. In order to mitigate the general contractor’s liability, the Bill allows the general contractor to oversee the books and records of the subcontractor to ensure that they are properly paying their employees and to withhold payments to a subcontractor if the subcontractor fails to provide certain payroll records.

It is important for contractors (and subcontractors) to ensure that the contractors they retain are properly paying their workers. If such subcontractor fails to properly pay their workers, the general contractor will be liable. Accordingly, it is imperative that general contractors review the subcontractors’ payrolls and make sure that the workers are properly being paid.

Jaspan Schlesinger LLP can help you navigate these issues and other construction law related matters. If you need assistance, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Charles W. Segal at csegal@jaspanllp.com.

[1] Senate Acts To Penalize, Prevent Wage Theft, Press Release, June 2, 2021.

[2] 2021 NY A.B. A3550. § 4.

[3] 2021 NY S.B. S2766C at “Purpose or General Idea of Bill”. The purpose of the Bill is found in the New York State Senate Bill S2766C, which was substituted by New York State Assembly Bill A3350 on June 2, 2021.

[4] 2021 NY A.B. A3550.

[5] 2021 NY S.B. S2766C at “Justification”. The justification of the Bill is found in the New York State Senate Bill S2766C, which was substituted by New York State Assembly Bill A3350 on June 2, 2021.

[6] Senate Acts To Penalize, Prevent Wage Theft, Press Release, June 2, 2021.

[7] Id.

[8] 2021 NY S.B. S2766C at “Justification”.

[9] Senate Acts To Penalize, Prevent Wage Theft, Press Release, June 2, 2021.

[10] General Business Law §756-f.

[11] 2021 NY S.B. S2766C at “Summary of Provisions”. “Failure to timely comply with a request for information as provided herein shall be a basis for a contractor to withhold payments owed to a subcontractor at any tier.” General Business Law §756-f.

 

 

The Governor signed a bill on October 25, 2021, amending General Business Law § 771[1] to require contractors and subcontractors to disclose the existence of property and casualty insurance (the “Bill”). The Bill takes effect on April 23, 2022.

General Business Law §771(i), will require that:

Before a contractor or subcontractor begins work on a home, such writing shall disclose to the homeowner the existence of a property and/or casualty insurance policy that covers the scope of such contractor or subcontractor’s employment should an insurance claim be filed resulting from losses arising from the work at such property. Such disclosure shall also include the contact information of the insurance company providing such property and/or casualty insurance, including a phone number and address.[2]

According to the Legislative History[3], this Bill is intended to “protect homeowners from damage that may be the result of work done by a contractor and/or sub-contractor by requiring contractors and sub-contractors to disclose in writing the existence of property and/or casualty insurance along with the contact information of the insurance company before doing any work on the property.”[4] Most cities, towns and villages in New York typically require that a contractor file proof of insurance before obtaining a building permit. However, that requirement relates to naming the city or town or village as an additional insured. In addition, the City of New York specifically requires that no exclusions in the insurance may apply to it.  Cities, towns or villages in New York with consumer protection departments often require that contractors register with the department and show proof of carrying a certain minimum level of insurance or post cash security against claims by consumers. However, this Bill is designed to prevent a contractor/sub-contractor from failing to provide their property and/or casualty insurance information or from misrepresenting the level of insurance they have to the homeowners before doing the work.[5]  The justification for this Bill is to ensure that when a property owner suffers damage to their property as a result of work performed by a contractor/subcontractor, the owner should have a clear understanding as to how to file a claim against the contractor/sub-contractor’s insurance carrier.

It is important for both contractors and homeowners to make sure that the proper insurance is provided at the inception of the project. Jaspan Schlesinger LLP can help you reviewing the necessary insurance requirements.

If you need assistance, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Charles W. Segal at csegal@jaspanllp.com.

[1] 2021 NY A.B. A2202.

[2] General Business Law § 771(i).

[3] The purpose and justification of this bill can be found in the Senate Bill, S4060, which was substituted by New York State Assembly Bill A2202 on June 9, 2021.

[4] 2021 NY S.B. 4060 at “Purpose or General Idea of Bill”.

[5] Id. at “Justification”.

On Friday, December 10, 2021, the New York State Department of Health Commissioner issued the “Commissioner’s Determination on Indoor Masking Pursuant to 10 NYCRR 2.60” (the “Determination”) setting forth new indoor masking guidelines in the State of New York. The Determination provides “findings of necessity” in support of that mandate, including among other things statements that  the “winter surge of the Delta variant” and the concern that the Omicron variant “appears to be spreading” support issuing strict indoor masking measures during the holiday season to “ensure that there is protection in all indoor settings through either vaccination status or mask-wearing.” (The 12/10/21 Determination at “Findings of necessity.”) Governor Hochul announced the indoor masking mandate would become effective Monday, December 13, 2021, remaining in effect until January 15, 2022.This post focuses on the guidelines set forth concerning  “All Public Places Not Otherwise Covered by This Determination.” (The 12/10/21 Determination.) However, a summary of the key provisions of the other indoor mask requirement is set forth in the footnote below.[1]

The Mandate to All Public Places Not Otherwise Covered by This Determination.

The Determination establishes strict indoor masking guidelines for the State of New York, regardless of vaccine status, providing in relevant part that “…all persons, over age two and able to medically tolerate a face covering/mask, regardless of vaccination status, shall wear an appropriate face covering while in any indoor public place.”  (The 12/10/21 Determination at 7.a.) The Determination further provides that “indoor public place” shall mean “any indoor space that is not a private residence.” (The 12/10/21 Determination at 7.c.) The exception to this rule is “any indoor public area that requires proof of vaccination as a condition of entry.” (The 12/10/21 Determination at 7.b (underline emphasis added).) In other words, the Determination provides that all persons ages 5 and above provide proof of vaccination prior to entering an indoor business or venue or all persons in that business or venue must be masked at all times (less specifically enumerated instances) regardless of vaccination status.

What Is an Indoor Public Place and What is Required in the Public Business/Venue?

The Determination’s corresponding Frequently Asked Questions (“FAQs”) addendum explains the intended scope of the “indoor public place” requirements. Specifically, the definition is intended to include “typically frequently” public and private venues such as “indoor entertainment venues, concert halls, indoor sports stadiums, recreational spaces, restaurants, office buildings, shopping centers, grocery stores, pharmacies, houses of worship and common areas in residential buildings.” (See Frequently Asked Questions at “Information for Businesses and Venues.”)

The FAQs further explain that an indoor business or venue may choose to comply with the mandates set forth in the Determination by either requiring that all persons who enter the indoor venue are fully vaccinated or by requiring that all persons inside such a venue are fully masked, regardless of vaccination status; however, “[a] business and venue cannot do a ‘combination’ requirement.” (See Frequently Asked Questions at “What Exactly are the Requirements?”)  Further, the requirement applies to patrons and employees. In other words, if a business or venue does not require that all patrons show proof of vaccine status before entering, every employee in the business or venue must adhere to the mask mandate at all times while indoors and vice versa.

What Proof is Required by the Determination?

The FAQs explain that persons age twelve (12) and above must be fully vaccinated (defined as 14 days post a one-dose vaccine or 14 days past the second dose of a two-dose Pfizer or Moderna COVID-19 vaccine) prior to entering a business or venue. Children ages 5-11 must show proof of at least one dose of the COVID-19 vaccine prior to entering a business or venue. (See Frequently Asked Questions at “Business/Venue Proof of Vaccination Requirement.”)

Such proof may be established by the Excelsior Pass, SMART Health Cards issued by states other than New York, a New York State COVID Safe app full-course vaccination, a CDC Vaccination Card, or other official immunization record will satisfy the Requirement. (See Frequently Asked Questions at “Business/Venue Proof of Vaccine Requirement.”)

How Do the Mandates Affect Office Spaces?

The FAQs explain that any office space that does not require proof of vaccination as a condition of entry must follow the masking policy, stating: “If the office does not require proof of vaccination as a condition of entry, everyone must wear masks at all times regardless of vaccination status except when eating, drinking, or alone in an enclosed room.” (See Frequently Asked Questions at “Information for Businesses and Venues” (underline emphasis added).)  The FAQs add that such guidance constitutes “Department of Health guidance related to face coverings” as set forth in the NY HERO ACT. (See Frequently Asked Questions at “Information for Businesses and Venues.”)

How Do the Mandates Affect Private Gatherings Such as Weddings and Restaurants?

According to the FAQs, private events held indoors at a business or venue are included in the new mandate. In other words, “the business entity/venue must require masking or proof of vaccination as a condition of entry” to a wedding or similar private event held at a private business or venue. (See Frequently Asked Questions at “What about private events held at a public indoor space, such as a wedding hosted at a restaurant or venue?”)

Additionally, food services businesses operating with both indoor and outdoor, enclosed, or semi-enclosed spaces with more than two sides covered must comply with these mandates in both the indoor and outdoor spaces. However, food services operating exclusively in open, unenclosed spaces, e.g., without a roof or two or fewer sides covered, are strongly recommended but not required to follow the mask mandate. (See Frequently Asked Questions at id.)

What About Salons/Personal Care Service Business?

The FAQs state that the proof of vaccine mandate applies to personal care service settings. If a salon does not require proof of vaccine to enter, then persons receiving facials, face hair trimming, etc. “may briefly remove their masks while receiving such services” but are otherwise required to wear masks at all times. The brief removal exemptions would not apply to any services such as hair cuts that do not require mask removal. (See Frequently Asked Questions at “How does the new policy work for salons and other personal care businesses…?”) For a full review of the scenarios contemplated, see generally Frequently Asked Questions.

Preparing for the New Mandate

In light of the new mandate people living in and visiting New York should consider taking the following steps:

  • Fully vaccinated persons and employees alike in New York should bring a mask and proof of vaccine when leaving their residence to go to indoor businesses or venues to ensure entry into such establishments.
  • Owners/Managers of indoor businesses or ventures must immediately determine how they will comply with the mandate while it is in effect.
  • Persons hosting weddings and gatherings at indoor businesses or ventures while the mandate is in effect should reach out immediately to the owners/managers of those establishments to determine the policies adopted and the effect, if any, such policies will have on guests’ ability to attend the event.
  • Unvaccinated persons in New York age five and over will likely experience difficulties frequenting restaurants and service salons and/or attending school functions and meetings while this mandate is in effect.
  • Families with unvaccinated children ages five and above planning on visiting New York should consider the effect the mandate will have on their travel plans.

s[1] Healthcare Settings: “…all personnel, regardless of vaccination status … shall wear an appropriate face mask” and “all visitors over age two and able to medically tolerate a face covering/mask shall be required to wear a face covering/mask in health care facilities, regardless of vaccination status, subject to applicable CDC exceptions….” (The 12/10/21 Determination at 1.)

Adult care facilities (ACFs) regulated by the Department: “all ACF personnel, regardless of vaccination status, shall wear an appropriate face mask if providing direct medical care” and other staff shall wear “at a minimum, a cloth face covering … in such settings” both “in accordance with any applicable CDC exceptions….” (The 12/10/21 Determination at 2.)

P-12 school settings: “[U]niversal masking of teachers, staff, students, and visitors to P-12 schools over age two and able to medically tolerate a face covering/mask and regardless of vaccinations status … subject to applicable CDC-recommended exceptions.” (The 12/10/21 Determination at 3.a.) This requirement “is extended to any gathering on school grounds which addresses or implements educational matters where students are or may reasonably be expected to be present.” (The 12/10/21 Determination at 3.b.) If “officials presiding over” such public meetings “are unable to guarantee compliance with such masking requirements, they are advised to implement full virtual access to public meetings” as set forth in the New York State Open Meetings Law dated September 2021. (The 12/10/21 Determination at 3.b.) Finally, the P-12 school setting mask mandate “does not provide for the implementation of ‘mask breaks’ during the school day, nor does it provide for an exception to the masking requirement on the basis of minimal social distancing in classrooms.” (The 12/10/21 Determination at 3.c.)

Correctional facilities and detention centers: “[A]ll incarcerated/detained Persons and staff shall wear an appropriate face covering/mask when social distancing cannot be maintained” and all “visitors over age two and able to medically tolerate a face covering/mask shall wear an appropriate face covering/mask in accordance with applicable CDC exceptions….” (The 12/10/21 Determination at 4.a.-b.)

Homeless Shelters/Emergency Shelters/Day Shelters and Meal Service Providers: “[A]ll clients visitors, staff, and volunteers over age two and able to medically tolerate a face covering/mask shall wear an appropriate face covering/mask, regardless of vaccination status, when social distancing cannot be maintained….” (The 12/10/21 Determination at 5.)

Public Transportation Conveyances and at Transportation Hubs: While indoors on public transportation and at hubs, “all persons , over age two and able to medically tolerate a face covering/mask, regardless of vaccination status shall wear an appropriate face covering mask….” (The 12/10/21 Determination at 6.a.)

 

 

The Governor signed a bill on January 6, 2021, amending State Finance Law § 139-f(a)[i] to remove the statutory definition of “substantial completion”, in relation to payments on public construction contracts (the “Bill”). The Bill took effect on December 15, 2020.  In particular, the Bill removed the definition of substantial completion and now allows public agencies to retain their own definitions of substantial completion. Substantial completion of the work on a public contract acts as a trigger for permitting a contractor to request a reduction in the typical retention on a construction project and to submit its final payment requisition for payment of the remaining amount due on its contract.

State Finance Law § 139-f previously defined when a public project was substantially completed and when a contractor was permitted to submit its final payment requisition. Substantial completion was previously defined as “mean[ing] the state in the progress of the project when the work required by the contract with the public owner is sufficiently complete in accordance with the contract so that the public owner may occupy or utilize the work for its intended use; provided further, that ‘substantial completion’ shall apply to the entire project or a portion of the entire project if the contract with the public owner provides for occupancy or use of a portion of the project”[ii].

The reason for this change to State Finance Law § 139-f was that the definition of substantial completion applied to various types of contracts and industries. The Legislature determined that there should be a more flexible term, depending on a particular contract or industry.  The Bill “allow[s] for public contracts to be the defining authority on what constitutes substantial completion, by referring to substantial completion, as it appears within the terms of the contract.”[iii]

State Finance Law § 139-f also amended the timing for a contractor to complete certain tasks set forth in the public owner’s “punch” list of work to be completed from seven calendar days to five business days.  This change “provide[s] essentially the same amount of time without contract deadlines falling on holidays or the weekends.”[iv]

When issuing or negotiating a public improvement contract, it is important that the contract define when substantial completion occurs. Jaspan Schlesinger LLP can help you in issuing or negotiating public improvement contracts.

If you need assistance, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Charles W. Segal at csegal@jaspanllp.com.

[i] 2021 NY S.B. S880. State Senator Neil D. Breslin (44th Senate District).

[ii] 2020 NY CLS St Fin § 139-f

[iii] 2021 NY S.B. S880 at “Justification”.

[iv] Id.

In the ancient times (i.e. before email), there was little doubt about how a person evidenced their intent to be bound by a written agreement – he or she manually signed the document. This resulted in what is known as a “wet signature” (the wet part being the ink from a pen, as signing in pencil, crayon or blood had, over the years, become frowned upon in the legal community). Then along came email, and while it has been in general use for two decades or so by now, courts today are still resolving its application to the law.

In a recent case, In re Misty G. O’Connor (BK 18-11779), the US Bankruptcy Court for the Western District of New York was presented with a case requiring it to determine whether an email could be “signed” by the sender without the existence of any wet signature (either an original or a PDF or other electronic version).

In December 2016, Misty O’Connor formed a new company, Misty Shores Events, LLC, to operate a wedding venue then under construction on the misty shores of Lake Erie. On the (what turned out to be) erroneous assumption that the facility would soon be ready to begin sending newlyweds off in wedded bliss, the LLC started scheduling wedding dates and accepting deposits, including a $1,000 deposit from Craig Markham, whose daughter booked the venue for her June 16, 2018 wedding.

Unfortunately for all concerned, the venue that Misty Shores Events planned to open never saw the light of day, and, to make matters worse, failed to return any of the ten deposits it received. In March of 2018, in an effort to make amends, Ms. O’Connor sent an email to Ms. Markham, in which she wrote that she was “personally trying to pick up the pieces of my business not opening” and that she “agreed to pay each couple monthly payments until their full deposited amount is paid in full.” As the reader can likely surmise from the very existence of this blog article, Ms. O’Connor failed to return Mr. Markham’s deposit.

A couple of months after sending the email, Ms. O’Connor filed for personal bankruptcy. The Chapter 7 trustee later issued a notice to Ms. O’Connor’s creditors that he had recovered assets and set a deadline for filing proofs of claim. Mr. Markham timely filed his claim for $1,000. Notwithstanding that Ms. O’Connor included the customers who paid deposits to LLC (including Mr. Markham) in her personal schedule of unsecured creditors, the trustee rejected Mr. Markham’s claim, taking the position that the return of the deposit was the obligation of the LLC (which had no assets) and not Ms. O’Connor (who did).

This brings us to the point of this blog article. The Statute of Frauds, as set forth in New York General Obligations Law, requires certain matters to be in writing in order to be enforceable, including guaranties. The relevant part of the law provides:

“Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking . . . [i]s a special promise to answer for the debt, default or miscarriage of another person.”

In particular, the law requires not only that the promise be in writing, but that it be subscribed (signed) by the party to be charged. Was Misty’s email a writing signed by her, such that she was personally bound by it? Or would the absence of her actual signature on any document prevail? In this case, the Court had little difficulty in finding that the email satisfied the Statute of Frauds.

The first issue to decide was whether the email constituted a “writing.” Back in the early days of email (namely 2000), New York adopted the Electronic Signatures and Records Act (the “Act”). Under the Act, an electronic record, such as an email, “shall have the same force and effect as those records not produced by electronic means.”  As a result, the Court held that “the email enjoys the same status of a writing in the form of a letter etched with ink on paper.”

Having quickly disposed of the “is it a writing” issue, the Court then turned to the “was it subscribed” issue. In this respect, the manner in which Ms. O’Connor concluded her email made this a particularly easy call for the Court.

Those of you who recall the days when people sent letters will be familiar with the process of manually signing your name at the end of the letter, either by itself or above your typed name. In this case, Ms. O’Connor provided the electronic equivalent of a wet signature – she typed her first name above her full name at the end of the email. This quite easily satisfied the requirements of the Act, which provides that “unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.” The Act defines an electronic signature as one “an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record.” By typing “Misty” above her full name, Ms. O’Connor cut through the fog of whether the email was subscribed by her, and the Court overruled the trustee’s objection to Mr. Markham’s claim.

There are a number of lessons that can be learned from this case. First, above all else, be very careful when booking one of your children’s most meaningful days at a location that hasn’t opened for business. Someone has to be the first event at a new venue, but it doesn’t necessarily have to be you. Second, if you’re dealing with a start up business, make sure someone with some resources has agreed, at the outset, to at least return any deposits and other sums paid if your event doesn’t happen. And third, if you’re going to go through the trouble of forming a venture for the purposes of protecting yourself from personal liability, don’t provide after the fact guarantees if you can help it.

 

 

Email is great, isn’t it? You can save paper and tons of time. But did you know that a simple click of the “send” button may bind you to a settlement?  Litigants and their counsel learned the hard way this month when the First Department reversed the lower court’s decision in Matter of Phila. Ins. Indem. Co. v. Kendall.

In Matter of Phila. Ins. Indem. Co. (Sup. Ct. N.Y. Cty., Index No. 657200/19), an individual plaintiff brought a claim under the Supplemental Underinsured Motorist (SUM) benefit provision in her employer’s automobile policy with Philadelphia Insurance Indemnity Company. The claim went to arbitration and, after a hearing, the arbitrator found in the individual’s favor to the tune of $975,000. However, neither counsel received the arbitrator’s decision. So, they continued to negotiate.

A few days later, the insurance company offered $400,000 to settle. The individual’s counsel responded, and that email ended with a salutation, followed by his name and contact information. But it was unclear whether this information was typed purposefully or generated by a prepopulated block.

Before the individual signed the settlement documents, her counsel received the arbitrator’s decision. The parties then proceeded to court. In determining that the email acceptance of the lesser amount was not enforceable, the lower court held that: (i) it was unclear whether her attorney retyped his name on his email agreement to the settlement in satisfaction of “subscription” under CPLR 2104; and (ii) the email correspondence did not contain all of the material terms of the settlement.  This blog focuses on the “subscription” issue.

What is CPLR 2104?

CPLR 2104 provides in pertinent part that “[a]n agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney . . . .”

 Why Did the First Department Reverse the Decision?

In reversing the lower court, the First Department drew an important distinction between typed signatures and prepopulated signature blocks. Specifically, they held that the “distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today.  It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent.” Matter of Phila. Ins. Indem. Co. v. Kendall, ___AD3d___, 2021 NY Slip Op 04284, *3 (2021).

This finding, the First Department held, was in line with relevant precedent, including  Forcelli v. Gelco Corp. (109 A.D.3d 244, 972 N.Y.S.2d 570 (2d Dep’t 2013)), which stands for the proposition that the retyping of a name is required for an email to be “subscribed” and therefore a binding stipulation under CPLR 2104.

By issuing this latest decision, the First Department then effectively clarified and updated this precedent to conform with the times. It found that the settlement at issue was valid because the transmission of the email, not whether the sender’s email signature was retyped above the sender’s prepopulated block containing contact information at the end of the email, was what determined that the settlement stipulation was subscribed for purposes of CPLR 2104.

The Court mentioned the concern raised by other courts (including the Second Department) about the casual nature of email, and how emails are sometimes sent by accident or with regret after transmission.  However, it left that issue for another day, since the Court was not faced with an attorney who inadvertently sent an email. (They did note that “[c]ertainly, a part of that showing will be prompt action to rectify the error, just as prompt action strengthens an assertion of inadvertent disclosure.”)

To that same end, the Court was sure to qualify its decision, stating that,“[w]hile we jettison the requirement that a party or a lawyer retype their name in email to show subscription, that does not mean that every email purporting to settle a dispute will be unassailable evidence of a binding settlement.”  Matter of Phila. Ins. Indem. Co., 2021 NY Slip Op 04284, *4.  First, an email from an attorney’s account is presumed to be authentic, but that is a rebuttable presumption.  Id.  Second, an email settlement must, like all enforceable settlements, set forth all material terms. Id.

What are the Takeaways?

According to the First Department, the Court of Appeals has not opined on whether emails can satisfy CPLR 2104.  Matter of Phila. Ins. Indem. Co., 2021 NY Slip Op 04284, *2.  Until such time it does, make sure you type (or retype) your name at the end of the settlement stipulation email even if you have a prepopulated contact block; remember that intentionally transmitting an email containing the material terms of the agreement will likely determine that the settlement was subscribed for purposes of CPLR 2104; and be sure to update the arbitrator (or the court) when you are continuing settlement negotiations while a decision is pending.

 

 

As we settle into the new “normal”, the body of case law concerning commercial rent defaults during the COVID-19 pandemic continues to grow. This blog discusses just some of those cases as they relate to commercial tenants’ reliance on impossibility of performance as a defense to paying rent under their leases because of COVID-19 related economic downturns.

One such recent decision was rendered by Hon. James P. McCormack, J.S.C. (Supreme Court, Nassau County), in C&B Realty #3, LLC v. Sunstar Salon Services, Inc., d/b/a Cactus Salon, et al. (Index No. 613285/2020) on a commercial-landlord’s motion for: (1) summary judgment on the issue of defendants’ liability for breach of the lease; and (2) summary dismissal of the defendants’ counterclaim for a judgment declaring that they were excused from their monetary obligations under the lease and guaranty based on the doctrine of impossibility of performance (among others) for the period March 2020 through the end of all restrictions on their operating capacity.

We all remember that Governor Cuomo’s Executive Order 202.7 forced non-essential businesses, such as hair salons, like C&B Realty #3’s tenant, Sunstar, to close (effective March 21, 2020).  It was not until June 2020 that the salon was authorized to re-open at a limited capacity, and with the added expense of extra cleaning and sanitizing protocols.  The salon made some partial payments after re-opening but did not pay according to the terms of the lease.  Thus, in November 2020, C&B Realty #3 (the “Landlord”) commenced its breach of contract action against the hair salon tenant and the personal guarantor of the lease based on the tenant’s default on its obligations to pay rent since March 2020.  The Landlord’s motion followed.

In its decision, Judge McCormack cited a decision from the New York Supreme Court in Cab Bedford LLC v. Equinox Bedford Ave, Inc., 2020 N.Y. Slip Op. 34296(U) (Sup. Ct., N.Y. Cty. Dec. 22, 2020) (Bluth, J.) as the most relevant case the court could find, which involved a commercial landlord suing its gym tenant for breach of the parties’ lease.  There, the gym argued, among other things, that the COVID-19 pandemic rendered it impossible for the gym to pay its rent obligations under the lease since they were shut down.  Judge Bluth disagreed, finding that the doctrine of impossibility “has no applicability here and does not raise an issue of fact.  Defendants ran an ‘upscale gym’ for many years prior to the Covid-19 pandemic and, after some painful months, are not permitted to operate (although at a limited capacity).  The subject matter of the lease was not destroyed.  At best, it was temporarily hindered. That there are more hurdles to running the business is not a basis to invoke the impossibility doctrine.” Cab, 2020 N.Y. Slip Op. 34296(U) at *5.

Judge McCormack discussed another decision reached by Judge Bluth (on a motion for summary judgment) in 35 East 75th Street Corp. v. Christian Louboutin L.L.C., 2020 N.Y. Slip Op. 34063(U) (Sup. Ct., N.Y. Cty. Dec. 9, 2020) (Bluth, J.), where she found that the subject matter of the contract, the physical location of the retail store, was still intact and the tenant (a retail store) was able to sell its products. “The issue is that it cannot sell enough to pay the rent.  That does not implicate the impossibility doctrine.” 35 E. 75th St. Corp., 2020 N.Y. Slip Op. 34063(U) at*5.  Judge Bluth also noted that the lease contained a force majeure clause that specifically provided that the tenant would not be excused from having to pay rent, therefore contemplating financial disadvantage.  Instead, it purported to extend the period of performance for whatever the delay may have been.  See id.

Still, Judge McCormack felt that the case before him was different from the cases before Judge Bluth.  The C&B lease contained the following provision: “Subject to the limitations herein set forth, the Demised Premises shall be used solely as a first class, high quality hair salon and for no other use or purpose whatsoever . . . . ”  In the court’s view, this provision meant that the tenant did not just rent the space, but they rented the space with the requirement that it only run a hair salon out of it.  Due to the Executive Order’s prohibition on operations, from March until June 2020, it was impossible for the tenant to operate its hair salon, which was the only permissible use of the space under the lease.  However, once the tenant could operate the salon at 50% capacity in June 2020, its operations were no longer impossible although they may have been extremely difficult. “The impossibility of performance doctrine does not apply to ‘extremely difficult.’” Judge McCormack granted the Landlord’s motion for summary judgment on the issue of liability except for the months of March – June 2020. As to that period, Judge McCormack ruled that there were issues of fact requiring a trial as to the tenant’s impossibility of performance defense.

Another case that comes to mind is Ten W. Thirty Third Assoc. v. A Classic Time Watch Co., Inc., where on a motion to dismiss Judge Bluth held that a decline in a tenant’s business (a watch company) “does not constitute frustration of purpose or render its performance under the contract as impossible” and the court “cannot just rip up a contract because a tenant faced financial hardship due to the pandemic”.  Ten W. Thirty Third Assoc. v. A Classic Time Watch Co., Inc., 2021 N.Y. Misc. LEXIS 1589, 2021 NY Slip Op 31137 (U) (Sup. Ct., N.Y. Cty. April 9, 2021) (Bluth, J.).

It also appears that Judge Bluth considered the impact of the pandemic on landlords in her decision, stating that:

“[t]he Court recognizes that the pandemic has decimated businesses around Manhattan and throughout the country. But that does not mean that the Court can ignore defendants’ obligations. The Court must also consider the rights of the other contracting party, which must still maintain buildings and pay taxes even though the Tenant has not paid rent for months….” Id. at *3.

These decisions, as well as others, should continue to remind landlords and tenants that the terms they negotiate as part of their lease are crucial to their legal rights and remedies.  Further, in this “new” world, landlords and tenants alike should, moving forward, consider how to mitigate their damages and account for pandemics and stay-at-home orders in their leases.  However, this will come at a price and concessions will be needed on both sides.

 

The New York Legislature has made some recent changes to the law governing mechanics’ liens.[1] Specifically, under Section 9(7), Article 2 of the NY Lien Law, a Notice Under Mechanic’s Lien Law now requires a statement as to “whether the property subject to the lien is real property improved or to be improved with a single family dwelling or not.”[2]

The justification for this addition can be found in the legislative history. Prior to the change in law, Notices Under Mechanic’s Lien Law were not “required to distinguish between a residential or a non-residential property.”[3] However, distinguishing between residential and non-residential properties is essential since the renewal of mechanic’s liens filed against residential and non-residential properties are treated differently.

Mechanic’s liens on single family dwellings must be filed within four months[4] from the last date of work and remain valid for one year from the date of filing.[5]  “A lien on a single family dwelling may not be self-extended; it may be extended only by court order.”[6]

With respect to non-residential property, a mechanic’s lien must be filed within eight months[7] from the last date of work and remains valid for one year from the date of filing.[8]  However, with respect to non-residential property, a mechanic’s lien “may be extended for one year by the filing and service of an extension of lien within one year of the original notice of lien.”[9] Furthermore, “[i]f an additional one-year extension is needed, a lienor, upon good cause shown, may obtain an order from a court of record to continue the lien.”[10]

The Legislature determined that without requiring a mechanic’s lien to specify the type of property “has opened the door for a lien to be filed on a residential property and then the assertion to be made that the lien can be extended into a second year.”[11]  The Legislature determined that: “[r]equiring that mechanics’ liens specify whether they are on residential or non-residential propert[ies] will ensure that liens filed in New York State are filed against the correct property classification and that New York families are better protected.”[12]  As a result of this amendment, the Legislature is attempting to limit the extension of mechanic’s liens against single family dwellings and to protect New York families from mechanic’s liens.

For further information or guidance regarding mechanics’ liens and how they may affect you, please contact Christopher E. Vatter.

______________________________________________________________________________

* This article was authored by Christopher E. Vatter, Esq., with the assistance of Mr. Michael P. Miata.

Mr. Vatter is a partner with Jaspan Schlesinger LLP and focuses his practice in the areas of complex commercial litigation, construction law, and banking litigation. He represents property owners and real estate developers in the negotiation of construction-related contracts and in litigation arising from construction projects. Mr. Vatter also has extensive experience in all phases of litigation on behalf of both public and private entities, and represents financial institutions in foreclosure actions, collection matters, and loan workouts.

Mr. Miata is a law clerk in Jaspan Schlesinger LLP’s Summer Law Clerk Program.  Michael is entering his third year at Maurice A. Deane School of Law at Hofstra University.

[1] New York Mechanic’s Lien Law allows persons such as contractors and subcontractors who provide work, labor, services, or materials, for the improvement of real property, to file a mechanic’s lien against the real property to secure their payment. See e.g., NY Lien Law § 3.

[2] NY Lien  Law § 9(7).

[3] 2019 Legis. Bill Hist. NY A.B. 4766.

[4] NY Lien Law § 10.

[5] NY Lien Law § 17.

[6] William J. Postner & Robert A. Rubin, New York Construction Law Manual § 9.32 (2d ed. 2006) citing NY Lien Law § 17; Cook v. Carmen S. Pariso, Inc., 287 A.D.2d 208 (4th Dep’t 2001).

[7] NY Lien Law § 10.

[8] NY Lien Law § 17.

[9] William J. Postner & Robert A. Rubin, New York Construction Law Manual § 9.32 (2d ed. 2006) citing NY Lien Law § 17.

[10] Id.

[11] 2019 Legis. Bill Hist. NY A.B. 4766.

[12] Id.