Expert Opinion

SALT-Free Alchemy? Converting State Taxes to Charitable Deductions

Conrad Teitell | June 22, 2018

In his Estate Planning and Philanthropy column, Conrad Teitell writes: “The Tax Cuts and Jobs Act,” Pub. L. No. 115-97, limits an individual’s deduction under IRC Section 164 for the total amount of state and local taxes (SALT) paid during the calendar year to $10,000 ($5,000 for a married individual filing a separate return)

Representing a Franchisor at Trial: First Step, Educate the Court

David J. Kaufmann | June 20, 2018

Franchising columnist David J. Kaufmann discusses how franchise networks are not immune from disputes.

Expert Opinion

Commercial Waste Zones and Other Creative Solutions to Vehicle Emissions

Karen Meara and Christopher Rizzo | June 20, 2018

States and cities are striving to improve air quality and reduce greenhouse gas (GHG) emissions in an era when the federal government is moving in the opposite direction.

Realty Law Digest

Scott E. Mollen | June 19, 2018

Scott E. Mollen, a partner at Herrick, Feinstein, discusses the land use case “Brooklyn Ass'n v. N.Y.S. Urban Dev.,” where an Article 78 proceeding challenging the Brooklyn Pier 6 Project was dismissed, and a landlord-tenant case “N.Y.C. Hous. Auth. v. Various Tenants,” where sanctions were imposed on NYCHA for wrongfully suing tenants based on “overlapping rent claims.”

Conditions Precedents in Construction Contracts

Kenneth M. Block and Joshua M. Levy | June 19, 2018

In their Construction Law column, Kenneth Block and Joshua Levy explore the differences between typical contract terms and those that rise to the level of conditions precedent, the latter requiring strict compliance to avoid forfeiture.

Analysis

Attorneys vs. Accountants: The Battle Wages On

Jamie Diaferia and Helen Bertelli | June 19, 2018

In this column on Law Firm Management, Jamie Diaferia and Helen Bertelli discuss an Infinite Global study that reveals trends and best practices for content and social media in the law and accounting industries.

The Trump Twitter Case, and Its Implications for Other Public Officials

Shari Claire Lewis | June 18, 2018

In her Internet Issues/Social Media column, Shari Claire Lewis discusses Knight First Amendment Institute at Columbia University v. Trump which held that President Trump and Daniel Scavino, the White House social media director, had violated the First Amendment by blocking various individuals’ access to the @realDonaldTrump Twitter account after the individuals criticized the president.

Expert Opinion

The Standard for Extending Discovery Deadlines

Edward M. Spiro and Judith L. Mogul | June 18, 2018

In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul discuss the impact of the proportionality requirements in the Federal Rules of Civil Procedure on extension of discovery deadlines.

Expert Opinion

Home Ownership in the Post-Tax Cuts and Jobs Act Era

Sidney Kess | June 18, 2018

In his Tax Tips column, Sidney Kess writes: The Tax Cuts and Jobs Act (TCJA), combined with rising mortgage rates, could impact homeowners. For now, prospective buyers and homeowners need to contend with what has and hasn’t changed with respect to tax breaks for homeownership as a result of this tax legislation.

Analysis

Court of Appeals Rejects Unavailability of Insurance Exception

Howard B. Epstein and Theodore A. Keyes | June 15, 2018

Read about this important decision in the Corporate Insurance Law column by Howard B. Epstein and Theodore A. Keyes.

Analysis

Litigation Activity in a Single Lawsuit Is No Basis for Civil RICO Claim

Martin Flumenbaum and Brad S. Karp | June 15, 2018

In their Second Circuit Review column, Martin Flumenbaum and Brad S. Karp look at the recent decision holding that one frivolous, fraudulent or baseless lawsuit cannot constitute a viable RICO predicate act of racketeering activity.

Fiduciary Duties Arising From Close Personal Relationships

Thomas J. Hall and Thomas R. Commons | June 14, 2018

This column addresses recent decisions out of the Commercial Division that target exactly that question, whether fiduciary duties may arise as a result of a close personal relationship between parties.

Analysis

Justice Cardozo’s Opinion in 'Meinhard v. Salmon' Continues to Reverberate

Fred D. Weinstein | June 13, 2018

At the heart of the 'Meinhard' opinion is the concept that a fiduciary has a duty of undivided loyalty and, therefore, may not exploit a corporate opportunity for his or her own self-benefit.

Analysis

Ouch! As the US Open Tees Off, Consider the ‘Golf Ball Law’

Leigh Jones | June 13, 2018

Will a spectator injured at the U.S. Open suffer the same fate as an unlucky baseball fan? At least one case says "no."

2017, The Year of Many New Landlord-Tenant Laws

Adam Leitman Bailey and Dov Treiman | June 12, 2018

Adam Leitman Bailey and Dov Treiman discuss the many enactments related to harassment, bedbugs, and smoking, the first two of which expand tenants’ rights and the final one intended to constrict them.

Expert Opinion

Lessons from the SEC’s First Cyber-Disclosure Enforcement Action

Margaret A. Dale and Mark D. Harris | June 12, 2018

In our October 2017 column, we wrote about some of the Securities and Exchange Commission’s new cybersecurity initiatives, including the creation of a new Cyber Unit within the SEC’s Enforcement Division.

Analysis

Let’s Tell It Like It Is: Sexual Abuse by a Cousin Is Incest

Daniel Pollack and Toby G. Kleinman | June 12, 2018

All abuse is traumatic and where one is in a trusting relationship it is even more devastating.

Realty Law Digest

Scott E. Mollen | June 12, 2018

Scott E. Mollen, a partner at Herrick, Feinstein, discusses 'Saunders Ventures v. Morrow,' 'Estate of Parisi,' and 'In re Jian Min Lei v. NYC Department of Housing Preservation and Development.'

Expert Opinion

Distracted Driving and Liability Considerations: A Thriving Issue

Michael Hoenig | June 12, 2018

Complex Litigation columnist Michael Hoenig writes: The National Highway Traffic Safety Administration (NHTSA) says distracted driving is dangerous claiming 3,450 lives in 2016 alone. The safety agency adds that 391,000 persons were injured in motor vehicle crashes involving distracted drivers in 2015.

Analysis

Avoiding The New York Courthouse Through Arbitration May Not Be So Easy

Jonathan M. Sabin | June 11, 2018

In the absence of “critical language concerning enforcement” of the contract, the arbitrator decides all preliminary issues related to arbitration including waiver and statute of limitations defenses.

Analysis

Jury Agrees Defendant Breached Software Implementation Agreement

Richard Raysman and Peter Brown | June 11, 2018

Technology Law columnists Richard Raysman and Peter Brown discuss a recent decision out of California and write: True and enforceable representations in software implementation agreements concerning the location and functionality of the software are integral to the success of the project. Arguably failing to adhere totally to these representations was the subject of 'Copart v. Sparta Consulting,' where a jury awarded the plaintiff nearly $25 million for the defendant’s breach of agreements and statements of work that collectively amounted to a software implementation arrangement.

Expert Opinion

Spring Kick Off: Important Opinions Impacting the Trusts and Estates Field

Ilene Sherwyn Cooper | June 08, 2018

As the interminable winter has finally come to a close, and spring has thankfully began to emerge, Surrogate and Appellate Courts have been immersed in significant issues affecting trusts and estates practice. The following decisions are a representative sampling of the many important opinions impacting the field.

Expert Opinion

'Verizon' Case Takes Narrow View on Sales Tax Exemption

Joseph Lipari and Aaron S. Gaynor | June 08, 2018

Many people are familiar with the "resale exception" under which, for example, a sale by a clothing manufacturer of shirts to a clothing store is exempt from sales tax because the sales of the shirts by the store are taxable, see N.Y. Tax Law Sections 1101(b)(4)(i), 1105(a).

Analysis

Eastern District Roundup

Harvey M. Stone and Richard H. Dolan | June 07, 2018

In their monthly Eastern District Roundup, Harvey M. Stone and Richard H. Dolan report on several significant, representative decisions handed down recently in the United States District Court for the Eastern District of New York.

Analysis

The Rise of the 'Crypto Czar,' the Fall of a 'Blockchain Evangelist'

DEBORAH MESHULAM, BENJAMIN KLEIN AND RICHARD KELLEY | June 07, 2018

The cryptocurrency enforcement landscape continues to evolve with several important developments this past week, including the appointment of a “Crypto…

Expert Opinion

Trump Pardon Power: Any Constitutional Limits?

Christopher Dunn | June 06, 2018

Presidential pardon fever has spiked over the last week following President Donald Trump’s pardon of conservative commentator Dinesh D’Souza, who had been convicted of federal finance violations, and Trump’s suggestion he also might pardon former Illinois governor Rod Blagojevich and lifestyle maestro Martha Stewart.

Analysis

Rule 30(b)(6) May See First Substantive Change in Nearly 50 Years

Alvin Lee and Chad Smith | June 06, 2018

The proposed amendment is significant because it would create additional and entirely new discovery obligations on corporations who receive 30(b)(6) deposition notices.

'JCC Development v. Levy': Drafting Makes a Difference

Barbara M. Goodstein | June 06, 2018

In her Secured Transactions column, Barbara Goodstein shows how the case 'JCC Development Corp. v. Levy' can be used as a cautionary tale for attorneys who draft or review loan documents that small variations in the language of the documents can potentially lead to fatal flaws.

Expert Opinion

Excited Utterances and the Quest for Reliability in 'Cummings'

Michael J. Hutter  | June 06, 2018

In People v. Cummings, 2018 NY Slip Op. 03306 (May 8, 2018), the Court of Appeals addressed New York’s long recognized excited utterance exception to the hearsay rule.

Analysis

Epic Decision by Supreme Court Orders Arbitration, Prohibits Class Action

Michael A. Sabino and Anthony Michael Sabino | June 05, 2018

Epic is notable, not only for its precise enforcement of the agreements to arbitrate, but also for the valuable lessons it imparts regarding statutory construction and judicial restraint.

Analysis

'Adidas' Case Informs Importance of Building a Strong Case of Irreparable Harm in Trademark Cases

Milton Springut | June 05, 2018

In his Intellectual Property column, Milton Springut looks at the Ninth Circuit’s recent decision in 'Adidas America v. Skechers USA.'

Analysis

Impact of Salary History Bans on Asset Deals

Jeffrey S. Klein and Nicholas J. Pappas | June 05, 2018

In their Employment Law column, Jeffrey S. Klein and Nicholas J. Pappas propose strategies buyers may wish to consider in seeking to comply with California law.

Realty Law Digest

Scott E. Mollen | June 05, 2018

Scott E. Mollen, a partner at Herrick, Feinstein, discusses two landlord-tenant cases: ‘DD 11th Ave. LLC v. Sans, a fraud case, where a tenant obtained a low-income apartment by understating his income, and ‘Matter of Jourdain v. N.Y.S. Div. of Housing & Cmty. Renewal’ dealing with succession rights.

Nonpayment Cases: Petition May Be Amended To Include Post-Petition Rent

Patricia Kane | June 05, 2018

In their Landlord-Tenant law column, Warren A. Estis and Michael E. Feinstein write: 187th St. Bronx LLC v. Hizan Deli clarified that in a summary nonpayment proceeding, it is proper for the court, absent a showing of prejudice or surprise, to permit the landlord to amend the petition to include the unpaid rent which accrued subsequent to the filing of the petition, without having to serve a new rent demand. Given that the purpose of summary proceedings is to expeditiously resolve landlord-tenant disputes, this is a logical and appropriate result.

Michael Miller Addresses NYSBA as Its President

Michael Miller | June 04, 2018

"Members of this great profession of ours, particularly the members of the organized bar, stand on the front lines protecting, defending—and yes, even expanding—our precious civil liberties and the administration of justice."

Expert Opinion

Recent Noncompete, Trademark Infringement and Nonsignatory Franchise Precedents

Rupert M. Barkoff | June 04, 2018

During the last 12 months or so, franchise precedents rendered in the areas of covenants of noncompetition and trademark infringement have been numerous.

CLOUD Act Governs Warrants for Data Stored Outside U.S.

Christopher Boehning and Daniel J. Toal | June 04, 2018

Microsoft's four-year legal battle over the U.S. government’s ability to subpoena customer email stored outside of the United States ended abruptly thanks to the passage of the Clarifying Lawful Overseas Use of Data Act (CLOUD Act) which directly governs the subject matter. While the CLOUD Act provides clarity as to the permissible reach of the U.S. government, it raises issues of potential conflicts with the laws of other countries.

Analysis

Rebuttal Witnesses at Trial in the Case in Chief

Jeff S. Korek and Abraham Z. Melamed | June 04, 2018

When the primary reason plaintiff seeks to introduce rebuttal testimony is to simply bolster their own case and counter the defendant’s, courts generally do not permit the rebuttal testimony.

Expert Opinion

Recent Appeals Court Decisions on Statutes of Limitations

Thomas A. Moore and Matthew Gaier | June 04, 2018

The Court of Appeals has addressed issues pertaining to the statute of limitations in medical malpractice actions in two recent decisions—one involving the time at which a wrongful birth cause of action accrues, and the other involving the continuous treatment doctrine.

Analysis

'DeBour' Faces Increased Criticism: Where Do We Go From Here?

Barry Kamins | June 01, 2018

In this article on Criminal Law and Procedure, Barry Kamins looks at criticism of 'People v. DeBour,' the case establishing the level of intrusion allowed during police encounters with citizens.

New York's Scaffold Law: A ‘Defining’ Moment

George M. Heymann | May 31, 2018

George M. Heymann, retired judge of the NYC Housing Court and of counsel to Finz & Finz writes: The Legislature should take a serious look at the “Scaffold Law” and either amend it or rewrite it from scratch to avoid the frustration and confusion it has created for the courts, the litigators and their clients since its inception.

Expert Opinion

High Court to Decide When a Contract Is Ambiguous on Question of Class Arbitration

Samuel Estreicher and Holly H. Weiss | May 31, 2018

On May 21, the Supreme Court handed down its highly anticipated decision in Epic Systems v. Lewis, 584 U.S. ___ (2018). The court, in a 5-4 decision, upheld arbitration agreements that waive employees' rights to bring class arbitration against their employers.

Expert Opinion

New York Employers Face New Sexual Harassment Legislation

David E. Schwartz and Risa M. Salins | May 31, 2018

In the wake of the #MeToo movement, employers operating in New York will be subject to sweeping new laws aimed at curtailing sexual harassment in the workplace.

Expert Opinion

The Bankruptcy Proceedings of Three Prominent Shoe Stores

Edward E. Neiger | May 30, 2018

This issue of the Bankruptcy Update focuses on recent restructurings in the shoe industry. The column delves into the bankruptcy proceedings of Aerogroup International, Nine West and The Rockport Co.

Analysis

When #MeToo Leads to Litigation Against a Church

Barry Black and John B. Madden | May 29, 2018

New York courts have not yet decided whether they may hear sexual harassment lawsuits against religious institutions. Learn more in this Religion Law column by Barry Black and John B. Madden.

Analysis

Realty Law Digest

Scott E. Mollen | May 29, 2018

Scott E. Mollen, a partner at Herrick, Feinstein, discusses “159 MP Corp. v. Redbridge Bedford,” which involved an appeal by commercial tenants in an action for a judgment declaring that two long term commercial leases are in full force and effect and that the tenants are not in violation of their obligations under the leases. A trial court had denied their motion for a Yellowstone injunction…and granted the landlord’s cross motion for summary judgment dismissing the complaint.

Analysis

90-Day Notice For Suit On Note Revisited: Court Of Appeals Needed

Bruce J. Bergman | May 29, 2018

For those occasions when a mortgage lender may elect to sue on the note—as opposed to foreclosing the mortgage—saving service of the 90-day notice which might otherwise be elicited by the pervasively ubiquitous RPAPL §1304 is meaningful. Is the notice required? The Second Department says yes, while the Fourth Department says no. Until this issue is addressed by the Court of Appeals, the answer to the question remains uncertain.

Pitching Your Cybersecurity Case to Law Enforcement Agencies

Steven A. Cash and Naju R. Lathia | May 29, 2018

Steven A. Cash and Naju R. Lathia discuss the issues that arise when your client is the victim of a cybercrime—with a focus on the who, what, when, where and why's of involving law enforcement.

Analysis

The Next Step in Privacy Law Evolution?

Stephen Treglia | May 28, 2018

What should concern every entity that possesses someone else’s personal data is the fact that the rapid recent evolution of cybersecurity laws and regulations so soon after the start of the 21st century readily implies the dust is, as of yet, far from settled.

Expert Opinion

Lawyers and Alcohol Abuse: NYC Lawyer Assistance Program Is Here to Help

Priscilla Lundin | May 25, 2018

The findings of the landmark study of 13,000 currently practicing lawyers by the American Bar Association Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation (ABA/Hazelden study) published in the American Bar Journal in 2016 and elsewhere, revealed that between 21 and 36 percent qualified as problem drinkers.