WEISS ZARETT WINS REVERSAL ON APPEAL AND DISMISSAL OF TORTIOUS-INTERFERENCE CLAIMS

By Michael D. Brofman, Esq. & Michael J. Spithogiannis, Esq.
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Imagine winning litigation after being a defendant in a contract dispute and then having the plaintiff start another suit arising out of the same contract but on a different theory.  That is essentially the issue that Weiss Zarett faced recently in its appeal to the Appellate Division Second Department.  The matter in question arose from two cases in the Supreme Court Nassau County.  In the first case, the plaintiff sought to foreclose on a mortgage arising out of a joint- venture agreement.  Weiss Zarett represented the new owner of the commercial real property in question, which it purchased after the foreclosure litigation had commenced.  Weiss Zarett successfully intervened for the new owner in  the pending foreclosure action and asserted a counterclaim to quiet title.  Ultimately, on appeal, the underlying foreclosure action was dismissed, and a judgment was entered in favor of the new owner cancelling and discharging  the mortgage of record.  Immediately thereafter, plaintiff again sued the same joint-venture parties under the same joint- venture agreement and added the new owner as a defendant, asserting  that it tortiously interfered with the joint venture agreement. The new case was assigned to a different Supreme Court Justice.  Weiss Zarett moved to dismiss the case as to the new owner, on the grounds (among others) that the plaintiff could not split its causes of action and was barred from asserting claims it could have asserted in the first action. The Supreme Court  denied the motion to dismiss. On appeal, the Appellate Division, Second Department, reversed and dismissed the case as to Weiss Zarett’s client, effectively reminding parties that they can’t have two bites at the apple!

Should you need the assistance of skilled and experienced counsel to assist you in litigation arising from commercial real estate transactions, do not hesitate to contact Michael D. Brofman, Esq. at mbrofman@weisszarett.com and Michael J. Spithogiannis at mspithogiannis@weisszarett.com.

Courts Enforce Contracts As Written – Except Sometimes

By Michael J. Spithogiannis, Esq. & Floyd Grossman, Esq.
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A lawsuit is the last thing you would expect when signing a real-estate contract.  And if litigation does ensue, you would expect a court to follow established rules of contract interpretation and hold the parties to what they signed.  Here we examine a recent court decision which seems to disregard a basic rule of contract law: a court determining the intent of contracting parties should not look to any evidence outside the contract unless the writing is unclear.

Last year, the Appellate Division, Third Department, decided Prendergast v. Swiencick,[1] based on what the Court perceived was a common practice in residential real-estate sales rather than enforcing the contract as written.  

By statute in New York, all that is necessary to create a binding enforceable real-estate contract is a signed writing clearly describing the property, and specifying the sales price.  There are, however, many other issues covered by real-estate contracts: closing date; how the purchase price will be paid; mortgage-loan contingency; title issues; defaults.  Indeed, many pertinent issues are addressed to reflect clearly the intent of the parties without having to rely on anything outside the contract to determine what they meant.

If the parties’ full intent is ascertainable from the contract, considering evidence outside the writing – parol evidence – is not permitted to explain what the parties meant. Parol evidence can be in the form of oral or written communications evidencing how business was done in the past, or a common practice under similar circumstances.  But here’s the key: only if a court decides, in the first place, that the writing is unclear, may parol evidence be considered.  Although this is a bedrock principle of contract interpretation, we find examples where the rule has been disregarded or overlooked.  

In Prendergast, the seller sued her buyer under a written contract for failing to close on the agreed-upon closing date.  The buyer argued she was not required to close, because mortgages against the property had not been satisfied.  The buyer argued that under their contract the seller was required to deliver title on the closing date free from all mortgages. 

The seller argued that, even though the mortgages were unsatisfied, the buyer’s interests could have been protected.  To this point, the seller made arrangements to satisfy the mortgages by using the buyer’s purchase money, after which the lenders would issue satisfactions for recording.  Indeed, part of the service a title-insurance company can provide is to attend the closing, verify the amounts owed to lenders, pick up checks to satisfy the mortgages, deliver payment to lenders, and obtain mortgage satisfactions.  A title insurer could then insure the buyer’s title as of the closing date, even if the mortgages were satisfied after closing.  These procedures are indeed common practice in real-estate closings.  Accordingly, the sale could have been completed even though the seller did not comply with the contract. 

But the contract had no requirement that the buyer purchase title insurance or avail herself of a title company’s closing services.  

Was the buyer compelled to follow this common practice even though the contract itself did not require her to do so?  Who breached the contract?  Was it the seller who failed to satisfy existing mortgages? Was it the buyer who refused to tender the purchase price, buy title insurance, or consent to post-closing satisfaction of the mortgages?

In Prendergast, four out of the five Justices ruled in favor of the seller, concluding that the buyer could not refuse to close.  The Court reasoned that the parties used a standard-form, real-estate contract, which “reflect[ed] the  parties’ intent to embrace the common practice over the years in the real-estate closing realm” with respect to existing mortgages.[2]  In other words, the buyer was found to have agreed to something that was  not actually stated in the contract.  Not only did the buyer forfeit her down payment, but she was held liable for the difference between the contract price and the lower price the seller received from a subsequent buyer.

What is troubling is that the Court’s majority did not first find any ambiguity in the contract, which would have justified considering parol evidence.  

One Justice dissented, pointing out that the majority did not find the contract ambiguous, needing clarification. Moreover, he did not agree that the “standard form real estate contract necessarily incorporate[d] the common practice in the real estate industry such that those practices are given more weight than the language of the contract itself.”[3]  He opined that the contract’s express terms should control even if common practice might have facilitated the transfer of title.  He concluded that the seller was in breach.  

Whether the majority’s decision to rely on parol evidence without first deciding that the contract was ambiguous is simply an anomaly or heralds a departure from long-established, contract-interpretation principles remains to be seen.  So far, no courts have cited Prendergast as authority for the point discussed.

If there be a moral to our story, it is that real-estate contracts – indeed, all contracts – should be carefully considered, negotiated and drafted so as to avoid – as far as practicable – unintended consequences.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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[1] 183 A.D.3d 945 (3d Dep’t 2020).

[2] 183 A.D.3d, at 947 (emphasis added).

[3] 183 A.D.3d, at 954.

Weiss Zarett Defeats Preliminary Injunction Application Related To Client’s 11 Year Use Of Trade Name

By Michael D. Brofman, Esq. & Joshua D. Sussman, Esq.
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The motion, called a preliminary injunction application, was heard Tuesday before the United States District Court for Eastern District of New York within three days of lawsuit being commenced. At argument before the Judge, after the Court noted that the competitor had not disclosed material facts to the Court about the trade name’s history and the parties’ relationship and dealings, the Court found that the competing business did not establish it would be harmed if the client continued to use the name and that the movant failed to convince the Court that it had any protectable interest related to the name. In citing to the lead Second Circuit case quoted in the Weiss Zarett memorandum of law, the Court also determined that the competitor’s lengthy delay in seeking to enforce its purported rights also precluded the Court from granting the preliminary injunction. The Court’s decision is a victory not only for our client, but for open and fair competition.

Should you need the assistance of skilled and experienced counsel to assist you in litigation, do not hesitate to contact Michael D. Brofman at mbrofman@weisszarett.com and Joshua D. Sussman at jsussman@weisszarett.com.

Understanding Dental Employment Contracts

By Mathew J. Levy, Esq.
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Unfortunately, yet understandably, most dentists are reluctant to read all of the provisions in their employment contracts in the belief that they face a “take it or leave it” quandary. However, dentists often do not realize that while there are provisions in such contracts that are standard in the industry, there are many issues which can be negotiated.  Those dentists who simply execute the document without an understanding of the issues contained therein (and their potential impact) often find themselves at odds with their employers, actually unemployed, or in increasing numbers – in a court of law.  This article is intended to help dentists avoid any such eventuality.

Compensation:  Most dentists do not realize that they can negotiate and increase their total compensation through a productivity incentive provision.  Employers can readily appreciate the inherent profitability of collecting three (3) times the amount of money paid to their employee and are, therefore, more than willing to share a percentage of the revenue “collected” for those services rendered by the employee, in excess of three times their salary.  

Quality of Life Issues: To many, this aspect of the contract is more important than any compensation provision. Dentists should weigh heavily such elements as:

· What is the call policy of the practice? Often, dentists find themselves working far more hours than are set forth in their agreement. For example, an agreement may provide that the employee is responsible for “call”; however, does the agreement provide that “call” will be on an equal rotating basis, or state what will happen if one of the dentists leaves the practice? 

· Does the practice have multiple locations?  Will you have to travel?  If there are multiple locations and traveling is required, dentists can often negotiate a monthly expense account (ex. $500.00 per month for auto expenses, insurance, gas, tolls, etc.).

·  How long have the employees been at the practice?  What are the partners like? What are their billing procedures? Do the partners have any Office of Professional Discipline or malpractice history?

Duties & Responsibility: Ask your potential employer to allow you to shadow a partner for a day.  This will give you an idea of what a typical day might be like and help you understand what will be expected of you.

Malpractice Insurance: Dentists should be aware that there are two types of malpractice insurance, “Occurrence” or “Claims Made”.  While Occurrence is the preferred form of coverage, it is also the most expensive in that it covers the dentists for services rendered during and after the term of The Employment Contract.

On the other hand, Claims Made insurance only provides coverage during the term of employment. The moment the agreement is terminated, no matter the reason for the termination, the dentist is no longer covered for any of the professional services rendered during the term of the agreement. Therefore, the dentist is obligated to purchase additional insurance known as “Tail Coverage”. Tail Coverage is expensive; however, the one-time fee can be paid over time and in most dental employment contracts, negotiations can result in the cost being shared equally with the employer.

Termination: There are normally two types of termination sections within an Employment Agreement – termination without cause and termination with cause. 

· Termination Without Cause: Pursuant to New York law, a termination without cause provision relegates a dentist to “at will employee” status.  Unfortunately, an “at will dentist-employee” can be terminated at any time for no reason at all. Such dentists have absolutely no recourse, unless the termination is predicated upon illegality (i.e., age, race or gender discrimination).   

· Termination With Cause: Every employed dentist should be careful of this “catchall provision” that allows the employer to terminate the dentist if, in the employer’s sole discretion, it is determined that the dentist is detrimental to the practice. Such provisions are too subjective and the consequences are too great in that termination under this provision is immediate, and no notice period is required.  As a result, such provisions must be removed or an opportunity to cure must be added.  

Restrictive Covenants: The restrictive covenant is one of the most litigated issues in the history of employment agreements.  The courts in New York, as in most states, do not like to prohibit dentists from offering medical services to patients simply because there is a written employment agreement containing a restriction on the employee’s ability to compete with his or her former employer.  New York courts will often be flexible and inventive in finding ways to find the restrictive covenants not binding. However, the courts have held that if the restrictive covenant is deemed to be reasonable, the non-compete provision will be enforced.  

A restrictive covenant has two elements – Geographic area and time frame. When faced with a restrictive covenant, a dentist must consider where they would seek to work, in the (likely) event that they will leave the practice.  If the location is within the restricted area, then the restricted area should be negotiated to a smaller region that does not include the future location.  

In conclusion, a good contract should be reasonable for both sides.  Armed with a fair contract, both parties are on their way to a mutually rewarding and successful future.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions. 

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Weiss Zarett & the PAP (Physician Advocacy Program)

Weiss Zarett will continue to offer the PAP (Physician Advocacy Program) for 2022 and we will be providing the same services. The 3 programs offered by the 2022 PAP are as follows:

Premium Program

  • $949 per year 
  • Legal representation in connection with a matter before the OPMC, OPD, OMIG, MAC, OIG, QIO, OSHA or OCR.  
  • Providers WITH administrative coverage from their insurance company will receive legal representation pursuant to the PAP without additional cost until the later of the following: (1) the limits of the administrative coverage under their insurance policy are reached; or (2) through the initial interview/appearance before the applicable governmental authority.
  • Providers WITHOUT administrative coverage from their insurance company receive legal representation without additional cost through the initial interview/appearance before the applicable governmental authority.
  • Legal representation pursuant to the PAP does not include subsequent services during any hearing process following the initial interview/appearance. 
  • FREE review of your medical records by a certified coder and a conference call to discuss.
  • FREE 30-minute consultation on ANY legal matter within the scope of practice of Weiss Zarett.    

Comprehensive Program

  • $649 per year 
  • Legal representation in connection with a matter before the OPMC, OPD, QIO, OIG, OSHA or OCR. 
  • Providers WITH coverage from their insurance company will receive legal representation pursuant to the PAP without additional cost until the later of the following: (1) the limits of the administrative coverage under their insurance policy are reached; or (2) through the initial interview/appearance before the applicable governmental authority.
  • Providers WITHOUT administrative coverage from their insurance company receive legal representation without additional cost through the initial interview/appearance before the applicable governmental authority.  Legal representation pursuant to the PAP does not include subsequent services during any hearing process following the initial interview/appearance.  
  • *Please note that the Comprehensive Program does NOT include a review of your medical records, a conference call between you and the coder and no 30-minute call. 

Basic Program

  • $349 per year 
  • Legal representation in connection with a matter before the OPMC or the OPD.
  • Providers WITH administrative coverage from their insurance company will receive legal representation pursuant to the PAP without additional cost until the later of the following: (1) the limits of the administrative coverage under their insurance policy are reached; or (2) through the initial interview/appearance before the applicable governmental authority.  
  • Providers WITHOUT administrative coverage from their insurance company receive legal representation without additional cost through the initial interview/appearance before the applicable governmental authority.  Legal representation pursuant to the PAP does not include subsequent services during any hearing process following the initial interview/appearance.  
  • *Please note that the Basic Program does NOT include a free review of your medical records by a certified coder and a conference call to discuss the findings related to your documentation and coding or representation in connection with matters before QIO, OIG, OSHA, OCR, MAC or OMIG, or the annual 30-minute consultation. 

If you are interested in enrolling in the 2022 PAP or have any questions, please contact Mathew Levy, Esq. at 516-926-3320 or MLevy@weisszarett.com.

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Heavy HIPAA Enforcement Efforts!

By Mathew J. Levy, Esq.
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To date, the U.S. Department of Health and Human Services’ Office of Civil Rights (“OCR”) has resolved 98% of nearly 257,000 Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule complaints. OCR has settled and imposed civil monetary penalties totaling $130,980,482.00. According to the HIPAA Journal, in recent years OCR’s enforcement efforts increased. Particularly, in 2020, OCR settled nineteen cases. This 2020 increase can be attributed to OCR’s 2019 HIPAA Right of Access Enforcement Initiative.

To avoid HIPAA violation(s), “covered entities” and “business associates” should take a proactive approach instead of a reactive one. “Covered entities” such as hospitals, healthcare providers or health plans and “business associates” (those providing services to covered entities involving protected health information or “PHI” disclosure) generally know their HIPAA obligations, but may not be aware of recent trends in HIPAA enforcement and priorities, and how to prepare accordingly. 

ENFORCEMENT TRENDS

OCR’s 2020 report findings and its commitment to enforcement, as discussed in a previous publication, “OCR’ Audit Report Reveals Concerns That Continue To Guide HIPAA Enforcement,” remains relevant as Physicians and private practices (next to Hospitals) are among the most common violators of HIPAA privacy regulations. 

The top investigated issues in 2020 include: 

  • impermissible uses and disclosures;
  • safeguards including administrative (e.g., conducting risk assessments) and technical (e.g., implementing tools for encryption and decryption); and 
  • access.                                                                                                         

The top HIPAA violations resulting in financial penalties arise from failure to

  • perform an organization-wide risk analysis to identify risks to confidentiality, integrity, and availability of PHI; 
  • enter into a HIPAA-compliant business associate agreement; impermissible disclosures of PHI; delayed breach notifications; and 
  • safeguard PHI.

OCR has continuously pursued egregious violations of HIPAA Rules. Most recently, OCR announced resolution of its twentieth investigation in its HIPAA Right of Access Initiative, resulting in an $80,000 settlement and corrective action plan. Specifically, HHS’ investigation found that Children’s Hospital & Medical Center failed to provide timely access to PHI to the complainant, which violates HIPAA Right of Access requiring covered entities to take action on an access request within 30 days of receipt (alternatively, 60 days if an extension applies). 

HEFTY HIPPA FINES:

Covered Entities: Most striking is a $6.85 million settlement and corrective action plan with a Premera Blue Cross, a health insurer, for noncompliance with the HIPAA risk analysis and risk management failures, and other potential HIPAA violations. The violations impacted 10.4 million patients. 

In January 2021, Excellus Health Plan, Inc. entered into a $5.1 million settlement and corrective action plan to settle potential HIPAA violations for a breach that impacted over 9.3 million people. The health insurer attributed the breach to cyber attackers that gained unauthorized access to its information technology system. Ultimately, OCR determined that the insurer failed to conduct an enterprise-wide risk analysis, to implement risk management, information system activity review, and access controls. 

Business associates: OCR announced at the end of September 2020 a $2.3 Million settlement with the business associate for a data breach attributed to hacking, which impacted 6 million people.

RECOMMENDATIONS: 

Just last month, the New York State Bar Association (“NYSBA”) HIPAA 2021 webinar highlighted OCRs enforcement efforts after OCR’s expressed commitment to increased enforcement following the audit report findings. Notably, NYSBA’s recommendations to stay proactive and avoid penalties include: 

(1) conducting an enterprise-wide risk analysis; 

(2) implementing risk management, information system activity, access and audit controls and 

(3) updating internal compliance plans.


STAY INFORMED 

Familiarize with the issued guidance and update your Compliance Work Plan accordingly.

In addition, it is always helpful to seek advice from a Health Care Attorney for specific concerns.

Importantly, if you are a provider seeking clarification on how these changes may affect you, you can contact Mathew J. Levy at 516-926-3320 or mlevy@weisszarett.com.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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Banking in the Cannabis Industry: Update on the SAFE Banking Act

By Mauro Viskovic Esq.
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On April 19, 2021, the U.S. House of Representatives passed the Secure and Fair Enforcement (SAFE) Act of 2021, which would serve to greatly expand the financing alternatives to cannabis-related legitimate businesses and service providers for such businesses.  The bill is currently sitting within the Senate’s Committee on Banking, Housing and Urban Affairs awaiting consideration. As of now, it is uncertain whether the bill will remain stalled or if the committee’s chairman, Sen. Sherrod Brown, will move the bill forward.

To date, 47 states, 4 U.S. territories, and the District of Columbia have in varying degrees legalized the manufacturing, distributing and dispensing of cannabis products.  Nevertheless, most federally chartered banking institutions are reluctant to provide loans or offer other services to cannabis industry participants in any such states because cannabis transactions remain illegal at the federal level.  Under applicable anti-money laundering laws, federal banks are currently obligated to file a Suspicious Activity Report (SAR) when it knows, suspects, or has reason to suspect that a transaction involves funds derived from illegal activity. 

As a result, businesses participating in the cannabis industry have limited access to traditional banking and financial services, from basic bank account services to business loans and lines of credit.  Without suitable banking and financial services, these businesses have greater difficulty raising capital, obtaining loan facilities, safeguarding their profits, and generally expanding their businesses.  

The goal of the Safe Act would be to ensure access to financial services to cannabis-related legitimate businesses and service providers by removing some of the attendant legal and regulatory risks. The primary features of the Act include:

  • Providing that “proceeds from a transaction involving activities of a cannabis-related legitimate business or service provider” are not “proceeds from an unlawful activity,” so that processing transactions involving these proceeds will no longer constitute money laundering “solely” because the proceeds derived from cannabis.
  • Prohibiting federal regulators from terminating or limiting depository insurance solely because a financial institution provides services to a cannabis-related legitimate business.
  • Prohibiting federal regulators from taking adverse actions against, or otherwise discouraging, financial institutions from providing services to cannabis-related legitimate businesses.
  • Protecting depository institutions from civil, criminal, or administrative asset forfeiture for providing financial services to cannabis-related legitimate businesses.

Although the SAFE Act has received substantial bi-partisan support, there remain barriers to passage by many Senate members and lobbying groups.  There remains optimism that the bill will pass, especially with vast backing from organizations and businesses such as the American Bankers Association, the American Financial Services Association, and the Credit Union National Association.  

Should you have any questions regarding the SAFE Act and its implications to the cannabis industry, please contact Mauro Viskovic at 516-751-6537 or mviskovic@weisszarett.com.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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Commercial Litigation: Enforcing Employee Non-Compete Clauses

By Joshua D. Sussman, Esq.
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Your Director of Sales suddenly quits and announces they are joining a direct competitor up the road. The new opportunity is in direct breach of their non-compete agreement, which prohibits them from competing with your company within ten miles of your office for two years after the end of their employment. 

 What do you do?

Employers frequently race into court to prevent former employees from violating non-compete clauses or other prohibitions contained within employment agreements, which are generally referred to as restrictive covenants. Although non-compete agreements are disfavored under New York law, and thus difficult to enforce, a court may issue an injunction preventing an employee from violating his or her non-compete clause in certain circumstances. Before commencing litigation, an employer and its attorneys should evaluate whether the clause at issue is enforceable and whether the legal standard for a preliminary junction can be satisfied in the circumstances. 

Courts employ a case-by-case analysis when determining whether to enforce non-compete clauses contained within employment agreements. To be enforced, a non-compete clause must be reasonable in scope (both duration and geographic area), necessary to protect the employer’s legitimate interests, not harmful to the general public, and not unreasonably burdensome to the employee.[i]

A court may find that an employer has a legitimate interest to enforce a non-compete clause to prevent the disclosure of its trade secrets or confidential customer information, if the former employee provided unique or extraordinary services (i.e., professionals, accountants, physicians[ii]etc.), or in other circumstances where an employer can demonstrate an injunction is necessary to protect its interests. 

In contrast, a non-compete clause may be unenforceable if it merely seeks to restrict a former employee’s use of generalized skills and knowledge acquired during their employment or from providing services to customers who the employer had no relationship with, if the employee did not provide unique or extraordinary services, if the restricted geographic territory is unrelated to employer’s business, or if restrictions go beyond what are necessary to protect the employer’s legitimate interests. As mention in a prior article, although non-compete agreements are not illegal, the New York State Attorney General has entered into settlement agreements with employers that allegedly had misused non-compete agreements with rank-and-file employees who did not have access to trade secrets or confidential information.

If a non-compete clause is deemed too restrictive, the Court may nonetheless choose to partially enforce it to the extent necessary to protect an employer’s legitimate interest if the employer can also demonstrate an absence of overreaching, coercive use of dominant bargaining power, or other anti-competitive misconduct. 

To obtain a preliminary injunction from a court to enforce a non-compete clause, an employer must establish a likelihood of success on the merits, irreparable harm, and that the harm it would suffer if the injunction is not granted is greater than the harm the employee will suffer if the injunction is granted (called, ‘balancing the equities in the movant’s favor’). Each factor must be separately established even though the underlying facts are often intertwined. A movant will likely establish a likelihood of success on the merits if it demonstrates the non-compete clause is enforceable and is being breached. To establish irreparable harm, one must show that the injury to be suffered is imminent and cannot be compensated by a monetary award or when calculating damages would be difficult. For example, irreparable harm may be shown if there is a loss of client relationships and customer goodwill or theft, misappropriation, or disclosure of  trade secrets. 

It is critical to move quickly if it is determined that suit will be commenced as an unreasonable delay can be fatal to obtaining an injunction from a court.

The foregoing analysis is based upon our experience and prior court decisions, but it is important to engage in a case specific analysis when determining whether to file suit as each situation and agreement are unique. Should you need the assistance of experienced counsel to assist you in determining whether your restrictive covenants may be enforceable and whether you could be successful in court, do not hesitate to contact Joshua D. Sussman at (516) 287-8035 or jsussman@weisszarett.com

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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[i] These factors differ if the agreed-upon non-compete clause is contained within a post-employment separation agreement or is related to the employee’s acceptance of postemployment benefits, both of which are not discussed here.

[ii] Read our earlier article about the courts’ treatment of non-compete agreements with physicians here.

Mandatory Vaccination for Healthcare Workers Expanded by New Emergency Regulations

On August 26, 2021, the New York State Department of Health’s Public Health and Health Planning Council in Albany voted to amend the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR), significantly expanding the emergency Covid-19 vaccination mandate previously announced by former Governor Andrew Cuomo. Whereas the previous mandate applied only to healthcare workers at general hospitals and long-term care facilities (LTCFs), the amended regulations now require workers in nearly all categories of healthcare facilities in New York State to comply. The stated purpose of the expanded vaccine mandate is to prevent or reduce the transmission of Covid-19 by those “who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease.”

Under the newly-added NYCRR § 2.61, covered entities must “continuously require personnel to be fully vaccinated against COVID19, with the first dose for current personnel received by September 27, 2021 for general hospitals and nursing homes, and by October 7, 2021 for all other covered entities absent receipt of an [allowed] exemption.” Significantly, the new regulations go on to provide that a covered entity “may terminate personnel who are not fully vaccinated and do not have a valid medical exemption and are unable to otherwise ensure individuals are not engaged in patient/resident care or expose other covered personnel.” Upon request by the Department of Health, all covered entities are required to report and submit documentation confirming the number and percentage of personnel who have been fully vaccinated, the number and percentage of personnel who have received medical exemptions, and the total number of covered personnel. 

In addition to general hospitals and LTCFs, “covered entities” now include: diagnostic and treatment centers, including community health centers, dental clinics, birthing centers, and rehabilitation facilities; certified home health agencies, including long term home health care programs and AIDS home care programs; hospices; and adult care facilities. “Personnel” includes all individuals “employed or affiliated with a covered entity, whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers.” However, physicians and dentists in private practice are not subject to the mandate, as the New York State Department of Health has primary regulatory jurisdiction only over the health care facilities it licenses.

Shortly after the Council voted, New York State Department of Health Commissioner Howard Zucker issued a Determination on Indoor Masking which states that, pursuant to NYCRR § 2.61, effective August 27, 2021, masks shall be required: in healthcare settings for personnel and all visitors, regardless of vaccination status; in adult care facilities (ACFs) regulated by the Department for personnel and unvaccinated visitors; in P-12 school settings for all teachers, staff, students, and visitors, regardless of vaccination status; in correctional facilities and detention centers for all incarcerated/detained persons and staff when social distancing cannot be maintained, and for all visitors (facilities may impose their own policies for private visitation); in homeless shelters (including overnight emergency shelters, day shelters, and meal service providers) for all clients, visitors, staff and volunteers, regardless of vaccination status; and on public transportation conveyances and at transportation hubs, for all persons regardless of vaccination status. Any applicable restrictions apply to all persons over the age of two who are able to medically tolerate a face covering.

Notably absent from the expanded mandate is the religious exemption, which was deliberately struck before the final vote. Religious exemptions have historically been granted to individuals belonging to religious organizations whose foundational beliefs and practices discourage or reject vaccination. Under NYCRR § 2.61, only medical exemption is available, and personnel seeking such exemptions must submit supporting documentation. The nature and duration of the medical exemption must be stated, either in the personnel employment medical record or other appropriate record, and must be in accordance with generally accepted medical standards, such as the recommendations of the Advisory Committee on Immunization Practices of the U.S. Department of Health and Human Services

The Council’s decision follows on the heels of an announcement by United States Supreme Court Justice Amy Coney Barrett on August 12, 2021, denying an emergency request to block Indiana University’s mandatory vaccine policy.  By rejecting the request without referring the application to the full court or asking the university for a response, Justice Coney Barrett appears to have sent a message that the Court is unlikely to revisit, let alone overturn, the landmark ruling in Jacobson v. Massachusetts (197 U.S. 11 (1905)). The Second Circuit has also upheld Jacobson in several cases in Connecticut and New York since the start of the pandemic. Given the courts’ demonstrated reluctance to revisit longstanding public health policy, it is unlikely a challenge to these regulations will succeed, especially since the circumstances here are factually similar to the policy at issue in Jacobson.

Since the new regulations do not include an enforcement provision, covered entities will be expected to self-enforce for the time being. The Department could impose financial penalties, but unlike the P-13 school mask mandate, which includes a $1000 fine per violation, NYCRR § 2.61 contains no penalty provision. It is unclear what consequences may result for covered entities that fail to comply and/or fail to terminate employees who refuse to be vaccinated. Although hospitals appear to be generally in favor of the new regulations, whether employers will actually terminate non-exempt employees who refuse vaccination could boil down to whether the employer will face a severe staff shortage. On the other hand, the latest Higher Education Research and Development (HERDS) survey indicates that a majority of healthcare workers are already vaccinated, with the lowest rates being reported by Dutchess and Wyoming Counties (63%). New York City is at 75% overall. Personnel who chose to be vaccinated before now will not enter into the calculus, so any turnover consequences may be limited. Covered entities may have to wait until after the initial Sept. 27 deadline passes to learn whether the Department intends to assume responsibility for enforcement.

NYCRR § 2.61 must be renewed by the Council every 90 days until emergency-basis renewal is deemed unnecessary or the Department issues a notice for proposed rule-making for permanent adoption.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a New York law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, employment counseling and controversies, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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New Jersey District Court Declares Cross-Plan Offsetting a Violation of ERISA

By David A. Zarett, Esq.
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It has become commonplace for physicians and medical practices to face audits and payment reviews by commercial health insurers and third-party administrators (“TPAs”) under an ERISA plan. If an overpayment is identified, it is not unusual for the carrier or TPA to recoup the funds allegedly owing. One of the tactics used in recovering the alleged overpayments has become known as “cross-plan offsetting.” Simply put, cross-plan offsetting occurs when overpayment amounts allegedly due by a provider as a result of an audit under Plan A, are offset against payments otherwise owing to the provider under (a separate) Plan B. 

Very recently, a federal district court in New Jersey issued a decision, Lutz Surgical Partners PLLC, et al v. Aetna Inc., et al, Case No. 3:15-cv-02595 (BRM)(TJB) (D.N.J, June 21, 2021), holding that Aetna’s cross-plan offsetting was a violation of several sections of ERISA. (Click here to view case text).

The 52-page decision in Lutz is quite extensive, and addresses a variety of issues, including the proper parties to the lawsuit, standing, waiver and unique ERISA related legal issues, all of which are outside the scope of this Legal Alert. On the distinct issue of the legality of cross-plan offsetting, the Court reasoned that when a TPA serves in a fiduciary/trustee capacity for multiple plans, each plan is considered a separate entity and the TPA’s fiduciary obligations run separately to each. The Court continued that offsetting payments due from Plan A to a provider, in order to recoup alleged overpayments due from the provider to Plan B, violated the separate nature of the fiduciary obligations owing to each plan. Thus, the court ruled that Aetna’s cross-plan offsetting violated Section 406(b)(2) of ERISA, which prohibits plan fiduciaries from acting in “any transaction involving the plan on behalf of a party… whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries.”  In addition, the court determined that Aetna violated Section 404(a) of ERISA, which provides that ERISA fiduciaries must discharge their duties with respect to a plan “solely in the interest of the participants and beneficiaries and … for the exclusive purpose of… providing benefits to participants and their beneficiaries.”  Indeed, the Court recognized that, “failing to pay a benefit owed to a beneficiary under one plan, in order to recover money for the benefit of another plan [through cross-plan offsetting] may constitute a transfer of money from one plan to another,” all in violation of ERISA. 

While there are several other legal decisions that have touched on this issue, Lutz appears to be the first court decision to squarely hold that cross-plan offsetting violates ERISA. We doubt this will be last court opinion on the matter. 

About the Author: David A. Zarett is a founding member of Weiss Zarett Brofman Sonnenklar & Levy, P.C., and heads up the Firm’s Litigation Department. Mr. Zarett has extensive experience litigating a variety of cases in state and federal courts, which includes disputes with commercial health insurance carriers regarding plan participation and payments. If you have questions about any these issues, or other legal matters uniquely affecting healthcare providers, please reach out to David A. Zarett, Esq. at dzarett@weisszarett.com or (516) 926-3301.

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OMIG Implements Financial Hardship Process for Providers Under Audit

The Office of the Medicaid Inspector General (OMIG) is the state agency within the Department of Health which is charged with investigating compliance with the requirements of the New York Medicaid program. OMIG regularly works with other state and federal government agencies such as the federal Centers for Medicare and Medicaid Services, the New York Bureau of Narcotic Enforcement, and the Medicaid Fraud Control Unit to rout out fraud and abuse in the program. OMIG also retains the power to exclude individuals from participation in the Medicaid program, a penalty which can have disastrous consequences for providers.

As part of its duties – and in a similar fashion to Medicare and third-party insurers – OMIG routinely audits the activities of healthcare providers, pharmacies, medical-equipment companies, nursing homes and other health-related businesses in its search for fraudulent or otherwise impermissible billing practices. As a result, providers which bill and collect for patient services rendered under the Medicaid program often find themselves on the receiving end of an OMIG repayment demand. Essentially, if OMIG has determined that services previously billed and collected for by a provider were not medically necessary, unsupported by medical records, or otherwise should not have been reimbursed, OMIG is entitled to recoup those funds from the provider.

Although providers are entitled to appeal rights, there remains the possibility that a provider will be left with a final determination by OMIG that it owes tens or even hundreds of thousands of dollars back to the Medicaid program after its appeal rights are exhausted, which the provider may not be in a financial position to immediately repay.

As of July 2021, however, OMIG has developed and implemented a process which allows providers to apply for relief in the event that the results of an OMIG audit pose a financial hardship to the provider. Specifically, providers who are in receipt of a final audit report may contact OMIG and request a Financial Hardship Application. Following completion of the application, OMIG will contact the provider and work with them to determine an appropriate repayment plan and hardship accommodations.

For reference a copy of a sample Financial Hardship Application may be found here. Based on the sample application, the amount of documentation providers will need to produce before OMIG will consider their request for any type of relief is extensive. Providers will not only need to produce their current financial information such as the amount of cash on hand, outstanding loans and business liquidity, but also information about whether the provider has received COVID-19 financial relief, income from bequests or legacies, and all of the provider’s business interests in other entities. Providers must also account for all assets transferred by the provider to other business interests or entities. Accordingly, providers should seriously consider whether they are willing to make these disclosures before deciding to seek hardship relief, and work with their accountants and legal counsel to ensure all disclosures are accurate and complete.

Note that OMIG has previously been amenable to allowing extended repayment of liabilities in the specific context of voluntary self-disclosures of overpayments by providers as an inducement for providers to make such disclosures. Extended repayment options are also offered by CMS in some instances with respect to recoupment of funds paid under the federal Medicare Program. 

Overall, the creation of the financial hardship process now allows for some much-needed flexibility where a provider is faced with a final audit report and accompanying repayment demand which they are either unable to fully satisfy, or where doing so would present a legitimate financial burden.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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New York State’s Newly-Announced Vaccine Mandate Policy for Healthcare Entities

On August 16, Governor Cuomo announced a new vaccine mandate for New York State healthcare workers. This announcement aligns with the Department of Labor’s OSHA June emergency temporary standard, the Center for Disease Control’s July guidelines urging employers to encourage its workers to get vaccinated, and the requirements of several other U.S. states, including California and Maine, that have introduced similar vaccine mandates. 

I. Scope of Newly-Announced NYS Vaccine Mandate Policy

Not surprisingly, the announcement’s fine-print is narrower and more nuanced than the attention-grabbing headline. The announcement states that the New York State Department of Health will implement this new mandate by issuing regulations and guidance pursuant to New York State Public Health Law (PHL) Section 16, specifically requiring hospitals, long-term care facilities (LTCF), and nursing homes to develop policies requiring their employees be vaccinated by September 27, 2021. 

Despite the breadth of the Governor’s pronouncement, the new policy appears to exclude private practices, health care groups, and in-home health care workers. However, the Governor alluded to – but did not define – “other congregate care settings,” which could open the door to a broad reading of the Executive Branch’s intent.  In addition, it is important to note that the Commissioner of Health is separately imbued with the authority to issue orders, regulations, or guidance that exceeds the scope of the Governor’s announcement, as PHL Section 16 empowers the Commissioner to order a person to act or discontinue activities that are a danger to public health, so long as the Commissioner provides that person with an opportunity to be heard at a hearing and to present proof that such condition or activity does not constitute a danger to public health. In short, although the stated focus of the new vaccine mandate is on hospitals, LTCFs, and nursing homes, it is foreseeable and within the powers provided to the Commissioner of Health that the vaccine mandate could extend to private practices, health care groups, in-home health care workers, private facilities or any type of employer entity that provides care to patients.

Per the announcement and consistent with the legal requirements of Equal Employment Opportunity Commission guidelines, all healthcare institutional policies must contain limited exemptions to a vaccine mandate for employees with religious objections or medical reasons.   

II. Mandates Aimed at Employers and Entities Rather than Healthcare Workers and Other Individuals

Importantly, and similar to other recently-enunciated policies by the State, this new pronouncement mandates that healthcare employer institutions require their employees to be vaccinated, rather than directly requiring healthcare workers themselves be vaccinated. There are several potential reasons why the State’s new vaccine policy is aimed at employers rather than health care workers. 

One possible reason New York State is putting the onus on employers rather than instituting a government-level mandate directed at healthcare workers is because the currently available vaccines have not been fully approved by the federal Food & Drug Administration (“FDA”), but instead are being made available under a mechanism known as an “Emergency Use Authorization,” which is a type of conditional approval rarely relied upon except in special circumstances, such as a public health emergency. See 21 U.S.C. 360bbb-3, 360bbb-3a, and 360bbb-3b, as amended by Pub. L. 113-5. There is much debate about whether the government or other entities can or should mandate an intervention that has not yet been fully approved by the FDA, and many individuals have expressed hesitation in taking an intervention for that reason. This objection has been the basis of several of the lawsuits challenging healthcare and academic institutions’ vaccine mandates for their workers and students. To date, however, courts have found this claim without merit and insufficient to invalidate any such vaccine mandates. Moreover, the FDA has recently posited that it may grant full approval to at least one of the mRNA vaccines for adult populations in the near future, which may moot this line of reasoning.

Another potential reason why the State’s new policy may be aimed at entities rather than individuals may rest with the limitations of PHL Section 16, which requires orders to be served and opportunities to be heard for each individual personally affected by decisions made by DOH under this Section. As such, the State may need to personally serve each affected healthcare entity if the State enforces compliance with any vaccine mandates issued pursuant to PHL Section 16. While that will be a difficult task, it is far easier than serving the approximately 450,000 hospital workers, 30,000 adult care facility workers, and 145,500 nursing home workers cited in the Governor’s announcement. Additionally, as proposed, only employer health care institutions would be entitled the opportunity to be heard to contest the validity of the Orders—not their employees.

III. Legality of Vaccine Mandate Policies

In addition to the long-standing Supreme Court precedent Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), which upheld the legality of vaccine mandates, the legality of vaccine mandates set by private institutions for healthcare workers, university students, and others, has been the subject of several recent litigations – all of which have upheld such mandates. Notably, on June 16, 2021, a federal district court dismissed a challenge by 117 workers at Houston Methodist Hospital who refused to abide by the institution’s vaccine mandate. See Bridges, et al. v. Houston Methodist Hospital, et al., 21 CV 1774 (S.D. Tex. June 12, 2021). 

More recently, on August 12, 2021, the United States Supreme Court denied students’ challenge of the University of Indiana’s vaccine mandate, following the 7th Circuit’s refusal to issue an injunction pending appeal of the University’s vaccine mandate to students returning to campus. See Klaassen v. Trustees of Indiana University, No. 21-cv-2326 (7th Cir. Aug. 2, 2021). These decisions may be persuasive authority in denying other challenges to similar vaccine mandates. 

IV. Application of Government Mandates to Unionized Workers

Although courts have upheld vaccination mandates, it is unclear whether management in collectively bargained environments can unilaterally force union members to be vaccinated. That issue is currently being litigated in Illinois. Each collective bargaining agreement challenge is different, but employers should not unilaterally implement policies without first bargaining in good faith on certain issues related to such policies, such as: (i) implementation, including who is subject to vaccination unless specified, (ii) pay for time spent being vaccinated, (iii) timing of the vaccination, and (iv) consequences for an employee’s refusal to submit to vaccination.  

V. Penalties for Non-Compliance 

Thus far is it unclear how the State intends to enforce any Section 16 orders that issue, but the Department of Health already reviews vaccine policies related to grade schools and universities and delegates enforcement of those vaccine policies to local health departments. A transition to reviewing and enforcing these new policies may be seamless. Additionally, the Public Health Law contains powerful statutory enforcement tools, including imposition of a $2,000 penalty for each violation pursuant to PHL Section 12, and also authorizes the Attorney General to seek an injunction against any person who violates, disobeys or disregards such orders. 

As neither the Commissioner nor the Department of Health has issued regulations or guidance on the new vaccine mandate, however, it is unclear how or to what extent any noncompliance will be penalized. 

The healthcare and regulatory attorneys at Weiss Zarett will continue to provide updates about the issues presented by this new State vaccine mandate affecting healthcare workers, as well as by other Federal and State rules, regulations and policies developing in response to the quickly-evolving landscape of the Covid pandemic.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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HOW NEIGHBORLY DO YOU HAVE TO BE?

By Michael J. Spithogiannis, Esq. & Floyd G. Gossman, Esq.
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You hear a knock on the door. . . .  It’s your next-door neighbor, who tells you about plans to make improvements to his property.  You are assured by your neighbor that all improvements will be made according to applicable building codes, and that all contractors will be licensed and insured.  The work may take several weeks, or longer, to complete.  Oh, and by the way, to perform the work, your neighbor’s contractors need access to your property for much of the duration of the project, as there is no other practical way of completing the job.  Are you okay with that?

Before you grant access to your land, you need to understand your rights.  By law, entering upon another’s property without permission is not allowed.  An owner of property is entitled to its exclusive possession.  Going on someone else’s land without permission, even if done innocently or by mistake, is a trespass.  The trespass can be enjoined and the trespasser held liable for damages.  It would seem, therefore, that you have every right to refuse access to your adjoining neighbor, who is set on improving his or her property, or making necessary repairs.  On the other hand, it seems unfair, provided the proper safeguards are implemented, to deny an adjoining landowner needed access to make lawful repairs or improvements simply because the only way to do so requires access to your land.

This scenario arises often.  Indeed, in more densely populated areas – especially those in the City of New York – this situation is regularly encountered among owners of single-family homes and those with multi-story buildings.  Many properties share driveways and party walls, and buildings are built lot-line-to-lot-line, making it virtually impossible to avoid entry upon neighboring property to perform work.

The law in New York tries to strike a balance between these real concerns and interests, so as to afford property owners access to neighboring property for the sole, temporary and limited purpose of making repairs or improvements, provided proper safeguards are put in place to avoid any cost or injury to neighboring property.

In 1968, the New York Legislature enacted §881 of the Real Property Actions and Proceedings Law (“RPAPL”) to strike a balance between conflicting interests of adjoining landowners.[1]  Section 881 provides that an owner who wants to make improvements or repairs to land so situated that they cannot be made without access to adjoining property, and who has been denied permission by the neighboring property owner, may bring a court proceeding to obtain a temporary license for the limited purpose of entering upon the neighboring property to make those improvements or repairs.  This special proceeding, as it is called, is designed to be adjudicated on an expedited basis, as the situation often demands prompt action.[2]

Early on, the constitutionality of RPAPL §881 was challenged as, among other things, authorizing a taking of private property for a private use; being unrelated to public safety, health, welfare and morals; and interfering with private property and private contractual rights.  Its constitutionality was upheld as a valid exercise of a state’s police power.[3]  Indeed, the statute affords equal opportunity for all landowners to enter upon neighboring property when necessary and under reasonable circumstances to preserve their own property interests, and provides for full compensation if the neighboring property is damaged.[4]

Section 881 states that “[t]he license shall be granted by the court in an appropriate case upon such terms as justice requires.”[5]  As the statute is written, once the adjoining owner proves necessity, the court shall grant the license.  Although it seems that the courts are constrained to grant licenses once the requisite necessity is shown, they have discretion in determining whether relief is necessary in the first place, and to impose such terms as justice requires.

The statute requires the petitioning landowner to provide proof of the extent and duration of the work, demonstrate that entry upon the neighboring property is necessary, and confirm the dates on which entry is sought.  Courts will consider a number of factors in deciding a petition under §881, including the nature and extent of the requested access and its duration; the protections needed by the adjoining property so that no physical or financial loss is suffered; whether less invasive means exist for performing the work; the public’s interest in completion of the project; and the measures put in place by the petitioner to ensure financial compensation for any damage or inconvenience to the adjoining owner.[6]  

Before granting a license courts invariably balance the inconvenience to the adjacent property owner whose property will be burdened, with the hardship to the adjoining owner left incapable of making repairs or improvements if a license is refused.[7]  Courts have held that a license should be granted when necessary, under reasonable conditions, exists and the inconvenience to the adjacent owner is relatively slight compared to the hardship of the neighbor if a license is refused.[8]

The statute also empowers courts to impose conditions for the license, such as requiring the posting of a bond, obtaining insurance coverage, construction of safety precautions, and indemnification against violations and mechanic’s liens.[9]  Courts are mindful that the owner whose property is being accessed should not have to bear any cost, and often grant a license fee as compensation for the temporary loss of the use and enjoyment of the property burdened.[10]  The statute itself states that “[t]he licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.”[11]  

While RPAPL §881 provides for a litigated solution if permission is requested and denied, litigation can be costly, the results uncertain, and the time it takes to obtain relief unpredictable.  There is, therefore, no practical reason adjoining landowners cannot avoid litigation and come to terms on their own detailed license agreement, negotiated by experienced counsel, that takes into account their specific concerns, and the details of the proposed work, and provides a workable methodology to protect their respective interests.

Michael J. Spithogiannis, Esq. and Floyd G. Grossman, Esq. each have over 35 years’ experience litigating commercial and real-property disputes in state and federal courts throughout New York.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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[1] Real Property Actions and Proceedings Law §881 (McKinney 2021).

[2] Prompt action is indispensable as building permits usually have a limited lifespan, lenders who finance improvements usually insist on hard deadlines for completion of work, and prompt repairs are necessary to prevent further damage or decay to the property.

[3] Chase Manhattan Bank v. Broadway, Whitney Co., 57 Misc.2d 1091 (Sup.Ct. Queens Co. 1968).

[4] Id. at 1094-95.

[5] Id. (emphasis added).

[6] Voron v. Bd. of Managers of Newswalk Condominium, 186 A.D.3d 833 (2d Dep’t 2020); Quinn v. 20 East Clinton, LLC, 193 A.D. 893 (2d Dep’t 2021).

[7] See Meopta Properties II, LLC v. Pacheco, 185 A.D.3d 511 (1st Dep’t 2020).

[8] Bd. of Managers of Artisan Lofts Condominium v. Moskowitz, 114 A.D.3d 491 (1st Dep’t 2014).

[9] North 7-8 Investors LLC v. Newgarden, 43 Misc.3d 623 (Sup.Ct. Kings Co. 2014).

[10] See House 93, LLC v. Lipton, 178 A.D.3d 545 (1st Dep’t 2019);  DDG Warren LLC v. Assouline Ritz 1, LLC, 138 A.D.3d 539 (1st Dep’t 2016).

[11] RPAPL §881.

MATHEW J. LEVY, ESQ. WILL BE PARTICIPATING IN A DC-NP INTEGRATION SEMINAR

On Thursday, November 4, 2021, Mathew J. Levy, Esq. will be participating in a DC-NP seminar located at the LaGuardia Airport Marriott. The presentation is about chiropractors and nurse practioner joint ventures.

The event will take place from 9 AM to 10:30 AM EST along with a question-and-answer period.

For more information and to register, click here.

Should you have any questions, please contact Mr. Levy at mlevy@weisszarett.com.