Weiss Zarett Wins Commercial Eviction

By Joshua D. Sussman, Esq., Michael D. Brofman, Esq.Michael J. Spithogiannis, Esq.

On January 26, 2022, the Supreme Court, County of Queens granted the Firm’s client a final judgment of possession and a warrant of eviction to evict a commercial holdover tenant that abused the eviction moratorium to overstay its welcome. The Firm’s victory, led by Joshua Sussman, is believed to be among the first for landlords since the commercial eviction moratorium ended on January 15, 2022.

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

Beware the Consequences of Worker Misclassification

By Mauro Viskovic, Esq.
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In violation of myriad applicable laws, many businesses will often hire workers as independent contractors, rather than employees.  The worker classification determination is often made without a thorough analysis of the applicable factors to be used for making the correct classification and without regard to the potential penalties and consequences for improperly classifying an employee as an independent contractor. 

As an initial matter, the fact that both the business and worker agree on an independent contractor relationship does not matter – even if the parties enter into a contract documenting such relationship.  There are various worker classification tests and factors under federal and state laws, of which a full explanation is beyond the scope of this article, but the primary focus areas are the degree of control that the business has over the worker and the degree to which the worker is economically dependent upon the business.  

A common reason that a business would wish to classify a worker as an independent contractor is to avoid the costs associated with hiring an employee.  A business is not required to withhold income tax, pay social security and Medicare taxes, pay unemployment compensation taxes or provide worker’s compensation insurance for independent contractors.  Independent contractors are not subject to minimum wage or overtime pay requirements.  Moreover, independent contractors are not eligible to participate in employer sponsored health plans and retirement plans.

Such cost savings, however, are miniscule and insignificant compared to the potential penalties and related consequences of misclassifying a worker as an independent contractor.  The Internal Revenue Service may pursue monetary penalties that include being subjected to as much as 41.5% of the worker’s wages going back 3 years.  If the IRS thinks you intentionally misclassified workers, they can seek a criminal conviction that may include jail time.  In addition to federal and state back taxes and penalties, the business will also owe state unemployment taxes and unpaid worker’s compensation premiums, and may owe unpaid overtime or minimum wages, medical expenses and unpaid vacation and sick pay.  

Government enforcement, however, is not the only risk. Large companies that use independent contractors to supplement their regular workforce or that operate on an independent contractor business model (such as Uber) are increasingly being targeted in class-action lawsuits brought on behalf of workers who are allegedly misclassified as independent contractors.  Certain corporate officers may be held personally liable for plaintiff awards in such lawsuits, as well as for the employment taxes and penalties described above.

In addition, recently terminated workers and workers injured on the job are likely to retain attorneys and sue for unpaid overtime or for payment of medical expenses on the ground that they should have been classified as employees, not independent contractors. Note that when an individual files a claim for Worker’s Compensation and the state board rejects the employer‘s defense that the worker was an independent contractor, if the employer does not have Worker’s Comp insurance, it will not only be hit with a penalty for failing to maintain insurance but will also be ultimately liable on the underlying Worker’s Compensation award to the individual.  

Federal and state authorities are actively and aggressively pursuing enforcement actions related to worker misclassification.  Accordingly, businesses should thoroughly review their independent contractor arrangements.  Should you have any questions or require assistance with the proper classifying – and the appropriate documenting of same – of your business’s workers, 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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Weiss Zarett Defeats Motion To Dismiss Fraudulent-Conveyance Complaint

By Michael J. Spithogiannis, Esq.
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Fundamentally, a judgment is a decree determining a lawsuit. If the plaintiff is awarded damages, the judgment will direct the defendant to pay. If the defendant refuses, it’s up to the plaintiff to find assets to seize. But what if the defendant hid or transferred assets to avoid paying? 

New York’s Debtor and Creditor Law allows creditors to void certain asset transfers deemed fraudulent. Also, while a judgment against a corporate entity with no assets is usually worthless, a judgment creditor may, under circumstances where corporate formalities have not been followed, pierce the corporate veil and look to the assets of the company’s individual owners. So too, under the de facto-merger doctrine, if the debtor tries to avoid paying by closing up shop and opening under a new name, the creditor may, if certain factors are present, enforce the judgment against the successorentity. 

Years ago, a dispute arose almost immediately after the parties signed a 15-year, commercial lease for ground-floor premises in a six-story building owned by Weiss Zarett’s client in the Washington Heights section of Manhattan. 

The tenant, a corporation in the business of selling building material, hardware, and plumbing supplies, entered the then-vacant premises and caused severe structural damage. The landlord sued, and after years of hard-fought litigation and a seven-day bench trial, the landlord was awarded a judgment for its damages. 

In subsequent proceedings to enforce the judgment, evidence was uncovered indicating that the tenant systematically transferred assets to render itself judgment proof.  Weiss Zarett sued on the landlord’s behalf to set aside these transfers as fraudulent. The tenant’s principals were also sued, as was a newly formed entity believed to have been created to take over the tenant’s assets and business operations.  The defendants filed a pre-answer motion to dismiss the case. On December 21, 2021, the Supreme Court, New York County, denied the defendants’ motion, sustaining all causes of action.


Weiss Zarett’s tenacious representation may yet result in the judgment’s satisfaction, despite efforts to frustrate enforcement.

If you require legal representation in connection with a business or real-estate dispute, please feel free to contact Michael J. Spithogiannis, Esq. at mspithogiannis@weisszarett.com or call our office at 1-516-637-7000 and ask to speak with one of the attorneys in our Litigation Department.

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NYC MANDATES VACCINATION FOR PRIVATE EMPLOYEES

On December 13, 2021, the Commissioner of the New York City Department of Health and Mental Hygiene issued an emergency Order mandating Covid-19 vaccination for private employees pursuant to Section 3.01(d) of the Health Code and Sections 556 and 558 of the New York City Charter. The emergency Order requires covered businesses to generally exclude their unvaccinated workers in New York City starting December 27, 2021. Whereas previous mandates applied primarily to city employees and individuals working with children and other vulnerable populations (including physicians and other health care workers), the new Order now applies to any “non-governmental entity that employs more than one worker in New York City or maintains a workplace in New York City.” The mandate also applies to solo practitioners who work in shared workspaces or interface with the public. The Order, which permits “reasonable accommodations for medical or religious reasons,” will remain in effect until rescinded, amended, or modified by the Board of Health.

Beginning December 27, 2021, workers must provide proof of vaccination against Covid-19 to their employer before entering the workplace. The covered employer must exclude from the workplace any worker who has not provided such proof, except for individuals working from home who do not interact with co-workers or the public, individuals entering the workplace “for a quick and limited purpose,” and non-city residents who are performing artists or college or professional athletes as defined under the “Key to NYC” program rules. Under the Order, a “worker” is defined as a “full- or part-time staff member, employer, employee, intern, volunteer or contractor of a covered entity, as well as a self-employed individual or a sole practitioner.” The order does not apply to employers or individuals who are already subject to another Order of the Department, the Board of Health, the Mayor, or any State or federal entity that is currently in effect and requires the entity to maintain or provide proof of full vaccination, or to individuals who have been granted a reasonable accommodation pursuant to another Order.

Covered employers are required to verify all workers’ proof of vaccination and/or record of reasonable accommodation, maintaining a record of each worker’s name, whether the worker is fully vaccinated, and the basis for any reasonable accommodation with supporting documentation. For contractors and other non-employee workers, the covered entity may instead request that the worker’s employer confirm the proof of vaccination, but must maintain a record of the request and confirmation. Upon request by any City agency, the covered employer must produce these records for inspection. Records created or maintained pursuant to the Order must be treated as confidential by the covered employer. No later than December 27, 2021, covered employers must affirm compliance using a form to be provided by the Department and must post the affirmation conspicuously.

The stated purpose of the new vaccine mandate is to take action to reduce the transmission of Covid-19 as necessary “for the health and safety of the City and its residents… to protect the public health against an existing threat.” The decision to issue the Order was based in part on a study by Yale University, which “demonstrated that the City’s vaccination campaign was estimated to have prevented approximately 250,000 Covid-19 cases, 44,000 hospitalizations, and 8,300 deaths from Covid-19 infection since the start of vaccination through July 1, 2021.” The Department found that “between January 1, 2021, and June 15, 2021, over 98% of hospitalizations and deaths from Covid-19 infection involved those who were not fully vaccinated.”


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.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

HEALTHCARE FRAUD: SELF-DISCLOSURE PROTOCOL UPDATE

By Mathew J. Levy, Esq.
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What is healthcare fraud? There are the obvious cases of greed, such as physicians billing for fictitious patients, services never performed, and the rendering of unnecessary medical procedures.  However, there is more to healthcare fraud than the obvious. This includes widely practiced rule-bending to assist patients, such as exaggerating either the severity of a patient’s condition, changing a patient’s billing diagnosis, or reporting signs or symptoms that a patient did not have to help the patient secure coverage for needed care.  Recent events make clear that these infractions can result in serious legal issues. The truth is that even well-meaning practitioners who bend the rules are placing their careers, and indeed their very freedom, at risk. 

On November 8, 2021, for the first time since 2013, the United States Department of Health & Human Services Office of the Inspector General (OIG) made substantive revisions to its Self-Disclosure Protocol (SDP).

The SDP – now officially known as the “Health Care Fraud Self-Disclosure Protocol,” pursuant to the recent updates – is intended to allow providers to voluntarily disclose evidence of fraud or improper billing practices to avoid the costs and business disruptions associated with government investigations and possible litigation. In other words, if a provider discovers that it has been previously reimbursed for claims which it knows or should have known to be legally improper (such as claims involving upcoding, overbilling, violations if the Anti-Kickback Statute, and others), it can choose to voluntarily disclose the impropriety in the interest of a more expedient and favorable resolution rather than wait for the government to discover, investigate and possibly sanction the provider.

list of recent enforcement actions on OIG’s website illustrates just some of the types of claims which are commonly the subject of disclosures. In several cases, providers paid penalties  based on having disclosed that they employed individuals they knew or should have known were excluded from the Medicare or Medicaid programs. Other settlements came about as a result of disclosing instances of upcoding, billing for services provided by unlicensed individuals, or submitting claims for incident-to services not covered by Medicare. In one instance, a durable medical equipment company was required to pay $7.1 million for dispensing equipment from unenrolled locations while representing the services were being performed at a different enrolled location.

Other than alleviating the anxiety inherent in knowing that a possible government enforcement action could strike at any time, the self-disclosure process has several notable benefits for providers which avail themselves of it. One key benefit is that penalty calculations in SDP cases tend to be lower than in other government enforcement actions. Although there is no firm standard, the government’s general practice is to require damages in a minimum amount of 1.5 times the actual damage rate (i.e. the amount of the improper claims), whereas the False Claims Act and Civil Monetary Penalties Law can authorize up to triple damages in other cases. Providers who self-disclose also enjoy a presumption by OIG that they will not be required to enter into a Corporate Integrity Agreement, and a suspension of the provider’s requirement to report and return overpayments under CMS regulations until a settlement of the disclosed matter is reached.

For 2021, there are several notable updates to the SDP. First, as mentioned, is the name, which has been amended to “Health Care Fraud Self-Disclosure Protocol” (previously the “Provider Self Disclosure Protocol”), presumably to clarify that the protocol applies to any “person,” rather than merely providers. OIG also published updated statistics, showing that between 1998 and 2020, OIG resolved over 2,200 disclosures, resulting in over $870 million in recoveries to the federal healthcare programs.

To focus its enforcement efforts and more efficiently allocate OIG’s resources, the 2021 updates also provide for higher minimum settlement amounts required to resolve matters which come about as a result of SDP disclosures. Previously, resolutions under the SPD required minimum settlements of $50,000 for disclosed violations of the Anti-Kickback Statute, and $10,000 for all other violations. Under the 2021 updates, the minimum settlements for both have been doubled, to $100,000 and $20,000, respectively.

The 2021 updates also brought several logistical changes to the SDP process. Whereas previously the self-disclosing party could submit an SDP either by mail or through OIG’s online portal, all disclosures must now be sent through the portal. There is also a new requirement that the self-disclosing party must identify the estimated damages to each federal healthcare program as well as the sum of all estimated damages. The updates further clarify additional requirements for use of the SDP for entities subject to existing Corporate Integrity Agreements, and require the disclosing party to state that it is subject to a CIA, and send a copy to the party’s assigned OIG monitor.

Finally, the 2021 updates also contain minor changes to the provision regarding OIG’s coordination with the United States Department of Justice (DOJ) in civil and criminal matters. Unfortunately, although the SDP can be a useful mechanism for more favorably resolving civil matters involving false claims, and while OIG may advocate for leniency from DOJ based on a party’s self-disclosure, use of the SDP does not preclude a related civil investigation by DOJ unless DOJ chooses to participate in any resulting settlement. This has not changed with the 2021 update. However, the language of the SDP with respect to criminal matters has been amended to reflect that OIG no longer “encourages” parties to disclose potential criminal conduct, but that OIG will no longer advocate for a benefit in any prospective criminal matter based on the disclosing party’s use of the SDP. In other words, OIG seems committed to leaving criminal matters to the DOJ, and a provider cannot rely on its use of the SDP to mitigate the consequences of any potential criminal conduct.

A full copy of the updated SDP may be found on OIG’s website here.

The healthcare attorneys at Weiss Zarett routinely assists physicians in connection with OIG self-disclosure protocols, audits and investigations by governmental agencies and third-party payors, as well as investigations by state and federal law enforcement agencies such as DOJ and New York Medicaid Fraud Control Unit. If you have any questions or require assistance with such a matter, please feel free to reach out to Mathew J. Levy, Esq., at 516-929-3320 or email: 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.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.