Rochester Law Review

Required Disclaimers

Pursuant to Rules 7.1(e)(3) and (f) of the NY Rules of Professional Conduct, you are hereby advised that "prior results do not guarantee a similar outcome" and the contents of this blog constitute "Attorney Advertising."

Legal Advice

This publication is intended as an information source for clients, prospective clients, and colleagues. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

© Peter J. Weishaar and Rochester Law Review, 2013 – 2020.

All Rights Reserved

Municipal Update: Virtual Meeting Provisions Extended

ExecutiveOrder_EO_generic_heroEarly on in this public health emergency, the Governor suspended and modified certain provisions of the Open Meetings Law to permit meetings to be conducted remotely.  The provisions of the Executive Order making those suspensions and modifications was later extended through May 7, 2020.

The Governor was expected to further extend these provisions, but as of the close of business on May 7, 2020, they were not extended.  But, late last night–on May 7, 2020–the Governor issued Executive Order 202.28.  The order provides among other things that the “suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order up to and including Executive Order 202.14,” are continued for thirty days until June 6, 2020.

The Open Meetings Law provisions were initially suspended and modified by Executive Order 202.1, and initially extended by Executive Order 202.14.

There were numerous other provisions of law that were suspended and modified by Executive Order, and some of those provisions have also been extended by Executive Order 202.28.  I should also note that Executive Order 202.28 includes some exceptions and further suspensions and modifications, and one should not assume that it applies without reviewing the language for your particular concern.

If you would like to schedule a consultation to discuss the Open Meetings Law or other municipal legal matters, please contact Peter J. Weishaar, Esq.  at pweishaar@mccmlaw.com or 585.512.3542.  Peter’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of fire districts and other municipalities on an ongoing basis and as special counsel in litigation matters.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

 

 

 

Municipal Update: Public Hearings Postponed by Executive Order 202.15

ExecutiveOrder_EO_generic_hero By now most local governments should be conducting their meetings remotely.  The Governor suspended certain provisions of the Open Meetings Law in Executive Order 202.1, permitting public bodies to meet and take action without permitting in public in-person access, and also permitting such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding, and that such meetings are recorded and later transcribed.  These modifications were originally set to expire on April 11, 2020, but were subsequently further extended by Executive Order 202.14 through May 7, 2020.

On April 9, 2020, the Governor issued Executive Order 202.15, which postponed certain public hearings without prejudice. With respect to public hearings, the Order provides as follows:

Any local official, state official or local government or school, which, by virtue of any law has a public hearing scheduled or otherwise required to take place in April or May of 2020 shall be postponed, until June 1, 2020, without prejudice, however such hearing may continue if the convening public body or official is able to hold the public hearing remotely, through use of telephone conference, video conference, and/or other similar service.

Information about this and other COVID-19 Executive Orders may be found here.

If you would like to schedule a consultation to discuss the the impact of this Executive Order or other municipal legal matters, please contact Peter J. Weishaar, Esq.  at pweishaar@mccmlaw.com or 585.512.3542.  Peter’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of fire districts and other municipalities on an ongoing basis and as special counsel in litigation matters.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Municipal Update: Non-Public Bid Opening Permitted During COVID-19 Emergency

ExecutiveOrder_EO_generic_hero

On March 7, the Governor issued Executive Order 202, declaring a State disaster emergency for the entire State of New York.  Over the course of the next several weeks, the Governor has issued updates to the original Executive Order.

On Friday, March 27, 2020, the Governor issued Executive Order 202.11.  Fire districts and other municipalities should be aware of one change with respect to public bidding that was included in that order:

Section 103(2) of the General Municipal Law, Section 144(1) of the State Finance law, Section 376(8)(a) of the Education Law, and Section 359(1) of the Public Authorities Law to the extent necessary to allow the non-public opening of bids; provided, however, that where practical, public entities shall record or live stream id openings so that the public has the opportunity to view such bid openings….

The statutory provisions referenced in the Executive Order are temporarily suspended or modified through April 26, 2020.   Information about this and other COVID-19 Executive Orders may be found here.

If you would like to schedule a consultation to discuss the the impact of this Executive Order or other municipal legal matters, please contact Peter J. Weishaar, Esq.  at pweishaar@mccmlaw.com or 585.512.3542.  Peter’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of fire districts and other municipalities on an ongoing basis and as special counsel in litigation matters.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

COVID-19 and Business Interruption Insurance

virus-4937553_1920

Image by PIRO4D from Pixabay

Business interruption insurance can provide coverage for losses of income due to physical loss or damage to property.  Questions have arisen as to whether this type of policy covers business interruption due to the Novel Coronavirus (COVID-19).

The New York State Department of Financial Services (DFS), recently added a FAQ page related to these questions.  You can find the page here.  If you have questions about coverage, the first thing you should do is review the terms of your own policy.  If you still have questions, this FAQ page is a good place to look next.  We are also available to assist you.

Following recent changes to our office in response to COVID-19, all of our attorneys are now working remotely to serve your legal needs.  If you would like to schedule a consultation to discuss legal issues that have arisen as a result of COVID-19 or any other legal matter, please contact Peter J. Weishaar, Esq.  at pweishaar@mccmlaw.com or 585.512.3542.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

 

 

Open Meetings Law: Telephonic Participation Permitted During COVID-19 Emergency

 

video-conference-2766604_1280

Image by Mohamed Hassan from Pixabay

On March 12, 2020,  Governor Cuomo issued Executive Order 202.1, suspending and modifying laws relating to the COVID-19 disaster emergency.  One of the laws this Executive Order modified was the Open Meetings Law.  In an effort to reduce public gatherings and foster social distancing, the Open Meetings Law has been modified to permit attendance by telephone conference or by other similar service:

Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed….

While the Open Meetings Law always permitted videoconferencing, the law also required the public body to “provide an opportunity for the public to attend, listen and observe at any site at which a member participates.”  Executive Order 202.1 changes that provision and expands it to include participation by telephone conference.

Members of the public need to be provided access to the telephone conference or video conference information, so they can listen and observe the meeting, and the meeting needs to be recorded and later transcribed.   But, members of the general public have no right to participate in the meeting beyond listening or watching.

Executive Order 202.1 indicates that it will remain in effect for thirty days until April 11, 2020.  However, it is possible that it may be further extended.  Information about the Governor’s Executive Orders may be found here.

If you would like to schedule a consultation to discuss the Open Meetings Law or other municipal legal matters, please contact Peter J. Weishaar, Esq.  at pweishaar@mccmlaw.com or 585.512.3542.  Peter’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of fire districts and other municipalities on an ongoing basis and as special counsel in litigation matters.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Appellate Division Holds Arm Wrestling Outside Scope of Employment

arm-wrestling-567950_1280

Image by Ryan McGuire from Pixabay 

From time to time, a case in the Advance Sheets piques my curiosity.  Gehrke v. Mustang Sally’s Spirits and Grill, Inc., __ A.D.3d __, 2020 NY Slip Op. 00741, is one of them.

As the trial court noted in her decision denying summary judgment: “This is an arm wrestling in a strip club case.”  I did not know there were such cases, but apparently there are, and this is one of them.  I was curious about why someone would pursue such a case to begin with, let alone pursue an appeal, and I ended up looking up the appellate record online to find out more about this case.

The plaintiff was a regular at “Tiffany’s Cabaret,” and one afternoon after about three hours of drinking, he talked the bartender into arm wrestling.  After about ten seconds, there was a “pop” and his arm went limp.  The bill of particulars indicates that he had a displaced right humeral shaft fracture, requiring surgery and hardware to repair.  In other words, he broke his funny bone.  But, the injuries were not funny.  A displaced fracture requiring surgery is no laughing matter.

Plaintiff asserted a cause of action for negligence based on theories of respondeat superior and premises liability.  Respondeat superior is a legal doctrine whereby an employer is liable for the negligent acts of his or her employee if the acts occur within the scope of employment.  “Tiffany’s Cabaret” moved for summary judgment, seeking dismissal of the complaint on both theories of liability, claiming that its employee was acting outside the scope of employment at the time of the incident and also claiming that it did not owe plaintiff a duty of care under the theory of premises liability.

The trial court denied the Cabaret’s motion on both grounds, holding that it owed its customer a duty of care on the premises liability claim, and determining that factual issues exist on the respondeat superior claim.  The trial court also noted that, if a jury found the arm wrestling to be within the scope of the bartender’s employment, “a notice requirement is obviated because, per respondeat superior, Defendants created the alleged dangerous condition of arm wrestling.”

The Appellate Division reversed on the respondeat superior issue.  While noting that it is generally a question for the jury whether an employee is acting within the scope of employment, “an employer is not liable as a matter of law under the theory of respondeat superior ‘if the employee was acting solely for personal motives unrelated to the furtherance of the employer’s business.'”  Id. (quoting Mazzarella v. Syracuse Diocese, 100 A.D.3d 1384 (4th Dep’t 2012)).  The Appellate Division concluded that the defendant established that the employee’s act of arm wrestling plaintiff was not within the scope of his employment and that plaintiff failed to raise a triable issue of fact in response.

The Appellate Division also reversed on the premises liability issue, resulting in the dismissal of the complaint in its entirety.

There are perhaps several morals of this story, and I will let you draw your own conclusions about that.  But, one thing I would like to point out to my readers is that this case demonstrates that not all serious injuries are the result of actionable negligence.  It is unfortunate that the plaintiff broke his arm.  But, Tiffany’s Cabaret was not legally responsible for causing this injury.

Part of my practice has included representation of plaintiffs seriously injured by the negligence of others.  In fact, the very first case I was assigned when I started as a new associate with the firm 24 years ago was a premises liability case where a little boy was injured in a fall through a wide-open stairwell in an elementary school.  Before we decide to take any personal injury case, we consider not only the nature of the injuries, but also whether or not somebody else’s wrongful conduct caused the injuries.

Did you know?  Since our firm began in 1979, we have represented clients seriously injured by the negligence or intentional misconduct of others, whether involving motor vehicle accidents or other wrongful conduct.  As noted above, this has also been part of my litigation practice since I joined the firm in 1996.  If you or a someone you know is ever seriously injured by another person’s carelessness, you can always contact us to talk about your rights and available options.  Information about our Personal Injury Practice may be found here.  Hopefully, you’ll never need us for that.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

 

 

Are Physician Non-Compete Covenants Enforceable?

PHLAlthough non-compete agreements with physicians have been held by courts to be enforceable, there is no per se rule that all such agreements involving physicians are enforceable.  Courts “must still scrutinize whether the covenant, on the facts presented, is being legitimately employed to protect [the employer’s] legitimate interests, would not be harmful to the public, and would not be unduly burdensome to the defendant.”  Oak Orchard Community Health Center v. Blasco, 8 Misc. 3d 927, 931 (Sup. Ct. Monroe County 2005) (citing BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 391 (1999)).   In Oak Orchard, the Court declined to enforce the restrictive covenant in a pediatrician’s employment contract.  Last month, another Monroe County Supreme Court justice denied the request for an injunction seeking to enforce a non-compete covenant contained in an anesthesiologist’s agreement.

Generally speaking, restrictive covenants in employment agreements will be enforced only if they are:

  1. Reasonable in time and area;
  2. Necessary to protect the employer’s legitimate interests;
  3. Not harmful to the general public; and
  4. Not unreasonably burdensome to the employee.

Employees challenging restrictive covenants in their employment agreements often focus on the employer’s claimed legitimate interest.   In determining whether a restrictive covenant is necessary to protect the employer’s legitimate interests, the Court of Appeals has “limited the cognizable employer interests…to [1] the protection against misappropriation of the employer’s trade secrets or of confidential customer lists, or [2] protection from competition by a former employee whose services are unique or extraordinary.”  BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 389 (1999).

In Westside Anesthesia Associates of Rochester, LLP v. Anesthesia Associates of Rochester, P.C.  (Sup. Ct. Monroe County 2019 [Index No. E2019007444]), the Court denied plaintiff’s request for a preliminary injunction enforcing the restrictive covenant against two anesthesiologists and their new employer “because [plaintiff] has failed to set forth sufficient indicia that the non-competes are necessary to forestall unfair competition.”  Id. at 9.  “It is well-settled that an employer has no legitimate interest in stifling legitimate competition.”  Id.

The Court found that there was no evidence that the defendant doctors were in possession of trade secrets worthy of protection, or that they otherwise accessed or sought to use their former employer’s alleged confidential information for the benefit of their new employer.

The Court also determined that there was no showing that the defendant doctors were “unique or extraordinary.”  Plaintiff made no showing that either of the defendant doctors possessed skills that gave them an unfair advantage over their former employer, and the Court also noted that the practices of the defendant doctors were not portable:

 An anesthesiologist provides anesthesia to a patient and a surgeon performs a surgical procedure at the same facility; in this scenario, the anesthesiologist does not develop a relationship with the patient. [Id.]

The Court concluded that the plaintiff “wholly failed to demonstrate a legitimate business interest” and therefore “the application for a preliminary injunction must fail because a likelihood of success on the merits [was] not shown.”  Id. at 10.

Although every case must be analyzed under its own set of facts, this is an interesting development that may impact the hospitals and practice groups in Monroe County that include broad, sweeping restrictive covenants in their physician employment contracts.  Under another set of facts, the covenant in this case may have been enforced.  If you would like to schedule a consultation to talk about restrictive covenants in employment,  please feel free to contact me at pweishaar@mccmlaw.com or (585) 512-3542.

Links to other articles I have written about non-compete agreements and related restrictive covenants are included below:

My employment practice includes the representation of businesses and individuals in matters involving restrictive covenants, non-compete agreements, discrimination and failure to pay wages in State and Federal Courts, and before administrative agencies, including the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Fire District Training Materials

AFDSNYLast weekend, I was honored to teach the state-mandated fire commissioner training course on behalf of the Association of Fire Districts of the State of New York in Allegany, New York.  As a follow-up to that training, I wanted to provide some links and additional information about the supplemental materials I discussed during my presentation.

Over the course of the training session, I made reference to both the Freedom of Information Law (FOIL) and the Open Meetings Law (OML).  Both laws apply to fire districts, and there is a lot of very useful information about these laws published by the Committee on Open Government, an agency within the New York Department of State.  For example, there is an advisory opinion index for each of these laws, as well as a model FOIL policy that is a good resource for developing or revising your district’s policy.

The New York State Comptroller’s Office is another indispensable resource.  The Comptroller’s website includes a page dedicated to fire districts.  Here, you will find links to recent fire district audits, a model form RFP for auditing services, and a model code of ethics.  You can also download a PDF copy of the Comptroller’s Accounting and Reporting Manual for Fire Districts if you do not already have a copy.  You may also wish to subscribe to the Comptroller’s weekly email newsletter, which often includes links to new fire district and other local government audits.

Other resources available from the Comptroller’s website include:

The Association of Fire Districts of the State of New Yourk also has numerous guides, model policies and newsletters available on its website to help you carry out your duties as a commissioner of other fire district officer.

During one of the breaks, I was asked briefly about fundraising, and I wanted to provide a citation to the applicable statute.  Fundraising by fire departments and fire companies is governed by Section 204-a of the General Municipal Law.  While a board of fire commissioners can prohibit or restrict certain kinds of fundraising activity, such action should not be undertaken without first consulting with knowledgeable legal counsel.

Finally, there was a discussion about the New York State Emergency Services Revolving Loan Fund.  More information about this program can be found here.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full service law firm based in Rochester, New York, providing high quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact me at 585.546.2500.

 

Enhanced Cancer Disability Benefit Regulations Finalized

fire service lawsOn October 17, 2018, the Division of Homeland Security and Emergency Services published a notice of adoption with respect to the New York State Volunteer Firefighter Enhanced Cancer Disability Benefits Program regulations.  The regulations were adopted as proposed.  A link to the Division’s website (here) contains links to both the regulations and the New York State Register.

The Register (starting at page 16) includes an assessment of public comment with respect to the proposed rules (including a response to each written comment).  Unfortunately, none of the comments resulted in any changes, and the regulations were adopted as originally proposed.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full service law firm based in Rochester, New York, providing high quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.

Anti-Harassment Policy and Training Available Now

I recently wrote about the sweeping workplace rules designed to prevent sexual harassment here.  As of this month, employers are required to adopt a sexual harassment prevention policy and provide annual sexual harassment prevention training.  Both the policy and the training are required to meet or exceed minimum standards set by a model policy and model training program provided by the Department of Labor and Division of Human Rights.  At the time I wrote about these requirements, only drafts of the model policy and training were available.

The final model policy and training module are now available here.

If you would like to schedule a consultation to talk about how this legislation may impact your business,  please feel free to contact me at pweishaar@mccmlaw.com or 585.512.3542.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

%d bloggers like this: