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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.

Fire District Audit Threshold Increased to $400,000

Last week, the Governor signed an amendment to the General Municipal Law and the Town Law, increasing the revenue level at which fire departments and fire districts are required to obtain an audit from $300,000 to $400,000. The new thresholds are effective as of November 11, 2020.

As a result of these amendments, fire companies with revenues of $400,000, that contract with a city, town, village or fire district to provide fire service are required to obtain an annual audit of their records by an independent certified public accountant or an independent public accountant. [NY Gen. Municipal Law Section 209-z]. Fire districts with revenues of $400,000 are also required to obtain an annual audit by an independent certified public accountant or an independent public accountant. [NY Town Law Section 181-b].

The sponsor’s memorandum in support of the bill explains the justification for increasing the threshold:

The fire districts of New York State are experiencing an increase in the
cost of goods and services. This constant rise in costs has brought fire
districts close to exceeding the $300,000 limit on an annual basis.
Under current law, if a district exceeds the $300,000 revenue limit an
audit must be done. However, the cost of this audit is an additional
cost to the taxpayers. This burden grows further if the district exceeds
the limit regularly. This legislation allows for further expansion of
services the district can provide without any unnecessary burden on the taxpayers to pay for annual audits. This limit was last raised in 2013.

Sponsor’s Memo for Bill A10041 [L.2020, ch.262]

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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: 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

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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

 

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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

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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.

 

 

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