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Maynard, O'Connor, Smith & Catalinotto, LLP

February 7, 2013

Getting a Job in a Tough Legal Market

Category: Firm News,Legal Writing — admin @ 4:05 pm

On February 7th, Rob Rausch moderated a panel at Albany Law School on the issue of “Getting a Job in a Tough Legal Market”.  Topics discussed included networking, drafting resumes, interviewing skills, and on-the-job etiquette.  The panelists included other graduates from Albany Law from a diverse selection of practice areas.  Rob is currently President-elect of the National Alumni Association.

October 20, 2010

Public health law to require practitioners to discuss palliative care options

Category: Legal Writing — admin @ 3:09 pm

On August 13, 2010, New York State Public Health Law was amended and a new provision was created requiring an attending health care practitioner (a physician or nurse practitioner having primary responsibility for the care and treatment of a patient) to provide palliative care and end-of-life options to a terminally ill patient.  A person is considered terminally ill if the illness or condition can reasonably be expected to cause death within six months of diagnosis, regardless of whether the patient chooses treatment. The new provision goes into effect on February 9, 2011.

 Palliative care is defined as interdisciplinary end-of-life treatment, consultation with a patient and family members, prevention or relief of pain and suffering, and the enhancement of a patient’s quality of life, including hospice.  The attending health care practitioner must offer the patient information regarding palliative care and counseling options appropriate to the patient’s prognosis, legal rights and comprehension.  This information can be provided verbally or in writing and can be provided to a person having health care decision making authority for the patient.  Also, the health care practitioner can delegate another qualified professional to provide the information and counseling to the patient.

 When designating an agent to be your health care proxy, it is always a good idea to discuss your end-of-life wishes with him or her.  It can be a very difficult and emotional time for everyone involved.  Hope for the best but plan for the worst, and everything in between, when it comes to your estate planning and advance directives.

August 24, 2010

The Legal Side of Commercial Leases

Category: Legal Writing — admin @ 3:09 pm
The Legal Side
by Edwin J. Tobin, Jr., Esq.
Partner, Maynard, O’Connor, Smith & Catalinotto, LLP
This article first appeared in the July 2009 issue of Success Magazine.

 

Commercial Leases

 As a business owner you will typically require one of two types of rental space: retail or professional.  Unlike leasing an apartment, a commercial lease is often of longer duration, five or ten years.  For such level of commitment, an understanding of typical commercial terms and conditions and what needs to be negotiated before signing a lease contract can be very important, especially where commercial rent can be one of your top expenses. 

Lease Considerations

Often, the level of negotiating leverage which a commercial tenant has is dependent on the amount of space to be leased.  For example, if less than 1,000 square feet, it is unlikely that the tenant would be able to negotiate much as far as the terms. 

The following list is an outline of considerations that a business owner must assess before entering into any lease:

(1)        Does the rent include utilities?  If not, ask for the historical cost.  Does it include janitorial services, trash removal, snow shoveling?  What other expenses might be encountered?  Does landlord supply heat and air conditioning and what hours?

(2)        Is there adequate electric for the tenant’s needs?  An electrical consultant may be necessary to make that determination.

(3)        Will you be negotiating with a built-in increase in rent?  For example, if you are leasing in a shopping mall, the landlord typically expects you to pay your proportionate share (based on square footage) of any increased operating costs, property taxes and other common expenses.

(4)        Look for the sublet clause in the lease.  A typical commercial lease will require a landlord’s consent for you to sublet to someone else.  The lease should contain language that the landlord will not unreasonably withhold such consent.

(5)        Will the landlord provide for any “fit up”?  This is an allowance to assist you in getting the leased premises to accommodate your business purpose.  With a one year lease perhaps the landlord will agree to clean the carpets or paint the walls.  In a larger commercial lease, the typical allowance is so many dollars per square foot.  Not uncommon presently would be an allowance of $2.00 per square foot.  These will be expenses encountered by the landlord to get the commercial space ready for your business.  In retail space, be sure your lease defines whether or not the landlord intends to remove other improvements already on the premises that are of no value to you.  Sometimes the space will be rented “as is”. 

(6)        In the retail arena, there is often a percentage of rent to be paid based upon sales over the “break point”.  For example, this could be something along the lines of 6% of sales over the break point go to the landlord as rent.  This is an amount that can be negotiated.  Its advantage is that it allows for a lower base rent for a business getting started.  It is something that you want to discuss with your accountant, the pros and cons, before entering into any kind of lease agreement.

(7)        A “triple net” lease is where all costs are paid by the tenant: rent, common areas, maintenance, insurance, taxes, utilities and trash removal.  Some shopping centers even charge what is called a promotional fund, the advertising costs of promoting the shopping center, in general, paid for in common by the tenants.

(8)        Another consideration of the retail lease would be landlord allowances for signage.  This must also be considered in light of any local ordinance requirement.

(9)        If you lease space in a shopping center, there may be additional requirements as far as hours of operation, that you must be open certain hours including evening hours for the benefit of shoppers in general.  This can be a substantial factor as far as overhead costs in keeping the shop open.

(10)      Do you want your business to have exclusivity in the building or shopping mall where you will be located?  For example, if you are going to open  suntanning booths, does your lease prevent another tanning salon from opening in the same shopping center?

(11)      If you are leasing professional space, will you need 24 hour access?  How often are the cleaning services and what do they consist of?

(12)      A small business owner should expect that the lease may require a personal guaranty.  The language of the same needs to be carefully reviewed.  Sometimes a landlord will agree to reduce the amount of the security deposit over time. 

(13)      What are the terms and conditions of the lease if a casualty occurs?  What are the landlord’s obligations to make the necessary repairs to the structure?  What types of insurance do you need to protect against any casualties that you might cause?  Does your insurance coverage have loss of business operations/business interruption coverage?

Professional Space

Professional space is often categorized Class “A”, “B”, “C”.  Class “A” space is brand new or very well maintained space in an excellent location with high class tenants.  Class “B” would be in an older, but well maintained, building, perhaps not as good a location as well.  As to costs, you might expect to pay $19.00 to $23.00 per square foot plus utilities plus parking for Class “A” space.  Class “B” space may rent for $15.00 to $18.00 a square foot.  Class “C” space may only be $12.00 per square foot.  In the suburbs, one may expect to pay perhaps $17.00 to $20.00 for Class “A” space.  A factor that cannot be overlooked is parking which is very expensive in downtown areas and included in suburbs. 

Brokers/Attorneys

Tenants often use brokers.  The landlord pays the broker’s fee of 5% to 6% of the gross rent.  If you do not use a broker, you may be in a position to negotiate some money off the rent because of the savings to the landlord.  One should not lose site of the possibility that many of the above referenced lease terms and conditions are, indeed, negotiable.  A business owner with little familiarity may be well served to hire an attorney to negotiate such terms as the long-term savings will greatly outweigh any attorneys’ fees for the negotiation. 

                                                         ©2009 All Rights Reserved.
         This article is for illustrative purposes only.  You should consult your own attorney in any legal matters.

May 19, 2010

‘Poison Pill’ clause can help limit will contests

Category: Legal Writing — admin @ 8:00 am

By Thomas G. Daley
Partner, Maynard, O’Connor, Smith & Catalinotto, LLP

It is not uncommon for questions to arise with regard to the validity of a will.  Specifically, there may be issues regarding the mental capacity of an individual to sign a will.  There may also be potential questions about fraud or undue influence that may have affected the contents of the will.  When issues such as these arise, there is the potential for a will contest which, if successful, could result in the will which is being offered for probate invalidated.

Attorneys who draft wills have recognized that the potential for will contests could potentially frustrate the intent of the testator (the person making the will).  In order to try to limit will contests, many wills will have a “poison pill” clause in them which states that if any beneficiary attempts to contest the will and is unsuccessful, the bequest to that beneficiary will be nullified.

In an effort to strike a balance between making sure that the will that is being offered for probate is legitimate and proper as opposed to the attempts of the deceased to prevent a will contest, SCPA § 1404 allows for the examination under oath of certain specified individuals.  The examination under oath of these individuals does not violate the “poison pill” provision in the will and will not serve to invalidate the bequest to the individual seeking these examinations.
The question recently arose in a case as to whether the list in SCPA § 1404, which allows for the examination of the will preparer as well as the witnesses to the will, is exclusive.  In Matter of Singer, 13 NY3d 447, the Court of Appeals stated that the list is not exclusive and that other individuals may be questioned under oath without losing the protection from the “poison pill” provided by SCPA § 1404.  The Court reasoned that the overriding public policy interest in having valid wills admitted to probate outweighs the intention of the deceased to avoid a will contest.  In this particular case, the beneficiary seeking to question the witnesses decided, after having completed the examinations under oath, that he did not wish to file objections to the probate of the will.  If the beneficiary had filed objections and was unsuccessful in preventing the will from being admitted to probate, his bequest would have been nullified.

May 12, 2010

WHAT TO DO AFTER A CAR ACCIDENT: Tips to Protect Yourself and Your Legal Interests

Category: Legal Writing — admin @ 8:00 am

Unfortunately, statistics reflect that every driver can be expected to be involved in a motor vehicle accident in his or her lifetime.  Accidents may range from the simple and mundane “fender bender” to much more catastrophic collisions.  If you have suffered an injury, you should be aware that there are some very brief deadlines to report your injuries, and that your failure to promptly report these injuries could result in a denial of no-fault coverage.  Whether your accident involves property damage or personal injuries, and regardless of whether you or another driver are at fault, some simple measures should be taken immediately to protect your interests.

At the scene of the accident:

  • First and foremost, determine whether you or your passengers are injured.  Your well being and that of your passengers should be your first priority.
  • You should not move the vehicles until police arrive.  The position of vehicles can help the police determine fault.  Never leave the scene of an accident until police authorize you to do so.  Under some circumstances, leaving the scene of an accident could have criminal implications.
  • Exchange insurance information with other drivers involved in the collision.  Be sure to obtain the other driver’s name, address, phone number, and license plate number. Record names and contact information for other drivers, passengers and witnesses.
  • Never reach an agreement with the other driver to simply resolve the matter “out of pocket” without reporting the claim to your insurance companies.  Often, physical injuries or mechanical damages are not readily apparent and may not manifest until long after the accident.
  • If possible, before vehicles are moved, take photos of the position and condition of the vehicles and any pertinent weather conditions.  Photos are often the most compelling piece of evidence and can be used to refute claims or to help experts determine the cause of the accident and force of impact.
  • Never concede fault or make any incriminating statements to other drivers.  When reporting the accident to the police, do not admit fault, but merely report the facts, without reporting any opinions.

Following the accident:

  • Immediately contact your insurance agent.  Most policies require that an accident must be promptly reported.  The failure to promptly report an accident could provide your carrier with grounds to disclaim coverage and expose you to personal liability.  Be aware that additional coverage may also be available under your homeowner’s policy, excess policies, or even polices on other cars in your home.  You should promptly advise those carriers of the accident as well.
  • If you believe you have any injuries or require any medical treatment, it is critical that you immediately contact your insurance agent, request an application for no-fault benefits, and promptly complete that paperwork.  Be aware that there are very short deadlines for reporting injuries.  Your failure to promptly report injuries within that timeframe could lead to denial of coverage for your injuries.
  • Cooperate with your own insurance company.  The failure to cooperate with your insurance company can lead to a disclaimer of coverage.
  • In contrast, be wary of speaking to another driver’s insurance company.  We  recommend that you obtain legal counsel before you participate in such interviews.
  • Obtain a copy of the police accident report for the collision.  Be aware that the Department of Motor Vehicles also requires you to report certain accidents.  Under some circumstances, the failure to report an accident to DMV could lead to suspension of your license.
  • Do not sign any document that is any form of release, waiver, or check.  If you are not sure about what you are signing or whether it is fair, consult an attorney for assistance.

If you believe that you have suffered injuries as a result of another driver’s negligence, please consult us for assistance.  Personal injury litigation requires compliance with many specific limitation periods and statutory pleading requirements.  These details may prove to be fatal pitfalls to the unwary practitioner or pro se litigant.  At Maynard, O’Connor, Smith, & Catalinotto, we are well versed in prosecuting and defending personal injury litigation and offer years of experience in navigating these difficult issues.  In the unfortunate event that you have been injured in a motor vehicle accident, please consider consulting us for assistance

May 3, 2010

The Legal Side

Category: Legal Writing — admin @ 5:57 pm

The Legal Side
by
Ed Tobin, Jr.
Partner, Maynard, O’Connor, Smith & Catalinotto, LLP

This article first appeared in the January 2010 issue of Success Magazine.

Dealing with Business Competition from Former Employees

So you’ve brought in a fledgling employee, provided training, gave access to your methods of operation, market and profitability data, access to all your clients/customers.  Your employee excelled bringing in substantial revenues.  Shortly thereafter, the employee thinks: “Hey, I can go out there and do this myself, make lots of money, and not have to work for this schmuck any more.”  And that’s exactly what happens – an all too common scenario.  You hear that you can protect yourself with a non-compete agreement.  You grab some boilerplate language and force all your employees to sign it.  End of story?

Let’s look at some of the ins and outs of these agreements.  The first thing you should know is that non-compete agreements are generally disfavored by courts and are carefully scrutinized when enforcement is sought given what courts have deemed to be powerful considerations of public policy which facilitate against sanctioning the loss of one’s livelihood.  As such, the non-compete agreement has to be very carefully drafted.  Typically, the agreement prevents the employee from using a former employer’s customers or customer lists and may restrict them from working in an area of the prior employer’s business.  This latter restriction, typically a 25- or 100-mile radius, can be enforceable, but will only be allowed by the courts when the restricted person is a professional providing very unique services or special skills.  More generic type work, such as that of a sales representative or ordinary laborer, will not be restricted.  Also, if the restrictions are unreasonable or overreaching in scope, the court will not enforce them.

I recently had a case where the non-compete agreement prevented my client from working anywhere in the United States even though the company only did business in five states.  That was found to be overreaching.  Overreaching non-compete agreements can be subject to no enforcement at all.  In other words, the courts may decide that it is not going to try to rewrite the agreement and define the competition area.  However, case law is mixed.  Some courts are very willing to reinterpret the agreement and impose their own sense of fair play as to what the restriction should have been.  Such levels of variation from case to case, from judge to judge, make predicting what could happen in any specific case for any specific client fairly difficult.  The bottom line is that the tighter the agreement is drafted, the more likely it would be successfully enforced.

What is needed is protection for your trade secrets, your marketing practices and your customers.  Agreements preventing the solicitation of the customers of a former employer have been enforced but enforcement is variable.  The more generic the customer (i.e., readily available in any phone book), the harder it is to seek enforcement.  Nor are the agreements unlimited in time; they usually stand for one or two years at most.  For the departing employee, if clients/customers come to you and seek you out, as opposed to being solicited by you, you have a much better chance of keeping those customers and not having to pay the profits back to your former employer.  Customers that come to you should be willing to provide you with some sort of brief documentation that they were not solicited.  For the employer, when the valued employee leaves, it’s all about the relationship that you have with your clients/customers and utilizing effective communications since you are free to contact your clients/customers at any time and with no penalty, maintaining and fostering the relationship.

A claim against a former employee may include the “faithless servant doctrine,” arguing that the employee was engaged in activities in competition with the employer while still on the job and thus seeking to recoup, for example, commissions paid to the employee during that time frame.  An employee merely getting his or her own business underway, not on company time, would not qualify under the doctrine.  An employer may also have a claim for misappropriation of proprietary information or business secrets.  However, case law has held that knowledge of the intricacies of a business corporation does not necessarily constitute a trade secret and customer lists are not necessarily secret and protected information where such customers are readily available from sources outside the former employer’s business.  On the other hand, a former employee’s use of a proprietary process or method may be actionable.

The best step, whether you are the aggrieved employer or the employee about to head off on your own, is to seek legal intervention.  Missteps abound either in inartful drafting of restrictive covenants which will later not be enforced, in whole or in part, or in engaging in inappropriate actions giving your former employee a valid claim that could have been prevented. Too often a client will come to me after the damage has been done.

© 2010 All Rights Reserved.
This article is for illustrative purposes only.  You should consult your own personal attorney in any legal matters.