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Advocate's View

Sep 13, 2022

Advocate’s View: Appellate courts reject commercial tenant attempts to avoid rent obligations

During the COVID outbreak in 2020, New York and several other states issued restrictions on in-person business operations in an attempt to reduce the spread of the virus. These measures significantly impacted commercial real estate as tenants struggled to pay rent to their landlords. While these restrictions first went into place nearly two and a […]

May 17, 2022

Advocate’s View: Living with the Construction Wage Theft Law

It’s now the law in New York. Construction contractors may be sued, for up to three years, for the unpaid wages and benefits of their subcontractors’ employees, including liquidated damages and attorney fees. That includes subcontractors of any tier, and the potential liability extends to misclassified “independent contractors” as well. The Construction Wage Theft Law, […]

Feb 14, 2022

Advocate’s View: NY Commercial Division adopts softer standard for remote depositions

Effective Dec. 15, 2021, the Commercial Division permanently adopted Rule 37 allowing remote depositions upon consent of all parties or upon motion to the court showing good cause. The rule is accompanied by Appendix G, a proposed stipulated remote deposition protocol that provides guidance on the parties’ rights and responsibilities in conducting remote depositions. Statutory […]

Dec 15, 2021

Advocate’s View: New York judges provide important trial tools

Thanks to the work of several judges, New York lawyers and litigants can access free online resources that are invaluable for trying cases. The Guide to New York Evidence ( collects and interprets the state’s evidentiary rules in a convenient format. The Virtual Bench Trial Protocols and Procedures ( p[...]

Nov 15, 2021

Advocate’s View: Pre-action discovery in New York does not create path for removal to federal court

In a past Advocate’s View article, I wrote about efforts to obtain pre-action discovery pursuant to CPLR 3201(c). To recap, pre-action discovery is available to aid in bringing an action or arbitration as well as to preserve information, but only by court order. Efforts to obtain pre-action discovery will be denied if the applicant is […]

Oct 20, 2021

Advocate’s View: Mediations — What will happen when “normal” comes?

As the pandemic continues to challenge and change the way we work across all industries, many of us are growing increasingly impatient with the wait for “normal.” Will we ever get back to normal in the court system? What will normal even look like when we get there? In fact, is normal something we should […]

Sep 15, 2021

Advocate’s View: Updated status of evictions in New York State

Last September, The Daily Record published my Advocate’s View article entitled “Navigating the Status of Evictions in New York State.” There have been several changes over the past year. Just last month, the Supreme Court issued a decision enjoining part of New York’s legislation relating to eviction restrictions. On Sept. 1, Gov. Kathy Hochul signed […]

Aug 19, 2021

Advocate’s View: The shifting rules on virtual meetings in (post) pandemic times

Since Gov. Andrew Cuomo’s announcement in June of “New York Forward” — a lifting of many COVID-19 pandemic-related restrictions — much has changed. The Delta variant and sluggish vaccination rates, as well as the lack of vaccines available for children under age 12, have stalled the return to normalcy. Besides the toll the pandemic has […]

May 18, 2021

Advocate’s View: 4th Department provides clarity on avoiding civil liability under Lien Law by restoring diverted trust funds

Codified in 1959, Article 3-a of the Lien Law (Lien Law §§70-79a) provides very stringent trust provisions related to certain funds on construction projects. For those not familiar with its terms, project “owners” are required to hold in trust all proceeds received from building or home improvement loans for the benefit of all contractors, suppliers […]

Apr 14, 2021

Advocate’s View: Substantial Completion bill signed into law

New York continues to provide legislation designed to speed up payment to contractors. Following on the heels of Prompt Pay Act, (albeit 11 years later) Gov. Andrew Cuomo signed into law the “Substantial Completion” act on Dec. 19, 2020. Various versions of the law have been making the rounds in the state Legislature for the […]

Feb 16, 2021

Advocate’s View: Life insurance trustee absolved of policy lapse — this time

An Irrevocable Life Insurance Trust — ILIT for short — is a common estate planning tool, well known to attorneys and financial planners. Its sole purpose is to own and maintain a life insurance policy, keeping it out of the insured’s name until death, when the benefit is then paid to the named beneficiaries per […]

Jan 21, 2021

Advocate’s View: Navigating new e-filing rules in the Appellate Division

As attorneys gain familiarity with the Appellate Division’s new rules, they should be aware of certain key e-filing provisions to ensure the clerk will accept their papers and they will not miss their opponents’ filings. This article addresses common e-filing issues in appeals from lower court orders and judgments. The first consideration for appellate practitioners […]

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