What Happens if Your Business Partner Goes Rogue?


How many times have you said to yourself that your business partner is a close personal friend and, as such, you have absolutely no use for an Operating Agreement? You’ve started the business, it’s gotten off to a great start, so why do you need to waste precious dollars on legal fees in preparing a detailed Operating Agreement that outlines how decisions are to be made?  The mistake, which isn’t always obvious, is that you are trusting years of friendship and believing that the relationship with your co-member(s) in the LLC is of a personal nature, rather than a business one.

Suppose James and Jane are members of a newly formed New York LLC who felt that preparing an Operating Agreement would be extraneous, given their long-lasting friendship.  One day, while James is enjoying an afternoon stroll through the downtown area, he happens upon a vacant storefront that he believes would be perfect for the LLC’s business.  Thinking that he has to act quickly to take advantage of the opportunity, he hastily signs a lease on behalf of the LLC without first consulting Jane.  After learning of what James has done, Jane believes that this particular storefront won’t generate nearly the amount of foot traffic necessary to make this investment viable and strongly disagrees with this action.  As they didn’t have an Operating Agreement in place that could have, among other things, mandated that any material decisions require the unanimous consent of both members, Jane and the LLC are now bound by James’ unilateral decision.

While not every state requires that members of an LLC enter into a written Operating Agreement, New York does, in fact, require members of an LLC to do so.  Section 417(a) of the New York Limited Liability Company Law requires that “members of a limited liability company shall adopt a written operating agreement that contains any provisions not inconsistent with law or its articles of organization relating to (i) the business of the limited liability company, (ii) the conduct of its affairs and (iii) the rights, powers, preferences, limitations or responsibilities of its members, managers, employees or agents, as the case may be.”

Naturally, the consequences for failing to comply with this statute are entirely unclear, but if partners in an LLC don’t address how their business is to be conducted in a written agreement, it’s only a matter of when, not if, they will reach an impasse such as that described in the hypothetical situation above.  In addition to clearly defining the business as being separate from the personal assets of its member(s) from a legal perspective and detailing what happens upon the death or disability of one or more members, the Operating Agreement can help avoid expensive, time-consuming and resource-draining litigation that can drastically impact a company and its owners.

If you have any questions about Operating Agreements, corporate or LLC governance, or any other questions pertaining to the administration of your business, please feel free to contact me at KLawrence@swc-law.com or (516) 228-1300.

Posted by kLawrence

New Legislation Resulting From #MeToo Movement Affects New York State and City Employers


With sexual harassment claims at the forefront of today’s news cycle, New York City and New York State have both recently taken legislative measures to curb the spread of sexual harassment, and also to assist employers who take the appropriate steps to mitigate problematic workplace situations. Signed into law by Mayor de Blasio on May 9, 2018, the Stop Sexual Harassment in NYC Act (the “NYC Act”) imposes stringent anti-sexual harassment requirements for all New York City employers. At the state level, the New York State Budget Bill for Fiscal Year 2019 (the “Budget”) further defines the obligations for state and city employers.

As the city’s current laws provide for the reduction or outright elimination of potential civil or punitive penalties where employers can prove that they have effective policies, programs and procedures in place and have complied with such policies, programs and procedures, these new laws give a clearer roadmap to employers who wish to protect themselves from liabilities in the event of a sexual harassment action brought against them.

New State Requirements:

Expansion of Definition of Sexual Harassment: The Budget expands the definition of sexual harassment to mean any “unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature” if “made either explicitly or implicitly a term or condition of employment, or submission to or rejection of such conduct is used as the basis for employment decisions…or has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment.” This provision takes effect on October 9, 2018.

Mandatory Arbitration Provisions Prohibited: Agreements requiring the submission of sexual harassment claims to mandatory and binding arbitration, whether contained within employment agreements or standalone agreements, shall be void (unless such clause is included within a collective bargaining agreement). This prohibition takes effect on July 11, 2018.

Confidential Settlement Agreements for Sexual Harassment Claims Without Complainant Consent Prohibited: Also taking effect on July 11, 2018 is a prohibition on state courts from approving confidential settlement agreements for sexual harassment claims, unless (i) confidentiality is the complainant’s preference, (ii) the complainant has been given 21 days to consider the confidentiality provision and (iii) the complainant is given seven days in which to revoke his or her acceptance of said confidentiality provision.

Interactive Sexual Harassment Prevention Training: All private employers with 15 or more employees must now provide sexual harassment prevention training to all New York-based employees. This training will be required for existing employees on an annual basis and it must be “interactive,” defined by the law as “participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computers or online training program or other participatory forms of training determined by the Commission.” This requirement becomes effective on October 9, 2018.

Sexual Harassment Policies: In addition to the foregoing, effective October 9, 2018, all New York employers must adopt a written policy that must contain, at a minimum, the following:

  • A statement prohibiting sexual harassment
  • Examples of prohibited conduct that would constitute sexual harassment
  • Information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims, along with a statement that there may be additional applicable laws
  • A standard complaint form
  • The procedure for timely and confidential investigations of complaints
  • A statement informing employees of their rights of redress and available forums for adjudicating sexual harassment complaints administratively and judicially
  • A statement that sexual harassment is a form of employee misconduct, and that sanctions will be enforced against individuals engaging in sexual harassment and managers and supervisory personnel who knowingly allow such behavior to continue
  • A statement that retaliation against individuals reporting sexual harassment or who testify or assist in any proceeding is unlawful

New City Requirements:

Extension of Statute of Limitations: Individuals seeking to file a gender-based harassment claim within the New York City Commission on Human Rights will have a period of three years from the occurrence, instead of one year, in which to file a complaint before being statutorily barred from doing so. This change is effective immediately.

Interactive Training Requirements: In addition to the state-level changes described above, as of April 1, 2019, city employers will be required to conduct the sexual harassment prevention training for all newly hired employees within 90 days of the hire date for any employees (including interns) who will work more than 80 hours in a calendar year.

Poster and Information Sheet: Effective September 6, 2018, city employers must comply with new poster and information sheet distribution requirements. While this information has not yet been released, the guidelines are scheduled to be released prior to the effective date.

The above is merely a summary of the new legislative developments and is not intended to be a comprehensive analysis of every aspect of the NYC Act or the Budget, nor is it meant to be construed as legal advice for you or your business. Most employers in New York will need to review contractual provisions in existing employment agreements, update their employee handbooks (or similar internal policies), implement training programs or update existing programs to ensure compliance with these new laws.

If you have any questions regarding these provisions, please contact me by emailing KLawrence@swc-law.com or calling (516) 228-1300.

Posted by kLawrence

What to Do When Deeds Overlap


Property owners are often confronted with situations where deed descriptions for adjoining properties overlap, meaning the legal description of one parcel overlaps with the legal description of an adjoining parcel.  This presents a circumstance in which adjoining owners can each claim title to the same portion of property.  Our office has confronted this issue in recent transactions and there are several solutions.

Analyzing the strategies from the simplest to achieve to those that are most complex, the solutions are as follows:

If both parties are in agreement, the owners may: (1) execute correction deeds by which the overlapping portion is affirmatively deeded to one owner and the descriptions for the deeds in each owner’s chain of title are corrected; or (2) the owners may execute a boundary line agreement setting forth the agreed upon legal boundary line between the owners’ adjoining parcels. These solutions avoid litigation but require the filing of the correction deeds or boundary line agreement at the County Clerk’s office, obtaining new surveys and maps, and recertification of title insurance for both properties.

In the event that the parties cannot resolve the issue with correction deeds or a boundary line agreement, the owner that has been cultivating or utilizing the overlapping portion may assert a claim of adverse possession to obtain undisputed ownership over the disputed portion under Article 5 of the New York Real Property Actions and Proceedings Law (“RPAPL”).  Article 5 requires that the asserting owner prove that it had continuous, exclusive, hostile, and open and notorious possession of the overlapping portion under a good faith claim of right for at least ten (10) years.   Alternatively, one of the owners could opt to pursue a quiet title action under Article 15 of the RPAPL, in which case the two owners would argue their respective claims to the property, after which the court would render a decision establishing conclusive title in one of the owners.  Either action may involve a potential claim against each owner’s title insurance policy.

If you find yourself in this circumstance, we are pleased to consult.

Posted by Michael Barone

Divorce and your credit


Divorce impacts all aspects of one’s life, both directly and indirectly. One of the indirect consequences is the effect of divorce on one’s credit. This is an indirect effect as one’s credit is not impacted by marital status. There are both negative and potentially positive impacts of divorce on one’s credit.


Negative effects of divorce on one’s credit:

  • Failure to pay bills during a pending divorce: Often during a divorce, bills are unpaid. Sometimes this is the result of one spouse being vindictive; other times, one is unable to pay bills due to other obligations. Often the court will order a spouse to pay martial expenses; however, this does not necessarily mean that the expenses will be paid. Despite orders to pay expenses, if one spouse does not pay the bills and they are joint or in the name of the other spouse, the nonpayment will adversely affect one’s credit.
  • Post-divorce, restructuring of financial affairs: Following a divorce, generally, there is a restructuring of one’s financial affairs and this may prevent a spouse from maintaining expenses previously paid. In addition, the expenses associated with a divorce many render a spouse/ex-spouse unable to continue to maintain their expenses. Many spouses are unable to continue to maintain the expenses that they maintained pre-divorce, and others simply become bankrupt post-divorce. In addition, if bills are unpaid during a divorce, it is very difficult to automatically bring them current post-divorce. This often occurs with a delinquency on one’s mortgage. As such, one’s credit will negatively suffer.
  • Spouse’s failure to pay expenses pursuant to Stipulation/Judgment of Divorce: In addition, many divorce agreements/judgments require one spouse to continue to pay the expenses of another. However, this is an agreement between the parties, and the person whose name the debt is in must continue to ensure that the payment is made regardless as to whether or not the spouse is fulfilling their obligation. Failure to do so will result in an adverse impact on one’s credit.


Positive effects of divorce on one’s credit:

  • Freedom from spouse with bad credit: Sometimes a person with good credit marries a person with bad credit and the union adversely impacts the credit of both. For some, divorce may mean freedom from a spouse who continually destroys the parties’ credit, both individually and as a couple.
  • Reassessment of expenses, and post-divorce adjustments to lifestyle: Many couples live beyond their means, and the stress and hardship of doing so impacts the marriage and leads to divorce. Splitting the liabilities in some instances will reduce the stress on the spouses and may make the payment more manageable. Also, post-divorce, many reassess their lifestyle and make appropriate adjustments to live within their means. This would be a positive aspect of divorce on one’s credit.
  • More access to money to pay expenses: Divorce at times gives a less-monied spouse access to more money than they had during the viability of the marriage. This gives rise to freedom to conduct one’s financial affairs and can have a positive impact on one’s credit.

Posted by Elaine Colavito

From Government to Private Practice – The Other Side of the Table


For the past three years I had the honor of working at the New York City Law Department in their Family Court Division.  I was assigned to Bronx Family Court where I handled the investigation and prosecution of juvenile delinquency cases.  As I prepared to enter private practice, I wondered about how I would view the role of the prosecutor from the other side of the table, and how my training prepared me to become an effective civil litigator and criminal defense attorney.  I was eager to apply my skills to the wide array of matters handled in a general practice law firm.

In the Bronx, I was faced with a diverse set of cases. The majority of my work focused on assault, grand larceny, robbery, domestic violence, and sex related offenses.  These were very serious matters which involved important legal issues.  Some of the issues I encountered on a daily basis included whether a youth was properly stopped, searched, and arrested by law enforcement, and whether law enforcement properly recovered evidence or obtained a statement.  Moreover, I was charged with analyzing whether or not there was sufficient and credible evidence to prove a youth’s guilt beyond a reasonable doubt, and when necessary, strategize and prepare the case for fact-finding.  The disposition of these cases had a profound effect on the lives of the court involved youth, the victim, and the community at large.

While it was not uncommon for me to negotiate a plea bargain, a good portion of my cases proceeded to suppression hearings and trial.  I was responsible for preparing witnesses to testify on direct and cross examination and entering exhibits into evidence.  Witnesses in Family Court included uniformed and undercover police officers, victims and witnesses as young as five years old, family members of the accused and their victims, medical professionals, first responders, as well as non-party bystanders, many of whom wanted to be anywhere but inside a courtroom.  Evidentiary exhibits included surveillance videos, weapons, drugs, photos, and DNA evidence.  Ensuring the witnesses appearance was never a guarantee and preparing them for the intricacies of direct and cross-examination was never a routine process.  Success required thorough preparation and critical thinking about all of the issues surrounding the case.

The exposure to a diverse set of legal issues, evidence, and procedures have laid a solid foundation for approaching the complexities of civil litigation and criminal defense.  Whether it has been collaborating on a breach of contract appellate brief, persuasively drafting memoranda of law to the Court following trial, representing clients facing assault and DWI charges, or advising municipalities on the constitutionality of local laws, I have been able to confront varied and difficult matters while advocating for specific client objectives.  As I transition to private practice, I am excited to apply my skills and experience to best serve the unique needs of my clients.

Posted by Joshua Brookstein

Striking a Jury Demand in a Mechanic’s Lien Foreclosure Action


Mechanic’s lien foreclosure actions are regularly filed by general contractors seeking to simultaneously: (1) obtain equitable relief in the form of a foreclosure on a mechanic’s lien filed in connection with construction work performed on real property, and (2) obtain legal relief in the form of monetary damages for breach of contract and quantum meruit. Under such circumstances, in which a contractor pursues both equitable and legal relief within the same action, the contractor irrevocably waives its right to a jury trial on all of its claims. As the case law underscores, if a contractor seeks both equitable and legal relief within a mechanic’s lien foreclosure action, a demand for a trial by jury made in conjunction with filing a Note of Issue, is likely to be stricken by the court in favor of a bench trial on all claims.

Under New York law, “[i]t is well settled that by ‘deliberately joining legal and equitable causes of action arising out of the same transaction,’ a party waives its right to a trial by jury.” Haber v. Cohen, 25 Misc. 3d 1216(A) 906 (Sup. Ct., Kings Co. 2009) (quoting Mirasola v. Gilman, 104 A.D.2d 932 (2d Dep’t 1984)) aff’d, 74 A.D.3d 1282 (2d Dep’t 2010). Moreover, this well settled doctrine has been articulated within the specific context of a mechanic’s lien foreclosure action. See, e.g., Edward Joy Co. v. McGuire & Bennett, Inc., 221 A.D.2d 891, 892 (3d Dep’t 1995) (“[B]y joining [a] legal [cause of action for breach of contract] and [an] equitable cause of action [to foreclose on a mechanic’s lien] arising out of the same transaction [i.e., a construction project], plaintiff waived its right to a trial by jury.”).

Indeed, the Second Department has made clear that “[u]nder established principles, the joinder of claims for equitable and legal relief amounts to a waiver of the right to demand a jury trial.” Magill v. Dutchess Bank & Trust Co., 150 A.D.2d 531, 532 (2d Dep’t 1989); see also, e.g., Petra Cablevision Corp. v. Teleprompter Corp., 49 A.D.2d 888, 888 (2d Dep’t 1975) (“The joinder by plaintiff of legal and equitable claims constituted a waiver of its right to a trial by jury.”).

Accordingly, when confronted with circumstances in which a party joins claims for equitable and legal relief arising out of the same action, the Second Department has demonstrated a tendency to affirm a lower court’s decision to strike a jury demand. See, e.g., Anethesia Assocs. of Mount Kisco LLP v. N. Westchester Hosp. Ctr., 59 A.D.3d 481 (2d Dep’t 2009) (affirming striking of jury demand when the plaintiff joined claims for equitable and legal relief); Ayromylooi v. Staten Island Univ. Hosp., 7 A.D.3d 475 (2d Dep’t 2004) (same); Whipple v. Trail Props., Inc., 261 A.D.2d 470 (2d Dep’t 1999) (same). Similarly, the Second Department tends to reverse a lower court’s decision to deny a motion to strike a jury demand under such circumstances. See, e.g., Bryant v. Broadcast Music, Inc., 88 A.D.3d 631 (2d Dep’t 2011) (reversing denial of motion to strike jury demand when the plaintiff joined claims for equitable and legal relief); Yi v. Marcy Realty Co., 291 A.D.2d 368 (2d Dep’t 2002) (same); Tanenbaum v. Anchor Sav. Bank, 95 A.D.2d 827 (2d Dep’t 1983) (same).

Moreover, “[o]nce the right to a jury trial has been intentionally lost by joining legal and equitable claims, any subsequent dismissal, settlement or withdrawal of the equitable claim(s) will not revive the right to jury trial.” Bryant, 88 A.D.3d at 632 (quoting Anethesia Assocs. of Mount Kisco LLP, 59 A.D.3d at 482); see also, e.g., Whipple, 261 A.D.2d at 470 (“The subsequent amendment of the complaint to eliminate the equitable cause of action and demand for equitable relief did not revive that right [to a jury trial].”); Mirasola, 104 A.D.2d at 932 (“The subsequent removal of the equitable claims from the case through a partial settlement did not revive that right [to a jury trial].”); Sepinski v. Bergstol, 81 A.D.2d 860, 861 (2d Dep’t 1981) (“Plaintiffs who make an intentional choice to join equitable and legal causes based upon the same transaction cannot be relieved from their waiver of the right to a trial by jury.”).

In conclusion, a contractor prosecuting a mechanic’s lien foreclosure action in New York State Supreme Court seeking both equitable and legal claims irrevocably forfeits its right to a trial by jury, notwithstanding any subsequent dismissal, settlement or withdrawal of the equitable claims.

Accordingly, based upon the prevailing precedent in the Second Department, a court is likely to strike the contractor’s jury demand and order a bench trial on all claims.

For more information on the mechanic’s lien foreclosure process or to better understand your rights under New York State lien and construction law with regards to home improvement and/or commercial construction projects, please contact Adam H. Koblenz.

*The author acknowledges Steven Alizio, Jr., J.D. Candidate 2016, for his contribution to this article.

Posted by Adam H. Koblenz

Supreme Court Holds that States Must Recognize Lawful Same-Sex Marriages


In Obergefell v. Hodges, decided on June 26, 2015, 2015 WL 2473451, in a 5-4 decision, the United States Supreme Court held that states must recognize lawful same-sex marriages performed in other states. In rendering its decision, Justice Kennedy writing for the majority opinion reasoned that the fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choice central to individual dignity and autonomy, including intimate choices central to identifying personal identity and beliefs.  Further, the decision noted that the Court has long held that the right to marry is protected by the Constitution and that four principals and traditions demonstrate that the reasons a marriage is fundamental under the Constitution apply with equal force to same sex couples: (1) the right to personal choice regarding marriage is inherent in the concept of individual autonomy; (2) the right to marry  supports a two-person union unlike any other in its importance to the committed individuals; (3) the right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education; and (4) this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order.

Legal implications of marriage

Although same sex marriage has been legal in New York since 2011, the Supreme Court’s recent decision leads to an evaluation of the implications, for all couples alike.

When a person marries, it is typically a decision made out of love and affection for another individual (as it should be).  However, often not understood or considered are the legal implications of such a decision.  Marriage is a legal binding contract, which vests certain enforceable rights and responsibilities in spouses.  Typically, when spouses are at the point of understanding what rights and responsibilities they have.  It is often when they are divorcing when many spouses look back and wish they would have taken the time to understand the implications.

Like any contract one is considering, is important to understand the marriage contract.  To name a few implications of marriage, marriage impacts property rights. Marriage impacts support obligations.  Marriage impacts responsibility for debts. Marriage impacts parental rights. Marriage impacts health insurance.  Marriage impacts tax filing status.  Marriage impacts inheritance rights.  Marriage impacts immigration filings.  Marriage impacts who can make legal decisions for you.  Marriage impacts bankruptcy.

Matrimonial law is not a one-size fits all area, and each couples’ situation requires specific evaluation before entering into a marriage.  For an individual analysis and consultation, please contact us to discuss your specific matrimonial law needs.  Our matrimonial services include negotiating and drafting pre- and post-nuptial agreements, negotiating and drafting separation agreements for uncontested and contested divorces, handling divorce trials from inception through conclusion, counseling and advising clients in matters concerning separation and divorce, custody and visitation matters, spousal maintenance, child support and equitable distribution.

Posted by Elaine Colavito

Second Department Issues Ruling in Adverse Possession Case


Case: Wright v. Sokoloff, 110 A.D.3d 989 (2nd Dept., October 23, 2013)

In the recent decision of Wright v. Sokoloff, 110 A.D.3d 989 (2nd Dept., October 23, 2013), the Appellate Division, Second Department, clarified the appropriate reading of NY RPAPL § 543(1), which states that “[n]otwithstanding any other provision of this article, the existence of de [minimis] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse.” In reaching its holding, the Second Department explained that under RPAPL 543(1), non-structural encroachments, such as the ones provided in a non-exhaustive list in the statute, are permissive so long as they are de minimis, but upon a showing that such encroachments are not de minimis, those encroachments are adverse. 110 A.D.3d at 990-91.

In Wright v. Sokoloff, the plaintiff-petitioner owned property located at 237 Gin Lane in Southhampton. According to the plaintiff’s deed, the plaintiff was entitled to “a right of way for ingress and egress, and for all other purposes” over a 30-foot-wide strip of land running from Gin Lane to the plaintiff’s lot. Id. at 989. Part of this right of way was located on the defendant-respondent’s lot at 241 Gin Lane. In July 1999, the former owners of defendant’s lot planted an eight-foot-wide hedge on the portion of the right-of-way located on defendant’s lot. According to the plaintiff, he immediately objected and repeatedly requested that the former owner remove the hedge, which the owner refused to do. The defendants, who purchased the property in October 2006, also refused plaintiff’s requests to remove the hedge. Id. at 989.

Plaintiff commenced an action in July 2010 seeking to direct the defendants “to remove the hedges, tress, plantings, structures, and all impediments substantially and unreasonably interfering with [the plaintiff's] right of way.” The Supreme Court granted the defendants’ cross motion for summary judgment and dismissed the complaint (decision available here: WrightvSokoloff). Id. at 990.

On review, the Second Department reversed the lower court on the basis that the defendants failed to establish that the hedge did not in fact pose a substantial interference with the plaintiff’s right of way, nor did the defendants sufficiently prove that plaintiff’s action was time-barred by extinguishment of the right-of-way by means of adverse possession due to the language of RPAPL 543(1). Id. at 990. Under New York law, adverse possession occurs when there is actual, exclusive, hostile, open and notorious possession of property under claim of right for a continuous statutory period of at least ten years. See Estate of Becker v. Murtagh, 19 N.Y.3d 75, 80-81 (2012); NY RPAPL § 521. RPAPL 543(1), the Second Department explained, provides that the presence of a “de [minimis] non-structural encroachment” is permissive and, therefore, not adverse. Because the defendants failed to argue that the hedges were more than a de minimis non-structural encroachment, and therefore adverse, the Second Department found the plaintiff’s argument that the shrubs were permissive and non-adverse to be a triable issue of fact. See 110 A.D.3d at 990.

Despite recognizing the plaintiff’s argument of a triable issue of fact, the court rejected the plaintiff’s theory. According to the plaintiff, any of the non-structural encroachments provided in the statute’s non-exhaustive list are “de minimis non-structural encroachments” and, therefore, are inherently permissive regardless of size. Id. at 990. The Second Department, however, found that such an interpretation would render the use of “de minimis” superfluous. Presuming that all statute clauses serve a purpose, the Second Department rejected plaintiff’s interpretation and instead explained in dictum that in such cases in which RPAPL 543(1) is relevant, any of the non-structural encroachments at issue must be determined to be de minimis before being declared permissive. Id. at 991.

The author acknowledges Michael Barone, Jr., J.D. Candidate 2014, for his contribution to this article.

Posted by Adam H. Koblenz

Second Department Issues Ruling in Standing Case


Case: In the Matter of Riverhead Neighborhood Preservation Coalition, Inc., et al. v. Town of Riverhead Town Board, 112 A.D.3d 944 (2nd Dept., December 26, 2013)

In the recent decision of In the Matter of Riverhead Neighborhood Preservation Coalition, Inc., et al. v. Town of Riverhead Town Board, 112 A.D.3d 944 (2nd Dept., December 26, 2013), the Appellate Division, Second Department, reaffirmed the long standing legal principle that in order to possess proper standing to challenge a municipal land use decision, the petitioner must demonstrate that it has suffered injury in fact that is different than the injury allegedly sustained by the public community as a whole.

Standing is defined as “[a] party’s right to make a legal claim or seek judicial enforcement of a duty or right.” BLACK’S LAW DICTIONARY (9th ed. 2009). In order for a petitioner to establish standing, the party must “show that it would suffer direct injury different from that suffered by the public at large, and that the injury asserted falls within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted.” Riverhead PGC, LLC v. Town of Riverhead, 73 A.D.3d 931, 933 (2nd Dept. 2010), citing Society of Plastics Indus. V. County of Suffolk, 77 N.Y.2d 761, 773-74 (1991).

The decision in Riverhead Neighborhood Preservation Coalition resulted from the review of an Article 78 proceeding filed by the plaintiff-petitioners (a group of local residents and the Riverhead Neighborhood Preservation Coalition, Inc.) to contest the proposed construction of a regional shopping mall in Wading River. 112 A.D.3d at 944. According to the petitioners, the primary entrance to the mall was located across Sound Avenue from Fairway Drive, the only road leading to the petitioner’s cul-de-sac community just north of Sound Avenue. The petitioner’s homes on Fairway Drive were located anywhere from 1,300 to 2,000 feet away from the site of the proposed construction. After considering these facts, the Supreme Court of Suffolk County granted the defendant-respondent’s motion to dismiss on the basis that the petitioners lacked standing for failing to sufficiently establish an injury in fact different then the harm suffered by the general public (decision available here; RiverheadvNeighborhoodPresCoal). Id.

On review, the Second Department affirmed the decision after explaining that the Supreme Court was supported by substantial case law. The court started its analysis by setting forth the requirements for standing in land use matters: “ ‘ . . . the plaintiff[s] . . . must show that [they] would suffer direct harm, injury that is in some way different from that of the public at large.’ ” Id. (quoting Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 304 (2009), quoting Society of Plastics Indus., 77 N.Y.2d at 774 (1991)). Beyond the presence of the mall’s entrance across the street from Fairway Drive and the general proximity of the site, the petitioners had failed to assert any arguments to establish injury at all. Id. at 945.

According to the facts on record, the Second Department found that the petitioners had failed to establish anything more than a generalized complaint, noting in particular that Fairway Drive was also used for entrance and egress from a local golf course. Id. at 945. Furthermore, the court noted that none of the petitioners could actually see the mall or its entrance from their home, nor were they within close enough proximity to the project, therefore, denying petitioners a presumption of injury in fact. Id.; see Matter of Harris v. Town Bd. of Town of Riverhead, 73 A.D.3d 922, 924 (2nd Dept. 2010) (“The individual petitioners do not live close enough to the site to be afforded any presumption of injury-in-fact on the basis of proximity alone.”); see Matter of Oates v. Village of Watkins Glen, 290 A.D.2d 758, 761 (3rd Dept. 2002) (“The test is whether the neighbor is close enough to suffer some harm other than that experienced by the public generally . . . ”); c.f. Matter of Barret v. Dutchess County Legislature, 38 A.D.3d 651, 654 (2nd Dept. 2007) (standing established where petitioner’s property directly abutted the planned site and the petitioners had a direct view of the planned construction from 1,200 feet). The lack of standing for the individual petitioners, as determined by the court, was, therefore, fatal to the Riverhead Neighborhood Preservation Coalition. 112 A.D.3d at 945; see Society of Plastics Indus., 77 N.Y.2d at 775.

The author acknowledges Michael Barone, Jr., J.D. Candidate 2014, for his contribution to this article.

Posted by Adam H. Koblenz

Federal Judge in NY Upholds NSA’s Bulk Collection of Data on Calls


Case: ACLU, et al. v. Clapper, et al., 2013 WL 6819708 (S.D.N.Y. December 27, 2013)

The public discord over the reasonable expectation of privacy in the modern data era continues to gain momentum with the issue now infiltrating the federal court system. Developments and emerging trends in the expansion of constitutional rights under the Fourth Amendment can be seen in recent federal court decisions highlighted below.

For instance, the issue concerning the constitutionality of the National Security Agency’s (hereinafter “NSA”) collection of millions of Americans’ telephone records fell directly into the courts in the case of American Civil Liberties Union, et al. v. James R. Clapper, et al., No. 13 Civ. 3994, 2013 WL 6819708 (S.D.N.Y. Dec. 27, 2013), where U.S. District Judge William H. Pauley III in New York ruled on December 27, 2013 that not only is the NSA’s program statutorily legal, but that it does not place an unconstitutional burden on individual First and Fourth Amendment rights (decision available here: ACLUvClapper).

In reaching this historic decision, Judge Pauley reasoned in dicta that the mass collection of phone data “significantly increases the NSA’s capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations. Armed with all the metadata, NSA can draw connections it might otherwise never be able to find.” 2013 WL 6819708, at *18. Judge Pauley added: “As the September 11th attacks demonstrate, the cost of missing such a threat can be horrific.” Judge Pauley concluded the program was a necessary extension of steps taken after the September 11th terrorist attacks. Id. at *27. These policies, as permitted by Section 215 of the PATRIOT Act, allow for the collection of “telephony metadata,” so long as the Executive first gets the judicial approval of the FISC and provides semi-annual reports to various congressional committees. Id. at *3; see 50 U.S.C. §§ 1861, 1871.

According to the relevant NSA documents and statutes, the “[t]elephony metadata” collected through the surveillance program as information for each call includes the involved telephone numbers, date, time, duration, and other limited information such as international mobile identifying numbers and calling card numbers. The Judge further explained that information such as conversation content, and typical identifying information such as names, addresses, cell location, or financial information about the individuals involved in the conversation is not collected. 2013 WL 6819708, at *4.

Ultimately, Judge Pauley held that, in accordance with Supreme Court precedent, such a program does not violate the Fourth Amendment freedom from unreasonable search and seizure because individuals have no legitimate expectation of privacy regarding the numbers that they dial due to the fact that the user knowingly provided the information to the phone company. Id. at *22 (referencing Smith v. Maryland, 442 U.S. 735 (1979)). In Smith v. Maryland, the United States Supreme Court held, inter alia, that:

The fortuity of whether or not the [tele]phone company in fact elects to make a quasi-permanent record of a particular number dialed does not . . . make any constitutional difference. Regardless of the [tele]phone company’s election, petitioner voluntarily conveyed to it information that it had facilities for recording and that it was free to record. Smith, 442 U.S. at 745.

Although the Smith decision is nearly 35 years old and some courts have been keen to claim that telecommunication relationships have changed (see Klayman v. Obama, No. 13-0851, 2013 WL 6571596, at *21 (D.D.C. December 16, 2013)), Judge Pauley held that while that may be the case, the fact of the matter remains that the relationship between the telephone user and the telephone company has not, therefore, the telephone user today has no more legitimate of an expectation of privacy regarding the aforementioned collected information than he or she had in 1979. 2013 WL 6819708, at *22.

Judge Pauley similarly held that the program does not violate the First Amendment right to associate. In deciding as much, the Judge referred to the recent Supreme Court decision of Clapper v. Amnesty International USA. 133 S.Ct. 1138 (2013). According to Judge Pauley, the Amnesty International decision “compels the conclusion that the bulk metadata collection does not burden First Amendment rights substantially.” 2013 WL 6819708, at *24 (citing 133 S.Ct. at 1152). Following Second Circuit precedent, Judge Pauley held that because the NSA metadata collection is not substantial and because “ ‘mere incidental burdens on the right to associate do not violate the first amendment,’ ” the collection of metadata is accordingly, not a violation of the First Amendment. Id. at *24 (quoting Tabbaa v. Chertoff, 509 F.3d 89, at 101 (2nd Cir. 2007).

The ruling by Judge Pauley and the disparate view held by U.S. District Judge Richard Leon in Washington, D.C. in a recent decision centering on similar privacy issues, creates a platform for federal appeals courts to consider the delicate balance between individual rights set out in the Constitution and the need to protect national security.

Indeed, the emergence of immeasurably diverse opinions by the federal bench on the reasonable expectation by Americans of privacy presents a myriad of issues and potential legal challenges, not only as it relates to the NSA’s program, but also the reach of the Fourth Amendment. Both cases now advance to federal appeals courts and a debate some intimate will eventually be settled by the U.S. Supreme Court.

The author acknowledges Michael Barone, Jr., J.D. Candidate 2014, for his contribution to this article.

Posted by Adam H. Koblenz