ATTORNEY MISCONDUCT

A recent consultation revealed that an attorney engaged in misconduct which resulted in damages to the client. A recent litigation revealed that an attorney did not carry malpractice insurance and as a result of poor office practices, may have damaged the client's litigation. This statement is not meant to justify misconduct but I merely point out that the recession has truly hit the legal profession and some attorneys are driven to actions that they would not normally take. Even in good economic times, drugs, alcohol, divorce, depression, etc. can lead an attorney to take actions which may or may not rise to the level of misconduct. And then, there are just attorneys who, for whatever innocent or non-innocent reason, engage in misconduct. When faced with this situation and while you are contemplating what legal steps you can take to undo the damage, consider this from the Nassau County Bar Association:

"State of New York Grievance Committee - This is the official body charged with assuring that lawyers adhere to the ethics of the profession as set forth in the Code of Professional Responsibility. The Grievance Committee receives and investigates complaints and may take formal disciplinary action.

For further information, contact:
The Grievance Committee
for the Tenth Judicial District
150 Motor Parkway, Suite 102
Hauppauge, NY 11788
(631) 231-3775

New York Lawyers' Fund For Client Protection - The New York Lawyers' Fund was created by New York State Legislation to protect legal consumers from dishonest conduct in the practice of law. If your money has been misappropriated in the practice of law, you may be eligible for reimbursement from the Lawyers' Fund.

For further information, contact:
The New York Lawyers' Fund
119 Washington Avenue Albany
New York 12210
(518) 434-1935 (800) 442fund."

DOMESTIC VIOLENCE

As the Tiger Woods incident begins to unfold, it is good to remind ourselves that domestic violence, also known as domestic abuse, spousal abuse, child abuse, elder abuse or intimate partner violence (IPV), can be broadly defined a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, friends or cohabitation. Domestic violence has many forms including physical aggression (hitting, kicking, biting, shoving, restraining, throwing objects), or threats thereof; sexual abuse; emotional abuse; controlling or domineering; intimidation; stalking; passive/covert abuse (e.g., neglect); and economic deprivation. Popular emphasis has tended to be on women as the victims of domestic violence. Many studies show that women suffer greater rates of injury due to domestic violence, and some studies show that women suffer higher rates of assault. Yet, other statistics show that while men tend to inflict injury at higher rates, the majority of domestic violence overall is reciprocal. If you are afraid for your safety or have been beaten by your partner: Dial 911 or call the National Domestic Violence Hotline at 1-800-787-3224. You may or may not need an attorney and many domestic violence organizations have pro bono services available.

CLIENT RESPONSIBILITIES

Sometimes, as a lawyer, it is the client who does not get back to you on time, who does not return calls, or does so at 11pm, etc., etc., the list is endless and can be the subject of a book. These type of actions, although understandable, make representation harder. This is an informational statement adopted by the NY State Bar Association"

Reciprocal trust, courtesy and respect are the hallmarks of the attorney-client relationship. Within that relationship, the client looks to the attorney for expertise, education, sound judgment, protection, advocacy and representation. These expectations can be achieved only if the client fulfills the following responsibilities:

The client is expected to treat the lawyer and the lawyer's staff with courtesy and consideration.

The client's relationship with the lawyer must be one of complete candor and the lawyer must be apprised of all facts or circumstances of the matter being handled by the lawyer even if the client believes that those facts may be detrimental to the client's cause or unflattering to the client.

The client must honor the fee arrangement as agreed to with the lawyer, in accordance with law.

All bills for services rendered which are tendered to the client pursuant to the agreed upon fee arrangement should be paid promptly.

The client may withdraw from the attorney-client relationship, subject to financial commitments under the agreed to fee arrangement, and, in certain circumstances, subject to court approval.

Although the client should expect that his or her correspondence, telephone calls and other communications will be answered within a reasonable time frame, the client should recognize that the lawyer has other clients equally demanding of the lawyer's time and attention.

The client should maintain contact with the lawyer, promptly notify the lawyer of any change in telephone number or address and respond promptly to a request by the lawyer for information and cooperation.

The client must realize that the lawyer need respect only legitimate objectives of the client and that the lawyer will not advocate or propose positions which are unprofessional or contrary to law or the Lawyer's Code of Professional Responsibility.

The lawyer may be unable to accept a case if the lawyer has previous professional commitments which will result in inadequate time being available for the proper representation of a new client.

A lawyer is under no obligation to accept a client if the lawyer determines that the cause of the client is without merit, a conflict of interest would exist or that a suitable working relationship with the client is not likely.

CLIENT'S RIGHTS

A recent consultation revealed that a claimant was denied unemployment insurance benefits after a hearing. The claimant claimed inadequately representation by a pro bono law organization who only spent 5 minutes of consultation with claimant prior to the hearing. My advice when faced with such a problem, fire the lawyer and seek an adjournment to get better representation, even if that means representing yourself. Being represented by an unprepared attorney can be, at times, no better than no representation. Even when represented by a pro bono organization, legal aid, etc., a client has rights. So let me repeat them here:

Section 1210.1 of the Joint Rules of the Appellate Division (22NYCRR§1210.1)

You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and personnel in your lawyer's office.

You are entitled to an attorney capable of handling your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to withdraw from the attorney-client relationship at any time (court approval may be required in some matters and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge).

You are entitled to your lawyer's independent professional judgment and undivided loyalty uncompromised by conflicts of interest.

You are entitled to be charged a reasonable fee and to have your lawyer explain at the outset how the fee will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill from your attorney at reasonable intervals. You may refuse to enter into any fee arrangement that you find unsatisfactory. In the event of a fee dispute, you may have the right to seek arbitration; your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon your request.

You are entitled to have your questions and concerns addressed in a prompt manner and to have your telephone calls returned promptly.

You are entitled to be kept informed as to the status of your matter and to request and receive copies of papers. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter.

You are entitled to have your legitimate objectives respected by your attorney, including whether or not to settle your matter (court approval of a settlement is required in some matters).

You have the right to privacy in your dealings with your lawyer and to have your secrets and confidences preserved to the extent permitted by law.

You are entitled to have your attorney conduct himself or herself ethically in accordance with the Code of Professional Responsibility.

You may not be refused representation on the basis of race, creed, color, religion, sex, sexual orientation, age, national origin or disability.

SELF HELP?

Well, we usually suggest that you consult with a lawyer and eventually retain one (we do come in handy once in a blue moon) but before you do, arm yourself with some knowledge. Click on the title and it will send you to Nolo.com which has a wealth of legal articles, etc. Can you represent yourself without a lawyer? Yes! By now, I'm sure many of you have heard of the Suffolk County case in which earlier this week, a lender's "unconscionable, vexatious and opprobrious" conduct in attempting to foreclose on a Long Island home prompted a state judge to cancel the mortgage on the property, and the homeowners defended the action pro se...without an attorney. Happy Thanksgiving!

LANDLORD/TENANT MATTERS IN NASSAU COUNTY

As a follow up to yesterday's blog, I want to thank some of the attorneys who have discovered the following cases and law:

Paragraph 5 (e) of the HUD Tenancy Addendum (available at http://www.hud.gov/offices/adm/hudclips/forms/files/52641-a.pdf ) provides:

"The owner may not charge or accept, from the family or from any other source, any payment for rent of the unit in addition to the rent to owner..Rent to owner includes all housing services, maintenance, utilities and appliances to be provided and paid by the owner in accordance with the lease."

Does this supersede provisions in the lease that permit the landlord to collect late fees or legal fees from the tenant? One helpful case from the Second Department is Spring Valley Homes Assoc. v Logan, 2003 NY Slip Op. 51224(U), *3-4, 2003 WL 22038359 (App Term, 9th & 10th Jud Dists 2003), citing 42 USC 1427f (a) (1). In that case, the Appellate Term held that "[e]ven where there is an agreement between the parties providing for the recovery of attorney's fees as 'additional rent', a landlord is not, under the statutory scheme, entitled to collect same from a Section 8 tenant in a summary proceeding."

The Nassau County District Court already decided Douglas v Nole, 20 Misc 3d 1119(A), 2008 NY Slip Op 51394(U) (Nassau Dist Ct 2008), published online at
http://www.nycourts.gov/reporter/3dseries/2008/2008_51394.htm, in which the court held:

"Finally, in her petition, the Petitioner requests reimbursement for legal fees as "additional rent." However, this Court finds that approval of attorney fees is improper. According to Community Properties v. McCloud, 2003 NY Slip Op 51088(U)[App Term, 9th & 10th Jud Dists], supra);"[A] landlord may not collect costs, penalties and other non-rent items as "added rent" from a Section 8 benefits recipient unless specifically provided in the Section 8 lease" (citing Matter of Binghamton Hous. Auth. v. Douglas, 217 AD2d 897, 898 [NY App Div 3rd Dept 1995]; Porter v. Chester Hous. Auth. v. Turner, 189 Misc 2d 603, 604 [NY App Term 2nd Dept 2001].)"

But note that Spring Valley Homes Assoc. v Logan, decided a month after Community Props. v McCloud by a panel including two of the three judges in the earlier case, went further by disallowing any recovery of attorney's fees in a summary proceeding, regardless of what the lease provides, citing the Section 8 statute. As you are aware, many Section 8 housing recipients are single/divorced/separated mothers who cannot make ends meet. Thus, a ruling that any Section 8 housing, whether a project or voucher program, cannot have a lease which provides for late charges or legal fees will be extremely helpful in attempts to resolve their rent issues.

LANDLORD/TENANT MATTERS IN NASSAU COUNTY

In this blog, I am asking lawyers and others familiar with Landlord/Tenant law in New York for help. Yesterday, in Nassau County Landlord/Tenant court I was faced with the issue of whether a landlord is entitled to collect legal fees and late charges for a non-payment in a rental which is paid both by Section 8 and the Department of Social Services. It appears that in NJ, the issue has been addressed at least with respect to legal fees and late charges with Section 8 housing but not tenant voucher rent. Here is a posting at the AccessEvictions.com web site:

"In an important decision the New Jersey Court of Appeals held that landlords and their attorneys violated the Fair Debt Collections Practices Act (FDCPA) by demanding in eviction pleadings more rent than allowed under both state and federal law.[1]

The lease in question defined late fees and other charges as additional rent. The court held both the landlord and its attorney violated both state and federal law by demanding an amount that included the additional amounts as rent.

The case is important because it has implication for landlords in every American jurisdiction, not just New Jersey. Several courts have held that attorneys who regularly perform evictions for landlords are debt collectors for the purposes of the FDCPA.[2] And although evictions are brought through state law processes, the Section 8 program is governed by federal law. [3]

Under New Jersey landlord-tenant law the tenant may avoid eviction by paying the actual rent due and owing, regardless of any outstanding non-rent or extraneous charges. [4]

Also, the court held that federal law defines “rent” for project based section 8 housing in such as way that these items are not included as rent irrespective of the terms of a lease defining them as additional rent.[5]

Plaintiffs’ leases expressly provide that in addition to the monthly rental rate, tenants are obligated to pay at least three forms of “additional rent”: late fees, court costs, and attorneys’ fees incurred by Sasil. Because the apartments are subsidized by HUD, plaintiffs’ legal “rent” obligation is strictly defined by federal statute and regulations as thirty percent of their “adjusted” monthly household income.[6]

Landlords of project based Section 8 tenants and their attorneys should be wary of this holding and very careful how much rent is demanded in eviction pleadings.

By Scott Eller

Further reading:

After ‘Romea’ Attorney Compliance With FDCPA in Landlord/Tenant Cases, Arthur Gussaroff and Allison Hertog, New York Law Journal April 29, 1998.
Landlord’s Beware: Fair Debt Collection Practices Act Applies to Eviction Actions, Posted on April 30, 2007 by Thomas S. Onder.

--------------------------------------------------------------------------------
[1] Hodges v. Feinstein, Raiss, Kelin & Booker, LLC, 893 A.2d 21, 383 N.J.Super. 596

(N.J.Super.App.Div. 03/08/2006).

[2] See, for example, Romea v. Heiberger & Associates, 163 F.3rd 111 (2nd Cir.1998); Hairston v. Whitehorn & Delman, 97 Civ. 3015 (1998).

[3] See 42 U.S.C.A. § 1437a; (a)(1); 42 U.S.C.A. § 1437f; 24 C.F.R. 5.601; 24 C.F.R. 982.310; 24 C.F.R. 247.4.

[4] The court cited N.J.S.A. 2A:42-9.

[5] The court cited 42 U.S.C.A. § 1437a(a)(1); 24 C.F.R. 5.601(2006). Note that this authority does not apply to the tenant-based voucher program. See U.S.C.A. § 1437a(a)(1); 42 U.S.C.A. § 1437f(7); 4 C.F.R. 247.1. It is thus unclear whether the holding in Hodges would be different in case with similar facts involving the tenant-based voucher program, rather than the project based program.

[6] Hodges, 2007.NJ.0000059< http://www.versuslaw.com> at 2."

LANDLORD/TENANT MATTERS IN NASSAU COUNTY

Today I will be in Nassau County Landlord and Tenant Court as part of the Landlord/Tenant Project's Attorney of the Day Program, which assists thousands of men, women and children in court to prevent homelessness. To take advantage of this program, and assuming you meet income eligibility standards, when you appear on the return date of your summary proceeding, wait for the calendar call, and then when your name is called, advise the clerk you are requesting a lawyer. The clerk will send you to a room, where information will be taken regarding your income, etc., and if you are eligible, an attorney will represent you.

MORTGAGE FORCLOSURE - DEC. 15

FREE Mortgage Foreclosure Legal Consultation Clinics on December 15 - Nassau residents caught in the growing mortgage foreclosure crisis can have their questions answered by attorneys at a free clinic sponsored by the Nassau County Bar Association at the NCBA headquarters, 15th and West Streets, Mineola, NY. Attorneys have volunteered to provide one-on-one guidance, advice and direction to any Nassau County homeowner who is concerned about foreclosure matters or is already in the foreclosure process involving property in Nassau County. Attorneys have volunteered to review individual foreclosure issues with Nassau homeowners, help them sort things out, and give advice or refer them to agencies and programs, right in the same room, that may be able to help. This is not legal representation. The attorneys will help the homeowner find out if indeed, they need a credit counselor or a lawyer, and get them in touch with available resources. In addition to meeting one-on-one with a volunteer attorney, housing counselors from the Nassau County Homeownership Center and representatives from Nassau/Suffolk Law Services -- which provides free legal services for those who meet certain income guidelines -- will be on hand to provide assistance. Reservations are required by calling the Bar Association at 516-747-4070 between 9:30 a.m. - 4:30 p.m. All clinics 4-6 p.m. I will be one of the volunteer attorneys.

ELDER ABUSE

Another matter I faced when I was a volunteer attorney this week at the Nassau County Bar Association Senior Clinic was a problem of elder abuse. There are many forms of Elder Abuse: physical, emotional, financial, etc. Click on the title above: it will lead you to The National Center on Elder Abuse (NCEA), directed by the U.S. Administration on Aging, which is committed to helping national, state, and local partners in the field be fully prepared to ensure that older Americans will live with dignity, integrity, independence, and without abuse, neglect, and exploitation. The NCEA is a resource for policy makers, social service and health care practitioners, the justice system, researchers, advocates, and families.

DEALING WITH UNLICENSED CONTRACTORS

Yesterday, I was a volunteer attorney giving free 30-minute private consultations to Nassau County residents 65 years of age and over at the Nassau County Bar Association, 15th and West Streets, Mineola, NY. And one matter that came to me was a couple who contracted with an unlicensed contractor for the installation of some major equipment in their home. Although the warnings about dealing with unlicensed contractors have been many, still the attraction of low prices capture many into the trap. And usually, the work performed is substandard, not completed, unsafe, etc. The likelihood of suing for damages and collecting on a judgment is minimal: these contractors usually have no assets in their name, operate through shell corporations, etc. So again - DON'T DEAL WITH UNLICENSED CONTRACTORS. AND ASK LICENSED CONTRACTOR FOR A COPY OF THEIR INSURANCE BINDER AND THEN CALL THE INSURANCE COMPANY TO SEE IF IT IS STILL VALID. By clicking on the title above, the link will send you to a site on the NYC Department of Consumer Affairs website which explains what to do when you have dealt with unlicensed contractors and what to look for when you are seeking home improvement work.

UNEMPLOYMENT INSURANCE - HEARINGS

This is another post I recently made to the NYS Department of Labor Facebook page and is just a reminder to all:

"Hello: Just another suggestion as I am an attorney representing claimants in hearings in Nassau County: if there is a dispute regarding your benefits, and you receive a questionnaire from the Department of Labor, please retain a copy of it with your answers, or if questions are asked over the phone, please take notes. For hearings, it is best to know what you stated to the Department of Labor and avoid inconsistent statements."

And may I add, if possible, go the hearing office as soon as you get your hearing date and try to obtain a copy of the papers that your employer submitted to the Department of Labor. These papers can clarify the issue for your attorney and can also be used for you, i.e., on issues of credibility if there are inconsistent statements, etc.

UNEMPLOYMENT INSURANCE - HEARINGS

This is a post I recently made to the NYS Department of Labor Facebook page and is just a reminder to all:

"Hello: I am an attorney and I represent many claimants in hearings in Nassau County. I would just like to let claimants know that, in my opinion: (1) if you request a hearing regarding a denial or benefits, or (2) if your employer requests a hearing regarding the granting of benefits, and if you want someone to represent you at the hearing, I feel it is best to contact the attorney early and not just a few days before the hearing date. Personally, I like to prepare my cases, review the file, meet with you, research the law, etc....and for me, I cannot do that on 2 days notice. Also, at times, you should consult an attorney while you are still employed and are having issues with your employment. It may help you later when your right to benefits is being disputed. I am posting this because lately, I have received many calls to the effect: "I have a hearing tomorrow - can you represent me?""

UNEMPLOYMENT INSURANCE - SELF EMPLOYED

A recent consultation revealed the following: Claimant ran a business on weekends as well as being full time employed on weekdays. The weekend business had income of over $10,000 and was operated as a corporation. Claimant's weekday job was terminated and Claimant applied for benefits but was denied on the grounds that Claimant was self-employed. This is from the Department of Labor website:

"The unemployment Insurance Law provides in Section 591 that benefits "shall be paid only to a claimant who is totally unemployed." Section 522 of the law defines total unemployment as "the total lack of employment on any day" and specifies that such employment includes "that not defined" in the Unemployment Insurance Law. This last mentioned specification has been interpreted by the Courts to mean that a self-employed claimant is not totally unemployed within the meaning of Section 522 of the law. This principle has been established by the Court in Matter of Emery (A-750-1207) and reiterated in Matter of Bunzl (A-750-1404). Following these Court decisions, it has been applied in rendering benefit determinations and in Appeal Board and Referee decisions. Thus, for the purposes of determining whether a claimant is totally unemployed, but for this purpose only, self-employment has the same significance as employment (as an employee) under a contract of hire. Neither these Court decisions nor the law define what is meant by "self- employment." Does it include any gainful work which an individual performs while not in an employer-employee relationship, however casual and sporadic such activity might be, including one-time undertakings, or however minute the effort and time which he devotes to it? Or does it require that the characteristics be present which commonly identify the existence of a going business, such as a physical establishment, continuous operations, sustained solicitation of customers, etc.? Is it necessary that a person, to be "self-employed" in this sense performs work in connection with the business or does it suffice that he is an owner or co-owner?"

LANDLORD/TENANT MATTERS IN NASSAU COUNTY

Click above title to see the recent decision I was successful on in Nassau County Landlord/Tenant court. Two interesting aspects: 1. I did this pro bono but did not appear on record (but the papers did disclose that I was involved in the preparation of them); and 2. This is the decision I discussed in my earlier blogs regarding the importance of making stipulations clear and unambiguous - even though both sides and their lawyers are in a rush, a stipulation is a contract and is interpreted by the courts as such.

SMALL BUSINESSES - LIABILITY INSURANCE

While I am on the subject of small businesses, I have recently been having discussions with small business owners and others as to whether or not they should carry liability insurance. I know it is an expense and it can be considerable. Even with attorneys in practice, there are some attorney who, for reasons of cost or whatever, do not carry malpractice insurance (although we do have the New York State Lawyers' Fund for Client Protection, still that doesn't protect all clients' from the misconduct of attorneys). But all small businesses, professional services or otherwise, should carry liability insurances and some types of businesses are required under law or contract to carry such insurance. As a lawyer, I would not advise anyone to contract with anyone for services who was uninsured and would ask that my client, in any contract for services, be named as an additional insured and received a binder. Dealing with the uninsured is not recommended by me. Moreover, although you may be incorporated, etc. and feel your personal assets are protected, usually an attorney will name the business owner or owners individually as a defendant in the action and thus you are open to potential liability, especially if the plaintiff is able to "pierce the corporate veil", viz., that, inter alia, the corporation was used not just as a business but for personal expenses, etc.

MECHANIC'S LIEN - A NOTE TO CONTRACTORS AND OTHER SMALL BUSINESS OWNERS

A recent consultation revealed that a licensed contractor had not been paid for work performed on a residential home over two years ago. Contractors and residential owners should be aware of the New York Lien Law:

"New York law permits "A contractor, subcontractor, laborer, materialman, landscape gardener, nurseryman or person or corporation selling fruit or ornamental trees, roses, shrubbery, vines and small fruits, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or subcontractor, and any trust fund to which benefits and wage supplements are due or payable for the benefit of such laborers, shall have a lien for the principal and interest, of the value, or the agreed price, of such labor, including benefits and wage supplements due or payable for the benefit of any laborer, or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien..." N.Y. Lien Law §3. "Notice of lien may be filed at anytime during the progress of the work and the furnishing of the materials, or, within eight months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished; provided, however, that where the improvement is related to real property improved or to be improved with a single family dwelling, the notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or, within four months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished. N.Y. Lien Law §10. Within five days before or thirty days after filing the notice of lien, the lienor shall serve a copy of such notice upon the owner, if a natural person, (a) by delivering the same to him personally, or if the owner cannot be found, to his agent or attorney, or (b) by leaving it at his last known place of residence in the city or town in which the real property or some part thereof is situated, with a person of suitable age and discretion, or (c) by registered or certified mail addressed to his last known place of residence, or (d) if such owner has no such residence in such city or town, or cannot be found, and he has no agent or attorney, by affixing a copy thereof conspicuously on such property, between the hours of nine o'clock in the forenoon and four o'clock in the afternoon; if the owner be a corporation, said service shall be made (i) by delivering such copy to and leaving the same with the president, vice-president, secretary or clerk to the corporation, the cashier, treasurer or a director or managing agent thereof, personally, within the state, or (ii) if such officer cannot be found within the state by affixing a copy thereof conspicuously on such property between the hours of nine o'clock in the forenoon and four o'clock in the afternoon, or (iii) by registered or certified mail addressed to its last known place of business. Failure to file proof of such a service with the county clerk within thirty-five days after the notice of lien is filed shall terminate the notice as a lien." N.Y. Lien Law §10. Any lien created under New York law shall be a lien for a period longer than one year after the notice of lien has been filed, unless within that time an action is commenced to foreclose the lien, ...." or the appropriate steps are taken to request that the court grant an extension. N.Y. Lien Law §17."

Unfortunately for the contractor and fortunately for the home owner, in the matter before me, the contractor never filed a lien. The residential owner refinanced a new mortgage after the work was completed (which would not have been possible if a lien was filed and foreclosed on). Now the contractor can only sue the owner for the monies due and, if successful, will be a judgment creditor but, to enforce the judgment against the house, upon a sale, can only be paid after the mortgage holder. The construction contract also had no provision for late charges or collection of attorney fees. I point this out as a reminder to small business owners: CONSULT AN ATTORNEY ON MAJOR JOBS AND DON'T DRAFT YOUR OWN CONTRACTS!

LANDLORD/TENANT MATTERS IN NASSAU COUNTY

Yesterday, I received a favorable decision in a matter for a tenant which I wrote about on Sunday, October 4, 2009, where I gave a word of caution regarding stipulations, viz., make sure it is written up carefully and that you, either the landlord or the tenant, and their counsel, make the terms clear to everyone. In this matter, the Tenant could not make rental payments due to job loss. Landlord instituted a non-payment action. A stipulation was entered into. The stipulation provided that the back rent due would be reduced to X dollars and provided that Tenant would move out by a certain date. Tenant paid the X dollars on time but did not move out until 30 days later. Landlord then sought by motion for a judgment in the amount of the original rent due, which was thousands of dollars more than X dollars. I argued that the stipulation did not specifically provide that the original rent would be due if the Tenant did not move out by the certain date. The landlord argued that the provision was implied in the stipulation. The court agreed with the Tenant. If the Landlord wanted to penalize the Tenant for not moving out by the certain date, the stipulation should have specifically stated so. Again, look at my blog for October 4, 2009 for the legal reasoning.

UNEMPLOYMENT INSURANCE - APPEALS

Here's an interesting matter: your employment was terminated in August 2008. You applied for and were denied benefits. You seek a hearing, which takes several days and is finally concluded in April 2009. You win at the hearing, the administrative law judge rules in your favor, and you are receiving benefits. Is it all over? No. Employer appeals. Today I have a hearing with the Troy office, not on the merits of the appeal, but on whether the Employer timely filed a notice to request an appeal. This limited issue, not even dealing with the merits of the Employer's appeal, has been before the Appeals Board for over 5 months. So it is now November 2009, and we are still litigating over benefits which were to begin over 14 months ago. Why do I bring this up? To let you know that the process is not immediate, the wheels of justice grind slowly, and even if you are granted benefits, you may find yourself in litigation lasting a long time. These are the times and it is what it is.

UNEMPLOYMENT INSURANCE - QUIT OR BE FIRED

A recent blog (November 5) discussed this issue in part but a consultation recently actually brought it up in terms of receiving benefits. Claimant quit believing it was in Claimant's best interests to quit rather than possibly being fired for poor job performance and have the firing on Claimant's record. Thus, Claimant was not fired but quit, thinking it was best for Claimant's career in the long run. Also, Claimant was unhappy with Employer due to Employer's constant complaining of poor job performance, which Claimant denied. After applying for unemployment insurance benefits, Claimant was denied due to voluntary separation without good cause. But for purposes of unemployment benefits, perhaps Claimant would have been better off getting fired for poor job performance. Without going into specifics, Claimant may have a difficult case establishing good cause for voluntary separation.

UNEMPLOYMENT INSURANCE BENEFITS - WILLFUL MISREPRESENTATIONS

Another issue I consulted on recently: it is so important when certifying each week to disclose any form of employment, whether full time, part time, volunteer, non-paying, etc. - otherwise, you might be penalized for willful misrepresentations. This is from the FAQ of the Department of Labor:

"Q: What if I work part-time?

A: If you work less than four days and earn $405 or less in a week, you may receive partial benefits. You are considered employed on any day when you perform any services - even an hour or less - regardless of whether you get paid for that day. Each day or partial day of work will reduce your benefit rate by one-quarter. If you are unable to work, your benefits are determined on the same basis. Receiving partial benefits extends the length of time you may collect benefits until you reach the maximum or your benefit year ends, whichever comes first. If you earn over $405 in any week, regardless of the number of days worked, no benefits can be paid for that week.

Each day or part of a day of work will result in a payment of a partial benefit as follows:

1 day of work = 3/4 of your full rate

2 days of work = 1/2 of your full rate

3 days of work = 1/4 of your full rate

4 days of work = No benefits due


If you work while receiving benefits and do not report that employment, even if it is part-time work, you may be committing fraud. You must report all full-time and part-time employment to the Labor Department or you risk criminal penalties.


Q: What if I do volunteer work?

A: In certain instances, you may collect unemployment benefits while you do volunteer work provided you meet all of the following criteria:

The volunteer work is for a charitable, religious or cultural organization;
And, you do not receive payment in any form for your volunteer work;
For example, if you “volunteer” at a school in exchange for tuition abatement or scholarship, this work would not be considered to be true volunteer work, and would affect your eligibility for unemployment benefits.

And, the volunteer work is not a precondition to being hired or rehired into a paid position;
For example, if you volunteer while on a lay-off from a social services agency that is between budgets or grants, this work would not be considered to be true volunteer work, and would affect your eligibility for unemployment benefits.

And, your volunteer duties do not interfere with your ability to search for work, and do not affect or limit the number of days and hours you are willing to work."

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Another recent consultation involved Claimant being discharged under state law due to an arrest. Unemployment benefits were immediately applied for by Claimant but denied for misconduct. However, the criminal matter was not yet resolved. How to handle this? You must first resolve the criminal matter before your hearing before an administrative law judge. Of course, you should timely request a hearing but adjourn the hearing until the criminal matter is resolved. If the criminal matter is resolved in your favor, there is a strong chance that a subsequent administrative law hearing on benefits will also be in your favor. If the criminal matter is not resolved in your favor, then the hearing must address the issue of criminal acts and misconduct. If you have an attorney for your unemployment insurance hearing, make sure the attorney consults with your attorney who represented you in the criminal matter.

DOMESTIC VIOLENCE

From The Empire Justice Center web site:

"Despite the well-publicized legislative challenges of last summer, a great many bills addressing domestic violence and other issues of interest or concern to families were, ultimately, enacted. The summaries below include much of the new legislation that was passed by the New York legislature and signed into law by Governor Paterson last session:

1.Employment Discrimination [A.755-A/ S.958-B]: Adds status as a “victim of domestic violence or stalking” to the existing classes of person against whom employment discrimination is prohibited under New York’s Human Rights Law in Executive Law §§296, 292. Of note, under the Governor’s Omnibus DV Program Bill (below), the Division of Human Rights staff will now receive training in order to facilitate implementation of this new anti-discrimination law. This new law became effective on July 7, 2009. Chapter Number 80.

2.Governor Paterson’s Omnibus Domestic Violence Program Bill [A.9017/S.55306 and S.5031-A]: This law, arguably the most comprehensive since the passage of the landmark 1994 Family Protection and Domestic Violence Intervention Act, contains many long-awaited and important criminal and civil components including:

a.Mandatory domestic violence training for both new and veteran lawyers for children under Family Court Act §249-b (effective December 15, 2009);

b.Addition of four (4) enumerated sexual assault-based family offenses (Sexual Misconduct, Forcible Touching, Sexual Abuse 3rd and 2nd) to the Family Court Act §§812,821 and the Criminal Procedure Law §530.11 (effective December 15, 2009);

c.New requirement under Domestic Relations Law §240 that courts addressing custody and visitation issues must now state on the record how the findings, facts, and circumstances factored into their best interests determination in cases involving domestic violence (effective December 15, 2009);

d.A report of a domestic violence incident involving a person known by the law enforcement officer as a person under supervision of the parole or probation supervision shall be forwarded to the agency as soon as practicable (effective January 14, 2010);

e.Multiple provisions regarding unsealing of records involving criminal convictions for Harassment in the 2nd Degree as against a member of the same “family or household” (effective January 14, 2010);

f.Amendments to the Criminal Procedure Law §§provisions related to issuance of orders of protection during the time period defendant was incarcerated (effective December 15, 2009 ) ; and

g.Training for the Division of Human Rights staff to facilitate implementation of the 2009 employment discrimination against domestic violence and stalking victims law (see above) (effective December 15, 2009) .

This legislation was signed by the Governor on September 16, 2009 under Chapter Number 47b."

LABOR LAW - NOTICE OF PAY RATE AND PAYDAY

From the Schwartz Law Firm blog:

"An amendment to a New York State Labor Law went into effect on October 26, 2009. Employers are now required to give newly-hired workers written notice of the rate at which they will be paid and their regular payday. (New York’s Labor Law Sec. 195.1) The new law is intended to eliminate misunderstandings and pay disputes, and to resolve them if they occur.

The notice must be provided on a form available from the New York State Department of Labor, and must be given to new employees before they do any work. The written notice must also include the employee’s overtime rate of pay, if they qualify for overtime. The employer must have the new employee sign a statement saying that the employee has received the written notice. The signed statement must be kept by the employer for six years."

The required Notice and Acknowledgment to be given and signed by employees can be found by clicking on the title above.

UNEMPLOYMENT INSURANCE - SELF EMPLOYED

Another matter that I consulted on recently....Claimant was a part owner of a business. Claimant later sold interest in business but continued to work for several months with same business and then was unemployed. Claimant was receiving benefits but now the Department of Labor is seeking a return arguing that Claimant was not eligible due to self employment. The unemployment Insurance Law provides in Section 591 that benefits "shall be paid only to a claimant who is totally unemployed." Section 522 of the law defines total unemployment as "the total lack of employment on any day" and specifies that such employment includes "that not defined" in the Unemployment Insurance Law. This last mentioned specification has been interpreted by the Courts to mean that a self-employed claimant is not totally unemployed within the meaning of Section 522 of the law. Again, each case must be examined on a case by case basis.

UNEMPLOYMENT INSURANCE

New York State Department of Labor Extended Benefits Update - The House has passed the unemployment extension so now it is on to the President. He is expected to sign the bill tomorrow making these additional benefits effective the week ending Sunday, November 15th. Eligible claimants would start receiving payments after they claim benefits for that week.

UNEMPLOYMENT INSURANCE - QUIT OR BE FIRED

Recently, I have been consulted about a case where Employee, who knew Employer was about to fire Employee, quit instead as Employee felt it was best, for purposes of seeking new employment, to say Employee quit rather than got fired. Without going into a discussion as to whether this is a disqualification for Unemployment Insurance purposes, is it better, for other reasons, to quit rather than be fired? This is from an article of about two years ago from Steve Tobak, managing partner of Invisor Consulting LLC, and a member of the CNET Blog Network:

"At one time or another, most of us have found ourselves in a work situation that just isn't working out. We agonize and obsess over it and eventually come to the conclusion that it's time to move on.

At that point, if you think you can make an earnest go of a job hunt while employed, then fine, go for it. When you find a job that you think will make you happier, quit and get on with your life.

But for many of us, that's not the case. If you're considering quitting without a new job to jump to, this post may help you.

Quitting has the benefit of instantly ending the pain and providing satisfaction at being the one who pulled the plug. However, you'll be forgoing compensation while you search for a new position, which can be stressful and result in a premature and perhaps ill-advised job choice.

Another option is to get terminated or laid off. The downside is that age-old stigma of getting fired, not to mention feelings of rejection and a blow to your ego. But, if you can handle that, you'll find that this option has a lot going for it. If you play your cards right, you can end up with time to chill and search for a job at a relatively leisurely pace.

People are terminated all the time, but it's usually the company's doing, not the employee's. But it's often the case that a terminated employee feels relief after the fact. Sometimes it's better for everyone involved.

That said, engineering your own termination takes a bit of strategy and finesse. The one thing you don't want to do is perform poorly, act insubordinate, or do anything that will get you fired for cause. That's a bad thing.

As for the right way to do it, there are two ways - overtly and covertly. Let's take the covert option first. It's somewhat tricky, but it generally comes down to not fitting in, making a nuisance of yourself, being a negatron and complaining much of the time, or otherwise acting grumpy and making everyone around you feel uncomfortable.

If you're not happy, you're probably doing one or more of those anyway, so it shouldn't be too much of a stretch. If you keep it up for a while, you're likely to get caught up in the company's next layoff or RIF (reduction in force) which tend to happen periodically in this day and age.

The overt method is also tricky, but you might find a direct approach more acceptable than the covert one. You essentially come clean to your boss, telling him or her that it isn't working for you and perhaps something can be worked out - that's code for wanting a compensation package.

The problem with that approach is that, if your boss or his boss is insecure or vengeful, they may fire you out of spite, without a package, and you're out on the street with diddley squat. So, before you go that route, be sure to do your homework. Perhaps management has recently cut a deal with somebody in a similar position. Precedent goes a long way in the corporate world. You may also try doing a little behind-the-scenes investigating to determine if they'll be receptive to or perhaps even relieved by your offer.

Once you're offered a package, you have an opportunity to negotiate. Depending on your position, you may have more bargaining power than you realize. Companies are notoriously squeamish about employment litigation, so if they get you to sign a release, that's one less liability to worry about. In addition, management is typically interested in a relatively smooth transition. Lastly, your good will is important - they don't want you running around saying rotten things about the company.

As for what you can specifically ask for, that varies widely by position and by company. Again, rely on precedent. Also, remember that, while cash is tough because it comes out of your department's budget, extensions on stock option vesting and exercising, and continued insurance benefits are reasonable requests that are often granted, especially if you're a manager or executive.

The bottom line: If things aren't working out at work and you can line up a new, hopefully more gratifying job without too much time or trouble, then quit and get on with your life. If not, and the writing's definitely on the wall, the benefits of getting terminated far outweigh the gratification of quitting. That said, be aware that it is a rather tricky process that requires some due diligence and negotiating ability."

Again, we are not discussing the effects of these methods in seeking Unemployment Insurance in New York. If you have any questions, feel free to contact me.

UNEMPLOYMENT INSURANCE BENEFITS

Congratulations! The Department of Labor has determined you are entitled to benefits. You start receiving your monies but wait - you get a notice that your employer is contesting the determination and has requested a hearing. You panic - DON'T! You are ahead of the game. Most claimants have been denied benefits and are awaiting hearings to collect monies. You are in the envious position of already receiving your benefits and I believe that only under extraordinary circumstances will an administrative law judge reverse a determination of qualification and eligibility for benefits. As soon as possible, retain an attorney or a certified representative or prepare for the hearing yourself by learning as much as you can from the Appeals Board website. Gather your witnesses, documents, etc. and don't rush for a hearing. Claim your benefits every week, collect them, and, if possible, try to get a later date for the hearing because you are receiving benefits and you don't want a possible adverse determination made quickly that you are disqualified or ineligible. Time is on your side.

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Another issue that may come up: you commit a criminal act, either on the job or off. You are then discharged. Will you be denied unemployment benefits? Yes and no. First be aware that criminal acts bring up issues of disqualification under Section 593.4 of the New York State Labor Law which provides:

"4. Criminal acts. No days of total unemployment shall be deemed to
occur during a period of twelve months after a claimant loses employment
as a result of an act constituting a felony in connection with such
employment, provided the claimant is duly convicted thereof or has
signed a statement admitting that he or she has committed such an act.
Determinations regarding a benefit claim may be reviewed at any time.
Any benefits paid to a claimant prior to a determination that the
claimant has lost employment as a result of such act shall not be
considered to have been accepted by the claimant in good faith. In
addition, remuneration paid to the claimant by the affected employer
prior to the claimant's loss of employment due to such criminal act may
not be utilized for the purpose of establishing entitlement to a
subsequent, valid original claim. The provisions of this subdivision
shall apply even if the employment lost as a result of such act is not
the claimant's last employment prior to the filing of his or her claim."

Of course, another issue to be considered is whether the criminal act took place on the job or off the job and whether it is considered misconduct detrimental to the employer's interests. In any event, if you are denied benefits, your attorney or representative should consult with your lawyer who represented you in the criminal matter to get a clear picture of the issues. Here are some cases from the Department of Labor, and again, each case is determined on it's facts: Claimant was properly disqualified for loss of employment because of a criminal act when he had signed a statement admitting the commission of an act which constitutes a felony even though he subsequently pleaded guilty to a reduced charge of a misdemeanor. (A.B. 108,554A; A-750-1607; similarly. A.B. 298,970); A statement signed by claimant that he wrongfully took, monies from the employer is not a statement admitting a felony within the meaning of Section 593.4 if it does not show the amount involved and therefore, does not show that the monies taken reached that sum which renders the act to be a felony. (A.B. 85,225A; A-750-1577); A document prepared by a claims examiner and signed by a claimant in connection with his claim for benefits does not represent a signed "statement admitting that he (claimant) has committed" a felony within the requirement of Subdivision four of Section 593 of the law, and a disqualification as provided in that subdivision can, therefore, not be imposed on the basis of such document. (A.B. 76,294-60; A-750-1539); A postal employee commits a criminal act in connection with his employment (Section 593.4) when convicted for a felony (grand larceny) committed off the job because it is a condition of hire that postal workers subscribe to a code of ethics requiring that no employee shall engage in criminal conduce. (A.B. 281,278F); A claimant's off duty act, in disregard of standards of behavior which an employer has a right to expect of its employees, is "in connection with" employment within the meaning of Section 593.3 (misconduct) and Section 593.4 (criminal acts) of the Labor Law. (Claimant, a fiscal analyst for a municipality, was convicted of engaging in felonious corruption of a public official, reflecting unfavorably on the integrity of the employer.) (Matter of Markowitz, 94 A.D. 2d 155; A-750-1946); A claimant is subject to the twelve month disqualification for criminal misconduct when subsequently convicted of related acts constituting a felony if such actions occurred while engaged in the employment in question and there is a sufficient link between these acts and the reasons for the loss of employment, even if the original reason for discharge was only based on suspicion. (Matter of Powers 177 AD 2d 833; A-750-2043).

UNEMPLOYMENT INSURANCE - HEARINGS

If you are denied benefits and you request a hearing, or if you are granted benefits and your employer requests a hearing, the hearing is before an administrative law judge, usually a lawyer trained in unemployment insurance law. This is from the FAQ of the Department of Labor website:
"The hearing is recorded on an audio cassette tape. The judge will begin by identifying all the parties and the issues and will explain how the hearing will proceed. Testimony is taken under oath or affirmation. The judge will ask you and the other party questions. You will be allowed to ask questions of all other witnesses. If there is a lawyer or representative for any party, that person would be allowed to ask questions. Any witnesses, documents or other evidence that supports your case should be brought to the hearing. If you need more time to get witnesses or documents, let the judge know this and explain why it is needed. If you cannot get the evidence you need, ask for a subpoena (see below). The judge considers only the evidence at the hearing that is accepted into the record. You have the right to see and talk about any document that the judge will consider. At the end of the hearing all parties can give closing statements. PROPER BEHAVIOR IS EXPECTED FROM EVERYONE WHO ATTENDS A HEARING. Violence, threats or insults will not be tolerated."

NEW YORK TEXTING LAW

Just a reminder that starting today, New York will become the latest state to move to prevent drivers from being distracted while at the wheel. A new law that takes effect forbids the use of mobile devices for reading, typing and sending text messages when traveling roadways. “The risks associated with texting while driving are well documented,” Paterson said in a statement. “As we learn more and more about just how dangerous this practice can be, I urge all New Yorkers to drive with caution and get in the habit of putting their cell phones away while driving to protect their own lives and the lives of others.” Nearly 20 states have approved bans on the practice of operating a motor vehicle while texting. New York becomes the 13th state to enforce its ban. Colorado and North Carolina texting bans are slated to take effect Dec. 1. Illinois, Oregon and New Hampshire are scheduled to start enforcing their laws Jan. 1.