Cuomo Signs Law That May Cripple Airbnb in NYC

After a summer of discontent, New York Governor Andrew Cuomo signed the toughest restrictions on short-term apartment rentals in the country that may cripple the operations of Airbnb in the state. As discussed in many previous blog posts here, Airbnb is an online marketplace where prospective guests look for a bed to stay in from hosts listing spare rooms and properties for short term rentals. Under the new rules, which we discussed in an earlier posting here, the liability for advertising short-term rentals would shift from building owners to the renters in “Class A” multiple dwellings (buildings designed for three or more families) and those who place the advertisements on sites like Airbnb. Penalties range from $1,000 for a first offense to $7,500 for third and subsequent violations. The stated intent behind the proposed bill is to protect New York’s hotel industry and owners of multiple dwelling properties by preventing illegal

Continue reading

New York Commercial Lease Basics: Negotiate a Good Guy Clause For Your New York Start-Up

New York start-up businesses can negotiate a Good Guy Clause into their NY commercial leases to gain flexibility in terminating leases should things go upside down. A New York Good Guy Clause is commonly used in New York City as a personal guaranty within a commercial lease.  In exchange for a guarantee from the tenant or an affiliate of the tenant to fulfill all obligations under the lease, the commercial NY landlord agrees to allow the New York tenant to terminate the lease early so long as all rent has been paid in full and the tenant gives sufficient notice.  The premises must be delivered “broom-clean” with all possessions and trash removed. Good Guy Clauses in New York may protect both the commercial landlord and tenant.  These clauses protect commercial landlords in New York City because these clauses avoid landlord-tenant litigation and, if there is a party other than the

Continue reading

NY Tips, Gratuities And Mandatory Service Charges Tax Law Basics: Rules for New York Businesses and Employees

New York businesses and its employees alike can both benefit from learning the rules for NY tips, gratuities and mandatory service charges. Many New Yorkers are tipped employees. Jobs where workers earn tips range from waiters and servers, to hotel employees and those who provide other services like delivery workers. In fact, part of the incentive for New Yorkers to take these kinds of jobs is the possibility that you may be able to earn more in tips than in straight wages. However, very few tipped employees and their employers understand all the applicable wage laws regarding tips, which can get complicated. First, let’s establish what is considered a “tip” or “gratuity” in New York. In its usual everyday meaning, a tip or gratuity is a voluntary payment over and above the charge for products or services (plus tax). Employers do not need to withhold additional funds for Social Security

Continue reading

Some Uber Drivers May Be Entitled To Unemployment Benefits

An administrative ruling out of New York state found that, under certain conditions, Uber drivers may be entitled to state unemployment benefits. The NYS Department of Labor (DOL) ruled that two Uber drivers were eligible for weekly jobless benefits. This represents the first time that a state government determined that drivers for a ride-sharing company are employees. To date, states have found – and companies like Uber have argued – that drivers for ride-sharing companies were independent contractors who are ineligible for jobless benefits. We here at The New York Law Blog have discussed the differences between an employee and an independent contractor in the context of continuing federal litigation involving Uber. Uber and other ride-sharing companies are part of a larger development in business termed the “gig economy,” which is an environment where independent workers contract for temporary positions for short-term engagements. Uber’s critics have argued for some time that it

Continue reading

Federal Court Dismisses Claim That Disney Violated H1-B Visa Law

A federal judge dismissed lawsuits brought by two former Walt Disney Parks and Resorts workers claiming that it conspired with outsourcing companies to violate visa laws. According to published reports, the lawsuit claimed that two American IT workers were laid off and forced to train foreign replacements with H1-B temporary visas after Disney and two contractors, Cognizant Technology Solutions and HCL America, allegedly colluded to make false statements when they applied for the temporary visas. However, a federal judge rejected this assertion, finding that none of the statements put at issue in the complaint were adequate to sustain the former workers’ cause of action. As discussed in a previous blog outlining the different temporary visas that the United States makes available to non-immigrant workers, a H1-B visa allows domestic companies to employ foreign workers in specialty occupations that require technical expertise in specialized fields such as in architecture, engineering, mathematics, other

Continue reading

Suit Claiming NY’s Daily Fantasy Sports Law Is Gambling, Not Skill

An anti-gambling reform group filed a lawsuit last week claiming that New York’s “Daily Fantasy Sports” law violates the NY State constitution by characterizing daily fantasy sports contests as games of skill, rather than games of chance. The suit was filed in New York Supreme Court in Albany County by an organization called Stop Predatory Gambling on behalf of four New York resident plaintiffs who claim to have been negatively impacted by gambling. According to published reports, the suit “seek(s) to protect the public from predatory gambling consistent with the constitution.” Article 1, Section 9 of the state constitution, states, in part that “[n]o law shall be passed… except as hereinafter provided, no lottery or the sale of lottery tickets, pool-selling, bookmaking, or any other kind of gambling, except lotteries operated by the state… except pari-mutuel betting on horse races…  and except casino gambling at no more than seven facilities

Continue reading

Supreme Court Extends RICO Law To Cover Acts By Domestic Organizations Overseas

The Supreme Court determined in RJR Nabisco v. European Community that the Racketeer Influenced and Corrupt Organizations Act (RICO) — a statute created to fight organized crime across the country, can be applied to prosecute criminal acts outside of the United States and, in some cases, even create a private right of action. Enacted in 1970, RICO is the federal racketeering statute that makes controlling certain “enterprises,” such as a corporation or other less formal association of persons or other entities a crime when one can prove a specific pattern of criminal behavior. RICO has been the centerpiece of the government’s efforts to combat organized crime, labor unions and other conspiratorial entities. It is also used to prosecute all manner of entities, including corporations, engaged in various forms of criminal conduct. RICO also includes a private right of action where parties injured in person or property by actions resulting in violations can

Continue reading

New York Divorce: Residency Requirements and Permissible Grounds for Divorce in NY

Prior to filing for a divorce in New York, you must meet the residency requirement as outlined in New York’s Domestic Relations Law, and you must have a legally acceptable ground for the divorce in New York. Domestic Relations Law § 230 outlines the residency requirement that parties seeking a New York divorce must meet to legally pursue a divorce in New York. There are a few ways parties can meet the residency requirement: Either you or your spouse have been living in New York State continuously for at least two years before the divorce litigation is commenced; Either you or your spouse have been living in New York State continuously for at least one year before the divorce case is commenced; and you were married in New York State, or you lived in New York State as a married couple, or the grounds for your divorce happened in New

Continue reading

New York City Considering Subsidizing Legal Counsel For Low-Income Persons In Housing Court

The line for the Housing Court Clerk in Brooklyn Courtesy:  New York Law Journal The New York City Council is considering legislation that would make New York City the first jurisdiction in the nation that would confer the right to counsel in housing court for low-income persons. The bill would guarantee civil legal counsel for low-income tenants in an eviction or foreclosure proceeding, so long as they meet the eligibility cut-off on gross income set at 200% of the federal poverty line (or about $48,600 for a family of four). A lawyer would be appointed by a “civil justice coordinator” from a list of pre-approved legal organizations. The City of New York would then foot the bill for the legal work. New York City is considering the measure in response to a report published in June by the newly created Office of Civil Justice that found that more than 70

Continue reading

Pokémon Go Lawsuit Claims Game Creators Entice Users To Trespass

Creators of the popular Pokémon Go augmented reality game are litigants in a lawsuit claim that the game entices users to trespass on other’s properties. Nintendo, the Pokemon Company and Niantic Labs are named in a lawsuit filed in New Jersey on behalf of Jeffrey Marder, a homeowner who claims to have had a number of unwanted encounters with Pokémon Go Players on his property. As dicussed in a previous blog posting, augmented reality games involve live direct or indirect views of a physical, real-world environment whose elements are augmented (or supplemented) by computer-generated sensory input such as sound, video, graphics or GPS data. When playing the game players use their smartphone’s camera feature  to “see” Pokémon’s fictional creatures. In the case of Pokémon Go, fictional creatures are projected onto a mobile device’s camera through the game’s app and overlays project Pokémon over the physical world, as well as other items called “Pokéstops” and “Pokémon gyms” that

Continue reading

New York Extends Time For WTC Disability Claims By 9/11 First Responders

This week, New York Gov. Andrew Cuomo signed a law that extended the submission deadline for disability claims by first responders who worked at the World Trade Center (WTC) and related rescue operations after the September 11, 2001 attacks. The submission deadline under the WTC Disability Law has been extended to September 11, 2018 for first responders affected by the terror attacks. This applies to claims for lost wages and medical benefits for illnesses (including workers’ compensation, disability claims and accidental death benefits) resulting from participating in activities at or near the WTC recovery site in lower Manhattan. Medical claims covered include respiratory, psychological and skin diseases, as well as other serious illnesses like cancer, pulmonary disease, asbestos-related ailments and heavy metal poisoning. The WTC Disability Law establishes a presumption that certain disabilities for certain New York City employees were caused by rescue, recovery or clean-up operations at the World

Continue reading

Drafting a New York Prenuptial Agreement

In light of the impending divorce of superstar couple Brad Pitt and Angelina Jolie, now is a good time to become re-acquainted with what a prenuptial agreement is and what can and cannot be included in a New York prenuptial agreement. A New York prenuptial agreement is: a contract between future spouses; that discloses assets and income of the parties; and details key choices of the parties during marriage, after death, after disability and after divorce or separation. In New York, a prenuptial agreement is valid and enforceable so long as it protects both spouses (not patently unfair) and it was entered into with full and fair disclosure of all assets. New York also requires that a New York prenuptial agreement be executed much in the same way a deed is signed and recorded, with the parties being required to have, in most cases, separate New York attorneys. A NY prenuptial

Continue reading

States Sue The U.S. Department of Labor To Stop New Overtime Rules

Twenty-one states have joined together in suing the U.S. Department of Labor (DOL) in the hopes of halting the imminent implementation of its new overtime rule, which they claim is unconstitutional and fiscally unsustainable. Starting December 1, the DOL’s new overtime rule mandates time-and-a-half overtime be paid by public and private-sector employers to hourly employees earning less than $47,476 annually. This is a significant jump from the previous salary threshold of $23,660 per year set by Congress in the Fair Labor Standards Act. The DOL’s new overtime rule also includes employees earning less than the new threshold that perform executive, administrative, or professional duties (commonly referred to as “white-collar” employees) who were previously exempt. The aggrieved states argue that the increased threshold is unconstitutional because the original threshold and exemptions were set by Congress and, once the DOL did away with the “white-collar” exemption, the DOL’s action illegally overruled congressional

Continue reading

Fox Sues Netflix For Poaching Key Employees: Tortious Interference Law

Media giant Fox filed a lawsuit against Netflix claiming it has been damaged by Netflix’s aggressive and improper campaign to unlawfully target, recruit, and poach valuable Fox executives by inducing them to break their employment contracts. The claim that Fox will attempt to articulate is called tortious interference. The elements of a NY tortious interference claim which Fox would have to prove are: The existence of a valid contract between Fox and a third person; Netflix’s knowledge of the contract; Netflix’s intent to interfere with the contract between Fox and a third person; Actual interference by Netflix, which must be “improper” in nature; and Fox suffered damage as a result of Netflix’s “improper” interference. The exact employee contract specifications that would serve as the basis of Fox’s lawsuit is not clear from reading the court filings. Claims for tortious interference can be difficult to prove because proving mere interference with a

Continue reading

Apple Sued In Class Action For Breach of Contract Over iPhone 7 Pre-Orders

Apple iPhone users who signed up for a program to pay extra with the promise of receiving the latest device each year have filed a class action for a breach of contract claiming that they’ve been told to wait longer for their new gadgets than they should. In a proposed federal class action filed this week filed filed in the U.S. District Court for the Northern District of California by Emil Frank, a Brooklyn resident who participated in Apple’s “iPhone Upgrade Program,” attorneys claim that Apple breached its contract when Frank and others were unable to pre-order the new iPhone 7 prior to its release in stores. The suit claims that participants who had paid into the program were given a lower priority than ordinary buyers when ordering from Apple, resulting in participants having to make additional payments on older phones while they waited in limbo. Additionally, claimants allege that

Continue reading

Use A Cease and Desist Letter in New York

Proper use of a cease and desist letter is the first measure a business can take to protect itself from copyright and trademark infringement – as seen in recent news articles.  GiGi New York sent Gigi Hadid and her Tommy Hilfiger collaboration a cease and desist letter because of the similarities in the styling of their name of a new line of clothing called “GiGi,” which GiGi New York believes has the potential for customer confusion between the brands. GiGi New York has owned their trademark, “GiGi New York” for certain leather goods it produces, but only filed an application for the trademark “GiGi” after Hadid’s recent runway show. A cease and desist letter is a tool that businesses use for any number of reasons including to stop harassment, assert ownership rights, or when they just want to formally tell someone to stop doing something harmful to their business. It

Continue reading

What NY Businesses Should Learn From the United States v. Texas Immigration Decision

The Supreme Court’s decision in United States v. Texas this past June upheld a challenge to a pair of executive orders on immigration. While the political rancor continues on the issue of immigration, especially on the grand stage of election politics, businesses should remain vigilant in the evolution of immigration law on this front. First, businesses are still obligated to use Form I-9 to verify the legal status of new employees even though the form expired.  Noncompliance may lead to monetary penalties up to $16,000 per violation. Second, businesses relying on foreign skilled workers eligible for an H1-B visa should start planning for the next fiscal year – now.  As a result of this Supreme Court decision, the cap on skilled foreign employees remains at 65,000. The USCIS has began accepting H1-B petitions for the 2017 fiscal year, with more than 236,000 petitions filed. Clearly, businesses cannot turn a blind eye

Continue reading

U.S. Government Formally Recalls Samsung Galaxy Note 7 For Dangerous Battery

The U.S. federal government issued a formal recall of the Samsung Galaxy Note 7 devices for a defective and dangerous battery. The Consumer Products Safety Commission published a statement on its website urging owners of the Samsung Galaxy Note 7 smart phone to turn them off and stop charging devices due to explosive batteries causing fires, property damage and the potential for personal injury. After reports of some 35 incidents of Samsung Galaxy Note 7 devices exploding, an investigation by Samsung found an issue with the battery cell overheating, characterized as a “very rare manufacturing process error.” The consumer warning is based on recent reports involving lithium-ion batteries resulting in fires while charging and during normal use, which has led to government’s call for consumers to power down their devices. The Federal Aviation Administration has also issued a ban of the use of Note 7 devices on all aircraft. Samsung had already

Continue reading

Airbnb To NY: We’ll Sue If You Pass New Home-Sharing Law

Home-sharing company Airbnb has threatened to sue New York if Gov. Cuomo signs off on a new home-sharing law that would establish heavy fines for tenants that host short-term rentals without being present. According to Fortune, Airbnb general counsel Rob Chestnut sent a letter to New York Gov. Andrew Cuomo putting the State on notice that if he signs a recently proposed home-sharing law that clamps down on many short-term rentals, it will sue the state. As discussed in an earlier posting on The New York Law Blog, the New York Assembly and Senate passed a bill earlier this summer that would penalize tenants with heavy fines for advertising short-term rentals for less than 30 days in duration while they are not home. In another posting on The New York Law Blog, we discussed a recent case where the court determined that New York tenants in rent-controlled premises are already prohibited

Continue reading

“Certified” Translation of Documents Accompanying U.S. Immigration Visa Applications

Applicants for U.S. Immigration Visas must be accompanied by supporting documents from your nation of origin and “certified” translations of those documents are, typically, required. Applying for U.S. immigration visa can be a complex undertaking. Depending on the purpose of the visit to the United States, an applicant will have to produce a variety of documents—from a birth certificate, tax documents to education and military records. Depending on the nation of origin of the applicant, it is not uncommon for these kinds of documents to require translations. However, the United States Citizenship and Immigration Services (USCIS) outlines its requirements on its website that translations shall be “certified.” The USCIS requires all foreign language documents to be translated into English. Applicants for U.S. Immigration need to provide a plain photocopy of the original document and its “certified” translation into English, which can be translated by a professional or anyone other than you

Continue reading