Our firm’s attorneys regularly contribute to legal and business publications. Our firm’s articles are listed below:
Our firm’s attorneys regularly contribute to legal and business publications. Our firm’s articles are listed below:
As attorneys gain familiarity with the Appellate Division’s new rules, they should be aware of certain key e-filing provisions to ensure the clerk will accept their papers and they will not miss their opponents’ filings. In this article, attorney Jeremy Sher addresses common e-filing issues in appeals from lower court orders and judgments. Read the full article here.
Snippet from article:
An important early step for an appellant is determining whether e-filing requirements apply. The E-Filing Rules excuse unrepresented parties and attorneys claiming specific exemptions from mandatory e-filing, but otherwise allow the departments to decide which types of cases must be e-filed. Since July 1, 2020, the Fourth Department has imposed mandatory e-filing in all civil and criminal matters.
One of the most critical deadlines in New York practice is the 30-day time period to “take an appeal” by, in most cases, filing a notice of appeal in the trial court. The E-Filing Rules add more steps.
Within 14 days of filing the notice of appeal, the appellant in an e-filed appeal must open a new appellate case in NYSCEF. This is done through the “Record Initial Case Info” option in the Appellate Court menu. The appellant must also e-file in the Appellate Division case, as a single PDF, a copy of the notice of appeal with proof of service and the order or judgment appealed from. Read more here.
Jeremy Sher is a founding partner at Adams Leclair LLP.
A little over a month ago, the United States Supreme Court heard oral argument in Fulton v. City of Philadelphia. Fulton challenges a decision by the city of Philadelphia to stop referring foster-care cases to a Catholic foster-care association because of its refusal, based on its religious beliefs, to certify same-sex couples as foster parents. But in addition to arguing that the city’s decision violates the First Amendment, Fulton also asks the Court to overrule its 1990 decision Employment Division v. Smith. If it did so, that would significantly change the way religious liberty challenges are litigated, including recent religious liberty challenges to New York’s COVID restrictions.
Before Smith, laws that created a substantial burden on religious exercise had to pass a test called “strict scrutiny” — they had to be justified by a compelling government interest, and they had to be the least restrictive means of accomplishing that interest. Smith changed this analysis by holding that a law does not violate the First Amendment, even if it burdens someone’s exercise of their religion, as long as the law is neutral toward religion and applies generally to the same conduct regardless of whether it is motivated by religion or not. In Smith, for example, the Court held that a state law that disqualified from unemployment benefits anyone fired for drug use was constitutional, even though it punished someone for only sacramental use of a small amount of peyote in a Native American worship service, because it applied to all drug use generally, instead of singling out religious drug use.
To be sure, Smith didn’t kill off strict scrutiny altogether. The Court later clarified in Church of Lukumi Babalu Aye v City of Hialeah that a law may single out religion and thus trigger strict scrutiny, even if it appears to be neutral and generally applicable on its face, if it targets religious exercise in application. In Lukumi, for example, a city enacted an ordinance prohibiting slaughtering animals that was neutral on its face, but that was motivated by anti-Santeria animus and that included exemptions that permitted a wide range of non-religiously-motivated animal slaughter, and in practice only prohibited a Santerian church from performing animal sacrifices. The court held that the ordinance had to pass strict scrutiny
But Smith’s “general applicability” test is still a low bar. The religious liberty challenge that gets past Smith is the exception, and the result has been a dramatic decrease since Smith in the number of religious liberty challenges to laws that burden religious exercise.
Thus far, three religious groups have launched free-exercise challenges to Gov. Cuomo’s most recent set of restrictions issued in response to the COVID-19 pandemic. These groups argue that the attendance caps on religious services violate their first amendment right of free exercise. District courts in New York and the Second Circuit denied preliminary injunctions in these cases, finding them not likely to succeed on the merits, given Smith’s low standard. A divided Supreme Court reversed the Second Circuit’s denial, with a majority of the Court finding that the restrictions single out religious activities under Smith because the attendance caps apply specifically to religious services as opposed to other kinds of activities.
But if Smith were not the governing rule, then in order to trigger strict scrutiny, challengers to COVID restrictions would need to show only that the restrictions substantially burden their religious exercise, which is much easier than having to show that the restrictions specifically target religion. It would be much harder without Smith for lower courts to find no likelihood of success on the merits in such challenges.
Predictions are dangerous, but based on the oral argument last month, the reversal of the Second Circuit’s denial of an injunction, and the general trend of the Supreme Court’s receptiveness to religious liberty claims, the Court seems, in this writer’s opinion, sympathetic to the challengers in Fulton, but still more likely to continue to narrow Smith incrementally than to overrule it outright at this point.
If the Court takes the more drastic step of overruling Smith, the landscape will be even friendlier to such challenges, and we can expect to see a substantial increase of religious liberty challenges not only to COVID restrictions, but to all kinds of state action that burdens religious exercise. But even without overruling Smith, the Court is likely going to be increasingly sympathetic over the long term to religious liberty claims.
For more information contact Adams Leclair LLP at 585.327.4100 or info(Replace this parenthesis with the @ sign)adamsleclair.law.
1 Docket No. 19-123 (U.S. Sup. Ct.).
2 494 U.S. 872 (1990).
3 E.g., Sherbet v. Verner, 374 U.S. 398 (1963).
4 508 U.S. 520 (1993).
5 See generally, e.g., Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 SETON HALL L. REV. 353 (2018).
6 See Agudath Israel of Am. v. Cuomo, 98- F.3d 222 (2d Cir. Nov. 9, 2020); Soos v. Cuomo, 2020 WL 6384683 (N.D.N.Y. Oct. 30, 2020); Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 WL 5994954 (E.D.N.Y. Oct. 9, 2020).
7 Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 WL 6948354 (U.S. Sup. Ct. Nov. 35, 2020).
Every once in a while, the Court of Appeals gifts the commercial litigator with an opinion that includes a useful discussion about the meaning and significance of a familiar and routinely used contract term. The most recent gift was the Court’s characterization of the term “notwithstanding” as one that “clearly signals the drafter’s intention.” CNH Diversified Opportunities Master Account, L.P. v Cleveland Unlimited, Inc. 2020 NY Slip Op 05976 (October 22, 2020) (“CNH Diversified”).
At issue in CNH Diversified was whether plaintiffs’ right to sue for payment on notes survived a strict foreclosure, undertaken by a trustee at the direction of a group of Majority Noteholders, over the objection of Minority Noteholders (plaintiffs), that purported to cancel the notes. The decision, which denied the Majority Noteholders’ motion for summary judgment and granted partial summary judgment to the non-consenting
Minority Noteholders, involved interpretation of certain provisions in indenture documents governing the rights of the noteholders to receive payment, the remedies available in the event of default, and the power of the Majority Noteholders to direct the trustee’s choice of remedy.
Section 6.05 of the indenture, relied upon by the Majority Noteholders in their summary judgment motion, conferred certain power upon the Majority Noteholders. In ruling for the non-consenting Minority Noteholders however, the Court of Appeals focused on section 6.07 which reads:
“[n]otwithstanding” any other provision in the Indenture, the rights of a Noteholder to “receive payment” of principal and interest on the Notes, and to “bring suit for the enforcement of any such payment … , shall not be impaired or affected without the consent of such Holder.”
Relying upon the notwithstanding clause, the Court found that the power conferred upon the Majority Noteholders by section 6.05 was subject to the limitations stated in section 6.07. “When a preposition such as “notwithstanding any other provision” is included in a contractual provision, that provision overrides any conflicting provisions in the contract (see Beardslee v Inflection Energy, LLC, 25 NY3d 150, 158 ; accord Cisneros v Alpine Ridge Group, 508 US 10, 18  [“the use of … a ‘notwithstanding’ clause clearly signals the drafter’s intention that the provision of the ‘notwithstanding’ section overrides conflicting provisions of any other section”]). Therefore, the powers granted to the Majority Noteholders in section 6.05 cannot be used to extinguish the legal right to sue or the legal right to payment of non-consenting Noteholders protected in section 6.07.”
While the language and black letter law are not difficult to digest, the CNH decision shows that reliance upon notwithstanding provisions is not always a simple task. Whether the term “notwithstanding” overrides another contractual term requires a finding that the “notwithstanding” clause conflicts with another contractual term. In this case, the majority of the Court identified another section of the indenture as the conflicting term and granted relief to the non-consenting Minority Noteholders, noteholders who, as evidenced by the transaction were clearly subordinate to the Majority Noteholders. In reaching this conclusion, the Court ignored a collateral trust agreement that had been executed contemporaneously with the indenture.
The dissent acknowledged the legal significance of “notwithstanding” clauses but found fault with the majority’s analysis precisely because it ignored the collateral trust agreement. In other words, the dissent found that the notwithstanding clause was not triggered because there was no conflicting term and that the majority’s error lie in its failure to consider the collateral trust agreement. “The indenture, however, is not a lonely compact and it cannot be read in a vacuum. To do so would be to disregard the collateral trust agreement, which is connected to the indenture. The strict foreclosure in question was given ‘the consent of the holder’ by the collateral trust agreement.” (Dissent, J. Fahey).
The clarity seemingly provided by the CNH Diversified decision is diminished by the dissent. Notwithstanding, CNH Diversified provides valuable guidance to the commercial litigator, whether engaged to provide contract drafting advice, pre-litigation advice or devise a litigation strategy, not the least of which is the need to be familiar with all contract terms, particularly in the case of a commercial transaction that involves various types of agreements.
Mary Jo S. Korona is Senior Counsel to Adams Leclair, LLP, a litigation firm she helped form in 2007. Her litigation practice concentrates on business, warranty and employment disputes arising in cases filed in state and federal courts and the defense of Article 78 proceedings brought against municipalities.
Virtual mediations have become more commonplace in the practice of law since March 2020. That shouldn’t be a big deal, right? Isn’t it just like preparing for an in-person mediation? Well, the answer may surprise you. Hon. Thomas A. Stander (Ret.) provides important tips to prepare your cases for virtual mediations through a videoconference platform such as Zoom in his Advocate’s View article in the Daily Record. Find more on how to prepare here.
Snippet from article:
It’s March 2020, and at first, I thought — we all thought — mediations will have to be put on hold until we can do them “in person.” However, it quickly became apparent that doing anything in person would involve risk and adhering to stringent protocols. The courts were on hold, and if the practice of law were to continue, the litigation world could not remain on hold too. We couldn’t wait around for everything to get back to “normal” in the courts. Still, there was a feeling that virtual mediations would be too difficult to set up, cumbersome, and ultimately not successful. The early consensus was that virtual mediations are not the way we have always done things, so they probably won’t work. But challenging that “muscle memory” — doing what we’ve always done — is how you create opportunity… Read the full article here.
As a result of the pandemic, New York protected both commercial and residential tenants from eviction. Eviction proceedings have been paused and modified for nearly six months because of Executive Orders, legislation, and judicial Administrative Orders.
This article summarizes the background of New York’s eviction moratorium and the status of eviction proceedings while highlighting considerations for landlords and tenants moving forward.
Read the full article on New York’s eviction moratorium here and in the Daily Record.
Robert P. Yawman is an associate attorney with Adams Leclair LLP. Rob can be reached at ryawman(Replace this parenthesis with the @ sign)adamsleclair.law.
When a teacher at a religious private school is fired for reasons she believes are discriminatory, can she bring an employment discrimination claim against the school? This issue came before the US Supreme Court last term in a case where two teachers who had worked for Catholic schools alleged disability discrimination and pregnancy discrimination. In his article recently featured in the Advocate’s View of The Daily Record, Jared Cook discusses The Court’s decision strengthening the ministerial exemption and how free exercise doctrine and the church autonomy doctrine come into play.
Read more about the employment discrimination case here.
Jared Cook discusses a recent Supreme Court ruling that held a state constitutional provision that forbids public funding of religious schools violates the First Amendment. Many states, including New York, have this prohibition in their constitutions. What is the potential impact of this ruling, and how will states contend with the continuing validity of these prohibitions in the wake of Espinoza?
Read more about it here.
We’ve now passed the three-month anniversary of the COVID-19 Pause requirements in New York State, and businesses are beginning to re-open. Partner, Stacey E. Trien, discusses the top five issues for employers to consider as we move into the summer.
How will the COVID-19 pandemic affect your business’ contractual obligations? Jared Cook discusses various scenarios that many business owners will face throughout this global health crisis.
Learn more about your rights as a business owner here.
In this article published in ROBEX Magazine, Partner Tony Adams explains the intricacies of the new law targeting MWBE re-authorization for state contracts in New York. Read all about it here.
Paralegal Amy Demanchick discusses trial preparation tips in her article featured in the Paralegal Perspectives section of The Daily Record.
Partner Stacey Trien provides vital information concerning New York State’s legislature governing employment discrimination policies in her article featured in the Advocate’s View section of The Daily Record.
Senior Counsel Mary Jo S. Korona discusses the consequences of sharing privileged communication with outsiders in her article featured in the Advocate’s View of The Daily Record on June 21, 2019.
Partner Jeremy Sher discusses removing cases to federal court when the amount in controversy is unclear in his article featured in the Advocate’s View of The Daily Record on May 16, 2019.