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:
Codified in 1959, Article 3-a of the Lien Law (Lien Law §§70-79a) provides very stringent trust provisions related to certain funds on construction projects. For those not familiar with its terms, project “owners” are required to hold in trust all proceeds received from building or home improvement loans for the benefit of all contractors, suppliers and laborers performing work or furnishing materials on the project. Likewise, contractors must hold in trust all monies received as payment from owners or higher-tier contractors for the benefit of all those furnishing materials or labor on their behalf.
The statute’s primary purpose is to ensure payment to those who have directly expended labor and materials on a construction project and prevent circumstances where an owner or contractor “robs Peter to pay Paul” by utilizing trust funds to pay off unrelated debts. Accordingly, the statute mandates that a trustee cannot use any of the trust proceeds for their own purposes until all trust claims on a project have been satisfied or settled, and provides potentially serious consequences for those that violate its terms, including personal liability and even criminal sanctions. Despite the serious penalties, it has always been my opinion that the statute is relatively under-utilized in disputes involving non-payment on a construction project, particular since, in my experience, most owners and contractors do not strictly adhere to the statute’s rigid requirements. Accordingly, despite the statute being on the books for more than sixty years, the caselaw interpreting it is rather undeveloped, particularly at the Appellate level.
Recently, however, our firm was involved in a matter before the Fourth Department, which rendered a determination on an issue that had seemingly never been addressed by the Appellate Division: whether a trustee could avoid civil liability for diversion by subsequently restoring the trust with non-trust assets. In the decision rendered in DiMarco Constructors, LLC v. Top Capital of New York Brockport, LLP, 2021 NY Slip. Op. 02680, the court ruled that a diversion cause of action under the Lien Law could not be defeated (or reduced) by claims that the diversion had been subsequently restored or “cured”.
Before addressing the significance of this holding, a summary of the underlying facts is in order. In the case, a class of contractors and subcontractors alleged that the project owner breached its contract with its construction manager by failing to pay a sum in excess of $1,700,000 for labor and materials due on the project. The plaintiffs also accused the owner and its principals of diverting roughly $1,400,000 of the trust proceeds the owner received from a building loan with a regional bank. After limited discovery and prior to depositions, the owner and its principals sought dismissal of the diversion claims by asserting, inter alia, that even if there was a diversion of the building loan proceeds, any diversion was subsequently restored, since the sum ultimately paid to the construction manager was equal to or exceeded the total trust res disbursed by the bank on the building loan.
The lower court agreed with the defendants’ restoration argument and substantially reduced the plaintiff’s damages on the diversion causes of action to a maximum of $104,205.99, despite credible evidence that well over a million dollars had been improperly been diverted from the building loan proceeds during the early stages of the project. The IAS court reasoned that the plaintiffs were only entitled to recover the difference between the trust funds disbursed by the bank to the owner ($13,344,999.99) and the total amount plaintiffs had received in payment on the project ($13,230,794). In doing so, the lower court was not persuaded by evidence that the owner utilized non-trust assets to pay down a portion of the debt owed to plaintiffs on the project after the building loan trust had been depleted. Nor was the IAS court swayed by plaintiffs’ argument that defendants use of these non-trust assets did not constitute a “restoration” of previously diverted funds, because these non-trust assets (from private investors) had always been earmarked to pay for a portion of the construction.
On appeal, the Fourth Department modified the lower court’s decision by striking the portion reducing plaintiff’s damages on the diversion causes of action. In doing so, the court rejected the argument that an improper diversion of trust assets could be “cured” by a subsequent payment from non-trust assets, concluding that such circumstances would blunt the rigorous trust regulations set forth in the Lien Law, and would open the door to “pyramiding”, where an owner or contractor use loans or payments advanced in the course of one project to complete another. The Appellate Court was persuaded by language in the Court of Appeals case of Aquilino v. New York State, 10 NY2d 271 (1962), which stated that funds from an express trust may not be diverted “whether or not the diversion is subsequently remedied”. Moreover, the majority addressed concerns expressed by the lone dissenting justice, noting that the plaintiffs would not recover a windfall or “double recovery” by re-imposing the full measure of potential damages, because the plaintiffs alleged that a sum in excess of $1.7 million was due and owing for labor and materials on the project.
The holding is significant because prior to the Fourth Department’s ruling, the issue of whether a trustee could avoid civil liability by subsequently restoring diverted funds was murky at best. Even one of the leading treatises on New York construction law could only profess that it was “debatable” whether a trustee could escape civil liability by restoring the trust. (New York Construction Law Manual, 2d Ed., §9.8). This case appears to mark the first occasion that an appellate court in New York State has specifically addressed the issue of trust restoration under Article 3-a. Prior to this decision, the most cited authority for the proposition that diverted funds could not be restored was a Supreme Court decision from Rockland County, noting that the Lien Law was devoid of any statutory language giving rise to a restoration defense in a civil action. Schwadron v. Freund, 69 Misc2d 342 (NYSupp. 1972). However, as cited by defendants in its appeal brief, there are also several miscellaneous decisions that implicitly recognized a restoration defense, at least in circumstances where the plaintiff could potentially recoup a double recovery.
Now that the Fourth Department has weighed in, there is finally some clarity on the issue of restoring diverted trust funds. While it remains to be seen how this holding will impact future litigation, it should put all trustees on notice that they will not be relieved of liability (including personal liability) merely by paying out an amount equal to the total trust res, particularly when the trust beneficiaries are still owed money for labor and materials. As the statute requires, the trustee must account for the proper expenditure of trust funds, and if they cannot, they may be liable for any amounts diverted.
Article written by Richard T. Bell, Jr., a founding partner of Adams Leclair.
In this article, Daniel Adams discusses the new legislation and specifics of the Substantial Completion Bill
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New York continues to provide legislation designed to speed up payment to contractors. Following on the heels of Prompt Pay Act, (albeit eleven years later) Governor Cuomo signed into law the “Substantial Completion” act on December 19, 2020.
The law provides support to contractors who find themselves at the mercy of public owners who unreasonably delay issuing a certificate of substantial completion. Taking the determination of when a project is substantially complete out of the control of a public entity whose interests may be at odds with a contractor or subcontractor, will presumably result in a quicker release of retainage on public works contracts. Hopefully, the players in the construction industry and the courts when necessary, will remember the stated purpose of the legislation, which is to streamline completion and final payment on public projects.
Daniel Adams is a founding partner of Adams Leclair.
In this article, Tony Adams reviews the history of the “gentlemen’s agreement” and the recent MLB press release announcing “Major League Baseball is correcting a long time oversight in the game’s history by officially elevating the Negro Leagues to ‘Major League’ status.”
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Two months ago, Major League Baseball announced it would recognize players from seven Negro Leagues that operated between 1920 and 1948 as “major leaguers” for historical and statistical purposes. That symbolic act — nearly all the affected players are long-deceased — finally addresses the last vestige of a shameful “Gentlemen’s Agreement” that excluded generations of Black athletes from white baseball, while defaming their abilities and disparaging the only forums in which they were permitted to play. The wonder is that it took so long.
A true “gentlemen’s agreement,” according to Black’s Law Dictionary, is “an unwritten agreement that is secured by the good faith and honor of the parties.” Such agreements, though not enforceable legally, were central to gaining ratification of the first U.S. Constitution by the states, to opening San Francisco’s public schools to Aisian children in the early 1900s, and to ending the Cuban Missile Crisis in 1962.
Until Jackie Robinson took the field for the Montreal Royals in 1946, a “gentlemen’s agreement” among team owners was cited by baseball’s leaders — if they were being honest — as the reason why no Black athletes had played for any organized professional team since the previous century. (In less candid moments, they said that no African-Americans were good enough to make their teams.)
Tony Adams is a founding partner of Adams Leclair LLP. Contact Tony Adams at 585-327-4100 or aadams(Replace this parenthesis with the @ sign)adamsleclair.law
An Irrevocable Life Insurance Trust — ILIT for short — is a common estate planning tool, well known to attorneys and financial planners. In this article, Anthony Adams discusses some potential ILIT issues, such as what happens if the grantor stops contributing an amount sufficient to pay the annual premium or a beneficiary decides to take some or all of the money to fund the premium. This issue was addressed in Matter of Baron, reported out of Queens County Supreme Court last summer.
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The Baron case involved an irrevocable trust that Harry Baron created in 1992 to hold two whole-life insurance policies for the benefit of his children. Baron named a business associate, Roy Leibowitz, as trustee. Until 1998, Baron made annual gifts to the trust that Leibowitz used to pay the policy premiums. But the trust agreement didn’t require Baron to make those annual gifts, and after 1997 he stopped doing so. Click through for the full article.
Anthony J. Adams is a founding partner of Adams Leclair.
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.
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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.
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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.