Survey: 2011 Administrative Law

This article reviews developments in administrative law and practice during 2011 in the judicial, executive, and legislative branches of New York State government. It was a busy year for administrative law. This discussion focuses on twelve decisions announced by the New York Court of Appeals, ranging from government liability, to agency actions, to the process of competitive bidding, certain key initiatives of the Cuomo administration, and legislation which relates to the reform movement underway in the executive branch.

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Rose Mary Bailly: Executive Director of the New York State Law Revision Commission; adjunct faculty member at Albany Law School

Survey: 2011 Business Associations

The period covered by this Survey was marked by significant decisions, of which Kirschner v. KPMG LLP, discussed under the topic of Agency below, seems to the authors to be especially worth discussing at length and in detail.

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Sandra O’Loughlin: Partner, Hiscock & Barclay, LLP, Buffalo, New York; Adjunct Professor and Lecturer, University at Buffalo Law School, State University of New York; J.D., State University of New York at Buffalo Law School, B.A., Daemen College; Rosary Hill College.

Christopher Bonner: Of Counsel, Hiscock & Barclay, LLP, Syracuse, New York; J.D., Harvard Law School; B.A., Williams College.

Survey: 2011 Civil Practice

Between July 1, 2010 and June 30, 2011, New York’s Court of Appeals and appellate divisions published hundreds of decisions that impact virtually all practitioners. These cases have been “surveyed” in this article, meaning that the author has made an effort to alert practitioners and academicians about noteworthy changes in New York State law and to provide basic detail about the changes in the context of the Civil Practice Law and Rules (CPLR). Whether by accident or design, the author did not endeavor.

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Michael Bottar: J.D., summa cum laude, Syracuse University College of Law (Order of the Coif, Order of Barristers); B.A., Colgate University; partner, Bottar Leone, PLLC, Syracuse, New York; adjunct professor, Syracuse University College of Law; board of directors, Syracuse University Law Alumni Association and New York State Academy of Trial Lawyers

Survey: 2011 Criminal Law

This article, written by Erik Teifke, surveys of developments in New York State criminal law between July 1, 2010 and June 30, 2011 includes all significant New York State Court of Appeals decisions and New York State laws enacted in the area of criminal law and procedure.

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Erik Teifke is Special Assistant Public Defender with the Office of the Monroe County Public Defender and the Director of the Syracuse University School of Law Crimi-nal Defense Clinic.  He received his Juris Doctorate from Rutgers University in 1992.

Survey: 2011 Environmental Law

Mark Chertok and Jonathan Kalmuss-Katz overview developments in the state of New York in the area of Environmental Law.

This Article will discuss notable developments in the law relating to the New York State Environmental Quality Review Act (SEQRA) for the Survey period of 2010-2011.  While there have been no major SEQRA decisions from the Court of Appeals since 2009, a series of regulatory proposals, new legislative enactments, and appellate division and supreme court rulings have updated, clarified, and, in some instances, changed SEQRA practice in the interim.

In 2010, for the first time in two decades, the Department of Environmental Conservation (DEC) proposed revisions to its Full Environmental Assessment Form and Short Environmental Assessment Form, aimed at bringing those documents up to date with current SEQRA practice. Environmental Assessment Forms are widely used in SEQRA practice as they comprise the principal factual predicate upon which a government agency will determine whether a proposed action requires an Environmental Impact Statement (EIS), or whether the agency can issue a negative determination (i.e. that no EIS is required) and terminate the SEQRA process. DEC also published a new edition of its “SEQRA Handbook” in August 2010, providing an updated resource for practitioners and reviewing courts.

In June 2011, the New York State Legislature reauthorized Article X of the Public Service Law, establishing an alternate environmental review process for new and substantially modified power plants. Article X, which was previously in effect from 1992 through 2003, displaces SEQRA for covered projects, though the two regimes share many common elements.

Case law also continued to develop on key issues such as the supplementation of environmental review and the concomitant need for a supplemental EIS (SEIS), the “hard look” standard under which SEQRA challenges are judged, and private party standing to pursue a SEQRA claim. In Bronx Committee for Toxic Free Schools v. New York City School Construction Authority, the Appellate Division, First Department, required an SEIS analyzing the maintenance and monitoring requirements within a Site Management Plan (SMP) prepared pursuant to the State Brownfield Cleanup Program (BCP). That decision marked a significant change to the SEQRA review for remedial projects and the procedure and standards for requiring an SEIS, and set the stage for the Court of Appeals’ next SEQRA ruling. A series of recent decisions in state and federal court addressed a lead agency’s obligations in determining the environmental significance of proposed actions, or lack thereof, under SEQRA.  Finally, in Rizzo v. Verizon CCC LLC, the Supreme Court, Niagara County, upheld a landowner’s standing to challenge the SEQRA review concerning a neighboring parcel of land, despite the petitioner’s lack of residence or physical presence on the property.

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Mark A. Chertok is a partner, and Jonathan Kalmuss-Katz an associate, at Sive, Paget & Riesel, P.C., in New York, NY (  Both authors practice environmental law at the firm.

Survey: 2011 Health Law

Kirsten Lerch and Kristy Fischmann provide an update on Health Law in the state of New York between July 1, 2010 and June 30, 2011.

At the federal level, the historic challenges to the Patient Protection and Affordable Care Act (PPACA), primarily the controversial individual mandate contained therein, topped the significant health care developments in 2011. Along with this opposition were challenges to Medicare’s application of the “improvement standard” or “stability presumption” in denying patients Medicare coverage for necessary medical services. Also pertaining to Medicare, parties to liability settlements and awards continue to struggle to understand the implications of the Medicare Secondary Payer Act and section 111 and also struggle to ensure they are in compliance with the same in considering Medicare’s future interest for payment of medical care.

At the state level, the New York State Medical Indemnity Fund was created to provide for future health care costs associated with birth-related neurological injuries. In addition, new provisions in the Civil Practice Law and Rules (CPLR) were enacted which will effect medical malpractice actions in New York. Further, the New York Court of Appeals addressed the Health Insurance Portability and Accountability Act (HIPAA) Privacy Law in relation to New York’s Kendra’s Law.

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Kristen Lerch is an Associate with Gale, Gale & Hunt, LLC, J.D., State University of New York at Buffalo; B.A., State University of New York College at Geneseo.

Kristy Fischmann is also an Associate with Gale, Gale & Hunt, LLC. J.D., Syracuse University College of Law; B.S., Utica College of Syracuse University.

Survey: 2011 Labor & Employment Law

Kerry Langan and Katerine Schafer provide an overview of Labor & Employment Law in the state of New York between July 1, 2010 and June 30, 2011.

This Survey year was highlighted by several significant state and federal legislative and regulatory developments. Specifically, the New York Labor Law was amended to provide employment rights to domestic workers, to require employers to provide certain wage information to employees, and to create a presumption that construction workers are not independent contractors. The New York Human Rights Law was also amended to protect domestic workers from sexual and other forms of harassment. Additionally, the New York State Department of Labor revised regulations regarding the New York State Worker Adjustment and Retraining Notification Act and issued a Wage Order pertaining to employees in the hotel and restaurant industry. In addition, the National Labor Relations Board issued a final rule which requires most private sector employers to post a notice informing employees of their rights under the National Labor Relations Act. Lastly, and perhaps most significantly, New York State legalized same-sex marriage.

In addition to the legislative and regulatory developments, there were a number of significant decisions by the United States Supreme Court on various labor and employment law issues. Notably, the Supreme Court expanded the reach of Title VII’s anti-retaliation provision, held that oral complaints are protected activity under the anti-retaliation provision of the Fair Labor Standards Act (FLSA), denied class certification to 1.5 million current and former female employees in a gender discrimination lawsuit, resolved a circuit split regarding the “Cat’s Paw” theory of liability, and determined that a state’s rule preventing parties from contractually prohibiting class-wide arbitration was preempted by the Federal Arbitration Act. The Supreme Court also held that retaliatory actions by a government employer against a government employee do not give rise to liability under the First Amendment’s Petition Clause unless the employee’s petition relates to a matter of public concern.
Similarly, the Second Circuit Court of Appeals handed down a few notable employment-related decisions. First, it held that temporal proximity, without other evidence of pretext, is insufficient to support a claim of unlawful retaliation under Title VII. The Second Circuit also ruled that juries, not courts, are tasked with determining whether entities are joint employers under the FLSA. Lastly, the court found that pharmaceutical sales representatives are not exempt from the overtime pay requirements under the FLSA.

The New York Court of Appeals also issued several important decisions on various employment law issues, including whether a non-resident has standing to sue its employer under the New York State and New York City Human Rights Laws. The Court of Appeals also held that the invasion of personal privacy exception to the Freedom of Information Law protected a school district from having to disclose information about its employees to a teachers’ union. Finally, New York courts have continued to address various issues surrounding the employment-at-will doctrine.

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Kerry W. Langan: Associate at Bond, Schoeneck & King, PLLC; J.D., cum laude, 2007, Syracuse University College of Law; M.A. 2004, Boston College; B.A., magna cum laude, 2003, Boston College.

Katherine Ritts Schafer: Associate at Bond, Schoeneck & King, PLLC; J.D., summa cum laude, 2008, Syracuse University College of Law; B.A., summa cum laude, 2005, Hobart and William Smith Colleges.

Survey: 2011 Media Law

Roy Gutterman provides an update of Media Law between July 1, 2010 and June 30, 2011..  There was no shortage of interesting and novel cases with First Amendment implications this Survey year. State and federal courts in the jurisdiction took on a range of cases involving important free press implications with newspapers and traditional journalists, as well as cases involving high-profile and widely popular media parties, ranging from comedian Jerry Seinfeld to popular television shows Law & Order and Real Sports with Bryant Gumble, to films such as Couples Retreat. Issues involving liability for internet-based content also emerged again this year.

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Roy S. Gutterman is an associate professor of communications law and journalism and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.

Survey: 2011 Professional Responsibility

James Townsend provides an overview of Professional Responsibility in the state of New York between July 1, 2010 and June 30, 2011.  He discusses Advertising, Social Media, Cloud Computing, Electronic Communications, In-House Counsel Rules, Conflicts of Interest, Privilege, Fiduciary Obligations, Disclosure, Improper Solicitation, and Reporting Misconduct.

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Mr. Townsend is the managing partner of Remington, Gifford, Williams & Colicchio, LLP, a small general civil practice firm in Rochester; he is a member of the New York State Bar Association Ethics Committee and a member and immediate past chair of the Monroe County Bar Association’s Ethics Committee; he has chaired the Seventh Judicial District Attorney Grievance Committee; he has presented in several state and local programs regarding ethics; and he has been a guest speaker on several occasions.

Survey: 2011 Tort Law

The Honorable John C. Cherundolo provides an overview of tort law in the state of New York through between July 1, 2010 and June 30, 2011.  This article discusses the areas of Labor Law, Municipal Liability, Motor Vehicle, and Premises Liability.

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John C. Cherundolo is an Acting Supreme Court Justice of the New York Unified Court System, Onondaga County, and an Adjunct Professor of Law at Syracuse University College of Law. He received his LLM from Temple Law, JD from Syracuse University College of Law, and MPA from the Syracuse University Maxwell School and BA Syracuse University.