Tuesday, March 9th, 2010
by hollyjoseph
Posted in Employment Law, Litigation, New York Law, Practice Areas
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Contractor versus Employee: Is It All Just a Bunch of Garbage?

employees only

At a hearing held on February 18, 2010, LOBEJ on behalf of it’s client’s obtained a judgment of $75,000 based on a breach of contract claim. Whether or not an employer-employee relationship exists is a critical component of many legal claims.  Among the factors that a court will examine to determine whether a person is an employee or an independent contractor are:
-  the skill required
-  the source of the instrumentalities and tools
-  the location of the work
-  the duration of the relationship between the parties
-  whether the hiring party has the right to assign additional projects to the hired party
-  the extent of the hired party’s discretion over when and how long to work
-  the method of payment
-  the hired party’s role in hiring and paying assistants
-  whether the work is part of the regular business of the hiring party
-  whether the hiring party is in business
-  the provision of employee benefits
-  the tax treatment of the hired party
See Frankel v. Bally, Inc., 987 F.2d 86.(2d. Cir. 1993).
In Mr. Janay’s recent case the plaintiffs were paid at regular intervals by the defendant, sent daily notices, plaintiffs’ names appeared in the internal company directory and email list, plaintiffs were provided with building security passes, and meals were paid for by the company. In addition, the plaintiffs were treated in the same manner as other employees in their use of telephones, telephone services, and company equipment.  However, as noted above, these actions were not enough to establish an employee-employer relationship.  In New York State, the establishment of this relationship has a substantial effect on damages in various lawsuits and on tax liability.  The plaintiffs recovered in this case because they had a contract (actually an implied contract)with the defendants upon which the court based the $75,000 in damages.  However, had the judge found that there was an employer-employee relationship, the damages would have been significantly higher as they would have potentially included attorney’s fees and costs, and punitive damages.  See NY CLS Labor § 198.  Nonetheless, it was a victory that had left the Law Office of Barry E. Janay, P.C.’s client’s very pleased.

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Friday, February 19th, 2010
by bjanay
Posted in Firm News and Events
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What one satisfied client recently had to say about LOBEJ…

The only thing better than receiving a positive review or recommendation from a past client is when they choose to hire you again.  Just recently a former client of LOBEJ posted a recommendation on Mr. Janay’s LinkedIn profile that reads:

“I retained Barry in 2009 to file a civil action to collect a substantial debt that was two years old. I had tried numerous times to find an attorney in New York to assist me, and had run into many snags along the way, as our case involved out of state corporations, uncertain jurisdictional issues, a resistant debtor, and my own limited resources. Barry knew or figured out how to work the courts and financial institutions in New York, and secured a 100% recovery of the debt in a short period of time. He is personable, realistic, and true to his word. I plan to retain him again soon on another matter, and look forward to working with him.” February 19, 2010

This former client listed Mr. Janay’s top qualities as: Great Results, Personable, Good Value.

It has long been said that the best way to grow any business is through word of mouth referrals and by obtaining great results, while in the practice of law and especially in litigation “great results” are not always possible it is nice to see that when things do go right that your client’s appreciate it.

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Friday, February 12th, 2010
by bjanay
Posted in Firm News and Events, Intellectual Property
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MasurLaw (Of Counsel to LOBEJ) in Conjunction with the IAEL Presents “Collective Rights Licensing at the ISP Level”

NYC - Brooklyn - Williamsburg - MÖTUG collecti...

Image by wallyg via Flickr

The International Association of Entertainment Lawyers and MasurLaw have come together to publish the book: Collective Licensing at the ISP Level.

The book is summarized as follows:

Each year the IAEL publishes a book on a topic of international concern in the entertainment business.   The 2010 book is about collective licensing at the ISP level.  This idea has gained momentum as revenues have declined in the mediadigital distribution.  We chose this topic because we were struck by how often collective licensing has been discussed recently as the “solution” to media’s sea change to digital distribution, and by how little has been discussed about how it would work.  This book is about exactly that, and attempts to answer the following question: distribution businesses as a result of the transition from physical to

If a collective licensing scheme were introduced to pay for uncompensated consumption of media on the internet, how would it work, and how would it be implemented on a worldwide basis?

The book was designed to be used as a desk reference for entertainment attorneys, artists, rights holders, entrepreneurs, academics, music and entertainment journalists, lawmakers and regulators, etc.  However it is still fairly easily accessible for just about everyone and since the topic is bound to come up at social gatherings having read it will help ensure that your comments will be relevant and insightful.

Copies are presently on sale for $89.00 plus $10 shipping within the USA, to purchase yours or ask any questions simply email us at inquiries@lobej.com.

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Tuesday, February 2nd, 2010
by bjanay
Posted in Employment Law
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Exceptions to the New York State Employment At Will Doctrine

The doctrine of employment at will is one that, while well known, is rarely understood by either employees or employers.

Employment at will  is explained as follows:  “any hiring is presumed to be ‘at will’; that is, the employer is free to discharge individuals for good cause, or bad cause, or no cause at all, and the employee is equally free to quit, strike, or otherwise cease work.”

Taken at face value this definition might lead one to believe that he or she can be terminated for any reason whatsoever, including sex, race, etc.  However, there are limitations, both via legislation and through principles of fairness, which regulate the reach of this doctrine.  Even if an employee is at will, with no contract whatsoever, he or she cannot be terminated for belonging to certain groups.  Under New York State law, it is illegal to discriminate on the basis of  “age, race, creed, color, national origin, sexual orientation, military status, sex or marital status.”(Click Here for the Division of Human Rights Law and Regulations Website)   Federal law has similar restraints; with the exception that Federal law does not protect discrimination on the basis of sexual orientation.  In addition, the City of New York also has an anti-discrimination law.  If an employee is terminated and such termination is “under circumstances giving rise to an inference of discrimination” he or she may have a claim against his or her former employer.  (See Martin Ferrante, Respondent,V.American Lung Assoc., Appellant. 90 N.Y.2d 623, 687 N.E.2d 1308, 665 N.Y.S.2d 25 (1997)).
It is also possible that what began as an employment at will transformed into something else entirely during the employment relationship.    If at some point during the employment, the employer made a promise to the employee that his or her employment would last for a specific duration, then an implied in fact contract may exist.   Even if an employer did not intend to create a contract with an employee, if the employer made such promises to the employee, the employer is legally bound by those promises.  This type of implied contract might warrant a claim against a former employer.

Lastly, courts in New York have generally been willing to make some public policy exceptions to an at will employment and require that employers act in good faith and fair dealing with their employees.  If an employee can allege that the employer acted in bad faith, (i.e. terminating employment right before a big bonus is due), then New York courts are often willing to find wrongful termination, you can find more information on this topic by clicking here or by contacting The Law Office of Barry E. Janay, P.C.

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Monday, January 25th, 2010
by bjanay
Posted in Employment Law, Firm News and Events, Litigation
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LOBEJ attends WebEx Continuing Legal Education Seminar: “How the Emerging Area of E-Discovery Impacts You and Your Clients.”

The course covered FRCP 16, 26, 33, 34, 37 and 45 and 22NYCRR Sec. 202.70(g), which is better known as Commercial Division Rule 8 and 22 NYCRR Sec. 202.12(c)(3).

Unlike the Federal Courts where there is just the Federal Rules of Civil Procedure, in New York you have a multitude of sources such as Uniform Rules of the Supreme and County Courts (NYCRR).

A copy of the power point presentation / slides can be found here.

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The Clock is Ticking on the NYC Environmental Control Board (ECB) Penalty Relief Program

paystopay_web_graphicAs some of you may know, the City of New York is doing whatever it can to get “back in black” and get some quick cash from businesses and people who may have gotten cited for an Environmental Control Board (ECB) violations and either failed to pay or failed to appear at a hearing…  The program allows those who qualify to avoid liens on their property and allow for a reduction of certain amounts such as a default fee, interest fee, or late payment charges. Here is a copy of the flyer given out at the ECB Adjudication Offices The Law Office of Barry E. Janay, P.C. routinely represents client’s at the ECB and often times when proof of remedial action is presented or other evidence showing a lack of liability is presented the charges can be dismissed or reduced.  As with any legal matter no outcome can be guaranteed however.

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Wednesday, October 21st, 2009
by bjanay
Posted in Uncategorized
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Barry E. Janay, Esq. is now Qualified to be a Financial Industry Regulatory Authority (FINRA) Arbitration Panelist

Financial-Industry-Regulatory-AuthorityUpon successful completion of the arbitrator training course provided by the Financial Industry Regulatory Authority (FINRA), Barry E. Janay, Esq., principal and owner of The Law Office of Barry E. Janay, P.C. has been approved as a FINRA Dispute Resolution Arbitrator.  The application process consisted of a background evaluation that took many aspects of his professional experience into account, conflict checks and disclosures, as well as a mandatory assessment exam taken after completion of the Basic Arbitrator Training Course, and finally a classroom session.

The cases that FINRA routinely hears are disputes between securities industry customer, broker / dealers, members of FINRA, and employees of FINRA registered firms.

Mr. Janay intends to execute his responsibilities as a FINRA arbitrator panelist impartially and with the utmost responsibility and care to ensure and maintain the quality of dispute resolution services of FINRA remains one of the best forums in the world.

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$130K Judgment Obtained Against Real Estate / Mortgage Broker

Judgment GavelAt an appearance held this morning, Barry E. Janay, Esq. obtained a judgment against all Defendants in a case involving fraud against a Real  Estate / Mortgage Broker operation operating in Mt. Vernon, White Plains, and The Bronx, New York.  This case has been going on for about two years and was ready for trial when the Defense attorney failed to appear at a mandatory pre-trial hearing this morning and Justice Ira Gammerman (Judicial Hearing Officer) of the New York Supreme Court, New York County awarded a Judgment based on the failure of the Defendant and/or his attorney to appear in court.  Mr. Janay informed the court that the Defendants counsel had requested an adjournment this past Monday, and had faxed the court a letter requesting the same, but Justice Gammerman stated that since the adjournment request was never granted it did not absolve the attorney for the Defendants of his responsibility for appearing in the action.  Mr. Janay did not argue with the Judge since it favored his client.

Justice Gammerman read the judgment to the court reporter and advised Mr. Janay to pickup a copy of the transcript and bring it back to him to be “So Ordered.”  Ordering a transcript generally takes a day or two before it is ready to be picked up.

You can find more articles on the lobej.com/blog regarding default judgments such as this, but in general they are capable of being vacated or set aside, without too much difficulty (generally speaking if you provide a reasonable excuse and make the application within one year you can get the judgment vacated in NY courts).  Nonetheless, making the application takes time and effort by the attorney and therefore there are costs associated with it.  Of course the attorney for the Defendant is going to complain about the entry of the judgment, but this particular attorney has previously stated “my job is not too make your life easy, it’s the opposite,” so while under some circumstances it makes sense for an attorney to stipulate (i.e. make an agreement) to vacate the default judgment that won’t likely be happening in this case after all “it’s not my job to make his life easy, it’s the opposite.”  While generally speaking civil litigation should remain “civil” and attorneys in New York are supposed to operate under the informal rules governing civil conduct, which are not to be confused with the New York Rules of Professional Conduct , which are binding.

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Talk About a Bad Experience with Shellfish

I'm going to call these blood clams until some...

Image by doctorhandshake via Flickr

Earlier today Barry E. Janay, Esq. appeared on behalf of a company whose employee was making seafood deliveries, including the nefarious “Blood Clam” (Tegillarca granosa).  While the client had a valid Food, Fish, and Crustacea (FF&C) Dealers license those crustacea are disallowed if they came from China as this link points out.  This case certainly is unique to say the least, but it provides a good example of the possible penalties people who don’t take the time to know or understand the law will face if they start a business and later find out that what they are doing was in fact against the law.

Under New York’s Environmental Conservation Law Sec. 71-0924(3), Illegal commercialization of Fish, shellfish, Crustaceans, and Wildlife it is a Class E Felony to sell these (on an aside, it’s curious as to why their are so many different classes of felonies isn’t three i.e. A, B, C enough?  If it doesn’t fit one of those, why not just make the offense a misdemeanor?).  It is also a violation of ECL § 11-0107(2) to “buy, sell, offer, and expose for sale, transport, and have in your possession any fish protected by law, game, protected wild life, shellfish, harbor seals, crustacean protected by law, and part thereof, and protected insect, whether taken within the state or coming from without the state, except as permitted by the Fish and Wildlife Law.”  Further, the client was charged with violating 6 NYCRR Part 42.11(a)(1)(i) because the shellfish were apparently not properly tagged, under that law “it is unlawful to receive, store, posses, or sell any shellfish in containers that have not been propely tagged and/or labeled.”  Pursuant to 6 NYCRR Part 42.13(a)(5) all shellfish containers must have a waterproof label, listing, among other items, the harvester’s name, and the date and location where the shellfish were taken…  Finally, under 6 NYCRR Part 42.3(e) it is illegal for any person to process, transport, or ship shellfish unless that person has a Certified Shellfish Dealer permit from the New York DEC, and unless that country has been approved by the U.S. Department  of Health and Human Services, Public Health Service, and/or Food and Drug Administration.

The client in this case was unaware that what he was doing was at all illegal, but his mental state (i.e. mens rea) was not important since these are strict liability offenses, explaining this through an interpreter is not the easiest task in the world as something is bound to get lost in translation.  Nonetheless, at an earlier hearing prior to having retained The Law Office of Barry E. Janay, P.C., the client, who only speaks Cantonese and needs an interpreter, agreed to plead guilty to the offense…  While a court appointed interpreter was present during the appearance, the client claimed that he did not understand exactly what he was pleading to because his attorney didn’t adequately advise him and the client contends that his plea was not “knowing and voluntary” and resulted from ineffective assistance of his prior counsel.  His goal now is to have the plea set aside, to re-plea “not guilty” and to hopefully have the charges either dropped or reduced.   He also wishes to regain possession of the property taken while under arrest, which is a pretty simple task after you obtain a release and present that release, a voucher, and two forms of identification to the NYC Police Property Clerk’s office.

More updates on this case to come as it develops…

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Tuesday, September 15th, 2009
by bjanay
Posted in Commercial Real Estate, Landlord Tenant
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New York City Landlord Tenant Commercial Disputes

Dusk in Sheepshead Houses
Image via Wikipedia

New York City Landlord Tenant Law (non-housing / commercial part) is designed to be a tribunal where results can be obtained quickly for Landlords in “hold over” and non-payment of rent matters, but there are various defenses that can be employed (usually based on the lease’s own terms) that can allow a small business to maintain possession after an action has been started.

Earlier this morning Barry E. Janay, Esq. of The Law Office of Barry E. Janay, P.C. appeared on behalf of a dental clinic located in a New York City Housing Authority (NYCHA) complex.  The NYCHA attorney’s are from the New York City Law Department and this group focuses solely on landlord tenant disputes between residents and businesses that sign lease agreements with the City through NYCHA.  The attorneys for the city are very skilled in this niche area of practice, however they are not “cut throat” litigators by any means and really only get tough if the business or commercial tenant is a repeat offender of some of the rules of the NYCHA or if they are flagrantly in violation of their lease, which was not the case in the matter Mr. Janay handled today.

The hearing was at the Civil Court, Kings County (141 Livingston St., Brooklyn, NY, Rm. 904).  The city agreed to settle a matter where significant back rents were owed and the commercial tenant (the group of Dentists) could no longer afford to pay the rents due.  Ultimately the city agreed to settle the case for the back rents owed (not any future rents due under the lease) and for a definite “move out” date to take place at the end of November, which gave the Dentist group ample time to pack up and/or relocate.  While the court’s order approving the settlement agreement should have contained a judgment for the back rent, the NYCHA made a technical mistake and only requested that the NYCHA be entitled to retake possession of the premises, meaning they will have to go back to court for a judgment of the back rent / arrears.  This minor drafting error may buy the Dentists more time to makeup for the back rent and even allow for a settlement of the back rent at a reduced figure.  Given the state of the economy this was welcome news to the Dentists.

When disputes arise between commercial landlords and tenants there are usually many issues present and it’s often not just about paying of rent, but it can also be about the permissible or authorized uses of the premises, so it’s very important to get an attorney in your corner that can assist you in presenting defenses and/or counterclaims to any ejectment proceedings you may be facing, the money you spend on an attorney could wind up saving you multiples of that amount in the long term.

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