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Health Care Proxies Attorney New York - Who makes medical decisions if you are incapacitated

Who Can Make Medical Decisions for You?

In addition to Wills and Trusts which cover scenarios when they pass away, clients should also focus on documents needed while they are alive. Health care documents are vital documents which cover making medical decisions. New York has a Health Care Proxy statute (Article 29-C of the New York Public Health Law (“PHL”)) which allows a client to designate someone as health care agent to act for him or her in connection with specified medical treatment and the decisions described, if the client is unable to act. The attending physician must make a determination that the “principal lacks capacity to make health care decisions.” PHL §2981(4). Such decision must be made in writing “to a reasonable degree of medical certainty” and when the decision must be made to withdraw or withhold life sustaining treatment, the physician must first consult with a second doctor. PHL §2983(1)(a). In order to ensure that the agent can make medical decisions such as to which hospital an ambulance should transport the principal, the Health Care Proxy can contain language authorizing the agent to do so. Without such language, the emergency responders will not be required to honor the agent’s authority to make such designation.

The client is naming an agent to make substituted health care decisions. These issues can cover medications, treatments, therapy, choosing doctors and any other issue connected with the client’s medical care. The Proxy must be signed and dated by the principal in the presence of at least two witnesses who are not named in the form and they shall state “that the principal appeared to execute the proxy willingly and free from duress.” (PHL §2981(2)(a)). No notarization is required. Good practice is for the client to also designate an alternate health care agent to act if the primary health care agent is unable to serve. PHL §2981(6)(a).

Having a Health Care Proxy is preferred, but there is some relief to knowing that even if the person does not have this crucial document, medical decisions can be made.

The statute also provides that one cannot name more than one agent at a time. One can imagine the scenario where two or more agents were named and they give conflicting advice to the doctor. The client can add precatory language that the principal desires that the agent consult with other named individuals before making decisions. We do not recommend requiring that the agent consult with others because such a requirement may prove impractical to honor and providing proof that the agent did in fact consult with these other named individuals may also prove to be difficult.

The requirements for the form and a sample form can be found at PHL §2981(5). New York does not require that the principal use this statutory form but New York does provide that the Health Care Proxy cannot be part of the Power of Attorney. PHL §2981(5)(e). Out of state forms are also valid in New York so long as the form was validly executed in the other jurisdiction. PHL §2990. The benefit to using the New York statutory form is that doctors and hospitals will be more familiar with the form and therefore, may be quicker to honor it.

The Family Health Care Decisions Act (FHCDA) can be found at PHL Article 29-CC and was added to the PHL effective June 1, 2010 to provide decision making ability when the client has no Health Care Proxy. This provision allows family members or friends to make health care decisions for an incapacitated person without a Health Care Proxy when such person is in a hospital or residential health care facility. FHCDA at PHL §2994-d(1) provides the order for people to act which may not conform to what a client would have chosen if the client had prepared a Health Care Proxy. Having a Health Care Proxy is preferred, but there is some relief to knowing that even if the person does not have this crucial document, medical decisions can be made.

Women’s History Month Spotlight: Kate Stoneman

In recognition of Women’s History Month, today’s post honors the contributions made by Kate Stoneman to the New York legal community and women everywhere.

In 1886, Katherine “Kate” Stoneman became the first woman admitted to practice law in the State of New York. She was also the first woman to pass the New York Bar Exam, doing so without any formal education in law. This groundbreaking series of firsts was not without controversy. Stoneman was initially refused admission to the bar because of her gender. There was “no precedent” for women to be able to practice law in New York. In addition, the Code of Civil Procedure denied women the right to practice. Coincidentally, legislation had been introduced which would remove the gender qualifications from Section 56 of the Code of Civil Procedure a few months before Stoneman was denied. This bill, however, had been stuck in the legislature. Stoneman was able to marshal support and the bill was signed into law within a few short days. Stoneman then reapplied for admission to the bar, which was accepted, and in May of 1886 became New York’s first woman lawyer. Stoneman’s achievement paved the way for thousands of women to pursue a career that was previously unavailable to them.

In 1896 Stoneman enrolled in Albany Law School, and in 1898 at age 57, became the first woman to graduate from Albany Law. Thereafter, Stoneman maintained a law office in Albany for forty years. During this time Stoneman was also a teacher. She graduated from the New York State Normal College in 1866 and proceeded to teach geography, drawing, penmanship and school law at the College for the next 40 years.

Stoneman was also actively involved in the women’s suffrage movement, playing a prominent role throughout her lifetime. She and others formed the Women’s Suffrage Society of Albany and she was an executive board member of the State Suffrage Association. Stoneman participated in efforts to secure suffrage legislation in New York State, and, as a pole watcher, reportedly saw New York women vote for the first time in 1918.

Stoneman has been recognized for her achievements and impact on women’s history. On May 22, 1986, New York Governor Mario Cuomo declared the date “Katherine Stoneman Day,” honoring the 100th anniversary of her acceptance to the bar. In addition, Stoneman was introduced into the National Women’s Hall of Fame in October of 2009. Kate Stoneman passed away in May of 1925 at the age of 84.

Black History Month Spotlight: Thurgood Marshall

In recognition of Black History Month, today’s post honors the contributions made by Thurgood Marshall to the legal community and to all citizens of the United States of America.

In 1967, Thurgood Marshall became the first African American Supreme Court Justice. Prior to serving on the U.S. Supreme Court, Marshall led a distinguished legal career as an advocate for civil rights. Marshall devoted nearly his entire legal career to fighting against racial injustice winning cases such as Brown v. Board of Education which overturned the practice of racial segregation in America. As an advocate for civil rights, Marshall drew upon his own personal experiences including being denied admission to the University of Maryland Law School in 1930 because he was African American. This, and other events, led Marshall to his role as Chief Counsel for the National Association for the Advancement of Colored People (NAACP). Marshall’s successful record of challenging discriminatory government practices before the U.S. Supreme Court earned Marshall an appointment to the U.S. Court of Appeals for the Second Circuit in 1961. In 1965, Marshall was appointed to the office of U.S. Solicitor General where he argued cases before the U.S. Supreme Court on behalf of the United States. In 1967, Marshall was appointed to the U.S. Supreme Court where he served as an Associate Supreme Court Justice until 1991.

Marshall’s legacy and wisdom as a civil rights advocate, lawyer and jurist can be seen through his words. Below are just a few of Thurgood Marshall’s timeless quotes which remain relevant today:

“History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”

“The measure of a country’s greatness is its ability to retain compassion in times of crisis.”

“Mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process.”

“I wish I could say that racism and prejudice were only distant memories. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust…We must dissent because America can do better, because America has no choice but to do better.”

“You do what you think is right and let the law catch up.”

retreat center

The Dharmakaya Center for Wellbeing Opens Its Doors in Ulster County

Located in the Town of Wawarsing in southern Ulster County, the Dharmakaya Center for Wellbeing has now opened its doors in Cragsmoor, New York, to provide a place of retreat, wellbeing and learning focused on the Buddhist teachings of the Tibetan Vajrayana tradition. The center is situated on a 90-acre parcel and includes a large meditation hall with a 10-foot Buddha statue, residential rooms, kitchen, dining and related facilities. The Center is the vision of Trungram Gyaltrul Rinpoche PhD, and its opening was the culmination of a more than decade-long effort by the Dharmakaya organization’s development team including Cuddy & Feder’s Jennifer Van Tuyl as lead attorney and the late Phillip Cerniglia, AIA, project architect, of Lothrop Associates, LLP.

The inclusion of natural buffers also serves to protect a habitat for wildlife, and maintain the existing setting of contributing features within the Cragsmoor Historic District.

The size and location of the project required the development of significant engineering, architectural and environmental plans. At the local level, Planning Board review included both site plan review as well as issuance of a special permit for a house of religious worship.

The project also required a full Environmental Impact Statement examining the potential impacts in numerous areas including water, air, traffic, visibility and historic and municipal resources. Based on detailed studies of water supply, a water monitoring protocol was incorporated into the project. The project also incorporates an extensive vegetated buffer around the Hermitage perimeter, protected by a Conservation Easement held by the Town of Wawarsing. The inclusion of natural buffers also serves to protect a habitat for wildlife, and maintain the existing setting of contributing features within the Cragsmoor Historic District.

In 1986, New York’s highest court ruled that the function of religious institutions supports the public welfare and morals, and such institutions should not be excluded from communities even in residential zoning districts. Such institutions must nevertheless provide an analysis of potential impacts, which required significant analysis over multiple years to complete.
The approval process for a project of this scope and nature is rarely straightforward and required immense coordination by the principals of the project and their professional team. But today the Dharmakaya Center for Well Being is open and actively pursuing its mission.

Elderly man with cane walking with nurse

New Development in Guardianship Law: Supreme Court Won’t Compel Neuropsychological Exam

An Article 81 guardianship proceeding is a lawsuit in which an individual or entity seeks the appointment of a guardian for an “alleged incapacitated person” (the “AIP”). A common misconception about Article 81 guardianship proceedings is that medical evidence is of primary importance to the court’s determination of whether an alleged incapacitated person is, in fact, incapacitated.

But practitioners know that medical evidence and diagnoses are, at most, a secondary consideration of the court in its determination of incapacity. Indeed, although the AIP’s medical condition may strongly affect his or her functional level and functional limitations – the key factors in a finding of incapacity – medical records are usually excluded from evidence as privileged, subject to certain limited exceptions.

In Matter of S.B., 2018 N.Y. Misc. LEXIS 2413 (Sup. Ct. Chemung Cty. June 15, 2018), the court encountered what it dubbed a “novel” question “of first impression” further touching on the use of medical evidence in a guardianship proceeding. The court framed the issue as follows: “[C]an the Court order a neuropsychological evaluation of the AIP despite her objection?” The court answered in the negative – even though the court evaluator recommended that the AIP undergo such an evaluation.

In simply objecting to the petitioner’s petition and opposing the medical examination, the court found that the AIP had not placed her medical condition at issue to warrant waiver of the privilege.

In reaching its decision, the court relied on a potpourri of statutory citations and caselaw. First, the court stated that although the Mental Hygiene Law requires a court evaluator to meet with the AIP, “there is no concomitant statutory duty imposed upon the AIP to meet with the” court evaluator. The court held that forcing an AIP to submit to a medical examination is analogous to compelling an AIP to be interviewed by a court evaluator – a requirement not contained in the law.

Second, the court cited the AIP’s objection to the examination, and noted that the “AIP enjoys the doctor-patient privilege that precludes admission of her medical records into evidence unless she affirmatively placed her medical condition at issue.” In simply objecting to the petitioner’s petition and opposing the medical examination, the court found that the AIP had not placed her medical condition at issue to warrant waiver of the privilege.

Third, the court noted that the “law of the Second and Third Departments” is that an AIP cannot be forced to testify at trial. The court found that a court-mandated medical examination may be analogous to ordering an AIP to testify, and declined to “potentially enter[] an unenforceable Order.”

Lastly, the court highlighted the practical consideration that regardless of any Court Order, the AIP would not cooperate in a medical examination. So any Court Order would likely be futile.

The holding of Matter of S.B. appears to significantly narrow the function of any independent medical expert the court evaluator may retain (with the approval of the court) under MHL § 81.09(c)(7). But that topic is for another blog post.

Ultimately, in Matter of S.B. the court found that the AIP was not incapacitated. And, as is usually the case, its determination was based upon its interactions with the AIP – and not upon the results of a medical examination or medical records.

The experienced Litigation team at Cuddy & Feder LLP is available to help you in the areas of trusts & estates litigation, including will and trust contests and accountings, and contested and uncontested Article 81 guardianship proceedings.

The Quarter Point Tax NY: Obligations and Exceptions

The Quarter Point: Obligations and Exceptions

I. Mortgage Recording Tax

New York State imposes an excise tax on the privilege of recording a mortgage. Known simply as the “mortgage recording tax,” the tax actually consists of several distinct taxes with rates ranging from $0.25 to $1.75 for each $100 of principal indebtedness secured, of which at any time may become secured, by the mortgage. The total tax rate for any given mortgage depends upon which, and how many, of these taxes apply in the county where the property is located.
Of the various taxes that together constitute the mortgage recording tax, there are three that apply almost universally: (i) the basic tax of $0.50 for each $100 of indebtedness, imposed by section 253(1) of the Tax Law; (ii) the special additional tax of $0.25 for each $100 of indebtedness, imposed by section 253(1-a)(a) of the Tax Law; and (iii) the additional tax of $0.25 ($0.30 if the property is located within the metropolitan commuter transportation district) for each $100 of indebtedness, subject to a $10,000 deduction for residential properties, imposed by section 253(2)(a) of the Tax Law (the “metropolitan commuter transportation district” includes New York City and the counties of Dutchess, Nassau, Orange, Putnam, Rockland, Suffolk and Westchester).

Nevertheless, it is not uncommon for the quarter point, and the responsibility to pay it, to become a point of discussion during certain types of mortgage loan transactions.

In addition to these three taxes are those imposed by local governments, specific to the county or, where applicable, city in which the mortgaged property is located. For example, Westchester County imposes an additional tax of $0.25 for each $100 of indebtedness pursuant to section 253-g of the Tax Law. Accordingly, the total mortgage recording tax in Westchester is $1.30 for each $100 of indebtedness, or 1.3%. In New York City, the additional tax is 1% to 1.75% depending on the property type and mortgage amount, resulting in a total mortgage recording tax of 2.05% to 2.80%, the highest in the state.

II. The Quarter Point

Of the various taxes that constitute the mortgage recording tax, only the special additional tax imposed by section 253(1-a)(a) of the Tax Law, commonly referred to as the “quarter point,” must be paid by a particular party. Specifically, section 253(1-a)(a) provides that the special additional tax is payable by the mortgagee in cases where the property covered by the mortgage is “principally improved or to be improved by one or more structures containing in the aggregate not more than six residential dwelling units, each dwelling unit having its own separate cooking facilities.” The section goes on to state that, subject to certain exceptions, “such tax shall not be paid or payable, directly or indirectly, by the mortgagor” if the mortgaged property is as described above. In other words, unless an exception applies, the quarter point must be paid by the lender where the mortgage encumbers a residential property with six units or less.

So, what are the exceptions?

1. Statutory Exceptions

a. Payment to Facilitate Release:

Section 258 of the Tax Law provides that a mortgage shall not be recorded unless the required mortgage recording tax is paid. Similarly, section 258 provides that a mortgage which is subject to the tax shall not be, among other things, released, discharged of record, modified or extended unless such tax is paid. If, for example, a mortgage is mistakenly recorded without collection of recording tax, or if it is later determined that a greater tax was due than was actually collected, such amount must be paid in order to compel the county clerk to record a satisfaction or assignment of the mortgage, even if the appropriate instrument of satisfaction or assignment is successfully tendered and all other requirements have been satisfied. To account for scenarios in which the portion of the recording tax due is the special additional tax payable by the lender, Section 258 provides that a mortgagor may bypass the lender and pay the special additional tax directly to obtain a release or discharge of record and then either apply for a credit or maintain an action against the party responsible for such payment.

b. Trust Mortgages:

When a mortgage is made by a corporate trust to secure payment of bonds or other obligations and, at the time the mortgage is recorded, the principal indebtedness which is or may become secured by such mortgage has not been fully advanced, the mortgage tax payable at that time is based only on the amount of the initial advance, provided that amount, among other things, is stated at the end of the mortgage document (Tax Law section 259). This allows the trust, as borrower, to postpone payment of the recording tax and to ensure that such tax is paid only on the total amount actually advanced. However, balancing this privilege is the requirement that, after the recording of the mortgage, the recording tax due in connection with any subsequent advance, including the special additional tax that would otherwise be payable by the bondholders or other mortgagees, is payable by the borrower.

c. Non-Profits:

253(1-a)(b) provides that a non-profit organization exempt from federal income taxation pursuant to subsection (a) of Section 501 of the internal revenue code is exempt from the special additional tax. The exemption applies both to mortgagees and mortgagors. Where the mortgagee is exempt as a qualifying non-profit under this section, the mortgagor is obligated to pay the tax. Where the mortgagor is exempt, mortgagee must pay the tax. Where both the mortgagor and mortgagee are qualifying non-profits, the mortgage is exempt from the special additional tax altogether.

2. Case Law

Federal Savings and Loan Associations:

In Dime Savings Bank of New York, FSB, v. The State of New York, 174 AD2d 173 (2nd Dept. 1992), the Appellate Division, Second Department, held that the anti-pass through provision in Section 253(1-a)(a) conflicts with a federal regulation (12 CFR 545.32 (b)(5)), which permits federal savings institutions to require the borrower “to pay necessary initial charges connected with making a loan, including the actual costs of title examination, appraisal, credit report, survey, drawing of papers, loan closing and other necessary incidental services and costs.” Therefore, the Court concluded, section 253(1–a)(a), insofar as it prohibits the lender from passing the cost of the recording tax on to the borrower, is unenforceable as against federal savings and loan associations. Accordingly, federal banks are entitled to require the borrower to pay the special additional tax that would, under section 253, otherwise be payable by the lender.

III. In Practice

The rule stated in section 253(1)(a) seems straightforward: if the mortgage secures a residential property with six units or less, each with its own cooking facilities, the lender must pay the quarter point, subject only to a limited set of exceptions, as set forth above. Nevertheless, it is not uncommon for the quarter point, and the responsibility to pay it, to become a point of discussion during certain types of mortgage loan transactions. Sometimes, this is the result of the lender’s unfamiliarity with this rule and other times the borrower’s. For example, a bank, or a particular bank office, may generally issue loans secured only by commercial properties or properties outside of New York State. On the other hand, a borrower may be investing in a commercial property for the first time, having only had experience investing in one to six family residential properties in the past. In either of these examples, the allocation of the special additional tax may come as a surprise to one or both parties. There are also instances in which the parties are generally aware of the rule but unsure of its application given the nature of the transaction – for example, a commercial loan secured by a single-family residence. In the eyes of the bank issuing such a loan, the property is an investment and the loan is evaluated and papered accordingly. So, why, the bank may ask, should the mortgage recording tax be treated any differently? Why should the bank have to pay the quarter point on a commercial loan? The answer is because the law is based on the type of property, not the type of loan. If the collateral is a residential property with six or less units, the bank is obligated to pay the quarter point.

Of course, there are ways for lenders to pass the tax on to borrowers or other parties – for example, by increasing fees to offset the anticipated tax or openly requesting that the borrower or another party pay the tax. No matter the particulars, however, any such arrangement is impermissible under section 253(1)(a). While it is unlikely that the recording of the mortgage would be jeopardized as a result, assuming the full mortgage recording tax is paid, the lender’s obligation with respect to the tax survives the recording of the mortgage. In State v. Intercounty Mortgagee Corp., 87 AD2d 748 (1st Dept. 1982), the court required lenders who had passed the cost of the tax on to sellers to make restitution to those sellers in the amount of the tax improperly collected from them. In so doing, the court stated: “[T]he fair interpretation of Tax Law § 253 subd. 1–a(a) is that the special additional mortgage recording tax with respect to such improved real property must be paid by the lender and cannot be passed on to the seller, real estate broker or other third person. Nor do we think that this statutory provision denies these mortgagees the equal protection of the laws, or is invalid under the supremacy clause of the United States Constitution.”

It is important for all parties to any New York mortgage loan transaction to be aware of their respective recording tax obligations, including the quarter point, and to get it right. In the end, it is to the benefit of both the borrower and lender (not to mention sellers and other parties who might otherwise agree to pay the tax) to ensure that the tax is paid in accordance with the Tax Law. For the borrower, the recording tax often constitutes a substantial portion of closing costs. Simply paying attention to the amount and allocation of the tax can create opportunities for cost savings. If the borrower is entitled to an exemption, the opportunity is even greater. For lenders, strict compliance with the Tax Law can eliminate the risk of future liability for misallocated recording tax. Whether by paying the quarter point or, in certain cases (for example, where the borrower is exempt) paying the entire recording tax, lenders can ensure they will not be ordered to make restitution or face other penalties down the road in connection with their recording tax obligations.

The experienced Real Estate team at Cuddy & Feder are available to help you in a variety of real estate transactions, both commercial and residential. Founded on the strength of our real estate practice, the firm has played a key role in shaping the real estate landscape throughout Westchester, Fairfield, Long Island and the Hudson Valley.

New Local Laws Address Climate Change Issues. How to Be Prepared.

New Local Laws

Whether it be new construction or substantial alternations to existing buildings, there is never any shortage of development in Westchester County. Some developers proactively keep changing climate conditions in mind in their planning process, but many don’t think to do so. In some localities, that’s no longer an option. According to Westchester County’s Action Plan for Climate Change and Sustainable Development, by 2100 “destructive 100-year floods are predicted to occur on average every 10 years in the vicinity of Westchester County.”

Many municipalities are updating local laws to reflect the changing climate conditions and improve the community’s resilience. For permit administrators and municipal staff, adapting to the changing times is necessary to ensure resilience of new projects, mitigate the adverse impacts new development will have on neighboring properties, and prevent substantial damage to municipal systems and private property.

How to Be Prepared

Applicants should be prepared to address these issues. Being aware of the concerns the legislative amendments are intended to mitigate and the purpose in enacting them prevents code-compliance issues from being raised during the land use approval process. Additionally, reviewing these requirements before starting the local application process demonstrates to land use boards that diligence and careful consideration have gone into planning the project, which will earn the appreciation of board members.

Aside from creating additional restrictions on new construction, some municipalities are amending their code to include incentives for incorporating green components.

These updated local laws target concerns such as increased stormwater runoff resulting from more frequent and severe storms and adverse temperature and flooding impacts caused by additional impervious surface. These requirements are typically located in the sections of your municipality’s local law that concern flood damage prevention, zoning and wetlands.

While general compliance with these standards is preliminarily evaluated by the local building department staff, full compliance with specific code sections, such as a flood damage prevention code, is often not assessed until after planning and zoning approvals when a final building permit application is filed. Compliance with the local flood damage prevention code, for example, is mandated in many municipalities by their eligibility in Federal Emergency Management Agency’s (FEMA) National Flood Insurance program. As such, noncompliance discovered after planning and zoning approvals can create extreme issues for the applicant, especially since variances from flood guidelines are rarely granted and re-designing portions of a project can require amended planning and zoning approvals.

Aside from creating additional restrictions on new construction, some municipalities are amending their code to include incentives for incorporating green components. In New Rochelle, for example, an applicant in the Downtown Overlay Zone is eligible for height bonuses equating to additional permitted stories for incorporating additional “meaningful green elements” into their project, such as LEED certification and microgrid.

Conclusion

Aside from a potential expedited approval process or flexibility with zoning requirements, incorporating green elements into your proposal – e.g. permeable pavement, blue roofs, bio-filtration swales, rain gardens, green roofs, green parking and microgrid or renewables – will also result in long term economic benefits including energy savings.

The experienced Land Use & Zoning and Energy & Environmental teams at Cuddy & Feder are available to help you review the local requirements with your design team prior to formalizing a site plan. Incorporating some of these green elements will likely result in a faster approval process for a project that municipal staff and board members are enthusiastic to approve.

GDPR Day

Happy GDPR Day!

Europe’s sweeping privacy law creates opportunities to improve compliance and business practices.

GDPR Day is Here

After a two year grace period, countless articles and presentations analyzing its content and impact, millions spent on compliance and legal consultants, and last minute scrambling, the General Data Protection Regulation (GDPR) is here. Today, a sleepy Friday before the unofficial kick off of summer in the US, EU member countries will begin enforcing the vast privacy law.

The GDPR builds on EU privacy law, dating back more than twenty years, by (among other things) granting specific rights to individuals to control their personal data and by adding some serious teeth to European privacy law in the form of penalties of up to the higher of 4% of a firm’s global annual revenue or €20 ($23.4 million) for violations.

The GDPR is remarkable for its reach, applying not only to firms operating in the EU, but to any business that targets EU customers. Many American firms have been slow to appreciate the law’s impact on them, thinking that they are American company and this is a European law. Not so. For example, an American restaurant, which serves European tourists (and naturally collects data on those EU citizens when taking reservations and recording credit card transactions), must comply with GDPR.

At least in the abstract everyone recognizes the value of data, but many firms, big and small alike, will readily admit that at a minimum they are not efficiently using that data, or worse they do not fully understand what data they have or how to use it at all.

As one would expect with such a disruptive legal requirement, GDPR has caused great angst amongst firms of all sizes in all industries, with many reporting that even as of today, when enforcement of the law commences, they are noncompliant or only partially compliant. But, smaller firms, and particularly smaller firms in the US who serve few European clients (like the aforementioned restaurant), need not sweat too much – at least not yet. EU regulators have consistently stated that early enforcement will focus on what they deem are the biggest risks and biggest violators.

Still, GDPR is here and firms have to comply. But, beyond mere compliance with the law’s specific requirements, GDPR presents an opportunity for firms to improve not only their data collection and management practices, but to reassess how they are using data.

The reaction to GDPR among American firms has been mixed. But, many of the smart ones have noted that they have used today’s impending deadline as a reason to reassess the data they collect, how they store it, and how they use it. At least in the abstract everyone recognizes the value of data, but many firms, big and small alike, will readily admit that at a minimum they are not efficiently using that data, or worse they do not fully understand what data they have or how to use it at all.

GDPR demands that firms map the data they collect and how they use it. This, in turn, should demand that firms look how they can collect, store, and use that data, not just from the legal/compliance lens, but for business purposes as well. Many firms have acknowledged that this is a positive side effect of GDPR.

Such an approach need not be a one off. Compliance and regulatory burdens on small and mid-sized firms are real and despite some of the deregulation push in Washington, they are not going away. Yet, there can be benefits to focusing on compliance, including a push for efficiency and implementation of best practices in sometimes ignored areas. The GDPR provides such an example.

Cuddy Feder White Plains – Westchester Lawyers – White Plains Law Firms

Benefitting from the Suburban Office Leasing Boom

There are numerous articles and studies suggesting that the suburban office leasing market is strong and attracting large-scale and mid-sized tenants away from the traditional urban core. These new suburban tenants are motivated by the desire to attract and retain aging Millennial employees that are settling down in the suburbs, starting families and looking to cut down on commute time. However, research suggests that not just any suburban office building will accomplish this goal. In order for employees to view suburban office spaces as suitable replacement spaces for urban working environments, these spaces must have certain modern characteristics such as, in-building amenities and proximity to restaurants, retail, housing and transit.

A suburban landlord looking to attract tenants traditionally drawn to the urban core may want to focus on developing or rehabbing buildings in areas that contain many of the same benefits as their urban counterparts, such as walkable downtowns with easy access to restaurants, transit and retail. Some landlords not located within walking distance of these types of amenities can offer tenants shuttle services in order to create a similar sense of convenience. A shuttle service to and from nearby transit hubs may also have the benefit of assisting tenants in attracting employees that wish to reside in urban areas by providing these employees with an option to counter-commute.

Tenants looking to personalize their office space may also find landlords more than willing to provide tenant improvement allowances or direct space build outs to help tenants accomplish their goals.

The neighborhood surrounding a suburban office building may play an important role in attracting tenants, but the shared amenities located within an office building are also a key factor. Landlords have been constructing amenities such as eateries, cafés, fitness centers, communal tenant spaces and rooftop lounges to attract new tenants for several years now. These amenities coupled with the conveniences discussed earlier help create the same live-work-play environment that attracts many tenants and employees to urban areas.

Although every community is different, tenants considering a relocation to a suburban area may find that they are able to provide certain coveted benefits and amenities to their employees, while obtaining additional square footage and paying less in rent per square foot. Tenants looking to personalize their office space may also find landlords more than willing to provide tenant improvement allowances or direct space build outs to help tenants accomplish their goals.

Whether you are a landlord looking to attract new tenants or a potential tenant looking to attract and retain cutting edge talent, it is clear that both landlords and tenants have a great deal to gain from the boom in suburban office leasing, and suburban communities within the tri-state area are uniquely poised to benefit from this trend due to their proximity to New York City.

At Cuddy & Feder LLP, we regularly assist both landlord and tenant clients in negotiating office leases.

New Development is Thriving on Beacon’s East Main Street and Along the Fishkill Creek

Have you been to “Brooklyn North,” “Bro-No,” or “Beaclyn” lately? New development is thriving down on Beacon’s East Main Street and along the Fishkill Creek amidst a sea of moratoria.

Much like the signal fires that once burned along the Hudson Highland mountaintops during the Revolutionary War, the City of Beacon has sparked a revolution of its own. Powered by dedicated developers and comprehensive planning efforts and effective leadership by the City, smart growth techniques have led to retail, commercial and hospitality business bustling on Main Street, while years of cleanup and revitalization efforts are now bringing new life to the Fishkill Creek – the same Creek that once drove the City’s rich industrial and manufacturing history.

The City of Beacon was formed from the Villages of Fishkill Landing and Matteawan just over a century ago, before New York City even adopted the first comprehensive zoning ordinance in the United States. Once the hat-making capital of New York, much of Beacon’s historic development preceded the enactment of the City’s incorporation in 1913 and later the development of its own zoning ordinance.

These developments toward the east end of Main Street and along the Fishkill Creek involve a variety of commercial, retail and residential mixed uses, including artist live/work spaces, workforce housing units, condominiums and rental apartments.

With the industrial history apparent in the existing building and development footprint along the Fishkill Creek, the City began by rezoning properties along the Fishkill Creek that were once zoned industrial, creating the “Fishkill Creek Development” zoning district. This district was designed to “[e]ncourage the development and/or redevelopment of undeveloped or underutilized industrial properties along the Fishkill Creek in a manner that provides a mix of residential and nonresidential uses.” 1

In keeping with the goal to revitalize the City, developers have worked to bring new life to former industrially and commercially zoned properties in the City including:

• Matteawan Manufacturing Company, later the H.N. Swift Machine Shop and Braendly Dye Works (now the Roundhouse, 2 East Main Street);
• Schrader Hat Company (now the Lofts at 1 East Main, 1 East Main Street);
• A brick textile mill (now The Lofts at Beacon, 18 Front Street/11-89 Mason Circle);
• Old factories and machines shops (now the Hudson Valley Brewery, 7 East Main Street);
• The Lofts @ Beacon Falls (50, 52, 54 Leonard Street);
• The Beacon Hotel, the oldest continuously operating hotel in beacon (now The Beacon Hotel and The Beacon Hotel Restaurant, 424 Main Street);
• The Beacon Theatre (now the Beacon, 445 Main Street); and
• A former brick factory (now Creek Drive Lofts and Apartments, 9-11 Creek Drive).

These developments toward the east end of Main Street and along the Fishkill Creek involve a variety of commercial, retail and residential mixed uses, including artist live/work spaces, workforce housing units, condominiums and rental apartments. At the same time, new projects proposed along Beacon’s waterfront – located north of the Fishkill Creek’s confluence with the Hudson River – involve conveniently located housing within walking distance to the Metro-North train station, which development both preserves open space and is supportive of the Smart Growth strategy of transit-oriented development. Together, these projects are leading the redevelopment renaissance and breathing new life and linkages into a City that was formed by the waterfront Village of Fishkill Landing and the landward Village of Matteawan.

Obtaining final approvals can sometimes be an intricate process. For example, the Creek Drive Lofts and Apartments required modification of applicable standards from the City Council as well as approvals from the planning board, zoning board and architectural review board. Additionally, such growth is not without its challenges, however, and the City of Beacon recently passed a six (6)-month moratorium on residential and commercial development not already in process to evaluate potential impacts of new development on the city’s water supply.

The City of Beacon is also currently in the process of reviewing the findings and recommendations in the City’s recent Comprehensive Plan Update (adopted in April of 2017) in order to consider how to implement its recommendations for properties along the Fishkill Creek, as well as the east end of Main Street and the downtown area and throughout the City. Such changes must be done in conformance with the City’s Comprehensive Plan. While the City’s Comprehensive Plan encourages new development along the Fishkill Creek and Main Street to incorporate office, retail and residential mixed uses, when combined with zoning requirements for workforce housing, Greenway Trails and other requirements, developers are encouraged to analyze the past before creating the future.

With great opportunity, comes great development responsibility and an understanding of the zoning and comprehensive planning strategies that are employed to lead to a successful development on the Fishkill Creek and along Beacon’s waterfront.