We are happy to announce that three attorneys were selected by The Best Lawyers in America® as recipients of the 2024 “Lawyer of the Year” award in their practice areas. In addition to individual recognition, Best Lawyers also awards "Lawyer of the Year" accolades to individual lawyers who received the highest overall peer-feedback for a specific practice area and geographic region. Only one lawyer is recognized as the "Lawyer of the Year" for a specialty and metropolitan location per edition. The attorneys selected as a 2024 “Lawyer of the Year” and their areas of recognition are: James A. Coniglio – Municipal Law in Geneseo, NY Thomas F. Knab – Litigation – Construction in Buffalo, NY Anna E. Lynch – Elder Law, Rochester, NY Best Lawyers recognitions are based on an exhaustive Purely Peer Review® evaluation. More than 123,000 industry leading lawyers are eligible to vote, and Best Lawyers receives more than 20 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2024 edition of The Best Lawyers in America, more than 13.7 million votes were analyzed, which resulted in more than 76,000 leading lawyers included in the milestone 30th edition.

We are proud to announce that 15 attorneys were recognized in the 2024 edition of The Best Lawyers in America and one attorney was selected to the 2024 edition of Best Lawyers: Ones to Watch in America. The attorneys selected by Best Lawyers and their areas of recognition are: James A. Coniglio* – Municipal Law, Geneseo, NY Patrick L. Cusato – Real Estate Law, Rochester, NY David H. Fitch – Litigation - Health Care; Medical Malpractice Law – Defendants, Rochester, NY Steven R. Gersz – Closely Held Companies and Family Businesses Law; Corporate Law, Rochester, NY Timothy P. Johnson – Real Estate Law, Buffalo, NY Katherine H. Karl – Banking and Finance Law; Commercial Finance Law; Commercial Transactions/UCC Law; Real Estate Law, Rochester, NY Paul F. Keneally – Commercial Litigation; Labor Law – Management; Litigation - Labor and Employment, Rochester, NY Thomas F. Knab* – Commercial Litigation; Litigation – Construction; Litigation – Insurance; Litigation - Labor and Employment, Buffalo, NY Anna E. Lynch* – Corporate Law; Elder Law; Health Care Law, Rochester, NY Colin D. Ramsey – Legal Malpractice Law; Defendants and Litigation – Insurance, Buffalo, NY Edmund J. Russell III – Banking and Finance Law; Corporate Law, Rochester, NY Margaret E. Somerset – Medical Malpractice Law – Defendants, Rochester, NY David M. Tang – Health Care Law; Litigation - Health Care, Rochester, NY George S. Van Nest – Environmental Law, Buffalo, NY Helen A. Zamboni – Corporate Law; Real Estate Law, Rochester, NY *Also awarded 2024 “Lawyer of the Year.” The attorney selected by Best Lawyers: Ones to Watch and his two areas of recognition are: Justin P. Alexander – Banking and Finance Law; Real Estate Law, Rochester, NY Best Lawyers recognitions are based on an exhaustive Purely Peer Review® evaluation. More than 123,000 industry leading lawyers are eligible to vote, and Best Lawyers receives more than 20 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2024 edition of The Best Lawyers in America, more than 13.7 million votes were analyzed, which resulted in more than 76,000 leading lawyers included in the milestone 30th edition.

Congratulations to Joshua B. Beisker for being selected to The Daily Record's 2023 Power 20 Trusts & Estates Law list for the third year in a row. The Power 20 list showcases power players in the Western New York legal community who are recognized as leaders in their area of practice. “The people on this list help clients make sure their wishes are followed and their families’ well-being is protected. These lawyers guide clients through stressful and uncertain times to give them the peace of mind they deserve. And they have done so while navigating ever-changing ways of doing business over the past several years.," stated Ben Jacobs, Associate Publisher and Editor of The Daily Record. Josh serves as Chair of the Firm's Estates & Trusts and Tax Law Practice Groups. He focuses his practice in the areas of complex estate planning and estate administration matters. He also provides counsel to businesses on tax and succession planning, general corporate governance, and achieving tax efficiencies. Josh is a frequent lecturer at numerous organizations including the National Business Institute, universities and other educational institutions, adult education programs, financial planning organizations, alumni groups, and community organizations. He is a member of the Estate Planning Council of Rochester and the Monroe County and New York State Bar Associations.

You will be hard pressed today to find someone who does not have an electronic footprint. Whether it’s email, social media, bank accounts, or simply owning a smartphone, almost every person creates an electronic trail. Knowing that these trails exist is crucial to any comprehensive litigation discovery plan, especially if electronically stored information (“ESI”) is relevant. This article lays out some reminders and warnings when preparing an electronic discovery (“E-discovery”) plan and evaluating the forms of discoverable materials relevant to a case. Preparation of a Case Pursuant to Rule 1.1 of the New York Rules of Professional Conduct, “A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Included within this rule’s comments is a provision that reads: “To maintain the requisite knowledge and skill, a lawyer should … keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.” For attorneys, there is an obligation to be knowledgeable about the technology used by clients, their law firms, and their legal offices, especially in anticipation of litigation. First, it is important to understand one’s obligations when it comes to disclosure. With some exceptions, both the New York Civil Practice Law and Rules and the Federal Rules of Civil Procedure require parties in litigation to disclose any and all nonprivileged matters that are material and necessary to prosecute or defend an action. The test of materiality is one of usefulness and reason, and this rule extends to ESI as well. Second, it is important that you know where to look for matters that are material and necessary to support your client’s claim(s). To achieve this goal, create an outline of questions you plan to pose to your client about their claim(s). The purpose of these questions is to develop your knowledge about potential adverse parties, the custody and location of important documents and materials, the method, content, and timing of communications between relevant parties, the types of technology, if any, used to effectuate those communications, and how said technology works. Although this is not an exhaustive list, it includes most questions that should be answered before filing a lawsuit. Once your questions are composed, schedule a meeting with your client to evaluate the merit of the claim(s). Evaluation of the Merits The courts obligate counsel for all parties to consult prior to a preliminary or compliance conference about various topics, including discovery and any voluntary disclosure the parties agree will aid in early settlement of the matter. As such, understanding your client’s claims and having knowledge about the location of relevant documents, including ESI, in advance of consulting with opposing counsel is crucial. When evaluating your client’s claim(s), you must determine whether metadata should be considered in your analysis. Metadata is relevant to the disclosure of ESI because it can contain the underlying characteristics, origins, and usage of an electronic document. Metadata is important for any action where the following are relevant: (1) location and custody of ESI and (2) file creation and modification dates. As such, when questioning your client about their claim(s), be sure to inquire about the retrieval process governing relevant ESI. For instance, ensure your law firm or legal office has the capability to review the file types produced by your client’s technology. When ESI is retrieved and can be reviewed in its original format, you are better able to see your client’s claim from their perspective and zealously advocate their claim(s) in a tribunal. Once you understand the universe of materials available to your client, identify who controls them, learn where they may be located, and evaluate the discovery devices necessary to access the sought-out information. For example, when questioning your client, you may learn that your client retains a third-party vendor for ESI storage, including emails, text messages, and client files, or you may learn that the adverse party made certain admissions via voice memos, which are stored in Apple’s cloud database. In either scenario, this learned information could be the basis to issue a subpoena to the third-party vendor or to Apple to gain access to desired materials. The Litigation Hold Once the evaluation is complete, you should have a better idea whether litigation will ensue. If you reasonably anticipate litigation, you must issue and oversee the distribution of a written litigation hold notice. If you posed a thorough line of questioning to your client, you should have a list of adverse parties or non-parties who act as the custodian of important materials. These are the people and entities that should be contacted about the possibility of litigation and the requirement to protect and preserve material documents, including ESI and related metadata, from routine disposition. Please be aware that if you fail to issue a litigation hold notice at the proper time, you, your law firm, your legal office, or your client could be subject to sanctions for spoliation of evidence. The Takeaway As the world has grown more connected due to technological advances, the world of electronic discovery, too, has grown, and with this growth has come an increased obligation for attorneys to understand their client’s electronic footprint. Being strategic and purposeful in your preparation and evaluation of a case can make all the difference when the time comes to litigate the matter and engage in discovery. Katherine T. McCarley is an Associate in Underberg & Kessler LLP’s Litigation Practice Group. She focuses her practice in the areas of civil and commercial litigation, defending institutional and small businesses. Katherine can be reached at kmccarley@underbergkessler.com Reprinted with permission from The Daily Record and available as a PDF file here .

We are pleased to announce that Veronica A. Devries and Tyler W. Stark have joined the Firm. Devries is an Associate in the Firm’s Corporate & Business and Municipal Law practice groups. She assists clients with a range of business transactions from simple contract negotiations for individual business owners to complex mergers and acquisitions for private and public companies. Devries earned her B.A., summa cum laude, from the State University of New York at Oswego, and earned her J.D., cum laude, from Syracuse University College of Law. She is a member of the Monroe County Bar Association. Stark is an Associate in the Firm’s Real Estate & Finance practice group where he represents clients in the purchase, sale, and mortgage financing of real property. He negotiates agreements, conducts due diligence, reviews real estate titles, and works closely with clients to ensure all transactions are completed in a timely and efficient manner. Stark earned his B.S. from the State University of New York Brockport, and his J.D. from the University at Buffalo School of Law. He is a member of the Monroe County Bar Association.

U&K is proud to share that our Partner, Joshua B. Beisker, was chosen to be on The Daily Record’s Power 20 Trusts & Estates list! "This list includes lawyers who have spent much of their career working in trusts and estates law. The people on this list help clients make sure their wishes are followed and their families’ well-being is protected. At a time when end-of-life concerns were of even more critical importance than normal, these lawyers guided clients through stressful and uncertain times to give them the peace of mind they deserve. And they did so while navigating new ways of doing business thanks to restrictions that limited or halted face-to-face meetings." - The Daily Record Josh is the Chair of our estates & trust practice group. For more on this recognition, click HERE.

On November 30, 2022, the U.S. House of Representatives passed legislation to avert a nationwide freight rail strike. Following prior negotiations and a tentative agreement that came to fruition in September 2022, rail workers and their companies had until December 9 to finalize the agreement before they pledged to strike. Economic experts and government officials were concerned that a strike so close to the holidays would exacerbate inflation and supply chain issues as rail is still used extensively in this country, and President Biden called on Congress to act. Three days later, on December 2, 2022, the U.S. Senate approved the measure, and President Biden signed the bill the same day. The law now makes a strike illegal. The House also approved a separate measure to add seven days of paid sick leave to the contract (as opposed to one). The Senate, however, did not have enough votes to approve that measure. While labor relations in the private sector are governed by the National Labor Relations Act (NLRA), labor relations in the railroad industry are governed by the Railway Labor Act (RLA). The RLA includes mandatory dispute resolution procedures that preclude strikes over union disputes, while the NLRA allows workers in the private sector to strike. Congressional authority to act under the RLA is derived from the Commerce Clause of the U.S. Constitution, which provides that Congress has the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]” Indeed, in 1917, nearly 10 years before the RLA was passed, the Supreme Court in Wilson v. New determined that that Congressional authority over railway carriers in interstate commerce fell within its power to regulate commerce. Ultimately, if negotiation efforts between railway employees and management wane, Congress may intervene and take action and impose a contractual agreement under which both sides must operate. Since the RLA was enacted in 1926, Congress has acted 18 times in railway labor negotiations and each time the Legislation was passed to prevent a strike. If you have any questions regarding this article, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ericka Elliott, the author of this piece, here or at (585) 258-2830.

Upstate NY Landlords Continue the Fight Against NY’s Eviction Moratorium On November 8, 2021, thirty-seven (37) Erie County landlords filed a lawsuit in New York Supreme Court (David Arakelian, et al v. Lawrence K. Marks) alleging that the state’s ongoing residential eviction moratorium is unconstitutional. The lawsuit centers around the argument that New York’s anti-eviction laws violate due process rights by depriving landlords of the meaningful opportunity to challenge or verify the hardship declarations of tenants and marks the latest challenge against the state’s eviction moratorium. In response to the continued economic and societal disruption caused by the COVID-19 pandemic, New York State enacted COVID-19 Emergency Eviction and Foreclosure Prevention Act (“CEEFPA”) to provide continued aid to the thousands of New York State homeowners and tenants experiencing pandemic-related hardships. Under CEEFPA, tenants were able to stay the enforcement of any residential or commercial evictions by submitting a Tenant Hardship Declaration Form indicating that (i) they were experiencing COVID-19-related financial hardship or (ii) moving would pose a significant health risk because of a high-risk household member. Through multiple extensions, CEEFPA was set to protect tenants experiencing such a hardship from the threat of eviction through August 31, 2021. However, prior to its expiration/subsequent extension, the United States Supreme Court invalidated part of CEEFPA on August 12, 2021 by ruling that the law denied landlords their constitutional right to a hearing to challenge the Tenant Hardship Declaration Form. (See Chrysafis v. Marks, 141 S. Ct. 2482, 2482 (2021)). In so doing, the Supreme Court indicated that the law’s violation of the Due Process Clause directly contravened with “the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case.’” Id. In response to the Supreme Court’s ruling, the New York State Legislature quickly passed New York Laws Chapter 417 (State Senate Bill S50001), Part C, Subpart A (the “Act”) on September 2, 2021. The Act extended the state’s eviction moratorium through January 15, 2022, and in an attempt to remedy the due process issues of its prior iteration, permitted landlords to request hearings to challenge the Tenant Hardship Declaration Forms. To make such a challenge, however, a landlord must swear ‘under penalty of perjury' that they have a ‘good faith belief' that the tenant is not experiencing the claimed health- or financial hardship. In their current suit, the Erie County landlords claim that the Legislature’s purported fix to the law is “illusory”, as “[l]andlords almost never have access to the information necessary to make such an averment.” As such, plaintiffs claim that despite the changes implemented by the Act they are still generally precluded “from entering court to seek a judicial determination of the validity of a hardship claim in violation of the Due Process Clause.” They also argue that the Act’s extension of the moratorium is untimely as “the circumstances of concern during the early stages of the coronavirus pandemic that led to the initial moratorium were no longer present.” Whether or not the landlord’s arguments will hold any weight in the New York Supreme Court is yet to be seen. However, it is clear that landlords across the state are growing increasingly frustrated by the moratorium and will continue to look for ways to challenge it. If you have any questions regarding the issues discussed above or if you have any other questions related to Real Estate Law, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Andrew M. Washburn, the author of this piece, here or at (585) 258-2885.

We were pleased to present at the Mortgage Bankers Association 2023 Economic Forecast Forum held earlier this month with over 400 real estate agents, mortgage lenders, homebuilders, and others in attendance. Our Firm’s Andrew M. Washburn, Associate in our Real Estate & Finance Practice Group, shared insights on New York’s Climate Act, the Scoping Plan, and the impact on the future of gas appliances. If you or your organization would like additional information on these topics and more, don’t hesitate to contact Andrew.

Andrew M. Washburn has joined Underberg & Kessler LLP as an associate in the real estate practice group. He was formerly an associate with Adelman Matz P.C. in Manhattan serving as a corporate and entertainment law attorney, assisting on transactional-based matters. Andrew also served as an intern at the Monroe County District Attorney’s Office. As an outstanding student at Fordham University, he was a Notes and Articles Editor for Fordham Law’s Intellectual Property, Media & Entertainment Law Journal and a Communications Editor for the Fordham Sports Law Forum. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Twelve attorneys from the law firm of Underberg & Kessler LLP were recently named as 2022 Upstate New York “Super Lawyers” and four additional attorneys were recognized as “Rising Stars.” This honor is awarded to attorneys who have attained a high degree of peer recognition and professional achievement in their practice areas: Jim Coniglio – Government Finance Pat Cusato - Real Estate Steve Gersz – Businesses & Corporate Kate Karl – Banking Paul Keneally – Employment & Labor Tom Knab – Business Litigation Anna Lynch – Health Care Colin Ramsey - Health Care Jennifer Shoemaker – Family Law Margaret Somerset – PI Medical Malpractice: Defense David Tang - Creditor Debtor Rights George Van Nest - Environmental The following Underberg & Kessler attorneys recognized as “Rising Stars” are attorneys who are 40 or younger or who have been practicing for 10 years or less: Leah Tarantino Cintineo - Family Law Justin Alexander - Real Estate Serena Compitello - Banking Aaron Griffin - Business Litigation

We are pleased to announce that Ryan T. Biesenbach, associate attorney in the Labor & Employment and Litigation Practice Groups, has been appointed to serve on the Board of Directors of Literacy Rochester. Founded in 1964, Literacy Rochester’s mission is to improve reading, mathematics, English language, and digital literacy skills of adults. They provide one-on-one tutoring, small group instruction, family literacy programs, adult basic computer skills training, and English conversation skills classes. Ryan advises clients on all aspects of labor and employment law, including the development of effective employment policies, discrimination and harassment claims, wage and hour issues, employee benefits claims, and ensuring compliance with state and federal labor laws. Ryan additionally has experience in all stages of litigation, from intake to resolution in federal and New York State courts, tribunals, and agencies. He earned his B.A. from the State University of New York at Fredonia, his M.A. from Wake Forest University, and his J.D. from the Maurice A. Deane School of Law at Hofstra University. Ryan is a member of the Society for Human Resource Management and the Monroe County Bar Association.